REINHARDT, Circuit Judge:
In this case we consider a capital habeas corpus petition filed prior to the effective date of the Antiterrorism and Effective Death Penalty Act (AEDPA) and thus governed by pre-AEDPA law. Petitioner Richard Louis Arnold Phillips appeals the district court's denial of his habeas corpus petition on three grounds. First, he contends that the district court's procedural rulings improperly denied him a full evidentiary hearing. Second, he asserts that his trial counsel provided constitutionally ineffective assistance under the Sixth Amendment by allowing him to proceed with a manifestly unconvincing alibi defense without first investigating any alternative defenses. Third, he argues that the prosecution's failure to reveal that a key prosecution witness received significant benefits in exchange for her testimony after the witness falsely testified she had been promised no such benefits, coupled with the prosecutor's false representation to the jury that there was no agreement promising such benefits, violated his due process rights. We conclude that the district court did not err in its rulings governing the evidentiary hearing below, and we affirm its denial of Phillips's ineffective assistance of counsel claim.
With respect to Phillips's due process claim, we conclude, first, that, although the prosecution engaged in a deceptive ruse that this court has described as "a pernicious scheme without any redeeming features," Hayes v. Brown, 399 F.3d 972, 981 (9th Cir.2005) (en banc) (quoting Willhoite v. Vasquez, 921 F.2d 247, 251 (9th Cir. 1990) (Trott, J., concurring)), the evidence withheld from Phillips and misrepresented to the jury was not material to Phillips's convictions for attempted and first-degree murder, nor to his convictions for robbery, and we accordingly affirm these convictions. We hold, however, that the prosecution violated Phillips's due process rights by depriving him of, and willfully misleading the jury as to, critical evidence that was material to the special circumstance finding that the murder was committed during the course of a robbery (rather than vice versa). We therefore vacate the jury's special circumstance finding that rendered Phillips death-eligible, and, accordingly, Phillips's death sentence.
In September of 1977, Phillips met Ronald Rose and Bruce Bartulis, two partners
On the first or second day of November 1977, Phillips asked Rose and Bartulis if they wanted to invest in a cocaine deal with him. Under the deal as Phillips described it, Rose and Bartulis would contribute $25,000 to purchase cocaine that would be smuggled into the United States from Peru, and would receive a five-fold return on their investment. Rose and Bartulis agreed to the illegal investment and provided Phillips with $10,000 on November 2, 1977, with the $15,000 balance to be provided at a later date. Over subsequent weeks, Phillips inquired regarding the remaining balance multiple times. Approximately three to four weeks after the first payment, Rose provided Phillips with an additional $1,500. Rose explained to Phillips that he and Bartulis had intended to finance the transaction using funds derived from their contracting business, and that the business had encountered financial difficulties. Rose at one point suggested that Phillips either use only the $11,500 already provided to finance Rose and Bartulis's share of the cocaine deal or return the money, and Phillips agreed to use the funds he had already received.
During the course of these discussions it emerged that Rose and Bartulis were having difficulty obtaining insulation for various construction projects. In late November or early December 1977, Phillips informed Rose that he was capable of acquiring stolen insulation and offered to arrange a sale of such material. Rose and Bartulis accepted Phillips's offer. According to Rose's testimony at Phillips's trial, Phillips told Rose "that his brother was a part of this deal," that the insulation was stored in a warehouse in Fresno, and that Rose and Bartulis would have to receive the insulation there.
Shortly thereafter, on December 7, Phillips informed Rose and Bartulis of the arrangements for the insulation transaction. Phillips told the two men to meet him that evening at a prearranged location in Fresno, a city in central California approximately four hours north of Newport Beach. From that location, they would drive to a second rendezvous point to meet Phillips's insulation source. That day, prior to leaving Newport Beach, Rose executed a notarized promissory note in the amount of $25,000 that he tendered to Phillips. Rose believed the note to be secured by property he owned, although he never signed the accompanying deed of trust. Of the $25,000 sum covered by the note, $13,500 constituted the balance on the cocaine deal and the remainder was intended as a down payment on a portion of the stolen insulation. Rose and Bartulis were unsure as to the total quantity of insulation they would ultimately purchase from Phillips's source, and Phillips therefore instructed them to bring as much additional cash to the meeting as possible.
After Rose gave Phillips the promissory note, they parted ways with plans to meet that evening in Fresno. Rose and Bartulis drove to Fresno in a two-door Ford Ranchero truck purchased by Rose for the construction firm and regularly used by Bartulis. In accordance with Phillips's suggestion that he bring extra cash, Rose carried with him to Fresno between $3,500 and $5,000 in $100 bills inside the left breast pocket of his jacket. Rose also brought a .44 magnum pistol.
Phillips flew to Sacramento, where his mother lived, intending to borrow his
From the Fresno airport, Phillips and Colman drove to meet Rose and Bartulis at a gas station. The four proceeded from there in two separate vehicles to Chowchilla, a town approximately thirty-five miles north of Fresno along Highway 99. Phillips and Colman led the way; Bartulis and Rose followed. Along the way, both cars stopped at a second gas station so that Phillips could use the restroom. Returning to his car from the restroom, Phillips stopped to talk to Rose, from whom he requested a pack of matches. Both cars then continued north on Highway 99.
Sometime after midnight, both cars pulled off the highway in Chowchilla and parked in a vacant lot. The lot was in a deserted area, with no buildings nearby. The vehicles parked alongside one another, with Phillips's car to the left so that the passenger door of his car was in line with and a few feet from the driver-side door of the Ranchero. Phillips sat in the driver's seat of his car with Colman in the passenger seat; in the adjacent Ranchero, Bartulis sat in the driver's seat, with Rose in the passenger seat.
According to Colman, Phillips got out of his car and went to talk to Rose and Bartulis for a period of time through the driver-side window of the Ranchero before reentering his car through the passenger side, asking Colman to slide over. Colman testified that at some point approximately thirty to forty-five minutes after their arrival at the lot—after Rose and Bartulis had each finished some beers and smoked a marijuana cigarette—Phillips again exited his car and went to talk to Rose and Bartulis, leaning into the Ranchero's open driver-side window. Rose, however, stated that Phillips came and spoke to him and Bartulis through the driver-side window only once, and that the conversation occurred within five minutes, not thirty to forty-five minutes, of their arrival at the vacant lot.
This discrepancy as to timing aside, both Colman and Rose agree that, at some point after arriving at their destination, Phillips was leaning into the Ranchero's driver-side window talking to Rose and Bartulis when he fired six shots at the two men using his .45 automatic pistol. Colman saw the shots being fired from the gun in Phillips's left hand. Rose did not see the shots being fired, but he heard the shots come from his left. Rose was hit five times, with one bullet grazing his skull, another piercing his arm, and the remaining three entering his abdomen. Bartulis was shot a single time through his heart and died almost instantly.
Immediately after the shooting ceased, Phillips hit Bartulis on the head with the end of his gun, reached through the Ranchero's window and, without opening the truck door, pulled Bartulis's wallet out of the truck. He then walked to Rose's side of the vehicle and removed Rose's wallet and a handgun. Phillips returned to his car and handed both wallets, as well as his and Rose's handguns, to Colman. In addition to Rose and Bartulis's identifications, the two wallets contained a total of between $120 and $150. Phillips did not remove from the Ranchero approximately $162 from Rose's pants pocket, nor did he
Upon being lit on fire, Rose (who had been shot five times) jumped out of the now burning Ranchero, and removed his flaming jacket. He was unable to remove the rest of his burning clothing and began to run around in pain. Phillips, upon seeing that Rose was still alive, drove toward him and hit him with his mother's car, cracking the windshield. Phillips and Colman then drove back to Phillips's mother's house in Sacramento.
Shortly after Phillips and Colman left the scene, Madera County Sheriffs discovered Rose (who was remarkably still alive), extinguished his burning clothing, and transported him to the hospital, where he underwent surgery followed by three months of burn treatment and rehabilitation. The deputies also found Rose's smoldering jacket, which still contained the packet of $100 bills that Rose had carried with him from Newport Beach.
The morning after the shootings, Phillips took his mother's car to a shop to have the cracked windshield repaired. Within a week, Rose was able to communicate to the Madera sheriffs the names of the people who accompanied him to the vacant lot. Arrest warrants for Phillips and Colman were issued on December 14th. Upon learning of the warrants, Colman and Phillips drove in a Corvette borrowed from Phillips's brother-in-law to Salt Lake City, where Phillips got a job and assumed a false identity. Colman stayed with Phillips in Utah for one or two weeks and then returned to Sacramento in the Corvette. Shortly thereafter she turned herself in to the Madera County Sheriff's Department.
Colman was taken into custody and was appointed counsel on December 27, 1977, three weeks after the shooting. The next day, December 28, Colman and her counsel met with the lead investigating officers from the Madera sheriff's department and with the district attorney, David Minier. During that meeting, Colman gave a detailed account of the shooting and the events leading up to it. Notably, during this hour-long interview, Colman did not indicate that Phillips had searched Rose for any length of time, nor did she say that he mentioned being unable to find the money that Rose had brought with him, or that he was disappointed by the absence of cash. To the contrary, she stated that on the ride back from Chowchilla Phillips disclosed to her his motive for the murder. That motive, according to Colman, was not robbery but a desire to eliminate Rose and Bartulis because he was concerned that they were setting him up, that they would double-cross him, and that they knew "too much about where the coke was coming from." In a subsequent interview with police on January 4, 1978, Colman changed her story on these points completely, now stating that Phillips complained after he returned to the car that he was disappointed not to have found Rose's money. She adhered to and indeed embellished upon the latter version of her story at trial, testifying that Phillips had spent "a lot longer" searching Rose than he had spent searching Bartulis, that upon returning to the car Phillips stated "that he couldn't find the money that [Rose] had on him," and that during the drive to Sacramento Phillips repeatedly expressed frustration that he had been unable to find the cash brought by Rose. Although Colman was at the time of her second police interview subject to the same capital charges as
Once she was released from pre-trial custody, Colman moved back in with Richard Graybill, her former boyfriend. On March 13, 1978, just a few weeks after her release, Colman and Graybill were arrested for selling heroin to an undercover Fresno police officer. After the Madera County Sheriff's Department made multiple calls to the Fresno police department on Colman's behalf requesting that charges against her not be pursued because she was an important witness in a homicide investigation, the charges against her were dropped.
With the assistance of Graybill, the Madera sheriffs and the FBI located Phillips in Salt Lake City. Phillips was arrested and was eventually extradited to California to face prosecution. He was charged with the first degree murder of Bruce Bartulis, the attempted murder of Ronald Rose, and the robbery of both Bartulis and Rose. The prosecution also alleged as a special circumstance that the murder was committed in furtherance of a robbery. An affirmative jury finding with respect to the special circumstance was a necessary precondition to the holding of a capital sentencing proceeding and imposition of the death penalty. Phillips's trial began in January of 1980.
The prosecution's theory at trial was that Phillips conned Rose and Bartulis from the start in order to rob them. Minier, the Madera County District Attorney who prosecuted Phillips, argued that he never had any intention to import cocaine and there never was any stolen insulation, but rather Phillips had used the promised deals as ruses in order to steal tens of thousands of dollars from Rose and Bartulis before attempting to murder them and steal more. The prosecution argued that on December 7, the night of the shooting, Phillips lured the two men to the remote lot in Chowchilla with the intention of killing them, stealing the cash they brought with them to the meeting, and keeping the money that he had already received from them without ever having to produce a profit on the non-existent cocaine deal.
To support this theory, the prosecution highlighted a number of facts, drawn almost exclusively from the testimony of Rose and Colman, to show the careful planning that went into the killings. As evidence of that planning, the prosecutor argued that Phillips sought to manufacture an alibi by flying to his mother's house in Sacramento prior to driving to Fresno, rather than simply flying to Fresno directly as Colman did. As further evidence of premeditation, the prosecutor emphasized that, prior to meeting up with Rose and Bartulis, Phillips put a gasoline can in the trunk of his mother's car,
The prosecutor likewise underscored evidence indicating that Phillips acted in a particularly methodical and cold-blooded manner. For example, he argued that Phillips sought to cover his tracks, not only
In addition to emphasizing facts suggesting premeditation and extensive advanced planning, the prosecutor highlighted evidence supporting the contention that Phillips's cocaine and insulation scheme was a ruse orchestrated to steal money from Rose and Bartulis. He emphasized that Phillips told Rose and Bartulis that the stolen insulation was going to be supplied by his brother even though Phillips does not have a brother.
Phillips's primary defense at trial was that he was not at the crime scene at all. This alibi rested almost exclusively on Phillips's own testimony. Phillips took the stand and testified that on the night of the shooting he was at an illicit business meeting at a disco. He claimed that he had helped set up the insulation deal, but that the deal itself was attended only by Rose, Bartulis, and Graybill (who was to supply the insulation). He further claimed that the real killers were Colman and Graybill, to whom he had loaned his mother's car on the night of the shooting. Phillips testified that Graybill returned to Phillips's mother's house at approximately 4:30 a.m. the morning of the shooting and that the windshield of the car was smashed. Finally, Phillips claimed that at some point he decided to take the fall for Graybill, thinking that he could plead guilty to second degree murder and thereby keep his longtime friend out of prison. Phillips did not offer a single witness to corroborate his alibi, and, when pressed for any details or specifics supporting it, such as the names of the people at his supposed meeting, he refused to respond, opting instead to plead the Fifth Amendment or asserting that if he gave any details regarding his criminal associates he "wouldn't be alive."
Phillips's attorney, Paul Martin, emphasized two arguments in addition to Phillips's improbable alibi. First, Martin repeatedly highlighted evidence suggesting that Bartulis's murder did not occur during the course of a robbery, stating in his closing argument, for example, that,
Later in his argument, Martin noted, regarding Phillips's failure to find the cash stashed in Rose's jacket pocket, that "[i]t's hard to miss a wad the size of a cigarette package in the upper breast pocket. If the pocket has something in it the size of a package of cigarettes, it's not easily missed if someone is a cool criminal."
Colman, however, flatly denied having received any beneficial treatment in exchange for her testimony, and stated only, "I'm expecting that they would take into consideration that I am willing to cooperate." Colman further stated, "My attorney has advised me to testify and to put my confidence in my attorney," explaining, "She asked me if I had confidence in her, and if I had confidence in her that—to go under her advisement, and that her advisement was to testify." In his closing statement, the prosecutor, Minier, reaffirmed Colman's denial that she had been promised any benefits, emphasizing that she had testified "she has never been promised anything for her testimony in this case," and that any efforts by the defense to insinuate she had received a deal were "sheer fabrication, just pulled out of the air, totally meaningless."
The jury convicted Phillips on all counts, including the first-degree murder of Bartulis, and found the special circumstance of murder during the commission of a robbery to be true. At the subsequent penalty phase of the trial, Phillips was sentenced to death.
Phillips appealed his conviction and sentence directly to the California Supreme Court. See People v. Phillips, 41 Cal.3d 29, 222 Cal.Rptr. 127, 711 P.2d 423 (1985). Five years after the appeal was filed, the court affirmed Phillips's conviction but reversed his death sentence. The case was remanded for a new penalty phase trial. Id., 222 Cal.Rptr. 127, 711 P.2d at 459. While he awaited a penalty phase retrial, Phillips filed a state habeas corpus petition making the claim, among others, that the trial prosecutor, Minier, had offered a plea deal to Colman's attorneys with the proviso that the deal not be communicated to Colman herself and that the deal was, in fact, communicated to Colman. Phillips argued that Minier violated his obligations under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) by failing to disclose the benefits that Colman received in exchange for her testimony, and violated Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959) by failing to correct Colman's false testimony regarding those benefits. The state court denied Phillips's Brady/Napue claim for failure to demonstrate materiality.
In October 1991, Phillips received a penalty phase retrial, and was again sentenced to death. On March 4, 1992, he filed this federal habeas petition in the district court, advancing his Brady/Napue claims and a claim of ineffective assistance of counsel, among others. The district court declined to entertain Phillips's petition because his appeal from his penalty retrial
On remand, the district court scheduled a three-day evidentiary hearing to begin on November 6, 2002. The date was later continued to December 4, 2002, and then to February 4, 2003. On October 15, 2002, Phillips moved to be rehoused in the Madera County jail to better assist his counsel in preparing for the hearing.
On December 30, 2002, the district court issued an order stating: "After careful consideration, it is ORDERED that depositions in lieu of testimony be taken of David Minier, Paul Martin, Ron Rose, Sharon Colman, Tom Peterson, and Casandra Dunn." Neither party objected to the order.
Depositions were conducted between January 6th and January 13th, 2003. On January 16, 2003, Phillips filed a motion for a temporary protective order to prevent his deposition from being taken. On January 21, 2003, the district court denied his request, finding no basis for the protective order. The court then ruled, apparently acting sua sponte, that "all evidence in the upcoming evidentiary hearing will be presented by deposition ... and the evidentiary hearing set to begin February 4, 2003[is] vacated." The district judge asserted that this ruling was "[b]ased on prior agreement of the parties."
On October 21, 2003, Phillips filed a motion requesting permission to file supplemental exhibits. Phillips then filed a motion on November 5, 2003, asking the district court to reconsider its order vacating the evidentiary hearing. The district court refused to reconsider its order, stating that, "[b]ased on prior representations by both parties, no witnesses remained to testify at a hearing, so written argument was determined to be more effective than oral argument and more effective than oral argument and briefs." In that same order, the court refused Phillips's request to file supplemental exhibits, holding that the documents were "untimely" and, in any event, were either duplicative or irrelevant. On February 20, 2004, the district court denied Phillips's guilt-phase claims, ruling on the merits that Phillips had not been prejudiced by any violations that occurred with respect to either his ineffective assistance of counsel claim or his Brady/Napue claims.
Because Phillips filed his federal habeas petition before the effective date of
Phillips claims that, in conducting the evidentiary hearing below, the district court abused it discretion by: (1) refusing to order Phillips transferred from death row in San Quentin to the Madera County jail; (2) canceling the live hearing scheduled for February 4, 2003; and (3) refusing to accept his "Supplemental Guilt Exhibits." We now address each contention.
Although Phillips presented several compelling reasons to justify his transfer from San Quentin to Madera, the district court did not abuse its discretion in denying this motion. A prisoner has no right to be housed in a particular institution. Rizzo v. Dawson, 778 F.2d 527, 530 (9th Cir.1985); see also Meachum v. Fano, 427 U.S. 215, 224, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976). Moreover, as Phillips acknowledged in his motion for relocation, the power to order a prisoner transferred is to "be exercised at the sound discretion of the court." The district court's holding that the risks and costs of relocation so outweighed the inconvenience suffered by Phillips's defense team does not constitute a "clear error of judgment," as is required to find an abuse of discretion. See SEC v. Coldicutt, 258 F.3d 939, 941 (9th Cir.2001).
Applying pre-AEDPA law, we conclude that the district court's decision to limit the evidentiary hearing to written evidence likewise did not constitute reversible error. This court has held that such a decision is within the district court's discretion. Williams v. Woodford, 306 F.3d 665, 688 (9th Cir.2002) ("[A] district court in a habeas proceeding `need not conduct full evidentiary hearings,' but may instead `expand the record ... with discovery and documentary evidence.'") (quoting Watts v. United States, 841 F.2d 275, 277 (9th Cir.1988) (per curiam)). Because, as the district court observed, "no witnesses remained to testify at [the] hearing" who had not already been deposed, avoiding the time and expense of the live hearing was a legitimate reason to vacate the earlier order. See Chang v. United States, 250 F.3d 79, 86 (2d Cir.2001) ("[A district court] may avoid the necessity of an expensive and time consuming evidentiary hearing in every [federal habeas] case. It may instead be perfectly appropriate, depending upon the nature of the allegations, for the district court to proceed by requiring that the record be expanded to include letters, documentary evidence, and ... even affidavits.") (quoting Raines v. United States, 423 F.2d 526, 529-30 (4th Cir.1970)). Although Phillips argues that he was prejudiced by this ruling because had he known there would be no hearing he would have conducted his depositions differently, he had notice by at least December 30, 2002, that depositions would be used in lieu of live testimony for all witnesses, save one,
Finally, the district court did not abuse its discretion by refusing to admit Phillips's supplemental exhibits. The district court, in an order filed on January 21, 2003, set a clear briefing schedule for its decision on the merits of Phillips's habeas petition: Phillips's opening brief and supporting documentation were due on January 31, 2003, and his reply was due on February 14, 2003. In a previous order, the court had ruled that the deadline for the end of discovery was January 15, 2003. Phillips attempted to file his supplemental exhibits on October 21, 2003, over eight months after the deadline for post-deposition filings and discovery had passed. All of the documents Phillips sought to introduce existed prior to 1991. Phillips argued to the district court that the delay was due to the disarray of his former attorney's files, but "[g]iven the discretion of the district court to `control proceedings before it,' the district court did not abuse its discretion in finding that [the] motion... came too late in the proceedings." United States v. Alisal Water Corp., 370 F.3d 915, 922 (9th Cir.2004) (quoting United States v. Oregon, 913 F.2d 576, 588 (9th Cir.1990)).
Phillips's ineffective assistance claim is straightforward: "[he] contends that his trial counsel, Paul Martin, rendered ineffective assistance by presenting [a] patently meritless alibi defense to the jury without investigating any other defenses—notably, the defense that Bartulis was killed during a shoot-out" between Phillips and Rose. Phillips, 267 F.3d at 976.
In our 2001 opinion reversing the district court's denial of an evidentiary hearing, we held that "Phillips's defense counsel did not reasonably select the alibi defense used at trial. In this case,... the defense used at trial was not selected on the basis of a reasonable investigation or strategic decision." Id. at 980. Martin's performance in this case was, indeed, questionable. Without investigating any alternative defenses, Martin allowed his client, who was charged with capital murder, to present an improbable alibi defense despite the fact that his client was unwilling to divulge, as part of that defense, exactly where he was or what he was doing at the time of the murder. What is more, Martin apparently committed to the alibi defense based upon his questionable conclusion that he was ethically prohibited from investigating a shoot-out theory once Phillips, in his very first discussion with him about the facts of the case, said he was not at the scene of the crime.
However, after we issued our opinion holding that Martin performed deficiently when he failed to investigate alternatives to Phillips's alibi defense, the Supreme Court held that the Sixth Amendment does not impose a strict "constitutional duty to investigate" upon attorneys working in capital cases. Cullen v. Pinholster,___ U.S. ___, 131 S.Ct. 1388, 1406-07, 179 L.Ed.2d 557 (2011). In so doing, it relied on "the constitutionally protected independence of counsel and ... the wide latitude counsel must have in making tactical decisions," id. at 1406 (quoting Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052,
Here, although Martin's strategic decision to proceed with an alibi defense was highly questionable at best, the record suggests that Martin did attempt to explain to Phillips that alibi defenses generally are not feasible when the defendant refuses to account for his whereabouts at the time of the crime. Moreover, Martin's investigation did yield a witness whose testimony provided modest support for Phillips's alibi defense: the proprietor of a business not far from the scene of the crime testified that the morning after the shootings, an individual other than Phillips loitered in his establishment brandishing a.45 automatic weapon of the sort used in the shootings, and that the individual's car had multiple bullet holes in it. In short, Martin attempted to confront his client with the shortcomings of his alibi defense and, remarkably, found a witness whose testimony tended to corroborate that defense. Although Martin's decision to pursue the defense at trial was most assuredly ill-advised, we cannot, in light of Pinholster, maintain our conclusion that his decision to pursue the strategy urged by his client did not fall within the "wide latitude counsel must have in making tactical decisions." 131 S.Ct. at 1406. Accordingly, in light of the Supreme Court's intervening decision, we are compelled to overrule our 2001 holding that Martin's performance at Phillips's trial was constitutionally ineffective, and to now hold that his shortcomings were not such as to overcome the "strong presumption that counsel made all significant decisions in the exercise of reasonable professional judgment." Id. at 1407.
It is a fundamental principle of the American criminal justice system that "deliberate deception of a court and jurors by the presentation of known false evidence is incompatible with [the] rudimentary demands of justice." Giglio v. United States, 405 U.S. 150, 153, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) (internal quotation marks omitted). When the government obtains a criminal conviction and deprives an individual of his life or liberty on the basis of evidence that it knows to be false, it subverts its fundamental obligation, embodied in the Due Process Clauses of the Fifth and Fourteenth Amendments, to provide every criminal defendant with a fair and impartial trial. The Supreme Court has accordingly held that the government may not knowingly suppress evidence that is exculpatory or capable of impeaching government witnesses. See Banks v. Dretke, 540 U.S. 668, 691, 124 S.Ct. 1256, 157 L.Ed.2d 1166 (2004) (discussing Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)). Similarly, it has held that the government is obligated to correct any evidence introduced at trial that it knows to be false, regardless of whether or not the evidence was solicited by it. See Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); Alcorta v. Texas, 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9 (1957); Pyle v. Kansas, 317 U.S. 213, 63 S.Ct. 177, 87 L.Ed. 214 (1942).
In this case, the state went to elaborate lengths to suggest to the jury that Colman, whose testimony was critical to securing a finding that Phillips murdered Bartulis during the commission of a robbery, had received no benefits in exchange for her testimony, when in fact her attorney had entered into an agreement on her behalf that would allow her to escape prosecution on capital murder charges, and all other charges related to the offenses allegedly committed by her and Phillips, in exchange for her testifying against him. Moreover, in furtherance of that agreement, Colman had testified against Phillips in reliance on her attorney's recommendation that she do so. She also, as a result of the Sheriff's Department's intervention on her behalf regarding a major drug trafficking offense she committed while on bail, was allowed to escape prosecution for that crime.
At trial, Colman responded to questions from Phillips's defense attorney Paul Martin by denying that she had been promised lenient treatment in exchange for her testimony:
Minier, the prosecutor who entered into the immunity agreement on behalf of the state, emphasized Colman's testimony to the jury in his closing argument:
Likewise, in his rebuttal closing Minier told the jury:
Over the course of his habeas proceedings Phillips has established that, contrary to her testimony and Minier's statements, Colman was offered and received significant benefits from the state in exchange for testifying as she did. Phillips points to substantial, possibly life-saving benefits that Colman received in exchange for her testimony, and claims that the prosecution's failure to disclose these benefits or correct Colman's statements that she expected no such benefits, and perhaps even more important Minier's deliberate efforts to mislead the jury and the court as to the existence of an immunity agreement, violated
The principal undisclosed benefit that Colman received for her testimony flowed from an immunity agreement struck between Minier and her trial lawyer, Cassandra Dunn, on Colman's behalf. This agreement was reached after Dunn replaced Colman's first lawyer, Tom Peterson.
Hayes v. Brown, 399 F.3d 972 (9th Cir. 2005) (en banc) controls this case. It compels us to hold that the prosecution's failure to disclose the existence of the agreement to dismiss the charges against Colman, and to correct her and Minier's
Id. at 981.
Minier's effort to "insulate" Colman from her own immunity agreement was a deliberate effort to deceive the jury—a ruse that flagrantly violated basic due process principles. As in Hayes, Colman's denial that she expected to receive benefits for testifying carried with it a necessarily implied falsehood: it created the impression that she was not the beneficiary of any sort of deal. Id. at 981, 983; see also Alcorta, 355 U.S. at 31, 78 S.Ct. 103 (holding that a habeas petitioner had been denied due process of law when a prosecutor allowed a witness to give the jury a "false impression" of his relationship with the petitioner's wife). In fact, there was a deal, one that would allow her to escape prosecution entirely after having confessed in open court to being an accomplice to capital murder. This deal was not only not disclosed to the defense,
In Hayes we made clear in no uncertain terms that the practice of "insulating" a witness from her own immunity agreement so that she can profess ignorance of the benefits provided in exchange for her testimony is an egregious violation of the prosecution's obligations under Napue. We explained that:
Hayes, 399 F.3d at 981 (internal citation omitted). We concluded such deception violates Napue because, regardless of whether or not the prosecution's offer is communicated to the witness prior to her testimony, the practice poses "the distinct risk that, in preparing [a witness] for his testimony ... counsel—who did know about the deal—might have influenced the content of that testimony, deliberately or not." Id. at 981 n. 1. Here, Dunn's advice to Colman almost certainly conveyed the implicit message that she would be treated favorably by the prosecution if she testified, and may well have led her to testify in a manner she believed would satisfy the prosecution's wishes: only an expectation on Colman's part that she would receive treatment similar to or more favorable than that embodied in the earlier offer of a one year term
Viewed in the most favorable light to the prosecution, Minier's deplorable tactic allowed Colman to falsely deny having received any promise of beneficial treatment in exchange for her testimony without knowing that her testimony was false. It resulted in Minier arguing to the jury in the most unequivocal terms (albeit in terms designed to deliberately mislead the jury and the court) that Colman had received no leniency or other promise of benefits in exchange for her testimony, emphasizing that "[s]he testified ... that she has never been promised anything for her testimony in this case," and that any attempts by the defense to intimate that an agreement existed were "sheer fabrication, just pulled out of the air, totally meaningless." In this respect, the prosecution's misconduct went even beyond that which this court held to be reprehensible in Hayes, where the prosecution vouched for the truthfulness of its key witness but did not directly deny to the jury that a deal had been reached granting him immunity from all pending charges. See id. at 980.
Minier not only failed to disclose the agreement reached with Colman's counsel, thus contravening Brady, but even more significant, he violated Napue by allowing Colman to falsely testify that no such deal existed, failing to correct that false testimony, and then wilfully, deliberately and unequivocally falsely representing to the jury in his closing argument that Colman had "never been promised anything for her testimony in this case." In doing so, Minier violated his fundamental obligation to ensure that convictions be obtained in a manner compatible with the "rudimentary demands of justice." Giglio, 405 U.S. at 153, 92 S.Ct. 763.
Next, Phillips established through depositions before the district court that, within weeks of her release on bail in 1978, Colman was arrested for participating in the sale of heroin to an undercover Fresno police officer, and that the Madera County Sheriff's Department subsequently made multiple calls to the Fresno police department on Colman's behalf advising it that she was an important cooperating witness in a homicide investigation and requesting that charges against her not be pursued. Ultimately no charges against Colman were filed.
That the police officers investigating the Phillips case interceded on Colman's behalf multiple times with respect to an unrelated felony offense was a tangible benefit to Colman in consideration for her testimony against Phillips. The receipt of such a benefit could have been used to impeach Colman's credibility. The state was thus not only obligated under Brady to disclose to Phillips that such an intervention had occurred, but also obligated under Napue to correct Colman's claim that she had been promised no benefits, along with Minier's assertion that any intimation that she had received such treatment was "sheer fabrication": contrary to these statements, Colman had already received substantial benefits for her testimony in the form of direct assistance that enabled her to escape prosecution for a serious drug-trafficking offense.
The state insists that Minier was unaware of any calls made by the Madera sheriff's department to the Fresno police on Colman's behalf. However, even if true, "[t]he Supreme Court has made abundantly clear ... that the prosecutor's
The state likewise notes that Colman has testified that she "never had any understanding that there was any connection between her status as a witness in Madera County and her treatment in Fresno County." Brief of Respondent-Appellee at 134. The record reflects otherwise—in particular, the Fresno Police Department officer who investigated Colman's heroin offense testified that Colman knew that the Madera County Sheriff's Department had interceded on her behalf. However, even if, contrary to the testimony of the police, Colman had been unaware of the intercession, and thus did not realize that she provided the jury with misleading testimony when she stated that she would not receive any benefit in exchange for testifying against Phillips, her own ignorance of the benefits she had been granted did not relieve the state of its obligation to correct her false testimony, nor, certainly, did it make the prosecution's conduct in deliberately misrepresenting the facts to the jury and the court any less egregious. See Hayes, 399 F.3d at 981.
The separate Brady violation arises out of a plea offer made to Colman's first attorney, Tom Peterson. Peterson, in state post-conviction hearings, testified that three weeks after the murder Minier orally offered him a plea agreement for Colman that would have allowed her to plead guilty as an accessory to murder for a one-year sentence if she testified against Phillips. Peterson further stated that he communicated the agreement to Colman, who accepted it. Colman disputes that she accepted the offer, and the state argues that the behavior of Minier, Colman, and Colman's trial attorney, Dunn, indicates that the offer did not survive the termination of Peterson's representation of Colman in February of 1978.
That such an offer was extended was indisputably evidence "favorable to the accused... because it is impeaching," and was clearly subject to the duty of disclosure established in Brady. See Jackson, 513 F.3d at 1071 (citing Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999)). Evidence of the offer would have allowed Phillips to challenge Colman's credibility by providing the jury with concrete evidence that she had good reason to expect beneficial treatment in exchange for her testimony. Such an expectation of leniency in and of itself would have provided valuable impeachment of Colman's credibility.
Contrary to Phillips's contention, however, the existence of the Peterson offer did not obligate the prosecution under Napue to correct Colman's testimony that she had not been promised any benefits. The existence of the offer provided evidence from which a jury could conclude that Colman had testified falsely when she denied expecting any benefit in exchange for her testimony, but because, viewing the facts most generously from the state's standpoint, the offer was never accepted, its existence did not render Colman's testimony inherently false. We therefore hold that the prosecution's failure to divulge the Peterson offer amounted to a violation of its duty under Brady, but did not implicate its Napue obligation to correct false evidence.
Before proceeding to consider the materiality of the Napue and Brady violations, we note that the prosecutor's statements in his closing argument that any contention that a bargain had been struck with Colman was "sheer fabrication, just pulled out of the air, totally meaningless" also likely constituted the separate due process violation of prosecutorial misconduct. Unconstitutional prosecutorial misconduct occurs where the prosecutor engages in actions that "so infec[t] the trial with unfairness as to make the resulting conviction a denial of due process." Greer v. Miller, 483 U.S. 756, 765, 107 S.Ct. 3102, 97 L.Ed.2d 618 (1987) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)) (alteration in original). Minier vouched for the credibility of a crucial witness by assuring the jury that Colman had not received any sort of immunity agreement in exchange for her testimony. See United States v. Weatherspoon, 410 F.3d 1142, 1146 (9th Cir.2005) (finding improper vouching where prosecutor had told the jury in closing arguments that testifying officers had "no reason to come in here and not tell ... the truth," because by lying they would risk losing their jobs and face possible perjury charges). That Minier's assurances were, in fact, false only heightens the extent to which this prosecutorial misconduct violated Phillips's right to due process. Because neither party has expressly raised the issue of whether Minier's representations in his closing argument that no deal with Colman existed constituted prosecutorial misconduct, but both have argued the issue in terms of Napue, and because Minier's reenforcement of the false testimony of a key witness is what renders his statements particularly egregious, we consider the statements in terms of a Napue violation rather than in terms of prosecutorial misconduct.
The prosecution's multiple Napue and Brady violations warrant reversal of the jury's verdicts only if they were material to (1) Phillips's convictions for first degree murder and attempted murder, (2) his robbery convictions, or (3) the jury's finding that the special circumstance
Sivak v. Hardison, 658 F.3d 898, 912 (9th Cir.2011) (quoting Jackson, 513 F.3d at 1076).
In this case, we have found that there are two important facts that the government was obligated to provide to the jury under Napue: first, that an immunity agreement had been entered into at the time of Colman's testimony ensuring that no charges whatsoever relating to the events in Chowchilla would be brought against her; second, that the Sheriff's Department had already arranged for charges stemming from a heroin offense committed by her in Fresno to be dropped
We proceed to examine: first, whether the government's Napue violations, or, if not, its Napue and Brady violations together, were material to Phillips's conviction for first-degree murder; second, whether they were material to his convictions for robbery; and third, whether they were material to the jury's special circumstance finding that the murder was committed during the commission of a robbery.
We hold that the prosecution's Napue violations, although "pernicious" and "reprehensible," Hayes, 399 F.3d at 981, were not material to Phillips's conviction of first-degree murder. The disclosure of the benefits Colman received in exchange for her testimony could not have had any effect on the jury's determination that Phillips was guilty of the murder of Bartulis. Rose provided extensive testimony identifying Phillips as the culprit, and the prosecution played at trial an audio tape of a phone conversation recorded after Bartulis's murder but before Phillips's arrest in which he described to his friend Richard Graybill that "a .45 sure did put a big hole right through him. I mean, it didn't fuck around." In addition, Phillips's flight to another state and his effort to conceal his identity provided further significant evidence of his guilt. Thus, even had the government disclosed the evidence showing that aspects of Colman's testimony and the prosecutor's statements
Although whether the state's Napue violations were material to the jury's finding that Phillips had premeditated Bartulis's murder is a closer question, we hold that the evidence of premeditation the prosecution presented was sufficiently powerful and abundant that there is not a "reasonable likelihood" that the prosecution's failure to correct Colman's testimony, and its deliberate falsehood in telling the jury that there was no agreement, could have affected the jury's judgment that Phillips premeditated the murder.
The prosecution did offer Colman's testimony to augment its case that the murder had been premeditated. Colman's statement that Phillips had pulled a gas can out of the trunk of his mother's car
Having found that the Napue violations were not, standing alone, material to Phillips's first-degree murder conviction, we must consider the Napue violations collectively with the Brady violation, asking whether "there is a reasonable probability that, but for [the state's violations], the result of the proceeding would have been different." Jackson, 513 F.3d at 1076 (citations and quotation marks omitted). As is explained above, the only piece of evidence in this case that was subject to disclosure under Brady but not Napue was the fact that prior to trial, while still represented by her first attorney, Colman had received a plea offer that would have limited her jail sentence to one year. Because Colman's testimony was not material to the conviction on the firstdegree murder count, this additional violation is of no consequence.
We likewise hold that the prosecution's Napue and Brady violations were not material to Phillips's convictions for the robberies of Rose and Bartulis. California law defines "robbery" as "the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." Cal.Penal Code § 211 (Deering 1977). The only items that Phillips was alleged to have taken from the persons or presence of Rose and Bartulis were their wallets and Rose's gun.
We turn now to the question whether the prosecution's Napue violations were material to the jury's special circumstance finding that Bartulis's murder was committed during the commission or attempted commission of a robbery, a finding that was a necessary prerequisite to Phillips's being eligible for the death penalty. We hold that the violations were material to that finding.
To prove that Phillips murdered Bartulis "during the commission" of a robbery or attempted robbery, the state bore the burden of proving beyond a reasonable doubt not just that Phillips had taken the property of Rose or Bartulis unlawfully, but that Phillips had the independent purpose of robbing Rose and Bartulis when he lured them to the lot in Chowchilla. Under the special circumstance statute that was applied at Phillips's trial, the jury was required to make two findings: first, that Phillips was guilty of the underlying offense of attempted or completed robbery; second, that the murder had been committed "in order to advance an independent felonious purpose" of robbery. Green, 164 Cal.Rptr. 1, 609 P.2d at 505 (interpreting Cal.Penal Code § 190.2(c)(3) (Deering 1978)); see also People v. Morris, 46 Cal.3d 1, 249 Cal.Rptr. 119, 756 P.2d 843, 854 (1988). In Green, the California Supreme Court held that the "goal" of the special circumstance statute "is not achieved ... when the defendant's intent is not to steal but to kill." 164 Cal.Rptr. 1, 609 P.2d at 505.
Considerable evidence in the record suggests that Phillips had not, in fact, orchestrated the events of December 7, 1977 for the purpose of robbing Rose and Bartulis, i.e., that the murder was not committed in order to further the robbery, but rather that the robbery was incidental to the
Given the minimal evidence that the government presented in support of its theory that Phillips lured Rose and Bartulis to Chowchilla in order to rob them, Colman's testimony was essential to the prosecution's special circumstance case. Especially crucial to that case, and emphasized in its closing argument, was Colman's testimony that, when Phillips returned to his car after the shooting, and then again while driving back to Fresno
Were Colman's testimony discredited as a result of the revelation of her false testimony and her motivation for lying, the jury could and likely would have concluded that the theft of the wallets, or any minimal unsuccessful attempt to steal any other cash on Rose's person, was simply a "second thing to" the murder, and thus not a special circumstance under California law. Had the defense been able to impeach Colman and cross-examine her regarding her false testimony and her secret deal, the jury might well have concluded that in planning the murder Phillips was motivated by unrelated purposes, such as to cover up his prior narcotics dealings with Rose and Bartulis and to prevent them from double-crossing him, as Colman told the investigators prior to the deal but never told the jury.
Disclosure of either Colman's secret deal or the assistance she received with respect to her heroin arrest would have allowed Phillips's counsel to impeach and discredit a witness whose testimony was absolutely crucial to the state's special circumstance case. As we explained in Hayes, and as is equally true here:
399 F.3d at 987-88.
The district court came to a contrary determination regarding the materiality of the state's violations of its constitutional obligations by concluding that Colman's credibility was sufficiently put before the jury by Phillips's counsel, Martin. The dissent also embraces this reasoning. Martin introduced evidence that Colman had been released on her own recognizance and had received an unusual number of continuances, and repeatedly intimated that Colman had negotiated some sort of deal with the prosecution. But as we explained in Benn v. Lambert, 283 F.3d 1040 (9th Cir.2002), "In cases in which the witness is central to the prosecution's case, the defendant's conviction indicates that in all likelihood the impeachment evidence introduced at trial was insufficient to persuade a jury that the witness lacked credibility. Therefore, the suppressed impeachment evidence ... takes on even greater importance." Id. at 1055. Here, hard evidence that a deal had actually been agreed upon that would allow Colman to escape prosecution would have had far more persuasive force than Martin's assertions, wholly unsupported by any evidence, that such a deal might have existed, especially in light of the prosecution's sarcastic and false dismissal of Martin's suspicions as "sheer fabrication." See Jackson, 513 F.3d at 1077 ("[A]lthough the witness had been cross-examined about his own attempts to benefit from his cooperation, evidence of an explicit promise of assistance by the trial prosecutor likely would have carried far greater weight than any speculative benefit [the witness] might have thought he could achieve on his own."). "The disclosure of a ... secret deal would not have been merely cumulative impeachment," because "[i]t would have demonstrated that the State was going to great lengths to give [Colman] a powerful incentive to testify favorably, to the point of letting [her] go free on" capital murder charges. Hayes, 399 F.3d at 987.
In sum, Colman's testimony and credibility were critical to the success of the prosecution's argument that Phillips lured Rose and Bartulis to Chowchilla with the
We conclude that the district court did not abuse its discretion in its conduct of the evidentiary hearings below, and affirm its holding that Phillips's trial counsel was not ineffective, as well as its holding that the prosecution's Brady and Napue violations were not material to Phillips's firstdegree murder conviction, his attempted murder conviction, or his robbery convictions. We reverse, however, the district court's holding that the prosecution's Napue violations were not material to the jury's special circumstances finding. Accordingly, we reverse and remand with instructions to grant a conditional writ of habeas corpus, with instructions to the state court either to grant Phillips a new trial on the special circumstance allegation within ninety days or to sentence him to a penalty other than death in conformance with state law. See, e.g., People v. Horton, 11 Cal.4th 1068, 47 Cal.Rptr.2d 516, 906 P.2d 478, 484 (1995).
KLEINFELD, Senior Circuit Judge, concurring in part and dissenting in part:
Phillips murdered Bruce Bartulis at a vacant lot in 1977. He did his best to also murder Bartulis's companion, Robert Rose. He shot Rose five times with a .45, poured gasoline on him, set him on fire with matches he had borrowed from Rose himself when they had stopped at a gas station (even though Phillips was a nonsmoker), and ran him over with a car. Phillips had told Bartulis and Rose, falsely, that he was going to make them a lot of money if they gave him $25,000 to buy
Rose amazingly survived the five bullets Phillips shot into his head, stomach, and arm, survived being set on fire, and survived being run over. He was the star witness against Phillips at trial, testifying to the events of the murder and attempted murder, and to the dealings leading up to them. Phillips's then-girlfriend, Sharon Colman, who was present at the crime scene, testified to what Phillips had told her and what she had seen. The jury heard a tape recording of a phone call Phillips made to his childhood friend Richard Graybill, in which he bragged about how his ".45 sure did put a big hole right through him," referring to one of his victims. Phillips's mother testified to the time of his arrival home the night of the murder, which impeached Phillips's perjured alibi testimony. Before trial, Phillips had gone so far as to put out contracts to kill old friend Graybill, former girlfriend Colman, survivor Rose, and even Phillips's own mother, but they also failed to die on his schedule. The jury viewed as evidence the letter Phillips wrote to the hit man, providing descriptions, habits, and residences for his intended victims.
Phillips insisted on testifying at trial, claiming he was not even there when the murder occurred, having been at a "business meeting" elsewhere at the time. He has since admitted this testimony was a lie, and that he was in fact at the scene of the crime. But Phillips insisted on the alibi at trial. Phillips's counsel argued that Graybill must have been the murderer. He showed there was a high likelihood that Colman and Graybill were getting freedom or lenience in exchange for testimony satisfactory to the prosecution, so they had good reason to testify favorably for the prosecution, truthfully or not. He even managed to come up with an argument for why Rose, the victim, might be lying.
Phillips's counsel also explained to the jury that even if Phillips had committed the murder and attempted murder, the jury should not find the "special circumstance" to be true.
Now the majority vacates the jury's special circumstance finding, speculating that if only the jury had been able to find out more about the inducements to Colman, the girlfriend, to say what the prosecutor wanted, the jury might have concluded that the murder was motivated by purposes other than robbery. The majority speculates that Phillips might have shot Bartulis and Rose to cover up Phillips's prior dealings with them, or to prevent them from double-crossing him, or to retain the payments Bartulis and Rose had already made to him. These theories were unsupported by any evidence at trial. Even if the jury had decided Colman was not worthy of belief (it may well have, because she was effectively impeached and her motivation to testify was brought painstakingly before the jury), Colman's alleged perjured testimony could not have affected the verdict. The evidence of an intent to rob by killing came from facts not dependent on anything Phillips's girlfriend said.
The purpose of robbery was proved by overwhelming evidence. Rose testified that Phillips instructed him to come up with as much cash as he could get, that Phillips lured the men to a deserted location, shot them, then took their wallets. The jury also learned of Phillips's motive to rob. He lived in a $600,000 Newport Beach beachfront house ($600,000 in 1977 dollars), drove an expensive sports car, flew about in private planes, and dated a beautiful young woman, despite having no money and needing to borrow $125 from his mother the day after the murder. If the jury had the slightest doubt that Phillips would murder in cold blood just to get some cash, their doubts would have been allayed by the proof that he put out a "contract" on his girlfriend, his old friend, his surviving victim, and even his own mother.
The majority concludes that none of the prosecutorial misconduct could have made any difference to whether the jury would have found Phillips guilty of attempted murder, first-degree murder, and robbery, and that defense counsel was not constitutionally ineffective. I concur in those conclusions. I also concur in the characterization of prosecutorial misconduct. I do not concur in the attacks on defense counsel's assistance. The reasons appear more fully
Phillips was sentenced to death in 1980. Since then he has evaded his sentence by means of more than three decades of additional litigation. And now he succeeds again, on the meritless claim adopted by the majority that had the jury been aware of additional impeachment evidence as to the girlfriend's motivation for testifying, it might have reasonably concluded that the robbery was merely incidental to the murder.
The majority appropriately labels the prosecutor's tactics in this case as deplorable, but as the United States Supreme Court has expressly directed:
Thus, it is not enough to find constitutional error. Instead, the court is required to consider all of the evidence and determine whether the false evidence was material to the jury's judgment.
The "any reasonable likelihood" of an effect on the jury standard applies to direct appeals. This is not a direct appeal. This is a habeas proceeding, best characterized as a second or successive habeas proceeding. Probably the correct standard is that a federal court cannot grant relief unless the evidence is "clear and convincing" that, had the Colman deal been disclosed to defense counsel and the jury, "no reasonable juror would have found him eligible for the death penalty."
In addition, the Superior Court of California, County of Madera, in its order denying Phillips's writ of habeas corpus, made factual findings and concluded, "Clearly [Colman's] credibility because of a `deal,' and a pending murder charge was put before the jury, and, as stated by the Supreme Court, the jury had sufficient facts with which to evaluate Sharon Colman's testimony." The federal district court also concluded in a thorough sixty-one page order denying Phillips's federal habeas petition that any constitutional errors at trial could not have reasonably affected the judgment of the jury, because of the overwhelming evidence against Phillips other than Colman's testimony.
The majority rejects the conclusion of every other court to have addressed this case. "This readiness to attribute error is inconsistent with the presumption that state courts know and follow the law."
I need not base my dissent on the precise standard applicable to the constitutional error, limitations of our habeas authority, or our duty of deference to state court findings and the presumption of their correctness. The question of how, precisely, to formulate the standard is quite complex. Should Phillips have been permitted to raise his new argument at all, after his many past proceedings? Should the petition raising the new argument be treated as pre-AEDPA or post-AEDPA?
I assume for purposes of discussion that the standard most favorable to Phillips applies. That standard is whether there is any reasonable likelihood that the arguably false testimony Colman gave "could have" affected the judgment of the jury on the special circumstance finding. The majority concedes that "[i]t is unimaginable" that the jury could have reached a different verdict on the first-degree murder charge, despite the prosecutor's wrongdoing. Likewise "[i]t is unimaginable" that the jury could have reached a different conclusion as to the special circumstance of the murder occurring "during the commission of a robbery." Had the jury been fully informed of the prosecutor's agreement with Colman's lawyer, and that she had escaped prosecution on unrelated charges, it would have made no difference to the verdict. The jury was well-informed of the reasons for skepticism about her testimony. Colman candidly admitted at trial that she expected the prosecution to take her willingness to cooperate into consideration. The prosecutor admitted during his closing argument that Colman was an accomplice who expected leniency,
The judge then instructed the jury that Colman was an accomplice and that her testimony should be viewed with distrust:
The jury did not need Colman's testimony, that Phillips was disappointed in how little money he got, to conclude that the murders were committed "during the commission of a robbery." Indeed, she did not even say that robbery was Phillips's purpose. Phillips probably lost his own case by lying to the jury, and Rose certainly established the state's case with his powerful and highly credible testimony. Colman was not the critical witness for the robbery special circumstance finding. Rose was.
Rose, the miraculously surviving victim, testified that Phillips "told me to get as much cash together as I could and what time to meet him and where to meet him in Fresno; that was early in the morning on the 7th." That night, Phillips led Rose to a remote location and shot him five times. Rose testified that he then felt "someone moving me around such as searching my pockets" and that he heard "a male voice" next to him while his pockets were being searched. Although Phillips took Rose's wallet, which was in his rear pocket, Phillips never found the "thirty-five hundred to five thousand dollars in cash" in Rose's "upper coat pocket." Phillips then poured gasoline on Rose, set him ablaze, and ran him over with his mother's car after Rose began running around the dark, empty parking lot to which Phillips had led him, trying to shed his burning clothes. The majority speculates that Phillips's purpose may not have been to take Rose's and Bartulis's money, because he did a poor job of searching them and missed the wad of cash "the size of a cigarette pack" that Rose had in the breast pocket of his bloody jacket. Many criminals do slip-shod work, and many robbers are disappointed with the proceeds, but "I wouldn't have robbed and killed him had I known that was all I would get," or "I wish I'd searched his other pockets," is not the same as "I did not kill him as part of my robbery."
California law defines robbery as "the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear."
Scratching around for some authority, the majority relies on the distinction drawn in People v. Green,
The majority cites two other California cases on this issue, People v. Abilez,
In Morris, the defendant was a prostitute who solicited gay men and killed one of his customers. He said the reason he killed his customer was that "he had to kill one."
The majority misses the point in People v. Marshall,
Here, the jury concluded that Phillips committed murder for the purpose of obtaining Rose's and Bartulis's money. Phillips took their wallets, which is where men typically carry their money. Unlike the murderer in Marshall, he did not take a worthless memento. The majority comes up with some notions of why Phillips may have shot and robbed Rose and Bartulis for some reason other than to take their money, even though he needed and took the $150 in their wallets. But as the Supreme Court of California has stated, "we need not discern the[] various mental states in too fine a fashion; a concurrent intent to kill and to commit an independent felony will support a felony-murder special circumstance."
Juries are too likely to impose the death penalty lightly if they reasonably infer, from decisions like this one, that it will almost never actually be carried out.
The question the majority addresses seems to be "is there any conceivable, speculative possibility we can think of that would make Phillips guilty but without the special circumstance?" Whatever the proper standard may be, that is not it. To determine whether the prosecutor's wrongdoing was prejudicial, the most Phillips could demand would be whether there is "any reasonable likelihood that the false testimony could have affected the judgment of the jury."
The majority correctly concludes that "[i]t is unimaginable" that the prosecutor's wrongful conduct could have affected the first-degree murder guilty verdict. It is likewise unimaginable that it could have affected the special circumstance finding. We should affirm.
The state also observes that the trial court had ruled that, even if a deal between Minier and Colman's attorney existed, the defense could not introduce evidence of it. The California Supreme Court has held that the trial court's ruling was in error because "[t]he defense counsel is entitled to discover the terms of any agreement for lenient treatment negotiated on behalf of a prosecution witness." People v. Phillips, 41 Cal.3d 29, 222 Cal.Rptr. 127, 711 P.2d 423, 433 (1985). More important, the trial court's ruling is irrelevant to whether the prosecution had a constitutional duty to disclose the existence of the deal to Phillips, or to whether it had the duty to affirmatively correct the falsehoods in Colman's testimony and refrain from making its own misrepresentations to the jury.
Phillips, 267 F.3d at 984 n. 11.
