The majority opinion filed March 16, 2012, slip op. 3155, and appearing at 673 F.3d 1168 (9th Cir. 2012), is hereby amended as follows:
With these amendments, the panel has voted to deny the petitions for rehearing. Judge Kleinfeld would grant Respondent-Appellee's petition for rehearing.
Judge Reinhardt voted to deny the suggestions for rehearing en banc, and Judge Fletcher so recommended. Judge Kleinfeld recommended denying Petitioner-Appellant's suggestion for rehearing en banc, but recommended granting Respondent-Appellee's suggestion for rehearing en banc.
The full court was advised of the suggestions for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.
The petitions for rehearing and the suggestions for rehearing en banc are
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 reverse and remand with instructions to grant the writ as to the jury's special circumstance finding, and, accordingly, Phillips's death sentence.
In September of 1977, Phillips met Ronald Rose and Bruce Bartulis, two partners in a general contracting business who were building a pair of houses on property adjacent to Phillips's beachfront home in Newport Beach, California. The three men became acquainted when Phillips offered the contractors use of his electrical outlets to power their construction tools. Phillips and the contractors became friendly, and Phillips began to visit the construction site regularly to speak with them.
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 mother's car and drive to Fresno. Fresno is approximately two and half hours south of Sacramento by car. That same day, Sharon Colman, Phillips's girlfriend of two months, flew directly to Fresno. Colman had previously dated and lived with Phillips's best friend since childhood, Richard Graybill. Colman, a prostitute, had arranged to be picked up at the Fresno airport by a client. Her flight, however, was delayed, and her client was not there when she landed. She therefore called Phillips at his mother's house in Sacramento and asked him to pick her up at the Fresno airport, which he did.
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 fortyfive 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 driverside 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 take the $3,500 to $5,000 wad of one-hundred-dollar bills that was in the breast pocket of Rose's jacket. Phillips then directed Colman to open the trunk of his car, from which, according to Colman, he retrieved a gas can, and proceeded to pour gasoline over Rose and Bartulis's bodies inside the Ranchero. As Colman moved Phillips's car across the street, Phillips lit the two bodies on fire and made his way back to his car.
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 brotherin-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 Phillips, two months after she gave her statement to the District Attorney she was released on bail without explanation, and her bail status was eventually adjusted to personal recognizance.
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 nonexistent 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 coldblooded manner. For example, he argued that Phillips sought to cover his tracks, not only by burning the bodies, but by picking up the bullet shell casings off the ground after the shooting, as there was only one shell recovered from the scene despite multiple shots being fired. He further argued that Phillips's cold-blooded manner was evidenced by Colman's testimony that Phillips struck Rose and Bartulis in the head after shooting them.
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."
Second, Martin insinuated that Colman was lying in exchange for offers of leniency from the prosecution. Martin introduced evidence that Colman—who, like Phillips, had been charged with capital murder in connection with the events of December 7, 1977—had been granted an unusual number of continuances for her preliminary hearing, and been released on her own recognizance notwithstanding the capital murder charges against her. In his closing statement, Martin emphasized that:
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, 711 P.2d 423 (Cal. 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. 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 (1963) by failing to disclose the benefits that Colman received in exchange for her testimony, and violated Napue v. Illinois, 360 U.S. 264 (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 was at that time still pending in the California state courts. This panel reversed that decision on May 26, 1995, holding that Phillips could file a habeas petition as to the guilt phase separately from any petition as to the penalty phase. Phillips v. Vasquez, 56 F.3d 1030 (9th Cir. 1995). On remand and after briefing, the district court denied Phillips's petition without an evidentiary hearing, holding that Phillips had not set forth any colorable claims for relief. We again reversed, holding that Phillips was entitled to an evidentiary hearing on both his ineffective assistance and Brady/Napue claims. Phillips v. Woodford, 267 F.3d 966 (9th Cir. 2001).
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, Philips 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 the Anti-Terrorism and Effective Death Penalty Act (AEDPA), "AEDPA's substantive provisions do not apply to this appeal." Phillips, 267 F.3d at 973 (citing Lindh v. Murphy, 521 U.S. 320, 327 (1997)). We therefore review de novo questions of law or mixed questions of law and fact decided by the district court or by the state courts. Jackson v. Brown, 513 F.3d 1057, 1069 (9th Cir. 2008). We review the district court's factual findings for clear error, and accord state court factual findings a presumption of correctness. Id. The district court's procedural rulings, including its decision to limit the evidentiary hearing to written evidence, are reviewed for abuse of discretion. Wade v. Calderon, 29 F.3d 1312, 1326 (9th Cir. 1994).
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.
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.
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 his due process rights under Napue and Brady. We examine the benefits cited by Phillips, and conclude that they involved violations of both Napue and Brady. We also consider a separate Brady violation that arises from the state's failure to divulge a prior plea offer and Colman's possible initial acceptance of it. Because these violations constitute a deprivation of Phillips's right to due process only if they were material to Phillips's various convictions, we then consider whether Phillips was prejudiced as to any of them by the prosecution's failure to comply with the dictates of Napue and Brady.
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.
Id. at 981.
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.
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.
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 duty to disclose evidence favorable to the accused extends to information known only to the police." Jackson v. Brown, 513 F.3d 1057, 1072 (9th Cir. 2008) (citing Kyles v. Whitley, 514 U.S. 419, 438 (1995)). We have thus held that the Constitution "compel[s] prosecutors to disclose evidence favorable to the accused, even when that evidence was known only to the police and not to the prosecutor." Id. at 1074; see also Giglio, 405 U.S. at 154 (holding that the duty to correct false evidence under Napue extends to evidence not known to be false by a particular prosecutor but known to be false by the government). Thus, even if Minier himself did not know about the phone calls made on Colman's behalf—a somewhat dubious proposition—it is immaterial to the state's duty to disclose those phone calls and to correct Colman's false testimony, and Minier's false statements, that she had received no benefits in exchange for her testimony.
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.
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 in order to facilitate her testimony against Phillips. We also consider the prosecutor's deliberate lies regarding the existence of the immunity agreement. For each of the jury's findings, we begin our analysis by examining whether there was "any reasonable likelihood" that the prosecution's Napue violations "could have affected the judgment of the jury." Agurs, 427 U.S. at 103.
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 firstdegree 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.
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 first-degree murder count, this additional violation is of no consequence.
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.
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.
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 non-smoker), 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 cocaine for sale, and then told them he was going to sell them a lot of stolen insulation (they were builders). He did not have $25,000 worth of cocaine and did not have the stolen insulation. He told them to bring with them all the money they could get together, and to follow him to the deserted location he picked. After he shot them both, he took their wallets, picked up the brass from his cartridges, and went on the lam under a false name.
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, firstdegree 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 in my previous dissent, found at, Phillips v. Woodford, 267 F.3d 966, 988 (9th Cir. 2001) (Kleinfeld, J., dissenting). Defense counsel appears from the record to be a very fine lawyer who did an excellent job for Phillips. The majority now concedes that under Cullen v. Pinholster,
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."
Because this is a habeas proceeding, we are constrained not only by the requirement of prejudice, but also by the requirement of deference to the state courts. Phillips was convicted and sentenced in state court. On direct appeal, the California Supreme Court carefully weighed the prejudicial effect of the prosecutor's wrongful nondisclosure of the deal between the prosecutor and the girlfriend's lawyer. The Court found, and the transcript fully supports its finding, that "the jury was made well aware of the possible impact of Colman's expectation of leniency on her credibility."
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 wellinformed 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, and her testimony should be viewed with distrust:
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 slipshod 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."
The majority's willingness to disrupt the well-founded decision of the California Supreme Court also disturbs "the State's interest in the finality of convictions that have survived direct review within the state court system."
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, 711 P.2d 423, 433 (Cal. 1985). More important, the trial court's ruling is irrelevant to whether the prosecution had a constitutional 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.
