Pyles v. Johnson ( 1998 )

REVISED, March 25, 1998
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 97-10809
_____________________
JOHNNY DEAN PYLES,
Petitioner-Appellant,
v.
Gary L JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
_________________________________________________________________
March 5, 1998
Before KING, HIGGINBOTHAM, and DAVIS, Circuit Judges.
KING, Circuit Judge:
Petitioner-appellant Johnny Dean Pyles, a Texas death row
inmate convicted of capital murder, appeals the district court’s
denial of his petition for a writ of habeas corpus. For the
reasons set forth below, we affirm.
I. FACTUAL BACKGROUND
While on routine patrol at 12:50 a.m. on June 20, 1982,
Officer Charles Mitchell, a deputy sheriff with the Dallas County
Sheriff’s Department, noticed a beige Jeep in the parking lot of
a small convenience store in the city of Sunnyvale. The store
was closed. Mitchell used his patrol car’s spotlight to examine
the vehicle and the store as he slowly drove past. Mitchell did
not see anyone, but a couple in an automobile flashed their high
beams as he drove away, and Mitchell stopped. After a
conversation with the couple, Mitchell called for backup and
indicated that a white male suspected of criminal activity was in
the area of the convenience store. Mitchell then parked behind
the Jeep with his high beams and spotlight on the vehicle.
Mitchell exited his patrol car and, using a flashlight, inspected
all four sides of the convenience store building in search of the
suspect. Mitchell did not see anyone and concluded that the
store was secure.
Officers Ray Kovar and Dwaine Crain, responding to
Mitchell’s request for backup, approached the scene with their
emergency lights and siren on, but turned them off when they got
within one half to three quarters of a mile of the store.
Mitchell heard the backup unit’s siren before the officers turned
them off. Kovar and Crain arrived at the scene at approximately
1:00 a.m. After the three officers again secured the building,
they began a search of the area.
Mitchell saw Kovar walk around the east side of the
building, with a flashlight in his left hand and his pistol in
his right hand. Crain took a shotgun and went to the west side
of the building to search there. Mitchell and Crain both heard
Kovar tell someone, “Halt, get up.” Then a series of gunshots
were fired. Mitchell ran to help Kovar and found him lying face
2
down. Kovar had suffered a bullet wound to the chest from which
he later died.
Crain heard Mitchell shout that Kovar was down and called in
a report to that effect on his radio to his dispatcher before
joining Mitchell. Crain noticed that Kovar’s flashlight was
turned on. Two police officers unsuccessfully attempted to
resuscitate Kovar, and several others searched the scene of the
shooting but were unable to locate a suspect.
Richard Hart, a reserve deputy sheriff who was called out to
assist in the search for the person who killed Officer Kovar, set
up surveillance in an unmarked car almost two miles from the
scene of the shooting. Around 4:00 a.m., Hart saw a white male,
later identified as Johnny Dean Pyles, walking toward him on
Collins Road. He immediately radioed a description of Pyles to
the dispatcher and then left the car, pointing his flashlight and
pistol at Pyles and ordering him to halt. At first, Pyles turned
around and took several steps back the way he came. Hart again
ordered Pyles to stop, saying, "One more step and that's it."
Pyles turned around and raised his hands. He told Hart that he
was not armed. Hart ordered Pyles to lie face down on the road.
He noticed that Pyles’s right hand was swollen, and that he was
bloody and covered with mud. Hart handcuffed Pyles and placed
him in the back seat of the car lying face down. Hart recited
Pyles’s Miranda warnings on the way to the Sunnyvale Substation,
and Pyles indicated that he understood his rights.
3
The magistrate again read Pyles his rights and advised him
that he was being charged with capital murder, a crime punishable
by life imprisonment or death. The magistrate asked Pyles if he
was in pain and if he wanted to go to the hospital. Pyles did
not ask for medical attention and did not complain of being in
pain. After a paramedic bandaged and elevated Pyles’s arm, the
magistrate asked Pyles if he was up to talking to the police.1
Pyles responded affirmatively and the magistrate left for a brief
period.
The magistrate returned as Pyles was preparing to sign a
statement admitting that he had shot Officer Kovar. The
magistrate informed Pyles that he did not have to sign the
statement, and, according to the magistrate, Pyles replied, “I
might as well, Judge. I did it.” Pyles then signed the
statement with his left hand.
Afterward, Sergeant Larry Williams of the Dallas County
Sheriff’s Office interrogated Pyles. A second statement was
prepared based on the conversation between Pyles and Williams,
and Pyles signed that statement.
At Pyles’s capital murder trial, the medical examiner
testified that the cause of Officer Kovar’s death was a gunshot
1
In his brief, Pyles states, without record citation, that
he received no medical attention until after he provided the
police with a confession. However, the Texas Court of Criminal
Appeals found that Pyles received the above-described medical
treatment prior to signing statements containing his confessions.
Pyles does not challenge this factual finding or its entitlement
to a presumption of correctness pursuant to 28 U.S.C. § 2254(d)
(1994).
4
wound to his chest. A .38 caliber bullet was removed from
Kovar’s body. An officer from the Physical Evidence Section of
the Sheriff’s Office testified about the scene of the shooting.
He explained that a .357 magnum pistol was found where Officer
Kovar fell. The weapon contained six spent casings. A .38
caliber pistol, found twenty-seven feet from Kovar, contained
four spent casings and one empty chamber. Both weapons had been
completely emptied by firing.
Pyles testified on his own behalf, explaining that he was
not aware at the time of the shooting that Kovar was a police
officer. Pyles claimed that he acted in self-defense, firing
because he saw a flashlight and a gun pointed at him and heard a
voice telling him to halt.
II. PROCEDURAL BACKGROUND
On October 14, 1982, Pyles was convicted of capital murder
after a seven-week jury trial. On October 15, 1982, after a
separate punishment hearing, the jury answered the three special
issues presented to them pursuant to the version of article
37.071 of the Texas Code of Criminal Procedure in effect at the
time of Pyles’s trial in the affirmative. The state district
court later sentenced Pyles to death. The Texas Court of
Criminal Appeals affirmed Pyles’s conviction and sentence on June
1, 1988.
Pyles filed an application for writ of habeas corpus in
state district court on December 5, 1990. On July 15, 1991, the
district court entered an order adopting the proposed findings of
5
fact and conclusions of law set forth in the state’s response and
recommending that the application be denied. On July 19, 1991,
the Texas Court of Criminal Appeals accepted the district court’s
recommendation and denied Pyles’s application.
On July 22, 1991, Pyles filed a petition for writ of habeas
corpus in federal district court. An evidentiary hearing was
held before a magistrate judge on January 24 and 25, 1996. On
January 16, 1997, the magistrate judge entered findings and a
recommendation that the petition be denied. After a de novo
review, the district court adopted the magistrate’s
recommendation and denied Pyles’s petition on June 16, 1997.
This appeal follows.2
III. ANALYSIS
Pyles contends that the district court erred in denying his
petition for a writ of habeas corpus because (1) his conviction
was based in part upon extrinsic evidence obtained as a result of
2
The district court granted Pyles a certificate of
appealability (COA) on August 18, 1997. Prior to the enactment
of the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, a habeas petitioner
was required to obtain a certificate of probable cause (CPC) in
order to appeal the district court’s denial of his habeas
petition. See 28 U.S.C. § 2253 (1994). The AEDPA eliminates the
CPC requirement of 28 U.S.C. § 2253 and substitutes a requirement
that a petitioner seeking review of a district court’s denial of
a petition for federal habeas relief under 28 U.S.C. § 2254obtain a COA from a circuit judge. Because Pyles filed his
habeas petition before the AEDPA’s effective date, he must obtain
a CPC rather than a COA. See United States v. Roberts, 118 F.3d
1071, 1072 (5th Cir. 1997). We therefore construe the district
court’s COA as a CPC. See Cannon v. Johnson, ___ F.3d ___, ___,
No. 96-50934, 1998 WL 37087, at *2 (5th Cir. Jan 30, 1998).
“Thus, [Pyles] does not need further certification from a circuit
judge before we can hear the merits of his appeal.” Id.6
a juror’s unauthorized visit to the crime scene, (2) the state
knowingly presented false testimony at his trial, and (3) the
state withheld exculpatory evidence. We address each of these
issues in turn.
A. Juror Misconduct
Pyles contends that his conviction was tainted by juror
misconduct because one of the jurors in his case, Geraldine
Sarratt, made an unauthorized visit to the crime scene. In
support of his claim, Pyles offers two affidavits from Sarratt.3
Both affidavits state that, during the guilt/innocence phase of
Pyles’s trial, Sarratt made an unauthorized visit to the scene of
the shooting. According to the second affidavit, she made the
visit during daylight hours. The affidavits also state that,
based on the evidence presented at trial, which included
photographs of the crime scene taken during day and night,
Sarratt “was not convinced that Johnny was guilty of capital
murder.”
3
Pyles presented only the first of the two affidavits to
the state courts in connection with his state habeas proceeding.
Citing Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992), the state
argues that this court is prohibited from considering the second
affidavit because Pyles has made no showing of cause for his
failure to present the second affidavit to the state court and
prejudice resulting from our refusal to consider it. Pyles
responds that the state has waived this issue of evidentiary
default by failing to object at the district court level to
consideration of the second affidavit. As explained, infra, only
a portion of each affidavit is competent summary judgment
evidence because each contains statements that are inadmissible
under Rule 606(b) of the Federal Rules of Evidence. Because we
conclude that Pyles is not entitled to habeas relief even if we
consider the admissible portions of both affidavits, we need not
address this issue.
7
Each affidavit contains a description of the manner in which
Sarratt perceived the actual crime scene, viewed in person, to
differ from the photographs of the crime scene presented at
trial. The first affidavit states:
Because I had questions in my mind, I went to the scene
of the crime. The lot was much smaller than I pictured
from the trial. Although photos were in evidence with
officers testifying about the scene, pictures never
tell the whole story. The visit to the scene of the
crime helped me decide that if there had been a police
car and officers in the lot, that anyone hiding in the
lot would have known a police officer was present.
The second affidavit states:
During the trial, while I was sitting on the jury of
Mr. Pyles’ capital murder trial and prior to his
conviction, I went to the exact scene of the crime. I
went to the scene because the photographs and diagrams
presented at trial were inadequate for me to understand
the dimensions of the area. Most, if not all, of the
photographs introduced during the trial were taken of
the building and the lot at night. I went to the scene
during the day light hours. At that time, I was able
to clearly see the dimensions of the area where the
crime occurred. The dimensions of the scene in person
were very different than the photographs and diagrams
shown to the jury during trial.
Specifically, the lot was much smaller than the
photographs and diagrams indicated at trial. Viewing
the area in person, I was able to see that Mr. Pyles
and the victim were much closer in proximity to each
[other] than any of the photographs and diagrams shown
to the jury had indicated. My visit to the scene of
the crime surprised me because it looked so much
different to me than the photographs and diagrams in
evidence. It was only after viewing the crime scene
for myself, in person, that I decided that if there had
been a police car and police officers in the lot, that
anyone hiding in the lot would have known a police
officer was present.
As the district court observed, a substantial portion of
Sarratt’s affidavits are inadmissible as evidence under Rule
8
606(b) of the Federal Rules of Evidence.4 Rule 606(b) bars juror
testimony regarding the following four topics:
(1) the method or arguments of the jury’s
deliberations, (2) the effect of any particular thing
upon an outcome in the deliberations, (3) the mindset
or emotions of any juror during deliberation, and (4)
the testifying juror's own mental process during the
deliberations.
United States v. Ortiz, 942 F.2d 903, 913 (5th Cir. 1991).
However, the rule provides that “a juror may testify on the
question whether extraneous prejudicial information was
improperly brought to the jury’s attention or whether any outside
influence was improperly brought to bear upon any juror.” FED.
R. EVID. 606(b); see also United States v. Ruggiero, 56 F.3d 647,
652 (5th Cir. 1995); Ortiz, 942 F.2d at 913. We have interpreted
this portion of Rule 606(b) as follows:
Post-verdict inquiries into the existence of
impermissible extraneous influences on a jury’s
4
Rule 606(b) provides as follows:
Inquiry into validity of verdict or indictment. Upon
an inquiry into the validity of a verdict or
indictment, a juror may not testify as to any matter
or statement occurring during the course of the jury’s
deliberations or to the effect of anything upon that or
any other juror’s mind or emotions as influencing the
juror to assent to or dissent from the verdict or
indictment or concerning the juror’s mental processes
in connection therewith, except that a juror may
testify on the question whether extraneous prejudicial
information was improperly brought to the jury's
attention or whether any outside influence was
improperly brought to bear upon any juror. Nor may a
juror’s affidavit or evidence of any statement by the
juror concerning a matter about which the juror would
be precluded from testifying be received for these
purposes.
FED. R. EVID. 606(b).
9
deliberations are allowed under appropriate
circumstances so that a jury-man may testify to any
facts bearing upon the question of the existence of any
extraneous influence, although not as to how far that
influence operated upon his mind.
Llewellyn v. Stynchcombe, 609 F.2d 194, 196 (5th Cir. 1980)
(citations and internal quotation marks omitted). Put another
way, under Rule 606(b), “the district court is precluded from
investigating the subjective effects of any [allegedly
prejudicial extrinsic matter] on any jurors.” United States v.
Howard, 506 F.2d 865, 869 (5th Cir. 1975).
Pyles concedes that those portions of Sarratt’s affidavits
indicating that the evidence at trial failed to convince her that
Pyles knew that Kovar was a police officer when he shot him but
that she was convinced that this was the case after visiting the
scene of the crime are inadmissible under Rule 606(b). He
contends, however, that Sarratt’s statements that “[t]he lot was
much smaller than [she] pictured from the trial” and that the
scene “looked so much different to [her] than the photographs and
diagrams in evidence” are admissible for purposes of evaluating
his claim of juror misconduct. These statements by Sarratt are
not merely descriptive of the outside influence brought to bear
upon her while she served as a juror in Pyles’s trial. Rather,
they describe her impression of that outside influence as
compared to the evidence adduced at trial. Specifically, these
statements relate to the mental picture of the crime scene that
Sarratt drew from the evidence presented at trial and the impact
that her visit to the crime scene had on that mental picture.
10
Therefore, Sarratt’s statements regarding the manner in which she
perceived the crime scene viewed in person to differ from the
image of the crime scene that emerged from the evidence presented
at trial can have no bearing on our evaluation of Pyles’s claim
because such statements constitute impermissible testimony
regarding a juror’s “mental processes.” FED. R. EVID. 606(b). We
may consider only those portions of Sarratt’s affidavits which
indicate that Sarratt visited the crime scene during daylight
hours. We turn now to the issue of whether Sarratt’s alleged
visit to the crime scene entitles Pyles to habeas relief.
The Sixth Amendment right to a trial by jury, enforceable
against the states as a result of incorporation through the
Fourteenth Amendment’s due process clause, see Duncan v.
Louisiana, 391 U.S. 145, 149 (1968), “implies at the very least
that the ‘evidence developed’ against a defendant shall come from
the witness stand in a public courtroom where there is full
judicial protection of the defendant’s right of confrontation, of
cross-examination, and of counsel.” Turner v. Louisiana, 379
U.S. 466, 472-73 (1965). Sarratt’s unauthorized visit to the
crime scene therefore constituted constitutional error. The next
step of our inquiry is a determination of whether Pyles is
entitled to habeas relief based on this constitutional error.
Pyles contends that Sarratt’s unauthorized visit to the
crime scene entitles him to habeas relief unless the state proves
that no reasonable probability exists that Sarratt’s visit
influenced the jury. In support of this contention, he relies
11
upon Remmer v. United States, 347 U.S. 227 (1954), a case that
involved a federal criminal defendant’s claim on direct appeal
that the jury improperly considered information acquired
extrajudicially in reaching its verdict. In contrast, Pyles’s
claim is before us in the context of a collateral attack on a
state conviction and sentence. We conclude that interests in
comity and federalism, as well as “the State’s interest in the
finality of convictions that have survived direct review within
the state court system,” mandate that we apply a more deferential
standard of review in evaluating Pyles’s claim. Brecht v.
Abrahamson, 507 U.S. 619, 635 (1993). Specifically, we hold that
Pyles’s claim is subject to harmless error analysis and that,
because the claim is presented as a collateral attack on a final
state conviction, Pyles is not entitled to habeas relief on the
claim unless Sarratt’s unauthorized visit to the crime scene
“‘had a substantial and injurious effect or influence in
determining the jury’s verdict.’” Id. at 623 (quoting Kotteakos
v. United States, 328 U.S. 750, 776 (1946)). Before turning to
the analytical justification for this legal conclusion, we note
that, in drawing the conclusion that we have, we join three other
circuits that have addressed the appropriate standard of review
in evaluating a habeas petitioner’s claim that the jury
improperly considered extrinsic material evidence in reaching its
verdict. See Jeffries v. Wood, 114 F.3d 1484, 1489 (9th Cir.
1997) (applying the Brecht harmless error standard in evaluating
a habeas petitioner’s Sixth Amendment claim based on a juror’s
12
disclosure of information regarding the petitioner’s criminal
history to other members of the jury); Sherman v. Smith, 89 F.3d
1134, 1137-42 (4th Cir. 1996) (holding that a juror’s
unauthorized inspection of a tree in which the petitioner
allegedly hid the murder weapon did not warrant habeas relief
because it did not have a substantial and injurious effect in
determining the jury’s verdict); Bibbins v. Dalsheim, 21 F.3d 13,
16 (2d Cir. 1994) (concluding that the petitioner was entitled to
relief on his claim that the jury considered extra-record
information in reaching its verdict only if the petitioner
demonstrated that the error had a substantial and injurious
effect or influence in determining the jury’s verdict).
In determining whether a constitutional error is subject to
harmless error analysis, the Supreme Court has drawn a
distinction between “trial error” and “structural error.” Trial
error is error that “‘occur[s] during the presentation of the
case to the jury.’” Brecht, 507 U.S. at 629 (quoting Arizona v.
Fulminante, 499 U.S. 279, 307-08 (1991)) (brackets in original).
Such error “is amenable to harmless error analysis because it
‘may . . . be quantitatively assessed in the context of other
evidence presented in order to determine [the effect it had on
the trial].’” Id. (quoting Fulminante, 499 U.S. at 307-08)
(ellipses and brackets in original). “Structural error” is error
“affecting the framework within which the trial proceeds, rather
than simply an error in the trial process itself.” Fulminante,
13
499 U.S. at 310. By its very nature, structural error “def[ies]
analysis by ‘harmless-error’ standards.” Id. at 309.
Pyles contends that Sarratt’s unauthorized visit to the
crime scene constituted structural error and is therefore not
subject to review for harmless error. We reject this contention
and conclude that the unauthorized visit to the crime scene by
Sarratt is error of a type that is subject to harmless error
analysis.
Pyles first argues that, because Sarratt’s visit to the
crime scene did not “occur during the presentation of the case to
the jury,” it does not fit the Supreme Court’s definition of
trial error5 and therefore is not amenable to harmless error
analysis. Pyles’s argument rests upon an oversimplified
conception of the Supreme Court’s inquiry into the amenability of
particular constitutional error to harmless error analysis. In
Brecht, the Court described a “spectrum of constitutional
errors,” with trial errors--errors amenable to harmless error
analysis--at one pole and structural errors--errors that are not
amenable to harmless error analysis and therefore “require[]
automatic reversal of the conviction because they infect the
entire trial process”--at the other. Brecht, 507 U.S. at 629-30;
see also Cupit v. Whitley, 28 F.3d 532, 538 (5th Cir. 1994)
5
Sarratt’s second affidavit states that she went to the
crime scene “during the trial, while [she] was sitting on the
jury of Mr. Pyles’ capital murder trial and prior to his
conviction.” We assume arguendo that Sarratt’s visit to the
crime scene does not fit the Supreme Court’s definition of trial
error.
14
(acknowledging the possible existence of “‘hybrid,’ or ‘unusual’
cases that do not fit so neatly into one of [the] two primary
categories of error”). We conclude that the constitutional error
at issue here rests quite near the “trial error” end of the
spectrum because the impact of Sarratt’s unauthorized visit to
the crime scene “‘may . . . be quantitatively assessed in the
context of other evidence presented in order to determine [the
effect it had on the trial].’” Id. at 629 (quoting Fulminante,
499 U.S. at 307-08). That is, it is possible for us to
quantitatively evaluate what impact the additional information,
if any, that Sarratt acquired from the visit to the crime scene
had on the jury’s conviction of Pyles in light of the evidence
presented at trial regarding Pyles’s knowledge that he was
shooting a police officer.
Pyles next argues that, “[b]ecause Mr. Pyles’ counsel was
not present when Mrs. Sarratt visited the scene, Mr. Pyles was
absolutely denied the assistance of counsel.” Pyles notes that
the complete denial of the assistance of counsel constitutes
structural error, and that the error in this case was structural
because it was tantamount to a deprivation of the assistance of
counsel. See Fulminante, 499 U.S. at 309 (observing that “the
total deprivation of the right to counsel at trial” constitutes
structural error). While it is clear that Sarratt’s unauthorized
visit to the crime scene implicated Pyles’s Sixth Amendment
rights to counsel, confrontation, and trial by an impartial jury,
Pyles’s contention that this constitutional error constituted a
15
complete denial of his right to counsel is sheer hyperbole. To
conclude otherwise would, for example, necessarily imply that the
erroneous admission of hearsay into evidence constitutes
structural error because the general rule against the admission
of hearsay rests on the protection of many of the same
constitutional interests at issue here. See Ecker v. Scott, 69
F.3d 69, 71 (5th Cir. 1995). Generally speaking, when hearsay
testimony is offered into evidence, the defendant’s attorney will
not have been present when the declarant made the out-of-court
statement at issue and will have had no opportunity to cross-
examine the declarant on the statement when it was made. Yet, we
have held that the erroneous admission of hearsay evidence is
amenable to harmless error analysis. See Cupit, 28 F.3d at 538.
We see no reason to reach a different result in evaluating
Pyles’s claim of juror misconduct.
We also note that Pyles’s contention that the juror
misconduct at issue here is structural error that does not lend
itself to harmless error analysis is inconsistent with his
position that he is entitled to habeas relief unless the state
proves that no reasonable possibility exists that the
unauthorized visit influenced the jury. As noted earlier, this
is the standard applicable in determining whether a criminal
defendant is entitled to a new trial on direct appeal based upon
the jury’s consideration of extrinsic information. See Ruggiero,
56 F.3d at 652 (“[I]t is well-settled that a defendant is
entitled to a new trial when extrinsic evidence is introduced
16
into the jury room unless there is no reasonable possibility that
the jury’s verdict was influenced by the material that improperly
came before it.” (internal quotation marks omitted)). This
standard is in essence another way of stating the standard for
harmless error review established in Chapman v. California, 386
U.S. 18 (1967).
In Chapman, the Court held that, “before a federal
constitutional error can be held harmless, the court must be able
to declare a belief that it was harmless beyond a reasonable
doubt.” Id. at 24. In adopting this rule, the Court relied
heavily upon its previous decision in Fahy v. Connecticut, 375
U.S. 85 (1963). In Fahy, the Court concluded that the petitioner
was entitled to a new trial on the basis of the erroneous
admission of unconstitutionally obtained evidence at his criminal
trial because “there [was] a reasonable possibility that the
evidence complained of might have contributed to the conviction.”
Id. at 86-87. The Chapman Court observed that
[t]here is little, if any, difference between our
statement in Fahy v. Connecticut about “whether there
is a reasonable possibility that the evidence
complained of might have contributed to the conviction”
and requiring the beneficiary of a constitutional error
to prove beyond a reasonable doubt that the error
complained of did not contribute to the verdict
obtained.
Chapman, 386 U.S. at 24; see also Lowery v. Collins, 988 F.2d
1364, 1367 (5th Cir. 1993) (observing that, under the Chapman
standard, “a defendant convicted on the basis of constitutionally
inadmissible evidence is entitled to a new trial unless the error
‘was harmless beyond a reasonable doubt’--i.e., that there [wa]s
17
[no] reasonable possibility that the evidence complained of might
have contributed to the conviction” (brackets in original)
(footnote omitted)).
Thus, in arguing that he is entitled to habeas relief unless
the state proves that no reasonable possibility exists that
Sarratt’s unauthorized visit to the crime scene influenced the
jury, Pyles implicitly concedes that the constitutional error at
issue here is subject to harmless error analysis because the
standard that he asks us to apply is in essence a different way
of articulating the Chapman harmless error standard. Pyles in
effect asks us to conduct a harmless error analysis of the
constitutional error at issue here, albeit under an incorrect
standard.
In Brecht, the Supreme Court held that the Chapman harmless
error standard is inapplicable in evaluating constitutional
claims presented on collateral review. See Brecht, 507 U.S. at
623. As noted earlier, the Court went on to hold that a
constitutional trial error warrants habeas relief only if it “had
a substantial and injurious effect or influence in determining
the jury’s verdict.” Id. at 623 (internal quotation marks
omitted). We therefore proceed to a determination of whether the
unauthorized crime scene visit at issue here had such an effect
18
or influence in determining the jury’s verdict.6 We conclude
that it did not.7
Pyles contends that Sarratt’s visit to the crime scene had a
substantial and injurious effect on the jury’s verdict “[b]ecause
the only real dispute at trial was whether Pyles knew [Kovar] was
a peace officer at the time he shot.” Pyles’s capital murder
conviction depended upon proof that he knew he was shooting a
peace officer. See TEX. PEN. CODE ANN. § 19.03(a)(1) (providing
that a person commits capital murder if “the person murders a
6
Pyles also argues that Brecht’s more deferential harmless
error standard presupposes that the state court reviewing the
claim in the first instance applied the Chapman standard and
concluded that any constitutional error was harmless beyond a
reasonable doubt. He therefore argues that we should apply
Chapman’s less exacting harmless error standard in this case
because, in evaluating his juror misconduct claim, the state
court did not indicate that it found Sarratt’s crime scene visit
harmless beyond a reasonable doubt. We recently rejected this
same argument in Hogue v. Johnson, 131 F.3d 466, 498-99 (5th Cir.
1997), and therefore reject it here as well.
7
Pyles contends that we should remand the case to the
district court so that it may apply the proper standard of
review. However, the district court evaluated Pyles’s claim
under the standard that he suggests and determined that no
reasonable possibility existed that Sarratt’s visit of the crime
scene influenced the jury’s verdict. The district court would
necessarily reject Pyles’s claim under the “less onerous”
harmless error standard that we hold is applicable in evaluating
it. Brecht, 507 U.S. at 623. Remand would therefore serve no
purpose.
Pyles also contends that remand is warranted because the
state contests whether Sarratt ever actually made the visit she
claims to have made in her affidavit. Because the state is
unwilling to concede that Sarratt made the unauthorized visit to
the crime scene, Pyles contends that genuine issues of material
fact exist regarding his claim of juror misconduct. However,
whether Sarratt made the unauthorized visit to the scene is
immaterial because we conclude that, even if she made the visit
as she claims, Pyles is nonetheless not entitled to habeas
relief. Remand is therefore not warranted on this basis either.
19
peace officer . . . who is acting in the lawful discharge of an
official duty and who the person knows is a peace officer”).
Pyles therefore argues that “the physical characteristics of the
scene were of primary importance in reaching a verdict.” While
we agree that the physical characteristics of the scene were of
importance in determining whether Pyles knew that he was shooting
a peace officer, we disagree with Pyles’s contention that this
fact alone leads inexorably to a conclusion that Sarratt’s visit
to the crime scene had a substantial and injurious effect in
determining the jury’s verdict. A great deal of evidence
regarding the physical characteristics of the crime scene was
admitted at trial. The state introduced nineteen photographs of
the crime scene, including photographs taken during daytime and
nighttime. Pyles himself testified that the photographs admitted
at trial were accurate representations of the scene. Second, the
state admitted a detailed diagram of the lot where the shooting
took place that included the dimensions of the area.8 A number
of witnesses testified about the crime scene, using the diagram
to aid their testimony. The jury thus heard and saw a great deal
of evidence regarding the physical characteristics of the crime
scene at trial.
Furthermore, while evidence of the physical characteristics
of the crime scene was doubtless important to the jury’s
8
Many of these photographs and diagrams were not included
in the record on appeal. However, Pyles does not contest that
the photographs depicted the crime scene during daytime and
nighttime. He also does not dispute that the diagram of the lot
accurately reflected the scene’s dimensions.
20
determination of whether Pyles knew he was shooting a peace
officer, it was certainly not the only type of evidence germane
to this determination. The record contains a large amount of
other evidence indicating that Pyles knew that he was shooting a
police officer. Perhaps most important in this regard is Pyles’s
first confession, which included the statement, “I didn’t see the
person I shot, but I knew it had to be a police officer.”9
Pyles’s “own confession [was] probably the most probative and
damaging evidence that [could] be admitted against him.” Bruton
v. United States, 391 U.S. 123, 139 (1968) (White, J.,
dissenting). Furthermore, Pyles testified that he saw the
lights of a vehicle behind his Jeep. Officer Collins testified
that he was in his police uniform on the night of the shooting
and that, before Kovar and Crain arrived, he inspected all four
sides of the building with a flashlight to determine whether it
was secure. This provides strongly probative evidence that
Pyles, who testified that he was hiding behind the building prior
to the shooting, knew that police officers were on the scene.
Additionally, Collins testified that he could hear the sirens of
Kovar and Crain’s patrol car as it approached, though they turned
off the lights and sirens before reaching the scene.
9
Pyles’s opening brief contains no claim that this
confession was involuntary, nor did he challenge its
admissibility on any other grounds. His reply brief contains a
footnote in which he attempts to challenge the voluntariness of
his confession. However, because he failed to raise the issue in
his opening brief, Pyles has waived any challenge to the
voluntariness of his confession. See Cinel v. Connick, 15 F.3d
1338, 1345 (5th Cir. 1994) (“An appellant abandons all issues not
raised and argued in its initial brief on appeal.”).
21
In sum, given the sizeable amount of evidence regarding the
physical characteristics of the crime scene, including daytime
photographs of the area, we conclude that Sarratt’s daytime visit
to the crime scene was largely duplicative of the evidence
presented at trial. Furthermore, the record contains a great
deal of evidence unrelated to the physical characteristics of the
crime scene that constitutes powerful proof that Pyles knew he
was shooting a peace officer. We therefore conclude that
Sarratt’s unauthorized visit to the crime scene did not “ha[ve]
substantial and injurious effect or influence in determining the
jury’s verdict.” Brecht, 507 U.S. at 623 (internal quotation
marks omitted). The district court therefore properly denied
Pyles’s request for habeas relief on this claim.
B. Knowing Presentation of Perjured Testimony
Pyles contends that the prosecution knowingly presented
false testimony during his trial. “A state denies a criminal
defendant due process when it knowingly uses perjured testimony
at trial or allows untrue testimony to go uncorrected.” Faulder
v. Johnson, 81 F.3d 515, 519 (5th Cir.) (citing Napue v.
Illinois, 360 U.S. 264 (1959)), cert. denied, 117 S. Ct. 487(1996). To obtain a reversal based upon a prosecutor’s use of
perjured testimony or failure to correct such testimony, a habeas
petitioner must demonstrate that “1) the testimony was actually
false, 2) the state knew it was false and 3) the testimony was
material.” See id.; Blackmon v. Scott, 22 F.3d 560, 565 (5th
Cir. 1994).
22
During Pyles’s trial, Gary LaCour and Robert Banschenbach,
two former cellmates of Pyles, testified as witnesses for the
state. LaCour testified that Pyles told him that, on the night
of the shooting, “he was trying to burglarize a store and that he
saw a police car pull up.” Banschenbach testified that he asked
Pyles “did you know that it was a copy [sic] you were shooting
at?” and that Pyles responded “Yeah, I knew who he was.”
During its cross-examination of Pyles, the state offered
evidence that the phrases, “Kill All Whie [sic] Pig Ploice [sic]”
and “Kill Kill Judge DA,” were scratched into the walls of
Pyles’s jail cell. Pyles claimed that the phrases were on the
cell wall before his arrival. LaCour testified as a rebuttal
witness that he saw Pyles scratching an “L” into one of the
phrases. Pyles contends that this testimony was false and that
the state knew that it was false before offering it.
The magistrate judge held an evidentiary hearing on Pyles’s
claim that the prosecution knowingly presented false testimony.
The magistrate judge concluded that LaCour and Banschenbach
testified falsely at Pyles’s trial based upon their invocation of
their Fifth Amendment privilege against self-incrimination when
asked to answer questions relating to the veracity of their trial
testimony.10 However, the magistrate judge went on to determine
10
Prior to the evidentiary hearing, LaCour informed the
magistrate judge that he intended to invoke his Fifth Amendment
privilege against self-incrimination in response to any questions
about his trial testimony or prior discussions with law
enforcement authorities. Both parties agreed that it was
unnecessary for LaCour to appear in court for this purpose. The
magistrate judge therefore quashed the writ of habeas corpus ad
23
that he was “unable to conclude that the prosecutors knew
Banschenbach and LaCour were lying.” The magistrate therefore
recommended that the district court deny relief on Pyles’s claim
that the prosecution knowingly offered false testimony, and the
district court accepted the recommendation.
Pyles acknowledges that we must accept factual
determinations, such as the magistrate judge’s conclusion that
the prosecutors did not know that Banschenbach and LaCour were
lying, unless they are clearly erroneous. See Washington v.
Johnson, 90 F.3d 945, 951 (5th Cir. 1996). However, he contends
that, at the evidentiary hearing, he offered evidence that
conclusively established that the prosecution knew that the
testimony of Banschenbach and LaCour was false prior to
presenting it. He points to the fact that, when asked at the
evidentiary hearing, “Did you give . . . the District Attorneys .
. . any indication that any part of your testimony was
inaccurate?” Banschenbach invoked his Fifth Amendment privilege.
Pyles argues that Banschenbach’s invocation of the privilege was
proper only if Banschenbach’s truthful answer to the question
would have been affirmative because this is the only answer that
would have indicated that Banschenbach actually lied at trial.11
testificandum previously issued to LaCour.
11
Strictly speaking, it is not the case that an
affirmative answer to this question would have implied that
Banschenbach lied at trial. Banschenbach could have given the
prosecutors reason to believe that some of his testimony was
inaccurate in a way that would not necessarily imply that he was
lying. For example, Banschenbach could have told prosecutors
that he did not have a good memory or that his recollection was
24
Pyles argues that a truthful negative answer to the question
would have merely indicated that Banschenbach gave the
prosecutors no reason to believe that his testimony was false.
This could be the case either (1) because Banschenbach’s trial
testimony was truthful or (2) because Banschenbach is a good
liar. Therefore, Pyles argues that the magistrate should have
inferred from Banschenbach’s invocation of the privilege that
Banschenbach had in fact given the prosecution a reason to
believe that his testimony was false.
We have held that “[t]he Fifth Amendment ‘does not forbid
adverse inferences against parties to civil actions when they
refuse to testify in response to probative evidence offered
against them.’” FDIC v. Fidelity & Deposit Co. of Maryland, 45
F.3d 969, 977 (5th Cir. 1995) (quoting Baxter v. Palmigiano, 425
U.S. 308, 318 (1976)). The same is true regarding an invocation
of the privilege by a non-party witness in a civil action. See
id. However, the fact that the Fifth Amendment does not prohibit
such inferences does not imply that the fact-finder is required
to make them. Moreover, even if the magistrate were required to
conclude by implication that Banschenbach would have testified
that he “gave the district attorney some indication that . . .
part of his testimony was inaccurate,” the magistrate judge was
free to make a negative credibility assessment regarding
Banschenbach’s implied testimony. See Orduna S.A. v. Zen-Noh
hazy regarding certain details surrounding his interaction with
Pyles.
25
Grain Corp., 913 F.2d 1149, 1154 (5th Cir. 1990) (“The
credibility determination of witnesses . . . is peculiarly within
the province of the district court.”).
Pyles also offered an affidavit from LaCour, which states
that his “entire testimony was untrue and the state knew it.”
The magistrate judge declined to consider this statement in
LaCour’s affidavit because it was hearsay. Pyles contends that
the portion of LaCour’s statement indicating that the state knew
that his testimony was false is admissible under Rule 804(b)(3)
of the Federal Rules of Evidence as a statement against interest.
He argues that the statement potentially subjected LaCour to
civil liability under 42 U.S.C. § 1983. Given that Pyles cites
no authority in support of this proposition, we cannot say that
the district court abused its discretion in concluding that the
statement was not so against LaCour’s interest “that a reasonable
person in the declarant’s position would not have made the
statement unless believing it to be true.” FED. R. EVID.
804(b)(3).12
12
Pyles also contends that the prosecutors knew that
LaCour’s statement that he saw Pyles scratching the incriminating
phrases into the wall of his cell was false because they had
received a statement from Scottie Cetnar, another cellmate of
Pyles, stating that Pyles did not scratch the phrases on the
wall. Cetnar stated that the phrases were on the wall before he
moved into the cell block. However, the state points out that
Pyles was transferred to the cell block on August 10, 1982,
LaCour was transferred to the cell block on August 16, 1982, and
Cetnar was transferred to the cell block on August 26, 1982.
Pyles does not dispute the accuracy of these transfer dates.
Thus, the state observes that, because LaCour never specified the
date on which he saw Pyles scratching the comments into his cell
wall, it is possible that Pyles scratched the phrases into the
wall any time between August 16 and 26, 1982.
26
Pyles also points to the fact that, at the evidentiary
hearing, Winfield Scott, one of the prosecutors involved in
Pyles’s trial, testified that he had formed a “suspicion” that
the phrases were “probably written by some non-white semi-
literate” because some of the phrases contained misspellings and
had racial overtones. Scott also provided the following
testimony regarding the veracity of LaCour’s testimony:
[T]o this day I don’t know whether [LaCour’s] testimony
is true or false. My only concern was how is it going
to impact the jury. I certainly had no, you know, no
way of knowing whether his testimony to this day is
true or false.
Pyles contends that this testimony indicates that the prosecution
did “not s[eek] out information readily available to it”
regarding the truth or falsity of LaCour and Banschenbach’s
testimony. United States v. Auten, 632 F.2d 478, 481 (5th Cir.
Unit A 1980). However, Pyles provides no indication of what
information revealing the falsity of LaCour and Banschenbach’s
testimony was “readily available” to the prosecution.13
On this record, we cannot say that the magistrate judge
clearly erred in concluding that the prosecution did not
knowingly present false testimony from LaCour and Banschenbach.
The district court therefore properly denied Pyles’s request for
habeas relief on this claim.
13
It is worth noting that Scott also testified that he
wished to have a polygraph performed on LaCour, but was informed
that the results would be unreliable because of LaCour’s history
of drug use.
27
C. Withholding Exculpatory Evidence
Pyles finally contends that the government withheld
exculpatory evidence regarding LaCour and Banschenbach’s history
as informants and regarding assistance that the state provided
LaCour in exchange for his testimony. “The prosecution’s
suppression of evidence favorable to the accused violates the Due
Process Clause if the evidence is material either to guilt or to
punishment.” Kopycinski v. Scott, 64 F.3d 223, 225 (5th Cir.
1995) (citing Brady v. Maryland, 373 U.S. 83, 87 (1963)). This
includes evidence that may be used to impeach a witness’s
credibility. See id. (citing United States v. Bagley, 473 U.S.
667, 676 (1985)). “[E]vidence is material only if there is a
reasonable probability that, had the evidence been disclosed to
the defense, the result of the proceeding would have been
different.” Bagley, 473 U.S. at 682; see also Kopycinski, 64
F.3d at 225-26. If the prosecution withholds evidence that
satisfies the above definition of materiality, then harmless
error analysis is inapposite and habeas relief is warranted. See
Kyles v. Whitley, 514 U.S. 419, 435 (1995). This is so because,
[a]ssuming, arguendo, that a harmless-error enquiry
were to apply, a Bagley error could not be treated as
harmless, since a reasonable probability that, had the
evidence been disclosed to the defense, the result of
the proceeding would have been different necessarily
entails the conclusion that the suppression must have
had substantial and injurious effect or influence in
determining the jury’s verdict.
Id. (internal quotation marks and citations omitted).
Pyles first claims that the state failed to disclose the
fact that prosecutors had promised LaCour that they would
28
recommend two-year concurrent sentences for his pending burglary
convictions. At trial, LaCour testified that the prosecution had
agreed to request that his state sentences run concurrently with
the federal time that he would be serving as a result of
revocation of his federal probation. LaCour testified that he
was hoping that he would at least get a deal whereby he would be
paroled from state prison as soon as he finished serving his
federal sentence, which could have continued for another four
years, but that the prosecution had made no specific promise.
Several months after Pyles’s trial, Gerald Banks, the lead
prosecutor, recommended that LaCour receive concurrent two-year
sentences on his pending burglary charges. At the federal
evidentiary hearing, Banks testified that he had not withheld any
portion of the deal that he had negotiated with LaCour in
exchange for his testimony.14
The magistrate judge concluded that the state had not
withheld any information regarding any promises made to LaCour
prior to trial, and we cannot say that this factual finding is
clearly erroneous. None of the evidence presented at the
evidentiary hearing establishes that the state had promised
LaCour that it would recommend concurrent two-year sentences on
14
As noted before, Pyles offered LaCour’s affidavit as
evidence at the evidentiary hearing. The affidavit states that
prosecutors had promised LaCour prior to Pyles’s trial that they
would recommend concurrent two-year sentences on his pending
burglary convictions. However, it appears that the magistrate
judge did not consider this portion of the affidavit because it
was not inconsistent with LaCour’s trial testimony and therefore
did not constitute a statement against interest. See FED. R.
EVID. 804(b)(3).
29
his burglary charges prior to Pyles’s trial. Moreover, even if
the state had withheld evidence regarding such a promise, such
evidence was immaterial. During cross-examination by Pyles’s
counsel, LaCour did not mince words in indicating that self-
interest motivated his testimony:
Q: Well, you saw a chance, after you talked to Johnny
Pyles and learned that he was tried for capital
murder of a police officer, you saw a chance to
help yourself out with your problems with the law?
A: Yes, sir.
. . .
Q: Your [sic] trying to help yourself out in your own
problems, aren’t you?
A: Yes, sir. Yeah, no question.
Assuming that the state had promised LaCour a better deal than he
indicated at trial, disclosure of the terms of such a deal would
have at best had a marginal negative impact on the jury’s
credibility assessment of LaCour. Therefore, “there is [no]
reasonable probability that, had the evidence been disclosed to
the defense, the result of the proceeding would have been
different.” Bagley, 473 U.S. at 682.
Pyles also claims that the state withheld evidence of
Banschenbach and LaCour’s past informant activities.
Specifically, Pyles argues that he established at the evidentiary
hearing that prosecutors were aware that Banschenbach had acted
as an informant in a state prosecution in Las Vegas. He also
30
argues that he established that LaCour had operated as an
informant for various law enforcement agencies, and that the
prosecution had actual or constructive knowledge of some of these
activities. Banks testified at the federal evidentiary hearing
that he did not disclose what information he had regarding the
history of LaCour and Banschenbach as informants because he did
not consider it exculpatory. Assuming that the state had an
obligation to disclose information regarding all of LaCour and
Banschenbach’s alleged informant activities,15 Pyles is not
entitled to habeas relief based upon the state’s failure to
produce this evidence because it is not material.
LaCour testified at trial that he was on unadjudicated
probation for burglary, was currently incarcerated for two
pending burglary charges to which he intended to plead guilty,
and had a conviction for bank larceny. He also testified that he
is a heroin addict and that he worked as an informant while on
federal probation. Additionally, as noted earlier, LaCour
acknowledged on cross-examination that his testimony was
motivated in part--if not entirely--by the prospect that he would
receive help from prosecutors in obtaining a lenient sentence on
his burglary charges. Banschenbach testified that he had prior
convictions for robbery, assault, burglary, grand theft, and
passing bad checks. During direct examination, the prosecutor
15
The parties dispute (1) whether the prosecution team had
actual or constructive knowledge of some of the informant
activities in question and (2) whether some of the informant
activities alleged by Pyles ever occurred.
31
acknowledged that Banschenbach had “[b]een rather busy in [his]
life of crime.” Furthermore, he testified that he had previously
worked as an informant in a county jail. Given the substantial
body of impeachment evidence in the trial record against LaCour
and Banschenbach, “any incremental impeachment value” that Pyles
would have garnered from disclosure of additional informant
activities by LaCour and Banschenbach “does not raise a
reasonable probability that, had the [information] been disclosed
. . ., the outcome of the proceeding would have been different.”
Drew v. Collins, 964 F.2d 411, 419-20 (5th Cir. 1992); see also
United States v. Vgeri, 51 F.3d 876, 880 (9th Cir. 1995) (holding
that the prosecution’s failure to disclose information regarding
a witness’s past cooperation with law enforcement did not
constitute a Brady violation in light of other impeachment
evidence in the record, including testimony regarding the
witness’s extensive drug use and past cooperation with the DEA);
United States v. Abello-Silva, 948 F.2d 1168, 1179, 1181 (10th
Cir. 1991) (holding that the government’s failure to disclose a
deal whereby it dismissed a drug indictment against a witness who
“was crucial to the government’s case” was immaterial in light of
testimony regarding the witness’s prior felony convictions,
extensive involvement in the drug trade, and past informant
activity). The district court therefore properly denied Pyles
habeas relief on his claim that the state withheld exculpatory
evidence.
32
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the
district court.
33