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Ricky Don BLACKMON
Classification: Murderer
Characteristics: Robberies
Number of victims: 3
Date of murders: ??? / 1987
Date
of arrest: April 10, 1987
Date of birth:
November 21,
1957
Victims profile: ??? / Carl Joseph Rinkle, 26
Method of murder: Stabbing
with a sword or machete
Location: Oklahoma/Texas, USA
Status: Executed
by lethal injection in Texas on August 4,
1999
Convicted murderer Ricky Blackmon was executed Wednesday night for
hacking to death an East Texas man with a 3-foot-long sword
fashioned from a steel sawmill blade.
Blackmon, 41, was the 1st of 6 Texas death row inmates expected to
receive lethal injection over the next 2 weeks.
Blackmon had no last words as the deadly chemical cocktail began
flowing, but earlier released a prepared statement that asked people
to view the Internet website of a church in Huntsville.
"Use this to teach others about what not to do and pray God receives
the glory, not me," he said.
As the drugs were being administered, Blackmon obviously choked up,
sobbing, then closed his eyes and gasped twice as a muscle in his
neck began twitching.
8 minutes later, a tear still running from his right eye, he was
pronounced dead at 6:22 p.m. CDT.
"I wouldn't want to call it relief," Thomasine Crow, the victim's
mother, said of the execution. "I think there is justice that needs
to be met and I think this is what needs to be done. Nothing can
bring Carl back. Nothing can ever ease that pain completely. This is
what he (Blackmon) did and this is what needs to be done."
She met Blackmon recently and the prisoner told her he deserved to
die and apologized for killing her son.
"I can hate Ricky Blackmon and be miserable and bitter the rest of
my life or I can accept the apology and learn to be happy with that
and go on," she said. "And that is what I choose to do."
"I'm happy, honestly happy," Blackmon said in a recent interview. "God
has said to me: `Ricky, this is your ticket home.' And I'm going
home."
"God's grace transcends all," John Walker, the former Shelby County
district attorney who prosecuted Blackmon in 1987, said when told
Blackmon had embraced religion. "I hope he has made peace with God
and has his soul secure. But he still has to pay the civil penalty.
"The civil authority has authority," Walker added. "Grace and
forgiveness is up to God and that's not my job as a prosecutor."
Blackmon was sentenced to death for killing Carl Rinkle, 26, at
Rinkle's Shelby County home in far East Texas the night of March 28,
1987, and taking more than $600 in cash, a small pistol, some
jewelry and cowboy boots.
The murder weapon was a sawtooth-edge steel sword the former mill
worker made himself. Rinkle's skull and throat were slashed, then he
was stabbed 21 times in the back with a large hunting knife.
"All you have to do is look at the pictures," Walker said. "Not only
was it a murder, it was an unbelievably vicious murder."
Blackmon, from Mount Pleasant, blamed a girlfriend, jealousy, drugs
and a need for some quick cash for the attack that left Rinkle
butchered.
"I put myself here," he said. "I, Ricky Blackmon, put myself on
death row. I could have avoided it, but I was too much into the
'self' syndrome. ... I was more interested in myself."
Blackmon's girlfriend, Donna Mae Rogers, seen with the victim
earlier in the evening, was arrested and led police to Blackmon, who
was arrested while working as a cook in a Dallas restaurant.
According to Blackmon, he and Ms. Rogers, who wound up with a life
prison term, were living out of his 8-year-old Oldsmobile Cutlass in
Dallas and needed money. They drove to Shelby County, an area she
was familiar with, to rob a liquor store. When they found the store
closed, they turned their attention to Rinkle, whom Ms. Rogers knew
and found at a bar.
She accompanied Rinkle back to his house where Blackmon, wearing a
black hooded ninja outfit and wielding his medieval-style sword,
walked in on them.
"I went to work on that boy and didn't know what I was doing,"
Blackmon said.
The son of a preacher, Blackmon said he spurned his father's
teachings until he arrived on death row and found religion. He was
looking forward to death.
"I want young people to hear my voice and know that being rebellious
can kill you," he said. "It breaks my heart. They think this is bad?
This (death row) is a summer camp compared to what hell is going to
be.
"I can't touch my mother. I can't even shake your hand. I can shake
hands with other people that's in here like me. It's just a cheap
substitute of a human emotion. That can't replace mama."
On Thursday, another convicted killer, Charles Boyd, was set to die
for strangling and drowning a woman who lived across from him at a
Dallas apartment complex. It was 1 of 3 women Boyd confessed to
killing in a series of similar slayings.
Blackmon becomes the 17th condemned inmate to be put to death this
year in Texas, and the 181st overall since the state resumed capital
punishment on Dec. 7, 1982.
(sources: Associated Press and Rick Halperin)
Ricky BLACKMON
On March 28, 1987, in Joaquin Texas, 29 year old Ricky Blackmon
stabbed Carl Rinkle to death with a handmade sword, made from an old
saw blade. Blackmon's accomplice, Donna Mae Rogers, knew Carl and
knew he usually had cash.
She drove Blackmon to Carl's
home and when he opened the door, Blackmon attacked him with the
sword then looted his home. Blackmon claimed that he only intended
to rob Carl but when he looked in the window and saw Rogers naked in
bed with Carl, he "snapped."
22 F.3d 560
Ricky Don Blackmon, Petitioner-appellant,
v.
Wayne Scott, Director, Texas Department of Criminal
Justice, Institutional Division,
Respondent-appellee
United States Court of Appeals,
Fifth Circuit.
May 26, 1994
Appeal from the United States
District Court for the Eastern District of Texas.
Before POLITZ, Chief Judge, JOLLY
and EMILIO M. GARZA, Circuit Judges.
POLITZ, Chief Judge:
Ricky Don
Blackmon appeals an adverse summary judgment
rejecting his 28 U.S.C. Sec. 2254 petition
for habeas corpus relief. For the reasons
assigned we vacate the judgment and remand
for further proceedings consistent herewith.
Background
In March
1987 Ricky Don Blackmon and his girlfriend
Donna Mae Rogers were unemployed,
impoverished, and living outside Dallas,
Texas. Rogers told Blackmon she knew people
in Joaquin, Texas who would be good targets
for a robbery. She drove Blackmon there,
telling him she would lure an old
acquaintance, Carl J. Rinkle, to the Rinkle
house where she would knock him unconscious
and steal his cash. Blackmon was to wait
outside the house. Rogers entered the
residence but returned to tell Blackmon she
could not knock Rinkle out. After Rogers
went back inside Blackmon looked through a
bedroom window and saw a nearly naked Rogers
with a completely naked Rinkle on the bed.
Blackmon
contends that when he saw this he became so
enraged that it caused him to break into the
house and murder Rinkle. Blackmon took a
large sword, which he had made from a
sawmill blade, out of the trunk of his car
and knocked on the front door. Rinkle
answered the door unarmed. Blackmon killed
Rinkle, brutally slashing his body. Blackmon
and Rogers then looted the residence of
various items, including approximately $700
in cash.
Several
weeks later Blackmon was arrested just
before midnight. He gave a taped statement
and signed a written confession at 5:30 a.m.
the next day.1
Blackmon was charged in a two-count
indictment with the capital murder of Rinkle
during the course of committing and
attempting to commit the offenses of
burglary of a habitation and robbery. Rogers
gave a taped statement and signed confession.
Copies of both were provided to Blackmon
prior to his trial. The state did not call
Rogers as a witness until the sentencing
phase.
The trial
began on October 19, 1987. On October 23 the
state notified Blackmon for the first time
of its intent to use, during the sentencing
phase, evidence of an uncharged Oklahoma
double homicide. The jury returned a verdict
of guilty. During the sentencing phase the
state presented extensive evidence of
uncharged crimes allegedly committed by
Blackmon in Oklahoma. Blackmon had no prior
criminal convictions. The state's witnesses
included Terry Sittig, who had pleaded
guilty to the Oklahoma murders, Raymond
Smith and Gary Keith Hall.
Sittig was
brought to Shelby County from an Oklahoma
prison just prior to testifying. Sittig had
pleaded guilty to the Oklahoma murders; he
was to testify that Blackmon assisted in the
crime. Sittig asked to speak with Blackmon.
Blackmon's counsel simultaneously sought an
interview. The state objected, arguing that
defense counsel should not be allowed to
speak with Sittig until after Sittig had
testified. The trial court ruled that
Blackmon's counsel was entitled to read
Sittig's written statement and was to be
given five minutes to ask Sittig whether the
statement was true. The trial court
instructed that a prosecutor was to be
present during defense counsel's interview.
That interview was conducted in a police car
in the presence of a prosecutor and several
law enforcement officers. Following the
interview, Blackmon's counsel objected on
the basis of surprise and asked for a one-week
continuance to investigate the uncharged
allegations. This objection was overruled
and the continuance was denied.
On October
29, 1987 the state announced that two of
Blackmon's former cellmates in the Shelby
County jail, Smith and Hall, would be called
as witnesses. Warrants were issued to have
them brought back to Shelby County.
According to Blackmon, once Smith and Hall
arrived at the Shelby County jail they were
instructed to remain hidden from Blackmon in
order to prevent any investigation into the
content of their testimony. Smith and Hall
faithfully followed those instructions,
including crawling on the floor in certain
parts of the jail in order to remain out of
Blackmon's sight. When counsel for Blackmon
made repeated inquiries at the jail in
attempts to interview the former cellmates,
jail personnel misrepresented that they were
not present. It was only on the eve of their
testimony that their presence was made known
and then only late at night by telephone
long after Blackmon's counsel had gone to
sleep. According to Smith and then-jailor
Phillip Lynch, both Smith and Hall were
present in the Shelby County jail several
days prior to trial but the state concealed
their presence despite repeated inquiries
from Blackmon's counsel.
At the
conclusion of the punishment phase the jury
affirmatively answered the special issues;
the trial court assessed punishment of death
by lethal injection. Blackmon's conviction
and sentence were affirmed on direct appeal,2
and the United States Supreme Court denied
Blackmon's petition for writ of certiorari.3
Blackmon unsuccessfully sought habeas relief
in state court and then filed the instant
habeas petition. The district court granted
the state's motion for summary judgment
rejecting Blackmon's petition but granted a
certificate of probable cause. Blackmon
timely appealed.
Analysis
After
addressing the merits of two of Blackmon's
31 federal habeas claims, the district court
concluded, "[a]fter reviewing the entire
record, the Court finds that all of
Blackmon's remaining claims for relief are
without merit." Blackmon asserts that
because the district court addressed only
two of his 31 claims, its order did not
provide the specificity necessary to provide
a meaningful opportunity for review by this
court, citing Flowers v. Blackburn.4
The district court expressly stated, however,
that it had reviewed the pleadings and
entire record to determine that Blackmon had
not raised any genuine issue of material
fact and that the state was entitled to
judgment as a matter of law. Flowers is
distinct in that respect. In this setting,
the fact that the district court
specifically addressed only two out of 31
claims does not, alone, constitute
reversible error.
Blackmon
next contends that the findings of fact
adopted by the state court were drafted by
an assistant district attorney and provided
to the court ex parte without affording
Blackmon notice or an opportunity to respond.
Blackmon asserts that in granting summary
judgment the district court improperly
accorded the state court's factual findings
a presumption of correctness. Blackmon did
not raise this claim in the trial court and
it will not be considered for the first time
on appeal.5
Blackmon
complains that only the first two special
issues regarding deliberateness and future
dangerousness were submitted to the jury and
that the third special issue regarding
provocation was not.6
In order to raise the issue of provocation,
"it is necessary that there be evidence of
the deceased's conduct just prior to his
death; also, that evidence must be
sufficient to be considered provocation."7
Here, Blackmon was a party to the criminal
episode in which Rogers lured Rinkle into
his home to steal his money. During his
interrogation Sheriff Paul Ross asked: "Did
you ever tell her to go back and get in bed
with Carl or did she do this on her own?"
Blackmon answered: "I told her she could put
the make on him like she was but I didn't
actually tell her she had to." Rinkle was
unarmed when he answered the door and could
not defend himself. As Blackmon participated
in the creation of the criminal episode,
initiated the violence, and brutally
assaulted and killed an unarmed individual,
the fact that he saw Rogers perform as
instructed is patently insufficient to
establish provocation.8
Blackmon
further claims that the Texas capital
sentencing scheme is unconstitutional as
applied to his case because the jury was not
allowed to give full consideration to the
mitigating evidence that he murdered Rinkle
in a jealous rage. Blackmon's claim is
unavailing. The jury was able to consider
any mitigating effect that evidence might
have under the future dangerousness issue.
The jury could have concluded that Blackmon
killed in an episodic jealous rage and that
he would therefore be unlikely to pose a
danger in the future.9
We perceive no constitutional violation.
Blackmon
raises a Brady10
claim by asserting that the state improperly
withheld Rogers' statements and testimony
until the sentencing phase so as to avoid a
jury instruction on voluntary manslaughter.
In order to succeed on a Brady claim
Blackmon must show: (1) the prosecution
suppressed evidence; (2) the evidence was
favorable; and (3) the evidence was
"material either to guilt or punishment."11
Evidence is material only if there is a
reasonable probability that, had the
evidence been disclosed, the result of the
proceeding would have been different. The
state is not required to furnish a defendant
with exculpatory evidence that is fully
available to the defendant or that could be
obtained through reasonable diligence.12
The
exculpatory evidence to which Blackmon
refers is Rogers' testimony and statements
concerning Blackmon's alleged jealous nature
and sudden passion killing of Rinkle. Any
jealous nature Blackmon might possess would
be information known to Blackmon; thus there
was no need for the state to provide such
evidence. Furthermore, the prosecutor is
under no duty to make a complete and
detailed accounting to defense counsel of
all investigatory work done.13
No Brady violation occurred.
Blackmon
contends that Smith, Hall, and Sittig each
obtained promises of assistance in exchange
for their testimony implicating Blackmon in
the uncharged double homicide in Oklahoma,
but that they each falsely testified that
they had not been promised assistance and
that the prosecutor used the false testimony
in his closing argument. Blackmon asserts a
due process violation in the state's
suppression of impeachment evidence14
and its use of the perjured testimony.15
Blackmon additionally asserts that because
the prosecutor failed to respond to the
allegation that a deal was made with Sittig
in contravention of the lower court's order,
the record is inconclusive and an
evidentiary hearing is essential.
To obtain
a reversal based upon the prosecutor's use
of perjured testimony, Blackmon must show
that (1) the statements were actually false;
(2) the state knew they were false; and (3)
the statements were material, i.e., a highly
significant factor reasonably likely to have
affected the jury's verdict.16
To obtain reversal based upon the
prosecutor's suppression of impeachment
evidence, Blackmon must likewise show that
the evidence was material, irrespective of
good faith or bad faith by the prosecution.17
From the record we are able to determine
that Smith, despite receiving a letter from
the prosecutor which was sent to the Parole
Board in exchange for his testimony, denied
that any such agreement existed.18
During
cross-examination Hall indicated an
agreement whereby the prosecutor would help
him before the Parole Board if he testified
truthfully,19
and the prosecutor acknowledged the
agreement during closing argument. It is
unclear from the record whether Sittig had
an agreement with the prosecutor which was
not revealed to Blackmon or the jury. A
letter was sent by the prosecutor to the
Oklahoma Parole Board acknowledging Sittig's
cooperation with Blackmon's prosecution. As
the prosecutor never responded to these
allegations, Sittig's affidavit indicates
there was an agreement, and the state
vigorously denies that one existed, there
appears to be a genuine issue of material
fact. The record does not reflect whether
Smith had a deal which was never revealed
and, as noted, is unclear with respect to
Sittig. A determination of materiality
cannot be made at this point. Because Smith,
Hall, and Sittig were the only sources of
evidence to link Blackmon directly to the
Oklahoma murders, we remand for an
evidentiary hearing for the express purpose
of clarifying the conflicting evidence and
the making of all relevant fact-findings.20
Next
Blackmon alleges a due process violation
because of the state's hiding of witnesses
Smith and Hall and his lack of access to
Sittig, and he further alleges that these
claims cannot be resolved without an
evidentiary hearing.21
A state violates a capital defendant's right
to due process under the fourteenth
amendment when it uses evidence at the
sentencing phase of the trial which the
defendant does not have a meaningful
opportunity to rebut.22
This violation becomes more pronounced when
the state makes an affirmative effort to
conceal witnesses to prevent a timely
investigation and fair presentation of
testimony.23
A prima facie showing of a due process
violation, however, does not entitle a
defendant to reversal absent a showing of
prejudice.24
Although
the state court found that no unfair
surprise occurred with respect to
introduction of the Oklahoma murders,
Blackmon raises an additional objection. He
complains that he was denied adequate access
to Sittig, contending that the circumstances
surrounding the brief interview in a police
car did not provide a fair opportunity for
preparation of a proper defense. Blackmon
similarly complains of inadequate access to
Smith and Hall who allegedly were hidden in
the jail. Without appropriate access to
Smith, Hall, and Sittig, Blackmon could not
prepare for and impeach them with any
arrangements which might have been made in
exchange for their testimony. No state court
findings were made with respect to this
aspect of Blackmon's claim. Remand is
necessary for an evidentiary hearing in
order to evaluate more properly Blackmon's
due process claim as it relates to
inadequate access, and to determine whether
prejudice existed.
With
respect to unfair surprise, Blackmon points
to two pieces of evidence which could not be
rebutted because of the minimal notice that
the Oklahoma double homicide evidence would
be introduced: Sittig's testimony that only
he and Blackmon were involved in the double
homicide and Officer Madison's testimony
that a car fitting the description of
Blackmon's, with Texas license plates, was
present at the scene of the Oklahoma murders.
The state court found that it could not
determine what Blackmon's counsel might have
done differently had more time been given to
prepare. Blackmon asserts that with more
time he could have shown that Sittig's
testimony at Blackmon's trial conflicted
with statements he made during his plea
colloquy. With respect to Officer Madison's
testimony, Blackmon contends that he could
have shown that Officer Madison testified
falsely regarding the car with Texas license
places. Without examining the transcript of
the Oklahoma trial we cannot know if that is
the case. We must likewise remand for an
evidentiary hearing and appropriate findings
thereon.
Finally,
Blackmon asserts that the district court
erred in rejecting his sixth amendment
Massiah25
claim without holding an evidentiary hearing.
Blackmon's former cellmates, Smith and Hall,
testified that Blackmon made incriminating
statements concerning the two Oklahoma
murders. Blackmon contends that the
information contained in these statements
was originally supplied to the informants by
Shelby County jail officials, the informants
were promised assistance in their cases in
exchange for help in obtaining information
from Blackmon, and the informants
subsequently used that information to taunt
Blackmon into confessing to the crime. The
district court reviewed the evidence
submitted by Blackmon without a hearing and
determined that the record supports the
conclusion that no sixth amendment violation
occurred.
"It is the
duty of the district court, and ours as well,
to review de novo the legal conclusions
reached on the basis of the facts."26
Because no state court findings were entered
relating to this claim,27
we conclude that the district court's denial
of relief without benefit of an evidentiary
hearing violated Townsend v. Sain.28
Although the state correctly points out that
the "Sixth Amendment is not violated
whenever--by luck or happenstance--the State
obtains incriminating statements from the
accused after the right to counsel has
attached,"29
it is not clear from the record that the
information was obtained from Blackmon by "luck
or happenstance."
To the
contrary, the affidavit of Raymond Smith
states that "After that, Keith and I kept
our ears open around Ricky. But he didn't
say much at all. Finally, Keith got him to
talking...." In addition, when Hall
testified regarding the information obtained
from Blackmon, he stated, "He [Blackmon]
said that--well, I asked him--we asked him
why did he kill them...."
The state
argues that the evidence fails to show that
Smith and Hall were ever instructed to
interrogate Blackmon. Even if that is true,
it is unavailing. Our decision in United
States v. Johnson30
is instructive on this point. In Johnson we
explained that even when officers instruct
an agent not to ask a defendant questions
about his case, if the agent does more than
just listen to elicit incriminating remarks,
a sixth amendment violation occurs.31
Thus our
inquiry must focus on what Smith and Hall
did to obtain the incriminating statements.
It is not clear how Blackmon was convinced
to talk or whether Smith and Hall, acting as
agents of the state, deliberately attempted
to elicit incriminating remarks.32
The affidavits and testimony present a
genuine issue of material fact; the granting
of summary judgment was inappropriate. In
attempting to answer the sixth amendment
issue before us, it is immediately apparent
that the credibility determinations required
cannot be made. An evidentiary hearing is
required.
We VACATE
the judgment of the district court and
REMAND for further proceedings consistent
herewith.
The special issues
provided under Tex.Code Crim.Proc.Ann. art.
37.071(b) are:
(1) whether the conduct
of the defendant that caused the death of
the deceased was committed deliberately and
with the reasonable expectation that death
of the deceased or another would result;
(2) whether there is a
probability that the defendant would commit
criminal acts of violence that would
constitute a continuing threat to society;
(3) if raised by the
evidence, whether the conduct of the
defendant in killing the deceased was
unreasonable in response to the provocation,
if any, by the deceased.
McBride v. State, 862 S.W.2d
600, 611 (Tex.Crim.App.1993), petition for
cert. filed (Dec. 21, 1993) (Statements by
the victim were "insufficient to constitute
'provocation' where appellant creates the
criminal episode as he did here, initiates
the violence, and assaults several unarmed
individuals with a deadly weapon.")
See, e.g., Marquez v.
Collins, 11 F.3d 1241 (5th Cir.1994) (finding
that the jury could have considered
defendant's jealous rage due to wife's
infidelity in his murder of his niece under
future dangerousness special issue)
Q. And, of course, you're
not getting anything--any consideration for
coming up here and testifying, you're just
doing it because you're a good buy [sic]?
A. No, sir. I just--I
just came tell [sic] what I heard, that's
all.
Although the district
court found that Sittig gave his statement
of his own free will, in light of the
contradictory evidence we find that such a
determination cannot be made without an
evidentiary hearing. The state habeas
court's finding of fact in this regard is: "The
record is devoid of any evidence that there
were undisclosed agreements on the part of
the State to provide lenient treatment for
any of the State's witnesses in exchange for
their testimony." (Findings of Fact p 21) (emphasis
added). This is clearly unsupported by the
record which contains conflicting evidence.
This conflict must be resolved. See Townsend
v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d
770 (1963)
Blackmon also interjects
that due to the lack of adequate notice, the
state had a duty under Brady to produce the
prior testimonies of James Sherfield (the
surviving eyewitness to the Oklahoma attack)
and Officer Madison, and Sittig's plea
colloquy. As Blackmon shows no legal basis
for this argument, we do not accept same
The district court noted
that the state "trial court did not make any
express findings of fact or conclusions of
law on this issue but did conclude that the
'applicant has failed to demonstrate that
his conviction was unlawfully obtained.' "
372 U.S. 293, 313-14, 83
S.Ct. 745, 757, 9 L.Ed.2d 770 (1963) ("There
cannot even be the semblance of a full and
fair hearing unless the state court actually
reached and decided the issues of fact
tendered by the defendant.")
Kuhlmann v. Wilson, 477
U.S. 436, 106 S.Ct. 2616, 91 L.Ed.2d 364
(1986)
145 F.3d 205
Ricky Don
Blackmon, Petitioner-appellant, v.
Gary L. Johnson, Director, Texas Department of Crimina
Jjustice,
Institutional Division, Respondent-appellee
United States Court of Appeals,
Fifth Circuit.
June 22, 1998
Appeal from the
United States District Court for the Eastern
District of Texas.
Before POLITZ, Chief Judge, and
JOLLY and EMILIO M. GARZA, Circuit Judges.
POLITZ, Chief Judge:
Convicted
of capital murder and sentenced to death,
Ricky Don Blackmon appeals the denial of his
28 U.S.C. § 2254 petition for habeas corpus.
The district court denied relief and on an
earlier appeal we vacated that judgment and
remanded for an evidentiary hearing. On
remand, the district court again denied
relief and granted a certificate of probable
cause. We now affirm.
BACKGROUND
The facts
underlying this appeal are set out in full
in the prior panel opinion.1
In summary, Blackmon was convicted of
capital murder and sentenced to death by
lethal injection. During the punishment
phase of the trial, the state offered
evidence of an uncharged double homicide
allegedly committed by Blackmon in Oklahoma.
The state's witnesses implicating Blackmon
in the Oklahoma murders included Terry
Sittig, Raymond Smith, Jr. and Gary Keith
Hall. Sittig had pleaded guilty to the
Oklahoma murders, but testified that
Blackmon assisted him. Smith and Hall were
Blackmon's cellmates during his pre-trial
detention and testified to statements
Blackmon allegedly made about his
involvement in the Oklahoma murders.
Blackmon
was not notified until October 26, 1987 that
the Oklahoma murders would be offered as an
extraneous offense in the punishment phase
which began on November 9, 1987. Because
Sittig, Smith, and Hall were incarcerated
out of the county, Blackmon's counsel could
not interview them until they were relocated.
Counsel was not notified of the presence of
Smith and Hall in the county until the night
before they testified, and Sittig was not
made available to counsel until five minutes
before he testified, and then in a vehicle
accompanied by police officers.
Blackmon's
conviction and sentence were affirmed on
direct appeal.2
Blackmon unsuccessfully sought habeas relief
in state court, and the federal district
court denied relief as well. On appeal, we
vacated the judgment of the district court
and remanded for an evidentiary hearing and
appropriate findings on Blackmon's claims
that he was denied due process by the
state's suppression of impeachment evidence,
its use of perjured testimony, its use of
extraneous offense evidence resulting in
unfair surprise, and the denial of access to
witnesses Terry Sittig, Raymond Smith, Jr.
and Gary Keith Hall. In addition he contends
that his sixth amendment rights were
violated when Smith and Hall elicited
statements from him during his pre-trial
detention.
An
evidentiary hearing was conducted on April 5
and 6, 1995. On the second day of testimony,
after witnesses entered the courtroom,
Blackmon moved for their sequestration.
After noting that no one had invoked the
rule of sequestration earlier, the court
ordered the state to remove their witnesses
from the courtroom. In response, the state
pointed out that a witness for the
petitioner had been present throughout the
previous day's testimony. To be fair to both
sides, the court did not order the witnesses
sequestered. Before the next witness was
called, Blackmon renewed his motion for
sequestration. The court adhered to its
previous ruling because the rule of
sequestration was not invoked at the
beginning of the proceedings. After the
hearing, Blackmon moved to strike the
testimony of the state's witnesses who were
present in the courtroom during the
testimony of other witnesses. The court
denied this motion.
In due
course the district court issued findings of
fact and conclusions of law, entered final
judgment denying Blackmon's petition for
habeas corpus, and granted Blackmon a
certificate of probable cause.3
Blackmon timely appealed the denial of his
habeas petition and the denial of his motion
to sequester the witnesses during the
evidentiary hearing. On appeal we review the
district court's factual findings for clear
error, questions of law are reviewed de
novo, and mixed questions of fact and law
generally receive independent review.4
ANALYSIS
The
district court concluded that no due process
violation occurred in the state's failure to
disclose impeachment evidence or use of
perjured testimony. The court found that the
district attorney promised to write a letter
to the parole board on behalf of Hall and
Smith if they testified truthfully and that
this information was not provided to defense
counsel prior to trial, but that the jury
was made aware that Hall and Smith could
benefit from testifying truthfully through
their cross examination and in counsel's
closing arguments. The court further found
that no promises were made to Sittig for his
testimony. Blackmon challenges these
findings.
The
state's suppression of evidence favorable to
the accused, including evidence that may be
used to impeach a witness' credibility,
constitutes a due process violation if the
evidence is material to punishment.5
Likewise, the state's knowing failure to
correct false testimony violates due process
if the false testimony reasonably could have
affected the judgment of the jury.6
In either case, the nondisclosed evidence
must be material to warrant reversal.7
Evidence is material if a reasonable
probability exists that had the evidence
been disclosed to the defense, the
proceeding's result would have been
different.8
At the
evidentiary hearing Sittig testified that
the district attorney offered to write a
letter for his prison jacket and to the
parole board if he testified truthfully at
the punishment phase of Blackmon's trial,
but that he was reluctant to cooperate.
District Attorney John S. Walker testified
that it was not his practice to offer
incentives for testimony and that he did not
write any letters to fulfill promises, but
that he did so out of charity for the
witnesses' truthful testimony. Assistant
District Attorney Robert Goodwin testified
that nothing was offered to Sittig for his
testimony, that Sittig was willing to
testify truthfully, but did not want to
appear to be cooperating, and that great
efforts were made to compel his appearance
at trial given his incarceration out of the
state. Based on the record, and giving due
deference to the district court's
credibility determinations, we must conclude
that the district court's finding that
Sittig received no promises in exchange for
his testimony is not clearly erroneous.
Because no Brady evidence existed and Sittig
was never questioned about any promises at
trial, no due process violation occurred as
to Sittig.
Both Smith
and Hall testified at the evidentiary
hearing that they were promised letters to
the parole board if they testified
truthfully at trial. Although these promises
were not disclosed to defense counsel prior
to trial, the district court found no due
process violation because Hall testified at
trial about the district attorney's promise
to write a letter to the parole board and
the district attorney conceded such in his
closing argument. Smith, on the other hand,
did not reveal that he received any promises
when questioned, but the district court
found that given the compound nature of the
questions posed, Smith did not commit
perjury. In addition, because Smith's
testimony was substantially the same as
Hall's, the evidence about the promise was
not material.9
Considering the record, we perceive no error
in the district court's findings, and we
find no due process violation occurred based
on the failure to disclose impeachment
evidence or use of perjured testimony.
The
district court also concluded that there was
no due process violation based on unfair
surprise by the use of extraneous offense
evidence or the denial of access to
witnesses. The court found that because
Blackmon's counsel was aware of the Oklahoma
murders and Blackmon could not point to any
material evidence that was not presented at
trial, no prejudice existed to support
Blackmon's unfair surprise claim. The court
also found that Blackmon's counsel received
sufficient notice to interview Smith and
Hall before they testified, and Blackmon
failed to demonstrate prejudice as a result
of the minimal access he had to Sittig.
Blackmon contends that these findings are
erroneous.
A state
violates a capital defendant's right to due
process when it uses evidence at the
sentencing phase of the trial which the
defendant does not have a meaningful
opportunity to rebut.10
The denial of access to a material witness
constitutes a prima facie deprivation of due
process.11
The demonstration of a due process violation
in these instances justifies reversal only
upon a showing of prejudice.12
Blackmon
claims that he was misled about the state's
intent to use the Oklahoma murders as
extraneous offense evidence and did not have
an opportunity to rebut evidence about this
crime as a result.13
The record reflects that defense counsel was
aware of the Oklahoma murders prior to June
1, 1987 and the district attorney was aware
that Blackmon was a suspect in the Oklahoma
murders prior to May 1, 1987. The district
attorney informed defense counsel of his
knowledge of the Oklahoma murders on October
3, 1987. On October 6, 1987 the district
attorney advised defense counsel and the
court that he intended to offer extraneous
offense evidence if there was sufficient
proof, but such proof was not then available.
The district attorney agreed to inform
defense counsel if the situation changed.
The district attorney continued to
investigate Blackmon's connection to the
Oklahoma murders and on October 26, 1987,
immediately upon an assistant's return from
questioning Sittig, the district attorney
notified defense counsel that the Oklahoma
murders would be offered as an extraneous
offense in the punishment phase, which began
on November 9, 1987.
Blackmon
asserts that if he had been given more
notice of the state's intent to present the
Oklahoma murders as extraneous offense
evidence, counsel could have investigated
the crime and presented evidence rebutting
Blackmon's involvement based on the
eyewitness descriptions, the lack of an
identification, and an alibi, as well as
impeachment evidence regarding his vehicle
and the number of individuals allegedly
involved. The district court found, and the
record supports, however, that in cross-examining
Detective Dennis Madison, defense counsel
presented evidence that the eyewitness'
description of the suspect did not match
Blackmon, the eyewitness could not identify
Blackmon in a photographic spread, and that
Blackmon had an alibi. Madison also
testified that hair and fingerprinting
sampling at the scene, and lab testing of
Blackmon's car failed to reveal any evidence
connecting Blackmon to the murders. That
Sittig previously had indicated that more
than two people were involved was also the
subject of testimony. Because the record
fully supports the district court's finding
of no prejudice as to the unfair surprise
claim, no error exists and Blackmon's claim
with respect thereto lacks merit.
With
regard to the denial of access to witnesses
claim, Blackmon also fails to demonstrate
prejudice. While the evidence in the record
is conflicting about when defense counsel
became aware that Hall and Smith were in
Shelby County, the state concedes on appeal
that defense counsel was not notified by the
district attorney about the witnesses'
presence until late on the night before they
testified. The record further reflects that
defense counsel was not made aware of
Sittig's presence in the county until Sittig
was called to testify, and counsel was then
given five minutes in which to question
Sittig about his statement in a police car
surrounded by law enforcement officials.
Blackmon
asserts that if counsel had obtained
adequate access to these witnesses prior to
their testifying, the witnesses' criminal
histories would have been investigated, the
witnesses would have been questioned about
any promises they received for their
testimony, and their backgrounds would have
been investigated to obtain impeachment
evidence. The record reflects, however, that
Smith, Hall and Sittig testified to their
criminal records at trial. Hall and Smith
were also questioned about any promises they
received for their testimony and, as
discussed supra, no prejudice resulted in
this regard. The district court found that
defense counsel adequately cross-examined
these witnesses and Detective Madison,
eliciting impeachment evidence. The district
court's findings and its conclusion that
Blackmon suffered no prejudice from his
access to the witnesses are fully supported
by the record. Accordingly, we conclude that
no due process violation based on unfair
surprise or the denial of access to
witnesses occurred.
As to
Blackmon's sixth amendment Massiah14
claim, the district court found that jailer
Phillip Lynch told Smith and Hall about the
Oklahoma murders and that they might receive
some benefit in their cases if they learned
more about the crime, but Smith and Hall did
not question Blackmon about the Oklahoma
murders in an effort to elicit incriminating
statements. Blackmon asserts that this
finding is erroneous.
The sixth
amendment is violated when statements are
deliberately elicited from the accused after
the right to counsel has attached, but there
is no violation when statements are obtained
by luck or happenstance.15
When an agent does more than just listen,
but also initiates discussion of the case
which leads to incriminating statements, a
sixth amendment violation occurs.16
The record
reflects that Lynch briefed Hall and Smith
on the charges against Blackmon and the
Oklahoma murders and told them that any
additional information might help their
cases, but neither Lynch, Hall, nor Smith
testified that Hall and Smith were told to
question Blackmon about the crimes, or that
they in fact did so. Instead, the record
reveals that Smith and Hall obtained
information from Blackmon by primarily "keeping
their ears open." The only evidence of an
initiation of discussion was an incident
where Hall told Blackmon that what happened
in Oklahoma was not going to happen to him
and that he was not afraid after Hall and
Blackmon became angry over a disagreement
with a card game. After tempers cooled,
Blackmon questioned Hall about his knowledge
of the Oklahoma murders and began discussing
the crime. The district court found that
this incident was not initiated for the
purpose of eliciting statements about the
Oklahoma murders, but was the result of an
angry disagreement and Hall's defense of
homosexuals. Considering the record and
deferring to the trial court's credibility
determinations, we find no clear error in
its findings. Consequently, because Hall and
Smith did not deliberately elicit the
statements, no sixth amendment violation
occurred.
Blackmon
also contends that the district court erred
in not sequestering the witnesses during the
evidentiary hearing and that the testimony
of Robert Goodwin and Paul Ross should be
stricken. Blackmon invoked the sequestration
rule during the second day of testimony
after witnesses entered the courtroom. The
court did not order the witnesses
sequestered because the rule had not been
invoked at the beginning of the proceedings
and a witness for Blackmon had been present
in the courtroom during the preceding day's
testimony.
Rule 615
of the Federal Rules of Evidence provides,
"[a]t the request of a party the court shall
order witnesses excluded so that they cannot
hear the testimony of other witnesses...."
We have held that the district court's
decision on the sequestration of witnesses
is reviewed for abuse of discretion and a
party must demonstrate "sufficient prejudice"
to warrant relief.17
Even if we were to agree that the trial
court erred in not sequestering the
witnesses, Blackmon is unable to demonstrate
sufficient prejudice from the testimony of
Goodwin and Ross. Blackmon points to two
instances in the witnesses' testimony where
they referred to testimony heard earlier in
court. Goodwin's memory was refreshed as to
names and Ross noted that he was not aware
of an alibi report until he heard reference
to it that day in court. These instances are
insufficient to demonstrate prejudice as
they do not relate to substantive issues.
Although Ross' and Goodwin's testimony
confirmed that of other witnesses, Blackmon
suggests that such confirmation is suspect
given conflicting documentary evidence. This
evidence was before the court, however, and
there is no indication that the court was
unable to assess the witnesses' credibility
under the circumstances. We perceive no
prejudice.
The respondent challenges
the propriety of the certificate of probable
cause. Subsequent jurisprudence has made the
issues raised moot. See Lindh v. Murphy, 521
U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481
(1997)
Wilson v. Whitley, 28
F.3d 433, 439 (5th Cir.1994) ("when the
testimony of the witness who might have been
impeached by the undisclosed evidence is
strongly corroborated by additional evidence
supporting a guilty verdict, the undisclosed
evidence is generally not found to be
material.")
The respondent raises in
its brief, for the first time in these
proceedings, that Blackmon's unfair surprise
claim is barred by Teague v. Lane, 489 U.S.
288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).
Given the history of these proceedings, we
find that the state waived this defense, and
we decline to apply it. Blankenship v.
Johnson, 118 F.3d 312 (5th Cir.1997)
