*1 ilton, Ohio, Andrew Wagster, se, Lee pro for petitioner-appellee. WAGSTER, Lee Andrew Petitioner-Appellee, WEICK, Before EDWARDS EN- GEL, Judges. Circuit OVERBERG,
Roger T. Respondent-Appellant. WEICK, Judge. Circuit No. 76-2506. of Ohio appealed State has from an Appeals, Court of order of the District Court granting a writ Sixth Circuit. of habeas corpus petitioner, Andrew Wa'gster. Lee Argued April 1977. Aug.
Decided 1977. convicted on January in the Court of Common Pleas of Butler County, Ohio of murder in degree. the second He was sentenced to life imprisonment. His conviction was af- appeal firmed on direct to the Court of Appeals Appellate for the First District of Ohio, appeal and his to the Supreme Court of Ohio was dismissed sponte sua for lack of a substantial question. constitutional Wag- ster then petition filed a for writ of habeas corpus with the United States District Ohio, Court for the Southern District of Division, Eastern alleging, for the first time, violation of his rights constitutional by suppression of exculpatory evidence. petition was denied for failure to ex- haust his remedy delayed appeal. state Thereafter motion for a delayed appeal was Ap- overruled the Court of peals Appellate for the First District of Ohio, and a similar motion was overruled Court of Ohio. On January 1976 Wagster filed a second for a corpus writ of habeas with the United States District Court for Ohio, Southern District of Eastern Divi- sion, alleging that he deprived of his rights constitutional by: (a) Suppression exculpatory by the prosecution refusal judge grant defendant’s motion for exculpatory evidence. Brown, Ohio, J. Atty. William Gen. of (b) The refusal of the trial court sup- Adler, Columbus, Ohio, respon- Allen P. press illegally seized evidence. dent-appellant. Holbrock, Evans, After an Hugh Timothy evidentiary hearing D. R. was held in Houser, Holbrock, Jonson, Bressler & Ham- concerning the District Court the factual *2 by by any the and the return doctor, issues raised technician or is a “work writ, an opinion the the Court rendered of such, Product” and as is privileged, and granting the and entered an order writ. therefore not purview within the of dis- n rejected petitioner’s Fourth The Court covery by as indicated the defendant. respect sup- with Amendment contention By the Court: I am going overrule evidence, but illegally of seized pression However, your Motion. I am going that had sustained his bur- held order that the give Prosecutor to you, proof respect remaining of to his den prior to introduction and purposes of failure the prosecu- contention of Cross-Examination, any statements or pretrial tor to reveal to defense counsel the copies of statements may he Hamilton, given po- statement to the Ohio given. that a witness has purposes For by lice one Pauline constituted Cross-Examination, of he be required will suppression of exculpatory evidence and you to furnish a copy of whatever he has. petitioner a trial. The sole denied fair issue Shortly thereafter the first witness was us this is appeal petition- before on whether called. pertinent The testimony at the trial prose- er was denied a fair trial because the accurately by summarized the District cutor did not furnish to the defense counsel Court as follows: pre-trial statement of Pauline Williams. by prosecu- witness called disagree We with the conclusion of the Dis- tion present who was Wayside at the Inn that petitioner trict Court sustained his on the of the shooting was Barbara issue, proof burden of on this re-we Fagg. She Wagster testified that was verse. seated at a table with four or five others empaneled After the was and before jukebox near a at the rear of the bar. any testimony taken was tri- Fagg standing was alongside the bar inal Pleas Court Common of Butler husband, next to her who was seated on a County, following colloquy took place Roy barstool. Haag Louis was on sitting counsel, among prosecutor, defense bar; barstool near the front of the she the trial court: saw him togo bar, the rear of the stand Signer Mr. At this [Defense counsel]: table, Wagster at the and converse with time, defendant, in behalf we those seated there. jukebox would like to make a Motion to require playing, and she did not any hear conver- produce all sation. did not see She or hear any alter- his possession cation in the bar. She did not Haag see may defendant; be favorable to the barstool, return to the but when she particular, we would like to have the fired, heard three shots she turned and tests, all results of forensic ballistics saw Haag falling off the barstool at the tests, tests, fingerprint blood tests —that front of the bar. She then saw Wagster being tests of the blood decedent. walking from the front of the bar to the We copies any should also like to have gun rear awith in his hand. She saw by any person statements made nothing Haag’s hands as he fell. . prosecution whom the defense will as call She testified that when the shots were chief, their witnesses in and who we have fired, “[f]acing she was juke- toward the been informed the shall also box, and the shots came from behind me.” call in chief. Burton, attendant, Carl an ambulance Mr. Wessel If the Court [Prosecutor]: testified that when he arrived at please, and on the case recently basis of a Haag pool in a lying decided this Court —not this Judge Latham, right blood next to the vs. I front door. Dr. State would —in Boone, ask deny County Coroner, Garret J. Butler defendant’s Motion any on the basis that statement from a testified that he preliminary conducted a police witness the have obtained and body, sub- examination and that at me, any performed mitted to forensic test he time removed one from of his knife with a pocket “a small After pockets returned table, to his he long— a half inches testified, about two and Haag blade approached him again and there were two blades.” He further tes- hit him on the side of his face with his present autop- when an fist, tified that he was knocking him out of his chair. Wag- body. Haag sy performed ster stood and shoved away. Haag bullets, entering both was hit two pulled then said, out a knife and “111kill *3 body traversing left side of his and you, you son-of-a-bitch.” Wagster then which right toward the side. The bullet revolver, fired his Haag turned upper at the left caused death entered around, walked toward the front of the line, body, mid-auxiliary of the at the side building, and fell. He testified that he punctured lungs. both The other Haag did not shoot at the front of the entered about nine inches lower bullet bar. He told the that he ran from and crossed the middle of the abdomen. the bar after the shooting because he was James C. Thomas testified Detective scared. day following shooting
that on the he Anthony Wagster was called by the Wayside went to the to look for defense and testified that he had warned bullet, spent and found it under petitioner Haag carried a knife. He jukebox near the at the rear round table also testified on direct that a fight did the bar. The floor of the bar was break petitioner out between and Haag freshly mopped and still wet. at the table near jukebox; on cross- Molonar, expert, a ballistics testi- Steve examination, however, he testified that Haag’s body, a‘bullet found in fied that he fight, did hear a but did not see who and the one-found the bar Detective was involved in it. Thomas, were fired from a Smith Phyllis Crank, petitioner’s girlfriend, calibre revolver found Pa- Wesson 32 then story testified. Her corroborated alley trolman Robert Herd in an outside petitioner’s in respects. most She said night Inn on the Haag off,” had been “smarting that he testified, upon shooting. He also based struck in the mouth and said gun powder burns his examination “I’ll kill you, you son-of-a-bitch.” She shirt, entry holes of near jukebox was knocked over the and saw gun touching was the shirt when one nothing else. did She not mention seeing fired, was and between one and shot a knife. away feet from it when the other three Jr., Wagers, Felix testified that he was shot was fired. seated bar,” “back toward the end This, essence, prosecution’s was the argument heard an and some cans rat- judg- case-in-chief. After a motion for tling, and heard two shots. He heard no overruled, acquittal petition- ment of overturned, furniture and heard no er took the stand in his own behalf. shouts. Barbara Fagg, petitioner, and Wagster that he testified had never Phyllis Crank had Wagers testified that before, Haag Haag but came met was seated at Wagster table before jukebox to the table when back the shooting. Wagster’s nephew, Wagster, ar- Anthony This, in essence was the defense case. Haag peti- Anthony rived. introduced to prosecution put on no rebuttal wit- tioner, Haag went back to the bar. nesses. Thereafter, Haag Wag- returned to the alleged Petitioner in his second petitioner’s girl- ster table and asked corpus for a writ of habeas in the United dance; Haag to she declined. then friend States District Court: and, Wagster into the restroom followed prosecutor possession had in his according Wagster, to “called me a the statement of a ig- testified that he witness to the inci- name.” dent, Haag physically because one Pauline nored con- he, larger than and he was scared of him. flicted with of the state’s witness, Fogg The was in the back Barbara chief the bar when he [sic]. reveal name of did not shot. testified at She the hearing that she although it testimony, or her never this witness saw a knife in Haag’s hand and that petitioner’s defense. she was material did see the petitioner shoot Haag. Further, she admitted that she knew the by Pau- question given The statement petitioner before the night of the shooting police night on the line Williams at the Inn. She called him “Andy”. She as follows: shooting, was acquainted was also father P.M. I went about 4:20 On Sat. who, on the of the shooting, had Wayside Inn Hotel at So. work at the go upstairs asked her to at the Inn and “get Hamilton, At about 12:30 St., Ohio. 5th Andy”. spoke She after the people. large group was a P.M. there asking him, shooting, “What are we going not know was seated A man I do do?”; said, and he “I don’t know what and Bar- Gettys the bar. first stool *4 you’re do, going to but leaving.” I’m the bar was also seated at Fagg bara Because this relationship between peti- At a other end of the bar. closer to the tioner and father with Pauline juke the box directly in front of table (cid:127)it is not understandable how can, Phyl- Wagster, Tony Wagster, Andy was good conscience, that contend the State Blanton, father, Crank, Boyd Andy’s lis suppressed anything. Petitioner knew that juke Wagers Felix The Janice Jr. and tending his friend Williams was bar on that a lot of and there was playing box was evening, easily and could have learned from man that came into noise. The was shot her she testify what would to if he really (sic) the the front door and sat at the bar to call her wanted as his witness. Later he back and second stool. walked Tony Andy’s was between father and It was further the revealed at hearing go register or Wagster, I turned to to the that Pauline Williams subpoenaed was bin, ice get to some out of the at this time prosecution the and paid that she was I shots. I and heard two turned around fee, but witness that she was never called the man that had been at the table be- testify. Andy’s turn- Tony
tween father was I door, ing staggering toward the front turning near he started somewhere the Brady In v. Maryland, 373 U.S. opposite Andy end bar. was (1963), S.Ct. L.Ed.2d 215 the Su- standing seven feet from the man about preme prosecutor’s Court stated that the the stagger, when he started to man disclose, upon failure to specific defendant’s staggered way all the front request, evidence favorable to the defense against the bar and fell the man on first a denial process. constitutes of due In Bra- Andy to the front stool next door. dy counsel, trial, the prior defense specif- past stayed where he was and I went him requested ically prosecution the to allow going into the kitchen I was to call the extrajudicial him to examine any state- Andy police. glanced I back and ments Brady’s accomplice. made Al- the man that was shot. walking toward though extrajudicial several of the state- I police. Janice called the Wagers provided counsel, ments were to defense the the I coming out of bedroom and saw prosecutor withheld a statement Andy Phyllis walking out the fast accomplice the he admitted that had perpe- going I we back door. said Oh what are actual trated the homicide. The Supreme you to do. said I don’t care what Andy Court, noting extrajudicial state- leaving. do I’m requested ment had been and that it was “material”, announced following rule at evidentiary hearing At the held 87, 83 at S.Ct. 1196: on the petition District Court for a writ of corpus, habeas Pauline now suppression Williams reaffirmed We hold her that she was statement sure that of evidence favorable to general request due has been a and one violates “in upon request accused
an
all,”
material
is
has
at
request
where
which there
been no
process
irrespec-
punishment,
or to
guilt
the Court indicated that
in such
situations
either
faith or bad faith
good
if the withheld evidence is “obviously
tive
exculpatory”
required.
is disclosure
prosecution.
The
at
at
Court stated
2399:
427 U.S.
Agurs,
In
gener-
If there is a
to a
duty
respond
(1976), the Su-
2392,
nor did he His claim of may self-defense in fact at the person present who was record, have been illusory on this in view Moreover, the shooting. of fact that knife was found motion of trial court overruled the defense pocket in his after his death. did order the counsel but Second, it cannot be said that the state for “prior pur- reveal introduction and ment of Pauline Williams created a “rea Cross-Examination, any of statements poses sonable doubt” to petitioner’s as guilt. copies may statements that he or Pauline Williams never indicated in her pre given. purposes a witness has For trial statement or at the evidentiary hear Cross-Examination, required he will be ing the District anyone Court that else you copy a whatever he furnish has.” petitioner other than the Haag, killed Williams, however, appeared never Pauline fact, admitted that he shot at as a witness trial and therefore the pros- Haag. We ruling note that in United duty, pursuant ecution had no to the terms v. Agurs, supra States at 96 S.Ct. order, trial court’s to furnish to de- 2392, apparently alters the rule enunciated fense counsel Williams’ statement. Brady Maryland, supra, 373 U.S. at holding Agurs, in United States to the effect that where there supra, it heavy makes clear there a general request, is a or no request all, for present burden on the in the case evidence, exculpatory suppression by the to demonstrate that the failure of the pros- prosecutor of certain exculpatory evidence ecution to disclose the statement Pauline process violates only due where that evi a process Williams was denial of due be- dence a creates reasonable doubt as to the general cause defense counsel made guilt accused, punish as to the any request for favorable are evidence. We ment of the accused. See United States v. opinion that the statement Pauline Stassi, 544 F.2d (2d 1976); Cir. not “obviously exculpatory” Williams was Maggio, Garrison v. 1271, 1273, 540 F.2d it did not create a “reasonable (5th 1976); Cir. United States v. Jack petitioner’s guilt. doubt” as to son, (5th Cir.), petition F.2d *6 First, the statement of Pauline Williams rehearing denied, 538 (1976). F.2d 95 “obviously not in exculpatory” light Therefore, even if the statement of Pauline “entire record” because Pauline Wil- Williams were somehow material as to the post-conviction liams testified at the hear- locale of the shooting, this cannot be said to in ing District Court that she not a had seen constitute evidence Also, of self defense. hand, petitioner knife and that petitioner’s even if act any constituted evi hurriedly. had left the scene of the crime dence of the lesser-included offense of man only prosecution evidence which the slaughter, which dispute, Agurs we indi reasonably expected could have been to fur- cates suppression that the of such evidence nish defense counsel would have been would not constitute a denial due process bearing evidence princi- trial, warranting newa because at most defense; pal but, claim self while Pau- be would material only petition did, line Williams’ statement as the District punishment. er’s further, We note noted, a how Court “create reasonable doubt ever, that the statement of . Pauline Wil concerning the exact locale of the any liams did offer significant not shooting”, the speculative support statement was of any of adequate claim clearly value to the defense it or sufficient prov did not support the claim of ocation because Pauline merely self defense. did Williams She see shooting; not she heard stated that inwas the rear of the bar shots; she not any shot, did even witness when he alterca- but she said nothing as petitioner tion between and the decedent. to whether any there was conversation or fact, In as the District Court stated: fight between the petitioner Haag.1 properly 1. It should also be noted there is a serious ter was even before the in the question manslaugh- case, present as to whether the issue of because Ohio law has been clear
741 Thus, we are of previously opinion we stated Finally, what have relationship petition- respect to with failure of the to turn over to with Pauline Williams his father er and defense counsel the statement of pretrial either question whether the serious raises Pauline Williams did not constitute a denial knew be- actually counsel or his As process. of due Court stat- existence of the statement trial fore supra, 427 Agurs, ed United States v. opinion We are of the Williams. of Pauline 96 U.S. at 2400: S.Ct. not he or counsel were even if Court noted that there recently [T]his statement, they case in such of such aware requirement is “no constitutional that the dili- known of it because due have should make a complete and detailed have revealed its existence. would gence accounting police all defense of would dic- investigation a minimal Clearly, investigatory work v. on a cáse.” Moore interview defense counsel should tate that Illinois, 786, 2562, 408 U.S. 795 who were employees [92 all 2568, night shooting, and 33 L.Ed.2d possibil- The mere present 706]. employee Pauline particularly ity that an item of undisclosed informa- and his father whom with defense, might tion have helped the or had they whom acquainted, were might have affected the outcome of the Inn. very in the spoken that trial, “materiality” does establish Buch the constitutional Maglaya stated in sense. this Court As 265, (6th Cir.), cert. de koe, F.2d 268 515 [Footnote omitted.] 931, 282, 96 46 L.Ed.2d nied, 423 U.S. Bursey, also 429 See Weatherford v. U.S. (1975): 260 837, (1977). 97 S.Ct. 51 L.Ed.2d Brady v. rights protected under District Accordingly, judgment of the a violated when supra, are not Maryland, is reversed and the case is remanded full in a criminal trial has defendant for with instructions dismiss the the evi- knowledge of the existence of writ of habeas corpus. a effort to trial and makes no prior dence production. its to obtain was, case present Defense counsel EDWARDS, dissenting. Judge, Circuit Tramunti, 500 in United States v. as stated charge convicted on denied, (2d Cir.), 1349-50 cert. F.2d degree shooting second murder 42 L.Ed.2d
419 U.S.
Roy Haag.
death in a bar of one
He was
notice of
facts which
(1974), “on
the basic
imprisonment
sentenced to life
after a state
alleged exculpato
produced
this
could
exhausting
court trial in 1970. After
state
testimony.”
generally,
See
United
ry
a claim
un-
remedies on
that he had been
Hoffa,
(6th
Cir.
F.2d
States
*7
constitutionally deprived
exculpatory ev-
of
denied,
924,
1967),
390
cert.
U.S.
possession
Prosecuting
idence in the
854, 19
(1968);
v.
L.Ed.2d 984
for writ
Attorney, Wagster
filed a
93,
Cir.), cert. de
(6th
F.2d
95
Young, 426
corpus.
hearing, Judge
of habeas
After
55,
nied,
interest in the outcome of the evidence, then, suppressed of one disinterest- two eyewitnesses
ed to the location of af- immediately
decedent shooting. pos-
ter the Given the defense shooting
ture —an admission justification claim or excuse —the UNITED STATES America and James Special Agent, Murphy, say Court cannot that Williams’ testimo- G. Internal Rev- ny, Fagg, im- Service, contradicting that of enue Petitioners-Appellees, material. On the contrary, testimony concerning holds that her JOSEPH, Thomas B. location in the bar of the actors in this Respondent-Appellant. highly proba- drama was material Wagster’s tive of whether act was second Nos. 76-1289. murder, degree or a lesser-included of- Appeals, States United Court of impossible simply fense. It discern Sixth Circuit. whether the discredit- this record peti- ed the “barroom brawl” evidence of Argued April 1977. Crank, tioner, Wagers, Anthony Aug. Decided 1977. Wagster, only impartial when witness concerning testifying where the shots oc-
were fired insisted that the incident
curred in front room.
Judge upon Brady Duncan relied
Maryland, 373 U.S. (1963), and
L.Ed.2d
Agurs, 427 U.S. (1976). In the
L.Ed.2d 342 latter case said, “if evi- the omitted did
dence creates a reasonable doubt that