The opinion
Opinions of the United
1994 Decisions States Court of Appeals
for the Third Circuit
6-15-1994
Robinson v. Arvonio, et al
Precedential or Non-Precedential:
Docket 92-5667
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 92-5667
___________
MAURICE ROBINSON,
Appellant
v.
PATRICK ARVONIO, Superintendent,
East Jersey State Prison;
ROBERT J. DEL TUFO, Attorney General
of the State of New Jersey
_______________________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 91-04456)
___________________
Argued November 30, 1993
Before: SCIRICA and ALITO, Circuit Judges
and POLLAK, District Judge*
(Filed June 15, 1994 )
ROBERT L. SLOAN, ESQUIRE (Argued)
Office of Public Defender
Appellate Section
31 Clinton Street
P.O. Box 46003
Newark, New Jersey 07101
Attorney for Appellant
1
*The Honorable Louis H. Pollak, United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.
2
CATHERINE A. FODDAI, ESQUIRE (Argued)
Office of Attorney General of New Jersey
Department of Law & Public Safety
Division of Criminal Justice
Richard J. Hughes Justice Complex
Trenton, New Jersey 08625
Attorney for Appellees
__________________
OPINION OF THE COURT
__________________
SCIRICA, Circuit Judge.
Petitioner Maurice J. Robinson, currently confined in a
New Jersey state prison, appeals the district court's denial of
his application for a writ of habeas corpus under 28 U.S.C. §2254
(1988). Robinson asserts the writ should have been granted
because the New Jersey prosecutor failed to correct a witness's
perjured denial that his cooperation had been secured by the
prosecutor's promise to tell the sentencing judge of his
cooperation.0 The district court found the failure of the
prosecution to correct the witness's perjured testimony was
harmless error because there was no reasonable likelihood the
perjured testimony had affected the judgment of the jury. This
finding rested on the court's judgment that the jury had
sufficient evidence before it to assess the credibility of the
witness. For reasons that follow, we will affirm the denial of
the writ.
0
Robinson contends the prosecutor's conduct deprived him of due
process of law and a fair trial under the Fifth, Sixth and
Fourteenth Amendments of the United States Constitution.
3
BACKGROUND
A jury found Robinson guilty of: (1) murder, under N.J.
Stat. Ann. § 2C:11-3 (West 1982 & 1993 Supp.); (2) armed robbery,
under N.J. Stat. Ann. § 2C:15-1b (West 1982); (3) possession of a
handgun without a permit, under N.J. Stat. Ann. § 2C:39-5b (West
1982); and (4) possession of a handgun for unlawful purposes,
under N.J. Stat. Ann § 2C:39-4a (West 1982). Co-defendant Melvin
Shark was granted a severance and a jury found him guilty of the
same charges. On February 24, 1984, Maurice J. Robinson was
sentenced to a thirty-year term of imprisonment for murder, with
a minimum of fifteen years without parole. He also received a
concurrent fifteen-year term for armed robbery, with a minimum of
seven years without parole.
After exhausting state remedies,0 Robinson petitioned
for habeas corpus relief in United States District Court. The
district court agreed the prosecutor had failed to correct the
0
Robinson appealed to the Superior Court of New Jersey, Appellate
Division, which affirmed his conviction in an unreported per
curiam opinion filed on February 28, 1986. The New Jersey Supreme
Court denied Robinson's request for certification. He then filed
a pro se petition for post-conviction relief, which was denied
after a hearing in his absence. He appealed, and in an
unreported per curiam opinion, filed August 1, 1988, the
Appellate Division found the hearing should not have been
conducted in Robinson's absence and remanded for another hearing.
After the second hearing, at which Robinson was present and
represented by counsel, the trial court again denied his
petition. Robinson appealed, and on October 1, 1990, in an
unreported per curiam opinion, the Appellate Division affirmed
the denial of post-conviction relief. The New Jersey Supreme
Court denied Robinson's petition for certification on December
24, 1990.
4
witness's testimony, but it found no reasonable likelihood that
the error had affected the judgment of the jury.
A.
In his opening statement at trial, the prosecutor
informed the jury that Melvin Shark had previously been found
guilty and that an agreement had been made with Shark in return
for his testimony at Robinson's trial. The prosecutor stated:
Mr. Shark is going to be a witness in this
trial and the State is going to call him as a
witness. I would like you to understand at
this point that Mr. Shark has had his day in
court and has already been adjudicated. And
in terms of why he would be coming here at
this time, I'd like you to know beforehand
that Mr. Shark denied his guilt when he was
on trial and subsequently he was found
guilty. He has agreed to testify for the
State, and what was promised to him was
merely he would be kept away from Mr.
Robinson, that is it. He will -- He was
told, and the extent of any promise made to
him when his sentence came, his cooperation
would be made known to the sentencing judge,
but no deal in terms of time, years, anything
like that.
. . .
I'd also like to note to you that Mr.
Shark will be testifying under what's known
as immunity, because he has been recently
convicted and he has not yet been sentenced,
as I said earlier.
(Emphasis added.)
At trial, however, Shark initially denied that he had
been promised anything at all in return for his testimony. On
direct examination, Shark testified:
Q. Mr. Shark, in reference to your
testimony in this courtroom today, was there
a deal made with you so you would testify?
5
A. No.
Q. What is your understanding of why you
were -- what you expect to gain as a result
of testifying here?
A. Can you repeat that one more time,
please?
Q. What prompted you to testify at this
particular trial after your own trial?
A. I was hoping that --
Q. Mr. Shark, do you know what will be done
with you as a result of your trial and your
conviction?
A. I know I'll be going for a long time.
Q. Did you discuss that with your lawyer?
A. Yes, I did.
Q. And were you promised anything in
exchange for testifying here as a result of
your trial?
A. No, I wasn't.
Q. Are you telling the truth today?
A. Yes, I am.
On cross-examination, Shark acknowledged that he was
promised immunity for his testimony:
Q. Mr. Shark, is it not a fact that you
have been promised immunity from Prosecution
based on anything you said in court here
today?
A. Yes, it is.
But he still denied the agreement included making his cooperation
known to the sentencing judge:
6
Q. Is it not a fact, sir, that the
prosecutor promised you that if you would get
on that stand and testify today for the State
against Mr. Robinson, they would tell the
Judge of your cooperation?
A. Well, he didn't promise me he'd talk to
the Judge about that.
Q. He didn't say that?
A. He didn't promise me he'd go back in and
talk to the Judge and tell him I cooperated.
Was nothing promised to me.
Q. And that's the truth?
A. Yes. Only thing was promised to me was
I'd be taken care of.
On redirect by the prosecutor, Shark emphasized he had
been promised protective custody in exchange for his testimony:
Q. Mr. Shark, earlier during your cross-
examination, in response to one of [defense
attorney's] questions about what you were
promised, you said something along the line
that you would be taken care of. What does
that mean?
A. Protective custody.
. . .
Q. And what does that mean to you?
A. Means a lot to me.
Q. Why?
A. Behind the fact what's going on here,
word can get back to the jail, you know, that
I did something that, you know, is against
rules and regulations inside the jail and I
can be seriously hurt for doing something
like this.
Shark never acknowledged the prosecutor had agreed to
inform the sentencing judge of his cooperation, and the
7
prosecutor failed to correct his perjured testimony. The defense
attorney revived the issue in his closing statement by referring
to the prosecutor's promise to speak to the sentencing judge. He
stated:
You recall [Shark] saying from this
witness stand, "I just want to get the truth
out"? What else did he say? Unconsciously
he said, "I want to help myself." Then I
asked him -- this is the man who now wants to
tell the truth -- I said, "Did the Prosecutor
promise you anything?" I'm sure you will
recall, ladies and gentlemen, that when the
Prosecutor made his opening remarks, he
indicated, and stated truthfully to you, that
he had made certain promises to this
defendant. On this witness stand -- a man
who's worried about his survival is not going
to forget something like that, if any
promises were made to help him, but on this
witness stand, after taking the oath on that
Bible, I asked him, "Were any promises made
to you?" "No." "Did the Prosecutor promise
that he'd talk to the Judge on your behalf?"
"No. No promises made." That's what he
said.
And if you'll recall, ladies and
gentlemen, we took a recess, and when we came
back, I asked him, I said, "Did the
Prosecutor promise you immunity?" What did
he say -- "Oh, yes, he did promise me
immunity."
. . .
You heard him yesterday say in response
to my question that, "I was mentioning 60
years to myself," ladies and gentlemen, if
you face that kind of time and you can buy
your way out, do it. He did it. He got up
on that witness stand and said to all of you,
"I perjured myself, I'm a liar," Fine. To
help himself. Do you think that that young
man, streetwise, wouldn't have certain ideas
about what it means if a Prosecutor said, "I
will speak to the Judge for you? Ladies and
gentlemen, he was sinking. And it was up to
his nose and he reached out and he grabbed
8
that straw of immunity to try to save
himself. That's what he did. And I suggest
to you that you cannot believe him. You
can't believe anything that he said.
. . .
He said on that witness stand that the
very first day when he was arrested he was
concerned about getting himself out of this.
He said on the witness stand yesterday that
he was trying to help himself, and in order
to do his job, he even said, "Nothing was
promised to me," and either he thought better
of it or felt that he would be entrapped and
then suddenly he admitted what was promised
to him. And the Prosecutor would say to you,
"Yes, I did promise him I'd speak to the
Judge," but, ladies and gentlemen, the Judge
is independent, the Judge makes up his own
mind and, you know, that's true. Sentencing
is for the Judge. The Prosecutor can't tell
the Judge what to say.
But, ladies and gentlemen, don't you
think some little weasel who's trying to save
himself will take those words and, because he
is so desperate, make those words say things
that they really did not say, that maybe,
maybe, this is a chance for me to get out of
this, . . .
(Emphasis added.) In his closing statement, the prosecutor
referred to Shark's sentencing and protective custody:
Yes, the State called him as a witness but
what did Melvin Shark expect? I opened to
you and told you certain things were promised
to him, yes. What [was] his deal? His big
deal? His lawyer was present when we
discussed it. And he explained his answers.
. . . "I know that the Judge can sentence me
and I know the Prosecutor doesn't have any
power over the Judge because the jury found
me guilty. No plea bargaining. Jury
verdict, guilty. So the Prosecutor does not
have the power to recommend anything to the
Judge anymore in terms of years, months,
days." So what did he testify for? And this
is where it's coming out now: Well, what did
he say was facing him over there in the code,
a different code, not the code we live by
9
here, but in the jail here: Subjected to
some physical beatings if the word gets out.
So what did he want from the State? "I want
protective custody. I'm subject to being
severely beaten if I testify against another
defendant."
(Emphasis added.)0
In his final instructions to the jury, the trial judge
referred only to the immunity part of the agreement and reminded
the jury the opening and closing statements were not evidence. As
we have noted, however, the prosecutor, in his opening statement,
acknowledged he had promised to speak to the sentencing judge on
0
At Shark's sentencing hearing, the prosecutor asked for leniency
for Shark and stressed the critical importance of Shark's
testimony in obtaining Robinson's conviction:
Mr. Shark was told by me in all candor that I
would speak for him in this respect at his
sentence, that your Honor would note his
cooperation in testifying against his co-
defendant and co-defendants.
. . .
[W]ithout his testimony, proving the case
against his codefendant [Robinson] would have
been difficult, if not impossible . . .
. . . He should be punished and he will
be punished . . . , but his cooperation in
both the trials [of co-defendants] has to be
noted because we would have not had the
opportunity to convict the person who
actually pulled the trigger . . . Maurice
Robinson; without the help of Melvin Shark,
albeit to help himself, but in exchange for
nothing really concrete, Mr. Shark did
testify, and I think that should be noted to
the court.
As we have noted, Robinson and Shark were found guilty of the
same offenses; however, Robinson was given a longer sentence. For
the murder, he received a 30 year term with a 15 year mandatory
minimum, whereas Shark received a 20 year term with a 10 year
mandatory minimum. Robinson's concurrent term for armed robbery
was also longer than Shark's.
10
Shark's behalf, and the defense attorney, in his closing
argument, built on that acknowledgement. Therefore, the jury was
made aware of the terms of the agreement and the defense attorney
made a strong case for Shark's lack of credibility based on the
agreement and Shark's conflicting testimony.
B.
Shark's testimony was important for Robinson's
conviction because only one other witness could place Robinson
near the scene of the crime and no other witness could testify
Robinson had taken part in it. We will recite the relevant
facts.
On May 28, 1991, between 1:30 a.m. and 1:45 a.m., the
night manager of the New Ridgewood Bar in Newark, N.J., Robert
Conaway, unlocked the doors and admitted Melvin Shark, a customer
whom he knew by sight, and his male companion. A third man
waited outside. In addition to Conaway, barmaid Barbara Evans,
her friend Constance Brooks, and two others were in the bar.
Shark purchased beer from Evans and asked her for change for the
cigarette machine. After conferring with his companion at the
machine, Shark asked her for more change, which she refused.
Conaway asked Shark and his companion to leave because it was
almost closing time. When he opened the door, the third man
appeared, asking if they had gotten the beer. Conaway saw the
three young men walk away.
Approximately five minutes later, Conaway heard
Benjamin Sanders pounding on the bar door shouting to be let in.
He said that K.O. Floyd had been shot. Sanders and Floyd, both
11
elderly men, had been sitting outside a social club next door to
the bar. Sanders noticed three young men walk past them and saw
the first one look at him as they went by. (He later identified
Shark as that man.) He saw no other people in the area. The
three young men stopped a short distance past the elderly men and
had a conversation. Sanders was frightened of the young men; he
told Floyd they should leave and started to walk toward Floyd's
car. The young men came back and surrounded the two elderly men.
When Sanders saw the second of the three young men pull a gun out
of his pocket, he ran to the New Ridgewood Bar and pounded on the
door. At that time, he heard Floyd call for help and heard a
shot. Just before Conaway opened the door, Sanders turned around
and saw Floyd lying in the street and the three men running away.
Floyd died of his wounds.
Some two years after the shooting, Sanders was talking
to a friend in front of the same social club when he noticed
someone staring at him. After seeing the same man on several
other occasions, he recognized him as one of the three men
involved in Floyd's murder. He contacted the police and Shark
was arrested. Shark admitted being present at the murder, but
denied firing the gun. He identified the other two men with him
as Maurice Robinson and Robinson's brother Charles (a minor at
the time of the murder).
At Maurice Robinson's trial, neither Sanders nor the
bar manager, Conaway, could identify Maurice Robinson as someone
he had seen on the night of the murder. But Constance Brooks,
12
the bar patron, testified she recognized Maurice Robinson as one
of the two men who had purchased beer before the shooting.0
Shark testified to the following: that night, he met
the Robinson brothers near his residence and went with them to
the bar; he and Maurice Robinson went in to buy beer while
Charles Robinson waited outside; when leaving the bar, they saw
two men outside a social club; they walked past the men, with
Shark in the lead, and slowed down; Shark heard sounds behind
him, scuffling, a shout, and a gun shot; he turned and saw one of
the men fall down; Maurice Robinson was standing a few feet away
with a gun in his hand; Shark picked up some money lying next to
the fallen man and fled with his companions; he gave half the
money to Maurice Robinson and went home.
DISCUSSION
A.
In a habeas corpus petition, if the district court
held an evidentiary hearing, we review its findings of fact for
clear error, Lesko v. Owens, 881 F.2d 44, 50-51 (3d Cir. 1989),
cert. denied, 493 U.S. 1036 (1990), but if it relied on the state
court record, our review is plenary. Zettlemoyer v. Fulcomer,
923 F.2d 284, 291 (3d Cir.), cert. denied, 112 S.Ct. 280 (1991);
Reese v. Fulcomer, 946 F.2d 247, 253-54 (3d cir. 1991), cert.
denied, 112 S.Ct. 1679 (1992). In this case, the district court
0
Conaway identified Shark whom he knew by sight as a patron of
the bar, but he could not identify Robinson. Constance Brooks
identified both Shark and Robinson, although she had not known
either of them before; her visual memory may been better than
Conaway's because she was an artist. Barbara Evans, the barmaid,
was not called to identify the men; she died at about the time
they were apprehended.
13
did not hold an evidentiary hearing, so our review is plenary. We
review the trial record de novo, as did the district court.
B.
A defendant's right to due process is implicated when
the state obtains a conviction based upon testimony the state
knows is perjured. Napue v. Illinois, 360 U.S. 264, 269 (1959);
Giglio v. United States, 405 U.S. 150, 153-55 (1972). In Napue
and Giglio, the prosecution made agreements with witnesses in
exchange for their testimony. Both witnesses falsely denied the
existence of the agreements, and the prosecutors failed to
correct their perjured testimony.
In Napue, the Court held a conviction is obtained
through the use of false evidence, and therefore violates the
Fourteenth Amendment, when the state, "although not soliciting
false evidence, allows it to go uncorrected when it appears." 360
U.S. at 269. The Court elaborated:
The principle that a State may not
knowingly use false evidence, including false
testimony, to obtain a tainted conviction,
implicit in any concept of ordered liberty,
does not cease to apply merely because the
false testimony goes only to the credibility
of the witness. The jury's estimate of the
truthfulness and reliability of a given
witness may well be determinative of guilt or
innocence, and it is upon such subtle factors
as the possible interest of the witness in
testifying falsely that a defendant's life or
liberty may depend.
Id.
In Giglio, the government's case depended almost
entirely on the testimony of a witness whom the government
promised it would not prosecute if he testified. The trial
14
prosecutor had not himself made the agreement and was unaware of
it, but the Court charged him with knowledge of the agreement
made by his predecessor. The Court held that because the
evidence was relevant to the jury's assessment of the credibility
of the witness, a new trial would be required if "'the false
testimony could . . . in any reasonable likelihood have affected
the judgment of the jury . . . '" Giglio, 405 U.S. at 154,
(quoting Napue, 360 U.S. at 271) (alteration in original). Both
Giglio and Napue embody the rule that the state's knowing use of
perjured testimony to obtain a conviction is constitutional
error, but that does not automatically entitle petitioner to
relief. The court must also decide the error is not harmless.
The Supreme Court has distinguished two kinds of
constitutional error at trial: structural error and trial error.
A structural error compromises the entire trial; it requires
reversal because it involves a deprivation of a constitutional
protection so basic that in its absence, "'a criminal trial
cannot reliably serve its function as a vehicle for determination
of guilt or innocence, and no criminal punishment may be regarded
as fundamentally fair.'" Arizona v. Fulminante, 499 U.S. 279,
310 (1991) (citation omitted). Examples of structural error are
a biased judge, Tumey v. Ohio, 273 U.S. 510 (1927), or the denial
of trial counsel, Gideon v. Wainwright, 372 U.S. 335 (1963). A
trial error is one which "occurred during the presentation of the
case to the jury, and which may therefore be quantitatively
assessed in the context of other evidence presented in order to
determine whether its admission was harmless . . . ." Fulminante,
15
499 U.S. at 307-08. Examples of constitutional trial error are
jury instructions misstating an element of the offense, Rose v.
Clark, 478 U.S. 570 (1986), or improper comment on defendant's
silence at trial, U.S. v. Hasting, 461 U.S. 499 (1983).
Structural error cannot be harmless; trial error can be.
Fulminante, 499 U.S. at 310. The error in this case was trial
error. The testimony must therefore be assessed in the context
of the other evidence to determine whether its admission was
harmless.
A prosecutor's agreement to speak to the sentencing
judge on a witness's behalf in return for the witness's testimony
is especially likely to create an issue of credibility. As the
United States Court of Appeals for the Fourth Circuit noted:
[R]ather than weakening the significance for
credibility purposes of an agreement of
favorable treatment, tentativeness may
increase its relevancy. This is because a
promise to recommend leniency (without
assurance of it) may be interpreted by the
promisee as contingent upon the quality of
the evidence produced -- the more uncertain
the agreement, the greater the incentive to
make the testimony pleasing to the promisor.
Boone v. Paderick, 541 F.2d 447, 451 (4th Cir. 1976), cert.
denied, 430 U.S. 959 (1977).
16
C.
Until recently, the standard for assessing harmless
error on both direct and collateral review was whether it
appeared "beyond a reasonable doubt that the error complained of
did not contribute to the verdict obtained." Chapman v.
California, 386 U.S. 18, 24 (1967). Under Chapman, the burden of
proving an error harmless rested with the state. Id.
In Brecht v. Abrahamson, 113 S.Ct. 1710 (1993), the
Court announced a new standard for harmless error on collateral
review: whether, in light of the record as a whole, the error
resulted in "actual prejudice" to the defendant. Brecht 113
S.Ct. at 1722. Actual prejudice occurs when the constitutional
error "'had substantial and injurious effect or influence in
determining the jury's verdict.'" 113 S.Ct. at 1722 (quoting
Kotteakos v. United States, 328 U.S. 750, 776 (1946)); Kontakis
v. Beyer, 19 F.3d 110, 116 (3d Cir. 1994).
By introducing a more deferential standard on
collateral review, the Court emphasized that historically the
writ of habeas corpus has been regarded as an extraordinary
remedy to afford relief for grievous wrongs. Brecht, 113 S.Ct.
at 1719. It reasoned that "'[f]ederal intrusions into state
criminal trials frustrate both the States' sovereign power to
punish offenders and their good-faith attempts to honor
constitutional rights,'" id. at 1720 (quoting Engle v. Issac,
456 U.S. 107, 128 (1982)), and stated that liberal allowance of
the writ "'degrades the prominence of the trial itself,'" id. at
1720-21 (quoting Engle, 456 U.S. at 127), and encourages habeas
17
petitioners to relitigate their claims on collateral review, id.
at 1721. Thus, considerations of federalism and comity, the
state's interest in finality of convictions that have survived
direct review, and the social costs of retrying defendants years
after the original conviction outweigh any additional effect the
Chapman standard would have in deterring state courts from
failing to fully enforce constitutional rights. Id. at 1721-22.
The new standard, announced in Brecht and derived from
Kotteakos, does not require a showing that "but for" the error
the jury would have rendered a verdict in favor of defendant.
Duest v. Singletary, 997 F.2d 1336, 1338 (11th Cir. 1993) (citing
Kotteakos, 328 U.S. at 763). Nor is it relevant whether the
reviewing court is persuaded the defendant is guilty. The court
must stand in the shoes of the jury.0 Id. at 714. The question
0
As the Court in Kotteakos explained, the issue is not whether
the jurors were
right in their judgment, regardless of the
error or its effect upon the verdict. It is
rather what effect the error had or
reasonably may be taken to have had upon the
jury's decision. The crucial thing is the
impact of the thing done wrong on the minds
of other men, not on one's own, in the total
setting.
This must take account of what the error
meant to them, not singled out and standing
alone, but in relation to all else that
happened. And one must judge others'
reactions not by his own, but with allowance
for how others might react and not be
regarded generally as acting without reason.
This is the important difference, but one
easy to ignore when the sense of guilt comes
strongly from the record.
18
it must consider is: Did the constitutional error "substantially
[and injuriously] influence" the verdict? Id. at 765. If so,
the petitioner is entitled to habeas relief.
In addition to announcing a new standard, the Brecht
Court shifted the burden of proof to the petitioner. The Court
noted that, under Chapman, the state bore the burden of proving
harmless error beyond a reasonable doubt. Brecht, 113 S.Ct. at
1717. Under the new standard for collateral review,
"[petitioners] are not entitled to habeas relief based on trial
error unless they can establish that it resulted in 'actual
prejudice.'" Id. at 1722 (citing United States v. Lane, 474 U.S.
438, 449 (1986)).0
Brecht, 113 S.Ct. at 1724 (Stevens, J., concurring) (quoting
Kotteakos, 328 U.S. at 764 (citation omitted)).
0
Justice Stevens, concurring, wrote separately to set forth his
understanding that the Court, in adopting the Kotteakos standard,
also adopted the Kotteakos Court's placing the burden on
prosecutors to prove harmless error (113 S.Ct at 1723-24). The
language of the opinion, however, clearly puts the burden on the
habeas petitioner, not on the state. Most courts of appeals that
have applied the new Brecht standard have assumed or stated that
the burden of proof is on the petitioner. Kyles v. Whitley, 5
F.3d 806, 818 (5th Cir., 1993); O'Neal v. Morris, 3 F.3d 143, 145
(6th Cir. 1993); Tague v. Richards, 3 F.3d 1133, 1140 (7th Cir.
1993); Henry v. Estelle, 993 F.2d 1423, 1427 (9th Cir. 1993);
Jeffries v. Blodgett, 5 F.3d 1180, 1190 (9th cir. 1993); Castillo
v. Stainer, 997 F.2d 669, 669 (9th cir. 1993). Some do not
discuss who has the burden. Vanderbilt v. Collins, 994 F.2d 189
(5th cir. 1993); Duest, 997 F.2d 1336 (11th Cir. 1993). A few
quote a concurring or dissenting opinion in Brecht saying the
state bears the burden, but do not explicitly adopt that view.
Lowery v. Collins, 996 F.2d 770, 773 (5th Cir. 1993) (quoting
Stevens, J., concurring); Smith v. Dixon, 996 F.2d 667, 677 n.13
(4th Cir. 1993) (quoting White, J., dissenting). Only one
opinion states outright that the state has the burden, Stoner v.
Sowders, 997 F.2d 209, 213 (6th Cir. 1993), and a later opinion
by the same court stated that the burden is on the petitioner
without referring to the earlier opinion. O'Neal v. Morris, 3
F.3d at 145.
19
Robinson notes an exception to the Brecht rule, set
forth in a footnote in that case. Declaring that the Kotteakos
harmless-error standard applies with constitutional error "of the
trial type," the Court noted:
Our holding does not foreclose the
possibility that in an unusual case, a
deliberate and especially egregious error of
the trial type, or one that is combined with
a pattern of prosecutorial misconduct, might
so infect the integrity of the proceeding as
to warrant the grant of habeas relief, even
if it did not substantially influence the
jury's verdict.
Brecht, 113 S.Ct. at 1722 n.9. Robinson contends the error in
this case is of such magnitude that it constitutes an exception
to the new rule. He argues that in these circumstances, we
should resort to the standard of United States v. Agurs, 427 U.S.
97 (1976), where the Court stated, "[A] conviction obtained by
the knowing use of perjured testimony is fundamentally unfair,
and must be set aside if there is any reasonable likelihood that
the false testimony could have affected the judgment of the
jury." Id. at 103 (footnotes omitted).
Robinson would have us apply the "reasonable
likelihood" standard of Agurs rather than the "substantial and
injurious effect" standard of Brecht, and he cites pre-Brecht
cases evaluating "materiality" in the context of prosecutorial
misconduct and applying the pre-Brecht "reasonable likelihood"
standard of harmless error. Landano v. Rafferty, 856 F.2d 569
(3d Cir. 1988), cert. denied, 489 U.S. 1014 (1989) (habeas
appeal); Brown v. Wainwright, 785 F.2d 1457 (11th cir. 1986)
20
(habeas appeal); United States v. Wallach, 935 F.2d 445 (2d Cir.
1991) (direct appeal). Regardless whether the Agurs standard
still retains any vitality in habeas cases after Brecht, we do
not find the error in this case warrants a departure from the
Brecht standard.
There is little doubt the prosecutor should have
corrected the perjured testimony of his witness. This was the
duty of the prosecutor, not the defense attorney. Giglio, 405
U.S. at 154; United States v. Harris, 498 F.2d 1164, 1169 (3d
Cir.), cert. denied, 419 U.S. 1069 (1974). Nonetheless, when it
became clear that the prosecutor had not corrected the perjured
testimony, the defense attorney could have alerted the judge and
sought a remedy that would have eliminated any possibility of
prejudice to his client, such as a stipulation or an instruction
on the details of the agreement. Instead, the defense attorney
sought to counter the misleading impression through cross-
examination and closing argument. Although we agree with
Robinson that his attorney did not waive the error by failing to
call it to the attention of the court, an error which the defense
attorney could have corrected at trial is not likely "to infect
the integrity of the proceeding . . . ." Brecht, 113 S.Ct. at
1722 n.9.
The prosecutor must be charged with the error because
he failed to take advantage of opportunities on direct and re-
direct examination to correct the perjured testimony. But the
error was neither deliberate nor planned; in his opening
statement, the prosecutor referred to all aspects of the
21
agreement: immunity, protective custody, and the promise to
inform the sentencing judge of Shark's cooperation. Presumably,
neither counsel knew the perjured testimony would occur, and both
knew as soon as it did occur, as did the trial judge.0 We
conclude the error was neither a "deliberate and especially
egregious error of the trial type, [n]or one that is combined
with a pattern of prosecutorial misconduct" that "might so infect
the integrity of the proceeding as to warrant the grant of habeas
relief, even if it did not substantially influence the jury's
verdict." Brecht, 113 S.Ct. at 1722 n.9. Therefore, we will
apply the Brecht standard to determine whether petitioner has
shown the error "'had substantial and injurious effect or
influence in determining the jury's verdict.'"0 Id. at 1722
(quoting Kotteakos, 328 U.S. at 776).
The district court emphasized the jury knew Shark
testified under an agreement with the state by which he would
benefit and that there was ample evidence to assess Shark's
credibility. It cited the following evidence:
The jury was aware that Shark was a convicted
felon who had perjured himself at his own
trial. Furthermore, it is apparent from the
0
At oral argument, Robinson's counsel acknowledged that at
trial, both attorneys and the trial judge knew what was in the
agreement between Robinson and the state.
0
The standard we apply is not the same standard the district
court used. The district court's opinion, which came out before
Brecht, presumably used the Chapman standard when it denied the
petition. If it had applied the new Brecht standard, which is
less favorable to the habeas petitioner, it certainly would have
denied the petition also. That does not matter to our review,
however, because we look at the record de novo in reviewing the
district court's denial of petitioner's habeas petition.
22
record that the jury was apprised of Shark's
conflicting testimony at Robinson's trial.
Shark at one point denied that he had been
promised immunity and protective custody in
exchange for his [testimony], yet he later
admitted to these facts.
In bringing out this agreement under
direct and cross-examination, both the
prosecution and the defense conveyed to the
jury that Shark was testifying subject to an
agreement with the State from which he would
benefit. The defense attorney questioned
Shark regarding this agreement in an effort
to impeach his credibility. With all of
these factors relating to Shark's credibility
before the jury, this Court finds that there
is no reasonable likelihood that Shark's
perjured testimony regarding the agreement
with the State could have affected the
judgment of the jury.
Robinson contended at oral argument that the evidence
that Shark was a convicted felon who had perjured himself at his
own trial is qualitatively different from the evidence the
prosecutor improperly withheld. We agree a jury's knowledge that
a witness has just lied about what he stands to gain from
testifying is generally more damaging to his credibility than the
knowledge that he has lied in the past.
In this case, however, the jury knew Shark had lied to
it about what he stood to gain from the agreement as a whole.
First, he denied he had been promised anything at all; then, on
cross-examination, he admitted he had been promised immunity;
finally, on re-direct, he admitted he had been promised
protective custody. Significantly, unlike the prosecutors in
Napue and Giglio, the prosecutor here, in his opening statement,
acknowledged his promise to tell the sentencing judge of Shark's
23
cooperation. The defense attorney built on that acknowledgment
in arguing Shark was not a credible witness. We think it
unlikely that further evidence Shark was misrepresenting the
agreement would have changed the jury's evaluation of his
testimony.
The crucial inquiry is whether, under Brecht, Robinson
has shown the error "had substantial and injurious effect or
influence in determining the jury's verdict." As we have noted,
in determining the effect of this trial error, which "occurred
during the presentation of the case to the jury," we must assess
it "in the context of other evidence presented in order to
determine whether its admission was harmless." Fulminante, 499
U.S. at 308. We conclude there was sufficient evidence to
undermine Sharks' credibility. The evidence of the prosecutor's
promise to tell the sentencing judge of Shark's cooperation would
have added only incrementally to the evidence presented on the
agreement and Shark's credibility.
The prosecutor had a duty to correct the perjured
testimony of his witness. In these circumstances, however, we
agree with the district court that the error was harmless. We
conclude the absence of the evidence of the prosecutor's promise
to speak to the sentencing judge did not result in "actual
prejudice" because it did not have "substantial and injurious
effect or influence in determining the jury's verdict."
CONCLUSION
For the foregoing reasons, we will affirm the district
court's denial of the writ of habeas corpus.
24
25
Robinson v. Arvonio, No. 92-5667
POLLAK, District Judge (dissenting).
I.
When Melvin Shark -- the state's principal witness against Maurice Robins
was sentenced for his part in the killing of K. O. Floyd, the prosecutor told the
sentencing judge:
That will bring us around to what, in fact, Mr. Shark was told by me
in all candor that I would speak for him in this respect at his
sentence, that Your Honor would note his cooperation in testifying
against his codefendant and codefendants.
. . . .
. . . [Y]our Honor, it is true that without his testimony proving the
case against his codefendant would have been difficult, if not
impossible. . . .
. . . [H]is cooperation in both the trials has to be noted because we
would not have had the opportunity to convict the person who actually
pulled the trigger on Mr. Kayo Floyd, and that was Maurice Robinson,
without the help of Melvin Shark, albeit to help himself. . . .
At the trial of Maurice Robinson, the prosecutor had in his opening state
informed the jury that Melvin Shark "was told, and the extent of any promise made t
when his sentence came, his cooperation would be made known to the sentencing judge
deal in terms of time, years, anything like that." But when the prosecutor put Sha
the stand, he did not elicit from his star witness confirmation of the bargain he h
the jury about. And when, on cross-examination, defense counsel inquired about the
bargain, Shark denied -- falsely, and under oath -- that any such bargain had been
Q. Is it not a fact, sir, that the prosecutor promised you that if
you would get on that stand and testify today for the State against
Mr. Robinson, they would tell the Judge of your cooperation?
26
A. Well, he didn't promise me he'd talk to the Judge about that.
Q. He didn't say that?
A. He didn't promise me he'd go back in and talk to the Judge and
tell him I cooperated. Was nothing promised to me.
Q. And that's the truth?
A. Yes. Only thing was promised to me was I'd be taken care of.
Being "taken care of," Shark testified, meant "protective custody." Later, Shark a
acknowledged that he was promised immunity with respect to his testimony against Ro
-- "if I say anything today in this courtroom, it wouldn't be used against me . . .
But Shark never recanted his perjured denial that the prosecutor had promised that
[Shark's] sentence came, his cooperation would be made known to the sentencing judg
Defense counsel, in his closing, undertook to remind the jury that the
prosecutor had, in his opening, described a promise made to Shark -- a promise that
on the witness stand, denied the existence of, and about which there was no other
testimony. The prosecutor, in his closing, did not tell the jury that Shark's deni
a bargain had been struck was perjury. Instead, the prosecutor, in his closing, re
the bargain:
Yes, the State called him as a witness but what did Melvin Shark
expect? I opened to you and told you certain things were promised to
him, yes. What [was] his deal? His big deal? His lawyer was present
when we discussed it. And he explained his answers. . . . "I know
that the Judge can sentence me and I know the Prosecutor doesn't have
any power over the Judge because the jury found me guilty. No plea
bargaining. Jury verdict, guilty. So the Prosecutor does not have
the power to recommend anything to the Judge anymore in terms of
years, months, days." So what did he testify for? And this is where
it's coming out now: Well, what did he say was facing him over there
in the code, a different code, not the code we live by here, but in
the jail here: Subjected to some physical beatings if the word gets
out. So what did he want from the State? "I want protective custody.
I'm subject to being severely beaten if I testify against another
defendant."
II.
27
The court acknowledges that "[t]he prosecutor had a duty to correct the p
testimony of his witness" -- a duty the prosecutor elected not to fulfill. The cou
concludes, nonetheless, that Maurice Robinson is not entitled to the curative writ
habeas corpus because the prosecutor's "error was harmless." Why was the error har
Because "[t]he evidence of the prosecutor's promise to tell the sentencing judge of
Shark's cooperation would have added only incrementally to the evidence presented o
agreement and Shark's credibility." Therefore, the court reasons, the error cannot
to have "'had substantial and injurious effect or influence in determining the jury
verdict.'" Brecht v. Abrahamson, 113 S. Ct. 1710, 1722 (1993) (quoting Kotteakos v
United States, 328 U.S. 750, 776 (1946)).
I am unable to agree.
As the prosecutor, in his closing, elected to reshape the bargain he had
with Shark, the "promise made to him
. . . [that] his cooperation would be made known to the sentencing judge" faded awa
was replaced by another promise: "So what did he want from the State? 'I want prot
custody. I'm subject to being severely beaten if I testify against another defendan
Of course Shark wanted protective custody. Protective custody was not, h
an end in itself. Shark wanted protective custody so that he could give testimony
Robinson with little risk of reprisal from other inmates. Indeed, Shark would have
need for protective custody -- or for immunity from adverse use of his testimony --
Shark not decided to comply with the prosecutor's proposal that he testify against
Robinson in exchange for the prosecutor's undertaking to tell the sentencing judge
Shark's cooperation. In short, the prosecutor's promise to speak to the sentencing
on Shark's behalf was the real quid for the quo of Shark's testimony. And to do wh
prosecutor did -- to lead the jury to focus on the promise of protective custody as
centerpiece of what Shark "want[ed] from the State" -- was to draw the jury away fr
Shark's paramount, and perjuriously denied, objective in testifying against Robinso
28
applying cosmetics to Shark's perjured testimony, the prosecutor beclouded defense
counsel's efforts to show the jury the true magnitude of Shark's incentive to give
testimony pleasing to the prosecutor.
In Delaware v. Van Arsdall, 475 U.S. 673 (1986), the Supreme Court review
state court murder conviction in which the trial judge refused to permit defense co
to elicit, on cross-examination of an important prosecution witness, the fact that
criminal charge against him -- being drunk on a highway" "had been dropped in excha
his promise to speak with the prosecutor about the murder." Id. at 676. The Court
speaking through Justice Rehnquist, agreed with the Delaware Supreme Court that the
judge's ruling contravened the accused's rights under the Confrontation Clause, sin
prevented him "from engaging in otherwise appropriate cross-examination designed to
prototypical form of bias on the part of the witness, and thereby 'to expose to the
the facts from which jurors . . . could appropriately draw inferences relating to t
reliability of the witness.'" Id. at 680.0
In Delaware v. Van Arsdall the constitutional error was, of course, unint
In the case at bar, the action of the prosecutor -- compounding his chief witness'
-- was advertent. And it was calculated to obscure from the jury's view the major
what the jury might have deemed "a prototypical form of bias." Accordingly, I cann
agree with the court that the truth, which the prosecutor helped Shark to hide, "wo
have added only incrementally to the evidence presented on the agreement and Shark'
credibility." With matters in this posture, I do not share the court's confidence
the prosecutor's conduct did not have "'substantial and injurious effect or influen
determining the jury's verdict.'" Brecht v. Abrahamson, 113 S. Ct. at 1722. Presu
0
In Delaware v. Van Arsdall, the Delaware Supreme Court had concluded that the tria
court's erroneous ruling required reversal of the conviction. The Supreme Court va
the Delaware Supreme Court's judgment, remanding for a determination whether the er
ruling was harmless beyond a reasonable doubt, the pre-Brecht standard.
29
it was the prosecutor's intention that his conduct would have exactly such "influen
determining the jury's verdict."
Therefore, I dissent.
30