Hall v. State

BRETT, Presiding Judge,

specially concurs:

Although I concur that this case should be reversed, I do not concur in the reasoning the majority opinion utilized to reach their conclusion. The opinion holds, first, that exculpatory evidence was improperly withheld from the defense prior to trial. With this conclusion I agree. Secondly, the opinion holds that this withholding of exculpatory evidence allowed the conviction to be obtained through the use of perjured testi *900 mony and thus created the first situation discussed in United States v. Agurs, 427 U.S. 97 , 96 S.Ct. 2392 , 49 L.Ed.2d 342 (1976) requiring reversal. I, however, believe that the first situation discussed in Agurs is inapplicable to the instant case. It needs to be made abundantly clear that Sealy’s testimony which is alleged to have been perjured was introduced into evidence by the defendant and was not a part of the State’s case. In Agurs the Supreme Court of the United States said:

In the first situation, typified by Mooney v. Holohan, 294 U.S. 103 , 55 S.Ct. 340 , 79 L.Ed. 791 , the undisclosed evidence demonstrates that the prosecution’s case includes perjured testimony and that the prosecution knew, or should have known, of the perjury.

This principal of reversing a case for the reason that the prosecution obtained the conviction through the use of perjured testimony was not applied in Agurs . It has, however, been applied several times by the Supreme Court. For instance in Miller v. Pate, 386 U.S. 1 , 87 S.Ct. 785 , 17 L.Ed.2d 690 (1967), the prosecutor exhibited to the jury a pair of shorts claiming them to be the defendant’s blood-stained shorts when in fact the prosecutor knew them to have only been stained by paint. As this was a major piece of the State’s evidence linking the defendant to the crime, the conviction was considered tainted and was reversed. In Alcorta v. Texas, 355 U.S. 28 , 78 S.Ct. 103 , 2 L.Ed.2d 9 (1957), the prosecutor elicited testimony which he knew gave the jury a false impression. As this deception could easily have affected the verdict, the Supreme Court held that reversal was in order.

In Pyle v. Kansas, 317 U.S. 213 , 63 S.Ct. 177 , 87 L.Ed. 214 (1942), and in Mooney v. Holohan, 294 U.S. 103 , 55 S.Ct. 340 , 79 L.Ed. 791 (1935), the Supreme Court again reversed convictions because the prosecution knowingly used perjured testimony to obtain convictions. In Napue v. Illinois, 360 U.S. 264 , 79 S.Ct. 1173 , 3 L.Ed.2d 1217 (1959), the District Attorney asked a principal State witness if he had been promised anything in return for his testimony, to which the witness responded that he had not. The prosecutor knew that this was false. The Supreme Court held that this elicitation on the part of the prosecutor of perjured testimony, although it only went to the credibility of the witness, warranted reversal. All of the foregoing cases involved the prosecutor’s use of perjured or misleading testimony.

In Giglio v. United States, 405 U.S. 150 , 92 S.Ct. 763 , 31 L.Ed.2d 104 (1972) during cross-examination of the State’s witness, the defense counsel asked the witness if he had been promised anything for his testimony to which the witness responded that he had not. On redirect examination the prosecutor failed to elicit the truth that the witness had in fact been promised something if he testified for the State in the trial. The Supreme Court held that the prosecutor had committed reversible error by failing to correct the perjured testimony elicited by defense counsel during cross-examination of the State’s witness. This case then involved the prosecutor’s failure to come forward and correct that which he knew to be false testimony given by a State’s witness. The conviction again was held to have been obtained through the use of perjured testimony and was reversed.

The instant case, however, presents a distinguishable situation from any of the above cases. In the case at bar the State’s witnesses are not alleged to have perjured their testimony. It is the defense witness, Shelton Sealy, who is alleged to have committed perjury. I therefore believe that it is unfair to say that reversible error occurred when the prosecution used perjured testimony to obtain this conviction.

The prosecutor in the instant case, however, did not exhibit conduct expected of officers of our courts. First, when asked why he endorsed Mr. Kirkpatrick as a witness for preliminary hearing but had decided not to call him to testify, the prosecutor allegedly responded that Mr. Kirkpatrick would only testify as to collateral matters and was thus not needed. This misled the defense counsel into believing that Mr, *901 Kirkpatrick knew of no substantive information concerning the case. Secondly, when defense counsel introduced into evidence Shelton Sealy’s testimony as a State’s witness at the previous trial, it must have given the jury the impression that Sealy did not know or have any prior significant encounters with the victim. In face of this false impression, the prosecutor chose to sit idly by although he had been provided information totally to the contrary. At that point the prosecutor should have brought to the court’s attention that based on knowledge provided him that false evidence was going to the jury concerning Sealy’s former encounters with the victim.

Additionally, however, I believe that although defense attorneys and prosecutors are entitled to rely upon each other to some extent, that this reliance must not be a substitute for trial preparation. At preliminary hearing it was revealed that Kirkpatrick was in charge of overseeing Sealy and the appellant on the day of the murder. Based on this information, it seems only logical that the defense counselors would have taken the time to interview Mr. Kirkpatrick to learn what light he could shed on the crime for which the client stood charged.

As the defense counselors failed to take the time to do so but rather chose to rely on the prosecutor, the defense went to trial allegedly unaware of Mr. Kirkpatrick’s exculpatory information. Thus through a combination of errors, the jury received only the partial truth concerning the events surrounding this murder.

In summary, however, I agree that this case should be reversed as the prosecution did not reveal to the defense counsel exculpatory evidence which, although not specifically requested to be revealed in the motion for exculpatory evidence, was of such obvious and substantial value to the defense that elementary fairness required it to be disclosed. I believe that had the omitted evidence been presented to the jurors, a reasonable doubt might have been created in the minds of the jury as to whether Shelton Sealy or the appellant perpetrated this deplorable offense. Accordingly, I believe that fundamental fairness requires that this case be reversed and the appellant be given a new trial in which the jury will be presented with the whole truth rather than only with half of the facts and will thus be able to reach a verdict in accordance with the standards our society demands of our judicial system. United States v. Agurs, supra.