Petition for Writ of Certiorari — Breeden v. Muncy

—

APR 25 1988

R7 - 7 ra AQ JOSEPH F. guia

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Ont on, co 9543

su atO DS- No.

WASHES

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1987

JAMES L. BREEDEN,

Petitioner,

Vv.

E. L. BOOKER, WARDEN,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MARVIN D. MILLER

Record Counsel

1007 King Street

P. O. Box 663

Alexandria, Virginia

(703) 548-5000

i

QUESTION PRESENTED

I.

Whether an accused receives a fair

trial when the prosecution knowingly and

willfully uses false evidence, conceals

evidence in its possession which directly

conflicts with the prosecution's theory of

the case, which supports the defense, and

which calls into serious question. the

validity of key prosecution testimony.

i

ii

TABLE OF CONTENTS

QUESTION PRESENTED... ..cccccccscces i

TABLE OF CONTENTS ..cccccescsececes ii

OPINIONS BELOW .ncccccccecccsaseces 1

JURISDICTION ..... wey eee Te ee ee 2

CONSTITUTIONAL PROVISION INVOLVED.. 2

TL. STAPEMENT 2. ccccccsccses eecccccs 3

A. The Prosecution Withheld

Evidence At Trial Which

Conflicted With Its Claimed

Manner GE BMGEY «csscccccees 4

B. The Prosecution Withheld

Evidence At Trial Which Showed

There Was Another Criminal

C. The Prosecution Withheld

Evidence At Trial Which

Showed That the Initial

Identification of Petitioner

WRG BOGUEs. 6 ccs eee eaeh ences 14

D. The Prosecution Withheld

Evidence At Trial Which

Impeached the Testimony

of Witnesses They Called

"RiGRi SLO 6 ok cs awaeens 20

TABLE OF CONTENTS

(continued)

II. THE OPINION OF THE DISTRICT

COURT .....-- ec ceccccccccccces 23

III. THE OPINION OF THE COURT OF

APPEALS ....ccccecccccccececes a4

IV. | REASONS FOR GRANTING THE WRIT 24

a roe ke ees 30

ee vanervenaes App 1

APPENDIX B ......... ee eT App 3

iii

TABLE OF AUTHORITIES

Boone _v. Paderick

,

541 F.2d 447 (4th Cir. 1976) ......

v. Wainwri p

785 F.2d 1457 (11th Cir.

Dennis v. United States,

384 U.S. 855, 857 (1966)

Giglio v. United States,

1906) 2...

SO a, Be ET ba cekccwncsesss

Napue v.Tllinois,

360 U.S. 264 (1959) .....

United States v. Bagley,

473 U.S. 667 (1985) .....

Wardius v. Oregon,

412 U.S. 670 (1973) .....

26

27

25

25

25

23

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1987

No.

Petitioner, Vv.

E. L. BOOKER,

WARDEN

VIRGINIA STATE PENITENTIARY

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

OPINIONS BELOW

The opinion of the court of appeals

(App. A) is unpublished. It is found in

Record Opinion No. 87-6053 decided 26

January 1988. The opinion of the District

Court is an unpublished opinion which is

not officially reported.- (App. B).

1

JURISDICTION

The judgment of the court of

appeals was entered on 26 January 1988.

The jurisdiction of this court is invoked

under 28 U.S.C. § 1254 and 2101(c).

CONSTITUTIONAL PROVISION INVOLVED

Amendment VI of the United States

Constitution reads as follows:

In all criminal proceedings, the

accused shall enjoy the right to a

speedy and public trial, by an

impartial jury of the state and

district wherein the crime shall have

been committed, which district shall

have been previously ascertained by

law and to be informed of the nature

and cause of the accusation; to be

confronted with the witnesses against

him; to have compulsory process for

obtaining witnesses in his favor, and

to have the assistance of counsel for

his defense.

Amendment XIV, Section 1 to the

United States Constitution reads as

follows:

All persons born or naturalized

in the United States, and subject to

the jurisdiction thereof, are

2

tte eer

citizens of the United States and of

the state wherein they reside. No

state shall make or enforce any law

which shall abridge the privileges or

immunity of citizens of the United

States; nor shall any State deprive

any person of life, liberty, or

property without due process of law;

nor deny to any person within its

jurisdiction the equal protection of

the laws.

I. STATEMENT

This case involves the concealment

and withholding of critical exculpatory

evidence by the prosecution in Fairfax

County, Virginia's most significant

criminal trial in twenty years. The crime

was an armed robbery of a fast food

restaurant during which four people were

killed and one, Julie Nakpodia, was

severely wounded. Evidence which the

prosecution concealed and withheld

conflicted with their presentation of how

the crime was committed; revealed the

existence of a criminal agent other than

Petitioner; discredited the evidence of

the only witness placing Petitioner at the

scene of the crime; and impeached the

credibility of key prosecution witnesses.

A. The prosecution withheld

w wit

Le Trial: At trial, the

prosecution's case depended upon entry

being gained through a rear kitchen door

after closing.+ This door was right next

to a pot washing sink.

1 The defense had an alibi which

established that Petitioner was elsewhere

from a time before, until shortly after,

closing. In final argument, the

prosecution told the jury that they could

believe the alibi because the assailant

had entered through the back door after

closing at a time not covered by the

alibi.

2. Withheld Evidence: (a)

Statements given to the police by Mrs.

Porter but withheld by the prosecution

until long after trial revealed that an

employee, Patrick Marcil, was next to the

rear door cleaning pots and pans at the

supposed time of "“entry". She and her

husband had been conferring with the

manager in his office until shortly after

closing and saw that Mr. Marcil had begun

his work at that location at ‘closing

time. 2 |

(b) At trial, the defense only

knew that Mr. Marcil was at the point of

"entry" when another employee, Richard

Morefield, discovered the assailant

2 Mrs. Porter's statement was

concealed from the defense at trial. The

police had also told witnesses not to

discuss this case with the defense. When

that was uncovered, the Court ordered it

stopped but no witness would talk to the

defense.

hiding in the restroom. It was not known

at trial that he had been at the back door

the entire time from closing until the

discovery of the assailant. The defense

had not known where he was prior to the

assailant being discovered.

(sc) Significantly, the trial

evidence showed that after the assailant

was discovered and had gathered the other

employees together, he was not aware that

Mr. Marcil was still working right next to

the back door which the prosecution

Claimed he had just entered.

we The Effect of the Withheld

Evidence: Adding the evidence the

prosecution withheld about Marcil's

location to the evidence known at the time

of trial would have defeated the

prosecution's theory of entry through the

rear kitchen door after closing. The

assailant could not have entered without

Mr. Marcil noticing hin. Even if he had

somehow gotten by Marcil unseen, he

certainly would have known of Marcil's

presence. He would not have asked if

anyone else was present after gathering

the other employees together in the front

of the establishment;? yet, that is

exactly what he did. He had no idea

3 The court in the federal habeas

case underlying this appeal erroneously

thought that this previously concealed

evidence about employee Marcil being at

the back door from closing until employee

Morefield discovered the man in the

restroom added nothing new to the case.

The defense had argued at trial that the

man could not have entered after closing

because of Marcil. What the withheld

evidence established, however, was proof

that the intruder would have to get past

Marcil if entering after closing because

he was actually there the whole time; not

just at the end. At trial the defense

could only argue a theory. The

prosecution had withheld the actual proof

establishing the defense theory to be

true. They withheld the only affirmative

proof.

Marcil was in the restaurant, let ‘alone

that he was by the back door.

B. The prosecution withheld

evidence at trial which showed there was

another criminal agent.

1. Trial: As has been noted, the

prosecution's case rested on the claim

that the assailant entered through the

rear door after closing. This theory is

significant in relation to the defense

case because the defense established an

alibi for Petitioner from a time prior to

the restaurant's closing until shortly

thereafter. In his summation the

prosecutor told the jury that they could

believe the alibi and still convict

because, he claimed, the man entered

after closing. He said *...i% is @Giii

plenty of time, even believing the alibi,

for James Breeden to do this job."

2. Wi eld vidence: (a)

Concealed statements given to the police

by Lauri Heard, Rene Block, and Nancy

Barbier, as well as Mrs. Porter, show that

someone other than Petitioner hid in the

restroom before, rather than after,

closing.* The restaurant was closed and

the other man remained hiding in the

restroom. It was in the restroom that he

was later discovered by Richard Morefield

when Richard went to clean it.

(b) Ms. Heard, Ms. Block and Ms.

Barbier told the police that they saw a

Man enter the restroom just before

closing. The man did not come out. At

4 These statements, with the

exception of Ms. Heard's statement, were

obtained for the first time in a state

habeas corpus proceeding. Ms. Heard's

statement was obtained in discovery in the

federal habeas case on which this

Petition is’ based. None of these

statements were available at trial.

in

closing time they left and the doors were

locked behind them. He had still not come

out of the restroon. If he had come out

they would have seen hin.

(c) | Mrs. Porter and her husband

were talking with the manager in his

office from before until shortly after

closing. The cffice had a view of the

front of the restaurant. When they left,

the doors were unlocked for them to exit

and were then locked behind then. They

never saw the man leave.°>

> At trial the prosecution concealed

the evidence of someone hiding in the

restroom before closing. They had argued

entry occurred after closing. When the

evidence finally came out about someone

hiding in the restaurant before it closed,

the prosecution claimed that this

evidence did not conflict with their

case. The original trial prosecutor

testified in the federal habeas hearing

that these witnesses identified Petitioner

in a lineup. That claim is in conflict

with the facts.

The police provided forms for the

10

(d) Ms. Nakpodia was working at

the front counter from closing until she

was accosted by the assailant. She did

not see any man leave after closing. ®

witnesses who viewed the lineup to use

when they made their selection. The

police had no such forms for. these

witnesses. They did, however, have their

statements about the man hiding in the

restroom before closing. Their

descriptions do not match Petitioner.

These witnesses also contributed to a

composite drawing prepared by an FBI

artist. They described someone other than

Petitioner.

Even if these witnesses had identified

Petitioner at a lineup, they would still

be exculpatory because they establish that

someone hid in the restaurant before

Closing; the defense had an alibi for that

point in time; the prosecution conceded

the credibility of the defense alibi; and

Claimed that entry occurred after closing.

6 The federal habeas Court

erroneously concluded that the jury, if

given this evidence, could have concluded

that the man was let out by another

employee. Mrs. Porter saw no one leave.

She contradicts this conclusion as does

Ms. Nakpodia who was by the front counter

near the doors until accosted by the

intruder. She was by the front door the

entire time and the doors were locked. No

one left.

ai

ee eeeeeeeeeeooeerr-hh,hlhl el

a

(e) Descriptions of the man who

entered the restroom were given to the

police by Ms. Block. She described the

man as taller than Petitioner, i.e. 5'

i3*., He had brown hair. Petitioner

clearly has black hair and is

significantly shorter than the man

described.

(f£) Shortly after the crime the

police circulated wanted posters with

composite drawings of the suspect. They

were based on descriptions from Barbier,

Block and Heard. The hair color, brown,

and the height, 5' 11" or taller, also

matches the description- given by Julie

Nakpodia. These descriptions and

composites do not match or depict

Petitioner but they do describe the man

who hid in the restroom before closing.

12

i The Effect of the Withheld

Evidence: The evidence the prosecution

concealed at trial about Marcil's location

at the back door and someone hiding in

the restroom before closing combined with

the evidence known at trial would have

established that no one entered through

the rear door after closing as_ the

prosecution claimed. Someone hid in the

restroom before closing. Moreover, that

someone was described as looking different

than Petitioner. That someone, when

coupled with the prosecution's recognition

of the validity of the alibi, established

Petitioner's innocence.’

7 The prosecution in its summation

made a significant effort to show the jury

that "even believing the alibi..." there

was plenty of time for Petitioner to have

committed the crime. The prosecution

concealed evidence contradictory to their

case.

aa

eG. The prosecution withheld

evidence at trial which showed that the

initial identification of Petitioner was

bogus.

1. Trial: At trial and in closing

argument, the prosecution relied heavily

on police testimony that the very first

time Ms. Nakpodia saw a photograph of

Petitioner she selected his picture from

five others in a photo. spread. Her

identification was critical to the

prosecution's case. She is the only one

to place him at the scene. There was no

physical evidence tying Petitioner to the

crime. During pretrial hearings

8 There were various fingerprints

found in the manager's office, on the

kitchen entry and/or exit door and

elsewhere which did not match any employee

or Petitioner. In fact, there were 17

unidentified fingerprints and 3

unidentified palmprints. The most

significant prints could have come from a

shell casing found on the floor but the

14

regarding the validity of her claimed

identification of Petitioner, the police

even went so far as to say that she cried

when she first saw his photograph. They

also said she told them "she was almost

100 percent sure."

2. Withheld Evidence: Concealed

by the prosecution, until the federal

habeas case, were notes made by the

officer who presented this photo spread to

Ms. Nakpodia. This police report does not

say Ms. Nakpodia cried when she picked out

Petitioner's photograph. She did not say

she was almost 100 percent sure. Indeed,

it says she did not pick out his

photograph at all. In fact, it says

police did not preserve it. No

fingerprints of Petitioner were found

anywhere. Ms. Nakpodia did not see the

man wearing gloves.

a3

"negative for I.D." as to Petitioner.?

She did not select Petitioner's picture

the first time she saw it. She did not

9 The defense was unaware that the

police had testified falsely about what

they claimed was Ms. Nakpodia's initial

identification of Petitioner until the

federal habeas Court ordered the

prosecution to produce discovery in the

case now pending before this Court.

Although the federal habeas corpus

petition did not specifically name this

precise issue, a memorandum filed in

support of the Petition, did address the

issue of the validity of Ms. Nakpodia's

Ciaimed identification of Petitioner, as

well as the issue of the prosecution's

withholding of evidence which conflicted

with its case. The issue, if not this

specific, glaring example, was before the

District Court in the initial pleadings.

Discovery on this issue was allowed by

the lower court. It was also argued in a

post hearing memoranda. In its final

opinion, however, that Court indicated it

would not consider any evidence not

expressly presented in the initial

Petition.

The lower Court should have

considered this evidence as it is a

critical piece in Petitioner's claim of

trial by concealment.

16

pick out his photograph then or at any

other time.1?°

3 The Effect of the Withheld

Evidence. (a) Combining what the

prosecution concealed at trial with what

was known at the time of trial established

19 Ms. Nakpodia saw many photographs

and could not remember what she saw

without the photos being presented to her.

In fact, she did not testify at trial

about this photo spread. Moreover, it is

believed that she also saw other

photographs of Petitioner. This is based

on the fact that the police risked taking

color photographs of Petitioner from his

sister-in-law without her consent or a

warrant. These pictures, however, just

months after the crime, were destroyed or

lost by the police even though the police

took extraordinary steps to preserve and

keep safe everything relating to this

case. They used a special file cabinet in

a special office but they "lost" these

color photographs. Another item

inexplicably lost or destroyed was a photo

spread in which Ms. Nakpodia selected a

man named Mitchell as the assailant. It

is believed that she selected Mitchell

instead of Petitioner, but that cannot be

established because that photo spread also

disappeared without explanation within

months of the offense.

17

that the identification of Petitioner was

far from reliable. Prior to this bogus

photo spread identification, Ms. Nakpodia

had described the assailant as taller than

Mr. Morefield when she saw them together

coming from the restroom. Morefield was

Ss* 10° tall. Petitioner is shorter.

She also said the man had _ brown

hair.Petitioner has black hair. Once she

said he had a moustache and on another

time that he was clean shaven. Petitioner

was clean shaven.

(b) On other occasions’ she

selected other men from photographic

spreads. Once she picked a man named

Angel and another time a man named

Mitchell.11 (cf. note 10, supra).

11 She eliminated Angel after seeing

him in a lineup. The police eliminated

Mitchell because he and his wife claimed

that Mitchell was at home in bed when the

crime occurred. The jury was improperly

18

(c) In its summation the

prosecution placed greater emphasis on

this bogus photographic identification

than on their claimed lineup

identification. They falsely said she

selected Petitioner the first time she saw

his picture. They had to get around the

prior inconsistent descriptions and prior

inconsistent photographic identifications.

(d) This emphasis on what is now

known to be a false photographic

identification is also due to the fact

that Petitioner was the only person in the

lineup whom the police had previously

displayed to Ms. Nakpodia. After she had

seen his photograph and failed to select

it, the police did not show her any more

pictures. She was brought from the

told that Breeden was also picked out in a

photographic spread. We now know that to

be false.

19

hospital and placed next to his position

in the lineup. Her medical charts

revealed that she was under large doses of

medication when that lineup occurred. 12

(e) With the false photographic

identification, the validity of the lineup

identification is questionable. The

failure to select him prior to the lineup

and her other misidentifications,

establishes the unreliability of her

identification.

D. The prosecution withheld

viden at ia whic impeached h

testimony of witnesses they called

"significant".

12 The defense was not able to show

the original trial court that Ms. Nakpodia

had not selected Petitioner's photograph

from an array which included it at the

time the defense sought to suppress the

two identifications. That evidence had

been concealed by the prosecution.

20

is Trial: Because of the total

lack of any physical evidence tying

Petitioner to the offense, the prosecution

called a witness named McGuire who claimed

that he had been called by Petitioner to

do a "job" on 5 March, the night of the

robbery. He knew nothing about the "job"

and did not go. 13

13. one other trial witness, Burns,

said that he and Petitioner had earlier

cased the restaurant for a two man

robbery. He too refused to talk to the

defense and even claimed the Fifth

Amendment at a pretrial hearing. He and

the prosecution denied any deals but he

received the lion's share of a $10,000.00

reward after trial. He also got probation

for an armed robbery for which he was

awaiting sentencing at the time of his

testimony. The defense was able to

unearth, before trial, a police cover-up

of their fixing some cases for Burns in a

neighboring jurisdiction. During the

federal habeas litigation, it was learned

that the police also helped Burns get

employment. The prosecution had always

adamantly insisted there were no deals of

any kind with Burns. That was not correct.

21

2. Withheld Evidence: During

discovery in the federal habeas case it

was learned that the prosecution had

concealed evidence at trial to the effect

that McGuire had jnitially denied knowing

anything when first interrogated by the

police.

3. The Effect of the Withheld

Evidence: He initially denied knowledge

because he received no phone call before

or the night of the offense. He had tied

the claimed 5 March date of this supposed

phone call to the dates when the women

with whom he was then living had moved

into their apartment. He said the date

was weeks or months after the lease. The

lease was dated 1 March so the call could

not have been on 5 March, the date of the

crime. The concealed denial, when added

22

ee oe eee

to the lease conflict makes McGuire a non-

credible witness.

II. THE OPINION OF THE DISTRICT COURT

The District Court, as previously

noted, did not consider significant the

prosecution's willful withholding of the

only affirmative evidence conclusively

establishing that there was someone right

at the back door at the very time the

prosecution claimed the intruder entered

that door unnoticed. Likewise, that Court

did not consider significant the fact that

the prosecution concealed evidence

directly conflicting with its claim that

the intruder entered through a back door

after closing, i.e. the concealed

statements of witnesses, Barbier, Block,

Heard and Porter (see Section A.2.

and B.2. above).

23

In addition, the District Court

refused to consider the prosecution's

false evidence and argument regarding what

they claim to have been the only

eyewitness' strong and initial

identification of Petitioner. Finally,

the District Court would not consider the

fact that the prosecution had also

concealed that one of its key witnesses,

McGuire, had initially denied having any

knowledge about the case.

III. THE OPINION OF THE COURT OF APPEALS

The Court of Appeals, without

formal briefs or argument, simply affirmed

the lower court.

IV. REASONS FOR GRANTING THIS WRIT

| The Prosecution Knowingly

Relied Upon the Use of False Evidence.

A prosecution may not be based on

the use of knowingly false evidence.

24

Napue_v. Illinois, 360 U.S. 264 (1959);

Giglio v. United States, 405 U.S. 150

(1972). Not long ago when commenting on

this issue, this Court stated that this

sort of prosecutorial misconduct corrupts

the truth seeking process and is material

unless failure to disclose the falsity is

harmless beyond a reasonable doubt.

United States _v. Bagley, 473 U.S. 667

(1985).

In the case sub judice, it is clear

that the prosecution was based on the

knowing use of false evidence. It was not

harmless beyond a reasonable doubt.

At hearings on the pretrial motions

to suppress and at trial, the police

testified and the prosecution's argued

to the jury that "...the very first time

she saw a picture of the killer of her

husband was on April 19..." when she was

25

show the photo spread with Petitioner's

photograph and that she picked out

Petitioner as the man saying it was he.

(Trial, 2 November 1976 at 28). The truth

is that the police notes of that

photographic spread say "Negative for I.D.

as to Petitioner. These notes were not

available at trial. They were concealed

until disclosed in the federal habeas

case.

That which is known to the police

is known to the prosecution. Rivers v.

Martin, 484 F.Supp. 162, 164 (W.D.Va.

1980); Boone v. Paderick, 541 F.2d 447,

450-451 (4th Cir. 1976).

Given Ms. Nakpodia's descriptions

which did not match Petitioner and her

selection of the photographs of others

such as Mr. Mitchell, this falsity of her

26

so-called strong and first identification

of Petitioner is significant.

The public cannot have confidence

in a criminal justice system in which

prosecutions are allowed to reap the

benefit of such false evidence. See e.g.

Brown v. Wainwright, 785 F.2d. 1457 (11th

Cir. 1986).

B. ot Fai n ts

Result Is Not Just When the Prosecution

Deliberately Withholds Evidence Which

Wi : 4 e upports th

Defense.

It has long been held that it is

rarely justified for the prosecution to

have, as they had here, exclusive access

to a storehouse of relevant facts. ennis

Vv. United States, 384 U.S. 855, 857

(1966). After all, our adversary system

27

keep their cards concealed. Wardius v.

Oregon, 412 U.S. 670 (1973).

In the case sub judice the

prosecution willfully concealed from the

defense and jury evidence which conflicted

with its case:

(1) Mrs. Porter placed an employee at

the prosecution's claimed point of entry

at the claimed time of entry. It was not

known at trial that he was there at that

' eritical time.

(2) Ms. Block, Ms. Barbier, and Ms.

Heard establish someone entering the

restroom just before closing. They and

Mrs. Porter along with Ms. Nakpodia

establish that the man did not leave after

he entered that restroom. At trial the

prosecution claimed entry after closing.

This contradictory evidence was unkown at

trial.

28

This contradictory evidence was unkown at

trial.

(3) Ms. Nakpodia, according to police

notes, did not identify Petitioner in a

photo spread even though the prosecution

claimed she did and that her i.d. was

sure.

(4) McGuire, contrary to his story at

trial denied any knowledge of the case

when first interrogated.

This evidence could have been used

to prove the defense argument that

someone, not Petitioner entered the

restaurant before closing and hid in the

restroom until discovered there by

Morefield. The defense, without this

evidence, could only argue a theory. The

concealed evidence was the missing proof

of innocence.

CONCLUSION

29

For the foregoing reasons, the

petition for a writ of certiorari should

be granted.

Respectfully submitted,

MARVIN D. MILLER

Counsel for Petitioner

1007 King Street

Post Office Box 663

Alexandria, Virginia 22313

(703) 548-5000

30

APPENDIX

-

Pe ee

Soe rE A es ee

ielet ly 2

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 87-6053

JAMES L. BREEDEN,

Appellant,

versus

E. L. BOOKER, Warden

Appellee.

Appeal from the United States District

Court for the Eastern District of

Virginia, at Richmond. Robert R. Merhige,

Jr., Senior District Judge. (C/A No. 85-

144-R)

Submitted: December 18, 1987

Decided: January 26, 1988

Before HALL, ERVIN, and CHAPMAN, Circuit

Judges.

(Marvin David Miller, for Appellant.

Robert Homer Anderson, III, Frank Snead

App - l

Ferguson, Eugene Paul Murphy, Office of

the Attorney General of Virginia, for

Appellee

PER CURIUM:

A review of the record and the

district court's opinion discloses that an

appeal from its order refusing habeas

corpus relief pursuant to 28 U.S.C. § 2254

would be without merit. Because the

dispositive issues recently have been

decided authoritatively, we deny a

certificate of probable cause to appeal,

dispense with oral argument, and dismiss

the appeal on the reasoning of the

district court. Breeden v. Booker, C/A

No. 85-144-R (E.D. Va. Mar. 12, 1987).

DISMISSED.

App - 2

a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

RICHMOND DIVISION

JAMES L. BREEDEN,

)

)

Petitioner, ) Civil Action No.

) 85-0144-R

Vv. )

)

E. L. BOOKER, et al., )

)

Respondents. )

JUDGMENT ORDER

For the reasons stated in the

accompanying Memorandum this day filed,

and deeming it just and proper so to do,

it is ADJUDGED and ORDERED that the

petition for a writ of habeas corpus filed

pursuant to 28 U.S.C. § 2254 be, and the

same is hereby, DENIED.

Let the Clerk send copies of this Order

and accompanying Memorandum to counsel of

record.

/s/ ROBERT R. MERHIGE, JR.

DATE: MAR 12 1987 U. S. DISTRICT JUDGE

App - 3

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

RICHMOND DIVISION

JAMES L. BREEDEN,

Civil Action No.

85-0144-R

Petitioner,

)

)

)

)

Vv. )

)

E. L. BOOKER, et al., )

)

)

Respondents.

MEMORANDUM

This matter comes before the Court on

petitioner's application for a writ of

habeas corpus filed pursuant to 28-U.S.C.

§ 2254. After granting leave for the

parties to conduct discovery, the Court

heard a summary of the evidence in the

case and oral argument on the merits.

Having considered the matter, the Court is

now ready to render its decision.

Background

In the early morning hours of March 6,

1976, a Roy Rogers restaurant located in

Alexandria, Virginia, was robbed by a

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. single gunman. The man appeared in the

restaurant shortly after closing; however,

it is mot known whether he_ secreted

himself in a restroom or entered through

the back door after the main entrances

were locked. The man forced the remaining

employees, together with an employee's

husband, into a walk-in refrigerator

before having the manager remove money

from the restaurant's safe. After the

manager joined the others in the

refrigerator, the robber fired his gun

repeatedly into the group. Only one of

the five workers survived. That person

subsequently identified the petitioner as

the perpetrator.

After a jury trial in the Circuit Court

of Fairfax County, petitioner was

convicted of robbery, malicious wounding,

and murder. Petitioner now seeks a

determination that these convictions are

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constitutionally invalid.

Merits

Petitioner contends that the prosecution

withheld exculpatory evidence in violation

of the due process clause of the

fourteenth amendment. See Brady v.

Maryland, 373 U.S. 83 (1963); United

States v. Agurs, 427 U.S. 97 (1976).

Specifically, petit oner alleges that

statements given to the police by three

persons who left the restaurant shortly

before or after closing were favorable to

petitioner but were not produced by the

Commonwealth upon request.

After considering the matter, the Court

determines that the withholding of these

statements did not violate petitioner's

due process rights and, accordingly, the

petition will be denied.

> he a icable standard

There are three distinct situations in

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which the suppression of exculpatory

evidence constitutes a denial of due

process: (1) where the prosecution's

case includes perjured testimony, and the

prosecution knew or should have known of

the perjury but failed to disclose that

fact; (2) where the defense has

requested but been denied specific

evidence material to the issue of guilt;

and (3) where the defense has made no

request or only a general request for all

exculpatory evidence. See Agurs, supra,

427 U.S. at 103-07; vi v.__ North

Carolina, 637 F.2d 213, 222 (4th Cir.

1980). There is no allegation of perjured

testimony in this case and thus the first

situation need not be considered further.

With respect to the remaining

situations, a determination that

exculpatory materials have been suppressed

does not compel the conclusion that a due

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process violation has occurred. Where

there has been a request for specific

evidence, the defense must also

demonstrate that there is a reasonable

possibility that proper disclosure of the

information would have affected the

trial's outcome. See Chavis, supra, 637

F.2d at 223. Where no request or only a

general request is made, the defense must

show that there is a reasonable

probability that disclosure would have

altered the outcome. See United States

v. Bagley, 53 U.S.L.W. 5084 (1985).

The parties here dispute whether

petitioner made a specific or only a

general request for the witnesses'

statements in the discovery process

preceding the jury trial. That issue need

not be resolved, however, because the

Court is satisfied that there is not even

a reasonable possibility, the lower of the

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—er

two standards, that production of these

materials would have affected the jury's

verdict.

2. Analysis of the statements

It should be noted that the evidence

produced at trial against petitioner was

substantial. Samuel Michael Burns, an

acquaintance of petitioner, testified that

the two had planned to rob the Roy Rogers

together and had visited the premises on

prior occasions for that purpose.

Additionally, Burns testified that

petitioner owned a .32 caliber handgun,

the ‘gane type of gun used in the

commission of the crimes. Most

importantly, Julie Nakpodia, the sole

survivor of the shootings, identified

petitioner as the perpetrator.

Petitioner's defense was an alibi which,

for the most part, only accounted for

petitioner's whereabouts for the time

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period just prior to the robbery.

Consequently, petitioner bears a heavy

burden in attempting to demonstrate a

reasonable possibility that timely

disclosure of the statements would have

changed his trial's outcome.

Essential to an understanding of

petitioner's arguments here is an

explanation of the government's theory at

trial with respect to the manner in which

the gunman gained entrance’ to the

restaurant. The evidence indicated two

possibilities. First, the gunman may have

secreted himself in the bathroom prior to

closing and emerged sometime later.

Second, he may have entered the restaurant

after closing through the rear door which

was left unlocked to permit the disposal

of garbage. Petitioner's alibi witnesses

accounted for his presence until shortly

after closing. Consequently, if the jury

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believed the alibi, it could convict

petitioner only if it accepted the second

alternative, that petitioner entered after

closing through the rear door.

The three persons whose statements were

not released to petitioner included two

Roy Rogers employees, Nancy Barbier and

Peggy Porter, and a customer, Renee Block.

The statements generally concern the

presence of various persons in the

restaurant at closing or _ shortly

<*nereafter.

The statements of Barbier and Porter

indicate that at the time each left, the

remaining employees were performing

various duties incident to closing the

restaurant: Pat Marcil was near the back

door cleaning pots, Dennis Gildea was

counting money at the manager's desk,

Richard Morefield was cleaning the grill

area, and Julie Nakpodia was restocking

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the condiments at the front counter. The

statements further indicate that Barbier

and Porter left the premises at 12:10 a.m.

and 12:15 a.m. respectively.

Petitioner contends that this evidence,

which places the employees at various

locations in the restaurant, rebuts the

government's theory that the gunman

entered through the rear door. Petitioner

reasons that, because the workers would

have seen the gunman enter, he would not

have first appeared to Nakpodia emerging

from the restroom area. Rather, he would

have been confronted closer to the rear

door area by an employee. Consequently,

argues petitioner, this evidence indicates

that the gunman must have secreted himself

in the bathroom prior to closing.

Even if this Court accepted his

argument, petitioner would not be entitled

to relief on this basis. The principle

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threat to due process presented by the

prosecution's having concealed exculpatory

evidence is that the jury is thereby

precluded from considering evidence that

might well have led it to reach a

different result. See Agurs, supra, 427

U.S. 97. Here, however, Nakpodia

testified at trial to the same essential

facts contained in the undisclosed

statements. She stated that Marcil was by

the rear door, Gildea at the manager's

desk, and Morefield in the restroom area

when she first saw the gunman. Moreover,

based on this evidence trial counsel for

petitioner made the same argument in

closing that is profered here.

Accordingly, the jury itself has already

considered petitioner's contentions.

Therefore, petitioner's claims regarding

the statements of Barbier and Porter are

meritless.

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The statement by Renee Block presents a

different problen. Block stated to the

police that she and three others entered

the Roy Rogers at approximately 11:30

p.m., the night of the robbery. | After

receiving her food and sitting at the

table, Block noticed two men who, although

not together, appeared to be aimlessly

wandering around the restaurant. Prior to

leaving, she noticed that one of the men

appeared to go into the restroom. She and

her friends left minutes later and -the

manager locked the door behind them. At

that time, the suspicious man had not

reappeared.

Petitioner alleges that this statement

and witness would have provided evidence

of an alternative perpetrator for the

jury. Petitioner further contends that

there is a reasonable possibility that the

evidence would have altered the verdict in

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this case.

The Court perceives two problems with

this contention. First, it appears that

Block left the restaurant at approximately

12:00 a.m., half an hour before the gunman

appeared. Block indicates in her

statement that she left only a few minutes

after the man entered the restroon.

Therefore, it would be reasonable for the

jury to believe that the man exited the

restroom and-was let out by an employee

prior to the robbery.

The second, more significant, problen,

is that Block subsequently identified the

petitioner from a photo array as the man

she saw enter the restroom. Consequently,

petitioner's argument that Block was an

exculpatory witness is ludicrous.

Petitioner argued at the hearing before

this Court that by suppressing the

witness, the Commonwealth foreclosed

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petitioner from challenging the validity

of Block's photo identification and using

Block as a defense witness to support the

theory of an alternative perpetrator.

This argument is simply too tenuous.

Petitioner has the burden of demonstrating

that, at a minimum, there is a reasonable

possibility that the outcome of the trial

would have been different had the evidence

been disclosed. Given the identification

problem noted above, together with the

speculative impact Block's sanitized

testimony would have had on the jury, the

Court is satisfied that petitioner has

failed to discharge this burden.

As a final matter, petitioner appears to

raise new grounds for relief in his post-

hearing memorandum. To the extent these

other claims were not raised in the

original petition, they have not been

considered by the Court.

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For the reasons above stated, the

petition for habeas corpus relief filed

pursuant to 28 U.S.C. § 2254 will be

denied.

An appropriate order shall issue.

/s/ ROBERT R. MERHIGE, JR.

U. S. DISTRICT JUDGE

Date: _ MAR 12 1987

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