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Ricky Don BLACKMON

 
 
 
 
 

 

 

 

 
 
 
Classification: Murderer
Characteristics: Robberies
Number of victims: 3
Date of murders: ??? / 1987
Date of arrest: April 10, 1987
Date of birth: November 21, 1957
Victims profile: ??? / Carl Joseph Rinkle, 26
Method of murder: Stabbing with a sword or machete
Location: Oklahoma/Texas, USA
Status: Executed by lethal injection in Texas on August 4, 1999
 
 
 
 
 
 
clemency petition
 
 
 
 
 
 

 

Last Statement:
This offender declined to make a last statement.

 

Ricky Blackmon, 41, 99-08-04, Texas

Convicted murderer Ricky Blackmon was executed Wednesday night for hacking to death an East Texas man with a 3-foot-long sword fashioned from a steel sawmill blade.

Blackmon, 41, was the 1st of 6 Texas death row inmates expected to receive lethal injection over the next 2 weeks.

Blackmon had no last words as the deadly chemical cocktail began flowing, but earlier released a prepared statement that asked people to view the Internet website of a church in Huntsville.

"Use this to teach others about what not to do and pray God receives the glory, not me," he said.
As the drugs were being administered, Blackmon obviously choked up, sobbing, then closed his eyes and gasped twice as a muscle in his neck began twitching.

8 minutes later, a tear still running from his right eye, he was pronounced dead at 6:22 p.m. CDT.
"I wouldn't want to call it relief," Thomasine Crow, the victim's mother, said of the execution. "I think there is justice that needs to be met and I think this is what needs to be done. Nothing can bring Carl back. Nothing can ever ease that pain completely. This is what he (Blackmon) did and this is what needs to be done."

She met Blackmon recently and the prisoner told her he deserved to die and apologized for killing her son.

"I can hate Ricky Blackmon and be miserable and bitter the rest of my life or I can accept the apology and learn to be happy with that and go on," she said. "And that is what I choose to do."

"I'm happy, honestly happy," Blackmon said in a recent interview. "God has said to me: `Ricky, this is your ticket home.' And I'm going home."

"God's grace transcends all," John Walker, the former Shelby County district attorney who prosecuted Blackmon in 1987, said when told Blackmon had embraced religion. "I hope he has made peace with God and has his soul secure. But he still has to pay the civil penalty.

"The civil authority has authority," Walker added. "Grace and forgiveness is up to God and that's not my job as a prosecutor."

Blackmon was sentenced to death for killing Carl Rinkle, 26, at Rinkle's Shelby County home in far East Texas the night of March 28, 1987, and taking more than $600 in cash, a small pistol, some jewelry and cowboy boots.

The murder weapon was a sawtooth-edge steel sword the former mill worker made himself. Rinkle's skull and throat were slashed, then he was stabbed 21 times in the back with a large hunting knife.

"All you have to do is look at the pictures," Walker said. "Not only was it a murder, it was an unbelievably vicious murder."

Blackmon, from Mount Pleasant, blamed a girlfriend, jealousy, drugs and a need for some quick cash for the attack that left Rinkle butchered.

"I put myself here," he said. "I, Ricky Blackmon, put myself on death row. I could have avoided it, but I was too much into the 'self' syndrome. ... I was more interested in myself."

Blackmon's girlfriend, Donna Mae Rogers, seen with the victim earlier in the evening, was arrested and led police to Blackmon, who was arrested while working as a cook in a Dallas restaurant.

According to Blackmon, he and Ms. Rogers, who wound up with a life prison term, were living out of his 8-year-old Oldsmobile Cutlass in Dallas and needed money. They drove to Shelby County, an area she was familiar with, to rob a liquor store. When they found the store closed, they turned their attention to Rinkle, whom Ms. Rogers knew and found at a bar.

She accompanied Rinkle back to his house where Blackmon, wearing a black hooded ninja outfit and wielding his medieval-style sword, walked in on them.

"I went to work on that boy and didn't know what I was doing," Blackmon said.

The son of a preacher, Blackmon said he spurned his father's teachings until he arrived on death row and found religion. He was looking forward to death.

"I want young people to hear my voice and know that being rebellious can kill you," he said. "It breaks my heart. They think this is bad? This (death row) is a summer camp compared to what hell is going to be.

"I can't touch my mother. I can't even shake your hand. I can shake hands with other people that's in here like me. It's just a cheap substitute of a human emotion. That can't replace mama."

On Thursday, another convicted killer, Charles Boyd, was set to die for strangling and drowning a woman who lived across from him at a Dallas apartment complex. It was 1 of 3 women Boyd confessed to killing in a series of similar slayings.

Blackmon becomes the 17th condemned inmate to be put to death this year in Texas, and the 181st overall since the state resumed capital punishment on Dec. 7, 1982.

(sources: Associated Press and Rick Halperin)

  


 

Ricky BLACKMON

On March 28, 1987, in Joaquin Texas, 29 year old Ricky Blackmon stabbed Carl Rinkle to death with a handmade sword, made from an old saw blade.  Blackmon's accomplice, Donna Mae Rogers, knew Carl and knew he usually had cash. 

She drove Blackmon to Carl's home and when he opened the door, Blackmon attacked him with the sword then looted his home.  Blackmon claimed that he only intended to rob Carl but when he looked in the window and saw Rogers naked in bed with Carl, he "snapped."

 
 


 

22 F.3d 560

Ricky Don Blackmon, Petitioner-appellant,
v.
Wayne Scott, Director, Texas Department of Criminal Justice, Institutional Division,
Respondent-appellee

United States Court of Appeals, Fifth Circuit.

May 26, 1994

Appeal from the United States District Court for the Eastern District of Texas.

Before POLITZ, Chief Judge, JOLLY and EMILIO M. GARZA, Circuit Judges.

POLITZ, Chief Judge:

Ricky Don Blackmon appeals an adverse summary judgment rejecting his 28 U.S.C. Sec. 2254 petition for habeas corpus relief. For the reasons assigned we vacate the judgment and remand for further proceedings consistent herewith.

Background

In March 1987 Ricky Don Blackmon and his girlfriend Donna Mae Rogers were unemployed, impoverished, and living outside Dallas, Texas. Rogers told Blackmon she knew people in Joaquin, Texas who would be good targets for a robbery. She drove Blackmon there, telling him she would lure an old acquaintance, Carl J. Rinkle, to the Rinkle house where she would knock him unconscious and steal his cash. Blackmon was to wait outside the house. Rogers entered the residence but returned to tell Blackmon she could not knock Rinkle out. After Rogers went back inside Blackmon looked through a bedroom window and saw a nearly naked Rogers with a completely naked Rinkle on the bed.

Blackmon contends that when he saw this he became so enraged that it caused him to break into the house and murder Rinkle. Blackmon took a large sword, which he had made from a sawmill blade, out of the trunk of his car and knocked on the front door. Rinkle answered the door unarmed. Blackmon killed Rinkle, brutally slashing his body. Blackmon and Rogers then looted the residence of various items, including approximately $700 in cash.

Several weeks later Blackmon was arrested just before midnight. He gave a taped statement and signed a written confession at 5:30 a.m. the next day.1 Blackmon was charged in a two-count indictment with the capital murder of Rinkle during the course of committing and attempting to commit the offenses of burglary of a habitation and robbery. Rogers gave a taped statement and signed confession. Copies of both were provided to Blackmon prior to his trial. The state did not call Rogers as a witness until the sentencing phase.

The trial began on October 19, 1987. On October 23 the state notified Blackmon for the first time of its intent to use, during the sentencing phase, evidence of an uncharged Oklahoma double homicide. The jury returned a verdict of guilty. During the sentencing phase the state presented extensive evidence of uncharged crimes allegedly committed by Blackmon in Oklahoma. Blackmon had no prior criminal convictions. The state's witnesses included Terry Sittig, who had pleaded guilty to the Oklahoma murders, Raymond Smith and Gary Keith Hall.

Sittig was brought to Shelby County from an Oklahoma prison just prior to testifying. Sittig had pleaded guilty to the Oklahoma murders; he was to testify that Blackmon assisted in the crime. Sittig asked to speak with Blackmon. Blackmon's counsel simultaneously sought an interview. The state objected, arguing that defense counsel should not be allowed to speak with Sittig until after Sittig had testified. The trial court ruled that Blackmon's counsel was entitled to read Sittig's written statement and was to be given five minutes to ask Sittig whether the statement was true. The trial court instructed that a prosecutor was to be present during defense counsel's interview. That interview was conducted in a police car in the presence of a prosecutor and several law enforcement officers. Following the interview, Blackmon's counsel objected on the basis of surprise and asked for a one-week continuance to investigate the uncharged allegations. This objection was overruled and the continuance was denied.

On October 29, 1987 the state announced that two of Blackmon's former cellmates in the Shelby County jail, Smith and Hall, would be called as witnesses. Warrants were issued to have them brought back to Shelby County. According to Blackmon, once Smith and Hall arrived at the Shelby County jail they were instructed to remain hidden from Blackmon in order to prevent any investigation into the content of their testimony. Smith and Hall faithfully followed those instructions, including crawling on the floor in certain parts of the jail in order to remain out of Blackmon's sight. When counsel for Blackmon made repeated inquiries at the jail in attempts to interview the former cellmates, jail personnel misrepresented that they were not present. It was only on the eve of their testimony that their presence was made known and then only late at night by telephone long after Blackmon's counsel had gone to sleep. According to Smith and then-jailor Phillip Lynch, both Smith and Hall were present in the Shelby County jail several days prior to trial but the state concealed their presence despite repeated inquiries from Blackmon's counsel.

At the conclusion of the punishment phase the jury affirmatively answered the special issues; the trial court assessed punishment of death by lethal injection. Blackmon's conviction and sentence were affirmed on direct appeal,2 and the United States Supreme Court denied Blackmon's petition for writ of certiorari.3 Blackmon unsuccessfully sought habeas relief in state court and then filed the instant habeas petition. The district court granted the state's motion for summary judgment rejecting Blackmon's petition but granted a certificate of probable cause. Blackmon timely appealed.

Analysis

After addressing the merits of two of Blackmon's 31 federal habeas claims, the district court concluded, "[a]fter reviewing the entire record, the Court finds that all of Blackmon's remaining claims for relief are without merit." Blackmon asserts that because the district court addressed only two of his 31 claims, its order did not provide the specificity necessary to provide a meaningful opportunity for review by this court, citing Flowers v. Blackburn.4 The district court expressly stated, however, that it had reviewed the pleadings and entire record to determine that Blackmon had not raised any genuine issue of material fact and that the state was entitled to judgment as a matter of law. Flowers is distinct in that respect. In this setting, the fact that the district court specifically addressed only two out of 31 claims does not, alone, constitute reversible error.

Blackmon next contends that the findings of fact adopted by the state court were drafted by an assistant district attorney and provided to the court ex parte without affording Blackmon notice or an opportunity to respond. Blackmon asserts that in granting summary judgment the district court improperly accorded the state court's factual findings a presumption of correctness. Blackmon did not raise this claim in the trial court and it will not be considered for the first time on appeal.5

Blackmon complains that only the first two special issues regarding deliberateness and future dangerousness were submitted to the jury and that the third special issue regarding provocation was not.6 In order to raise the issue of provocation, "it is necessary that there be evidence of the deceased's conduct just prior to his death; also, that evidence must be sufficient to be considered provocation."7 Here, Blackmon was a party to the criminal episode in which Rogers lured Rinkle into his home to steal his money. During his interrogation Sheriff Paul Ross asked: "Did you ever tell her to go back and get in bed with Carl or did she do this on her own?" Blackmon answered: "I told her she could put the make on him like she was but I didn't actually tell her she had to." Rinkle was unarmed when he answered the door and could not defend himself. As Blackmon participated in the creation of the criminal episode, initiated the violence, and brutally assaulted and killed an unarmed individual, the fact that he saw Rogers perform as instructed is patently insufficient to establish provocation.8

Blackmon further claims that the Texas capital sentencing scheme is unconstitutional as applied to his case because the jury was not allowed to give full consideration to the mitigating evidence that he murdered Rinkle in a jealous rage. Blackmon's claim is unavailing. The jury was able to consider any mitigating effect that evidence might have under the future dangerousness issue. The jury could have concluded that Blackmon killed in an episodic jealous rage and that he would therefore be unlikely to pose a danger in the future.9 We perceive no constitutional violation.

Blackmon raises a Brady10 claim by asserting that the state improperly withheld Rogers' statements and testimony until the sentencing phase so as to avoid a jury instruction on voluntary manslaughter. In order to succeed on a Brady claim Blackmon must show: (1) the prosecution suppressed evidence; (2) the evidence was favorable; and (3) the evidence was "material either to guilt or punishment."11 Evidence is material only if there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different. The state is not required to furnish a defendant with exculpatory evidence that is fully available to the defendant or that could be obtained through reasonable diligence.12

The exculpatory evidence to which Blackmon refers is Rogers' testimony and statements concerning Blackmon's alleged jealous nature and sudden passion killing of Rinkle. Any jealous nature Blackmon might possess would be information known to Blackmon; thus there was no need for the state to provide such evidence. Furthermore, the prosecutor is under no duty to make a complete and detailed accounting to defense counsel of all investigatory work done.13 No Brady violation occurred.

Blackmon contends that Smith, Hall, and Sittig each obtained promises of assistance in exchange for their testimony implicating Blackmon in the uncharged double homicide in Oklahoma, but that they each falsely testified that they had not been promised assistance and that the prosecutor used the false testimony in his closing argument. Blackmon asserts a due process violation in the state's suppression of impeachment evidence14 and its use of the perjured testimony.15 Blackmon additionally asserts that because the prosecutor failed to respond to the allegation that a deal was made with Sittig in contravention of the lower court's order, the record is inconclusive and an evidentiary hearing is essential.

To obtain a reversal based upon the prosecutor's use of perjured testimony, Blackmon must show that (1) the statements were actually false; (2) the state knew they were false; and (3) the statements were material, i.e., a highly significant factor reasonably likely to have affected the jury's verdict.16 To obtain reversal based upon the prosecutor's suppression of impeachment evidence, Blackmon must likewise show that the evidence was material, irrespective of good faith or bad faith by the prosecution.17 From the record we are able to determine that Smith, despite receiving a letter from the prosecutor which was sent to the Parole Board in exchange for his testimony, denied that any such agreement existed.18

During cross-examination Hall indicated an agreement whereby the prosecutor would help him before the Parole Board if he testified truthfully,19 and the prosecutor acknowledged the agreement during closing argument. It is unclear from the record whether Sittig had an agreement with the prosecutor which was not revealed to Blackmon or the jury. A letter was sent by the prosecutor to the Oklahoma Parole Board acknowledging Sittig's cooperation with Blackmon's prosecution. As the prosecutor never responded to these allegations, Sittig's affidavit indicates there was an agreement, and the state vigorously denies that one existed, there appears to be a genuine issue of material fact. The record does not reflect whether Smith had a deal which was never revealed and, as noted, is unclear with respect to Sittig. A determination of materiality cannot be made at this point. Because Smith, Hall, and Sittig were the only sources of evidence to link Blackmon directly to the Oklahoma murders, we remand for an evidentiary hearing for the express purpose of clarifying the conflicting evidence and the making of all relevant fact-findings.20

Next Blackmon alleges a due process violation because of the state's hiding of witnesses Smith and Hall and his lack of access to Sittig, and he further alleges that these claims cannot be resolved without an evidentiary hearing.21 A state violates a capital defendant's right to due process under the fourteenth amendment when it uses evidence at the sentencing phase of the trial which the defendant does not have a meaningful opportunity to rebut.22 This violation becomes more pronounced when the state makes an affirmative effort to conceal witnesses to prevent a timely investigation and fair presentation of testimony.23 A prima facie showing of a due process violation, however, does not entitle a defendant to reversal absent a showing of prejudice.24

Although the state court found that no unfair surprise occurred with respect to introduction of the Oklahoma murders, Blackmon raises an additional objection. He complains that he was denied adequate access to Sittig, contending that the circumstances surrounding the brief interview in a police car did not provide a fair opportunity for preparation of a proper defense. Blackmon similarly complains of inadequate access to Smith and Hall who allegedly were hidden in the jail. Without appropriate access to Smith, Hall, and Sittig, Blackmon could not prepare for and impeach them with any arrangements which might have been made in exchange for their testimony. No state court findings were made with respect to this aspect of Blackmon's claim. Remand is necessary for an evidentiary hearing in order to evaluate more properly Blackmon's due process claim as it relates to inadequate access, and to determine whether prejudice existed.

With respect to unfair surprise, Blackmon points to two pieces of evidence which could not be rebutted because of the minimal notice that the Oklahoma double homicide evidence would be introduced: Sittig's testimony that only he and Blackmon were involved in the double homicide and Officer Madison's testimony that a car fitting the description of Blackmon's, with Texas license plates, was present at the scene of the Oklahoma murders. The state court found that it could not determine what Blackmon's counsel might have done differently had more time been given to prepare. Blackmon asserts that with more time he could have shown that Sittig's testimony at Blackmon's trial conflicted with statements he made during his plea colloquy. With respect to Officer Madison's testimony, Blackmon contends that he could have shown that Officer Madison testified falsely regarding the car with Texas license places. Without examining the transcript of the Oklahoma trial we cannot know if that is the case. We must likewise remand for an evidentiary hearing and appropriate findings thereon.

Finally, Blackmon asserts that the district court erred in rejecting his sixth amendment Massiah25 claim without holding an evidentiary hearing. Blackmon's former cellmates, Smith and Hall, testified that Blackmon made incriminating statements concerning the two Oklahoma murders. Blackmon contends that the information contained in these statements was originally supplied to the informants by Shelby County jail officials, the informants were promised assistance in their cases in exchange for help in obtaining information from Blackmon, and the informants subsequently used that information to taunt Blackmon into confessing to the crime. The district court reviewed the evidence submitted by Blackmon without a hearing and determined that the record supports the conclusion that no sixth amendment violation occurred.

"It is the duty of the district court, and ours as well, to review de novo the legal conclusions reached on the basis of the facts."26 Because no state court findings were entered relating to this claim,27 we conclude that the district court's denial of relief without benefit of an evidentiary hearing violated Townsend v. Sain.28 Although the state correctly points out that the "Sixth Amendment is not violated whenever--by luck or happenstance--the State obtains incriminating statements from the accused after the right to counsel has attached,"29 it is not clear from the record that the information was obtained from Blackmon by "luck or happenstance."

To the contrary, the affidavit of Raymond Smith states that "After that, Keith and I kept our ears open around Ricky. But he didn't say much at all. Finally, Keith got him to talking...." In addition, when Hall testified regarding the information obtained from Blackmon, he stated, "He [Blackmon] said that--well, I asked him--we asked him why did he kill them...."

The state argues that the evidence fails to show that Smith and Hall were ever instructed to interrogate Blackmon. Even if that is true, it is unavailing. Our decision in United States v. Johnson30 is instructive on this point. In Johnson we explained that even when officers instruct an agent not to ask a defendant questions about his case, if the agent does more than just listen to elicit incriminating remarks, a sixth amendment violation occurs.31

Thus our inquiry must focus on what Smith and Hall did to obtain the incriminating statements. It is not clear how Blackmon was convinced to talk or whether Smith and Hall, acting as agents of the state, deliberately attempted to elicit incriminating remarks.32 The affidavits and testimony present a genuine issue of material fact; the granting of summary judgment was inappropriate. In attempting to answer the sixth amendment issue before us, it is immediately apparent that the credibility determinations required cannot be made. An evidentiary hearing is required.

We VACATE the judgment of the district court and REMAND for further proceedings consistent herewith.

*****

1

Blackmon's statement and confession were admitted at trial

2

Blackmon v. State, 775 S.W.2d 649 (Tex.Crim.App.1989) (unpublished)

3

Blackmon v. Texas, 496 U.S. 931, 110 S.Ct. 2632, 110 L.Ed.2d 652 (1990)

4

759 F.2d 1194 (5th Cir.1985), cert. denied, 475 U.S. 1132, 106 S.Ct. 1661, 90 L.Ed.2d 204 (1986)

5

United States v. Cates, 952 F.2d 149 (5th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 2319, 119 L.Ed.2d 238 (1992)

6

The special issues provided under Tex.Code Crim.Proc.Ann. art. 37.071(b) are:

(1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that death of the deceased or another would result;

(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society;

(3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased.

7

Hernandez v. State, 643 S.W.2d 397, 401 (Tex.Crim.App.1982), cert. denied, 462 U.S. 1144, 103 S.Ct. 3128, 77 L.Ed.2d 1379 (1983)

8

McBride v. State, 862 S.W.2d 600, 611 (Tex.Crim.App.1993), petition for cert. filed (Dec. 21, 1993) (Statements by the victim were "insufficient to constitute 'provocation' where appellant creates the criminal episode as he did here, initiates the violence, and assaults several unarmed individuals with a deadly weapon.")

9

See, e.g., Marquez v. Collins, 11 F.3d 1241 (5th Cir.1994) (finding that the jury could have considered defendant's jealous rage due to wife's infidelity in his murder of his niece under future dangerousness special issue)

10

Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)

11

Id. at 87, 83 S.Ct. at 1197

12

See May v. Collins, 904 F.2d 228 (5th Cir.1990), cert. denied, 498 U.S. 1055, 111 S.Ct. 770, 112 L.Ed.2d 789 (1991)

13

United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); Mattheson v. King, 751 F.2d 1432 (5th Cir.1985), cert. dismissed, 475 U.S. 1138, 106 S.Ct. 1798, 90 L.Ed.2d 343 (1986)

14

Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); Brady, 373 U.S. 83, 83 S.Ct. 1194 (1963)

15

Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959)

16

United States v. Blackburn, 9 F.3d 353 (5th Cir.1993)

17

Giglio, 405 U.S. at 153, 92 S.Ct. at 765

18

Q. And, of course, you're not getting anything--any consideration for coming up here and testifying, you're just doing it because you're a good buy [sic]?

A. No, sir. I just--I just came tell [sic] what I heard, that's all.

19

Q. Did you ever tell anybody before last Friday anything about this?

A. No, sir.

Q. When you were bench warranted up here, you thought it was the right thing to do, is that right?

A. Yes, sir.

Q. Just to get your conscience clear?

A. I guess so.

Q. Not getting anything out of this are you?

A. No, sir.

Q. No consideration, nobody is going to write anything for you to the Parole Board?

A. Well, I was told that if I told the truth that it would help me out on parole.

20

Although the district court found that Sittig gave his statement of his own free will, in light of the contradictory evidence we find that such a determination cannot be made without an evidentiary hearing. The state habeas court's finding of fact in this regard is: "The record is devoid of any evidence that there were undisclosed agreements on the part of the State to provide lenient treatment for any of the State's witnesses in exchange for their testimony." (Findings of Fact p 21) (emphasis added). This is clearly unsupported by the record which contains conflicting evidence. This conflict must be resolved. See Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963)

21

Blackmon also interjects that due to the lack of adequate notice, the state had a duty under Brady to produce the prior testimonies of James Sherfield (the surviving eyewitness to the Oklahoma attack) and Officer Madison, and Sittig's plea colloquy. As Blackmon shows no legal basis for this argument, we do not accept same

22

Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977) (plurality)

23

See, e.g., Freeman v. Georgia, 599 F.2d 65 (5th Cir.1979), cert. denied, 444 U.S. 1013, 100 S.Ct. 661, 62 L.Ed.2d 641 (1980); Lockett v. Blackburn, 571 F.2d 309 (5th Cir.), cert. denied, 439 U.S. 873, 99 S.Ct. 207, 58 L.Ed.2d 186 (1978)

24

United States v. Henao, 652 F.2d 591 (5th Cir. Unit B 1981)

25

Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964)

26

May v. Collins, 955 F.2d 299, 315 (5th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 1925, 118 L.Ed.2d 533 (1992)

27

The district court noted that the state "trial court did not make any express findings of fact or conclusions of law on this issue but did conclude that the 'applicant has failed to demonstrate that his conviction was unlawfully obtained.' "

28

372 U.S. 293, 313-14, 83 S.Ct. 745, 757, 9 L.Ed.2d 770 (1963) ("There cannot even be the semblance of a full and fair hearing unless the state court actually reached and decided the issues of fact tendered by the defendant.")

29

Maine v. Moulton, 474 U.S. 159, 176, 106 S.Ct. 477, 487, 88 L.Ed.2d 481 (1985)

30

954 F.2d 1015 (5th Cir.1992)

31

Id. at 1019-20

32

Kuhlmann v. Wilson, 477 U.S. 436, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986)

 
 

145 F.3d 205

Ricky Don Blackmon, Petitioner-appellant,
v.
Gary L. Johnson, Director, Texas Department of Crimina Jjustice,
Institutional Division, Respondent-appellee

United States Court of Appeals, Fifth Circuit.

June 22, 1998

Appeal from the United States District Court for the Eastern District of Texas.

Before POLITZ, Chief Judge, and JOLLY and EMILIO M. GARZA, Circuit Judges.

POLITZ, Chief Judge:

Convicted of capital murder and sentenced to death, Ricky Don Blackmon appeals the denial of his 28 U.S.C. 2254 petition for habeas corpus. The district court denied relief and on an earlier appeal we vacated that judgment and remanded for an evidentiary hearing. On remand, the district court again denied relief and granted a certificate of probable cause. We now affirm.

BACKGROUND

The facts underlying this appeal are set out in full in the prior panel opinion.1 In summary, Blackmon was convicted of capital murder and sentenced to death by lethal injection. During the punishment phase of the trial, the state offered evidence of an uncharged double homicide allegedly committed by Blackmon in Oklahoma. The state's witnesses implicating Blackmon in the Oklahoma murders included Terry Sittig, Raymond Smith, Jr. and Gary Keith Hall. Sittig had pleaded guilty to the Oklahoma murders, but testified that Blackmon assisted him. Smith and Hall were Blackmon's cellmates during his pre-trial detention and testified to statements Blackmon allegedly made about his involvement in the Oklahoma murders.

Blackmon was not notified until October 26, 1987 that the Oklahoma murders would be offered as an extraneous offense in the punishment phase which began on November 9, 1987. Because Sittig, Smith, and Hall were incarcerated out of the county, Blackmon's counsel could not interview them until they were relocated. Counsel was not notified of the presence of Smith and Hall in the county until the night before they testified, and Sittig was not made available to counsel until five minutes before he testified, and then in a vehicle accompanied by police officers.

Blackmon's conviction and sentence were affirmed on direct appeal.2 Blackmon unsuccessfully sought habeas relief in state court, and the federal district court denied relief as well. On appeal, we vacated the judgment of the district court and remanded for an evidentiary hearing and appropriate findings on Blackmon's claims that he was denied due process by the state's suppression of impeachment evidence, its use of perjured testimony, its use of extraneous offense evidence resulting in unfair surprise, and the denial of access to witnesses Terry Sittig, Raymond Smith, Jr. and Gary Keith Hall. In addition he contends that his sixth amendment rights were violated when Smith and Hall elicited statements from him during his pre-trial detention.

An evidentiary hearing was conducted on April 5 and 6, 1995. On the second day of testimony, after witnesses entered the courtroom, Blackmon moved for their sequestration. After noting that no one had invoked the rule of sequestration earlier, the court ordered the state to remove their witnesses from the courtroom. In response, the state pointed out that a witness for the petitioner had been present throughout the previous day's testimony. To be fair to both sides, the court did not order the witnesses sequestered. Before the next witness was called, Blackmon renewed his motion for sequestration. The court adhered to its previous ruling because the rule of sequestration was not invoked at the beginning of the proceedings. After the hearing, Blackmon moved to strike the testimony of the state's witnesses who were present in the courtroom during the testimony of other witnesses. The court denied this motion.

In due course the district court issued findings of fact and conclusions of law, entered final judgment denying Blackmon's petition for habeas corpus, and granted Blackmon a certificate of probable cause.3 Blackmon timely appealed the denial of his habeas petition and the denial of his motion to sequester the witnesses during the evidentiary hearing. On appeal we review the district court's factual findings for clear error, questions of law are reviewed de novo, and mixed questions of fact and law generally receive independent review.4

ANALYSIS

The district court concluded that no due process violation occurred in the state's failure to disclose impeachment evidence or use of perjured testimony. The court found that the district attorney promised to write a letter to the parole board on behalf of Hall and Smith if they testified truthfully and that this information was not provided to defense counsel prior to trial, but that the jury was made aware that Hall and Smith could benefit from testifying truthfully through their cross examination and in counsel's closing arguments. The court further found that no promises were made to Sittig for his testimony. Blackmon challenges these findings.

The state's suppression of evidence favorable to the accused, including evidence that may be used to impeach a witness' credibility, constitutes a due process violation if the evidence is material to punishment.5 Likewise, the state's knowing failure to correct false testimony violates due process if the false testimony reasonably could have affected the judgment of the jury.6 In either case, the nondisclosed evidence must be material to warrant reversal.7 Evidence is material if a reasonable probability exists that had the evidence been disclosed to the defense, the proceeding's result would have been different.8

At the evidentiary hearing Sittig testified that the district attorney offered to write a letter for his prison jacket and to the parole board if he testified truthfully at the punishment phase of Blackmon's trial, but that he was reluctant to cooperate. District Attorney John S. Walker testified that it was not his practice to offer incentives for testimony and that he did not write any letters to fulfill promises, but that he did so out of charity for the witnesses' truthful testimony. Assistant District Attorney Robert Goodwin testified that nothing was offered to Sittig for his testimony, that Sittig was willing to testify truthfully, but did not want to appear to be cooperating, and that great efforts were made to compel his appearance at trial given his incarceration out of the state. Based on the record, and giving due deference to the district court's credibility determinations, we must conclude that the district court's finding that Sittig received no promises in exchange for his testimony is not clearly erroneous. Because no Brady evidence existed and Sittig was never questioned about any promises at trial, no due process violation occurred as to Sittig.

Both Smith and Hall testified at the evidentiary hearing that they were promised letters to the parole board if they testified truthfully at trial. Although these promises were not disclosed to defense counsel prior to trial, the district court found no due process violation because Hall testified at trial about the district attorney's promise to write a letter to the parole board and the district attorney conceded such in his closing argument. Smith, on the other hand, did not reveal that he received any promises when questioned, but the district court found that given the compound nature of the questions posed, Smith did not commit perjury. In addition, because Smith's testimony was substantially the same as Hall's, the evidence about the promise was not material.9 Considering the record, we perceive no error in the district court's findings, and we find no due process violation occurred based on the failure to disclose impeachment evidence or use of perjured testimony.

The district court also concluded that there was no due process violation based on unfair surprise by the use of extraneous offense evidence or the denial of access to witnesses. The court found that because Blackmon's counsel was aware of the Oklahoma murders and Blackmon could not point to any material evidence that was not presented at trial, no prejudice existed to support Blackmon's unfair surprise claim. The court also found that Blackmon's counsel received sufficient notice to interview Smith and Hall before they testified, and Blackmon failed to demonstrate prejudice as a result of the minimal access he had to Sittig. Blackmon contends that these findings are erroneous.

A state violates a capital defendant's right to due process when it uses evidence at the sentencing phase of the trial which the defendant does not have a meaningful opportunity to rebut.10 The denial of access to a material witness constitutes a prima facie deprivation of due process.11 The demonstration of a due process violation in these instances justifies reversal only upon a showing of prejudice.12

Blackmon claims that he was misled about the state's intent to use the Oklahoma murders as extraneous offense evidence and did not have an opportunity to rebut evidence about this crime as a result.13 The record reflects that defense counsel was aware of the Oklahoma murders prior to June 1, 1987 and the district attorney was aware that Blackmon was a suspect in the Oklahoma murders prior to May 1, 1987. The district attorney informed defense counsel of his knowledge of the Oklahoma murders on October 3, 1987. On October 6, 1987 the district attorney advised defense counsel and the court that he intended to offer extraneous offense evidence if there was sufficient proof, but such proof was not then available. The district attorney agreed to inform defense counsel if the situation changed. The district attorney continued to investigate Blackmon's connection to the Oklahoma murders and on October 26, 1987, immediately upon an assistant's return from questioning Sittig, the district attorney notified defense counsel that the Oklahoma murders would be offered as an extraneous offense in the punishment phase, which began on November 9, 1987.

Blackmon asserts that if he had been given more notice of the state's intent to present the Oklahoma murders as extraneous offense evidence, counsel could have investigated the crime and presented evidence rebutting Blackmon's involvement based on the eyewitness descriptions, the lack of an identification, and an alibi, as well as impeachment evidence regarding his vehicle and the number of individuals allegedly involved. The district court found, and the record supports, however, that in cross-examining Detective Dennis Madison, defense counsel presented evidence that the eyewitness' description of the suspect did not match Blackmon, the eyewitness could not identify Blackmon in a photographic spread, and that Blackmon had an alibi. Madison also testified that hair and fingerprinting sampling at the scene, and lab testing of Blackmon's car failed to reveal any evidence connecting Blackmon to the murders. That Sittig previously had indicated that more than two people were involved was also the subject of testimony. Because the record fully supports the district court's finding of no prejudice as to the unfair surprise claim, no error exists and Blackmon's claim with respect thereto lacks merit.

With regard to the denial of access to witnesses claim, Blackmon also fails to demonstrate prejudice. While the evidence in the record is conflicting about when defense counsel became aware that Hall and Smith were in Shelby County, the state concedes on appeal that defense counsel was not notified by the district attorney about the witnesses' presence until late on the night before they testified. The record further reflects that defense counsel was not made aware of Sittig's presence in the county until Sittig was called to testify, and counsel was then given five minutes in which to question Sittig about his statement in a police car surrounded by law enforcement officials.

Blackmon asserts that if counsel had obtained adequate access to these witnesses prior to their testifying, the witnesses' criminal histories would have been investigated, the witnesses would have been questioned about any promises they received for their testimony, and their backgrounds would have been investigated to obtain impeachment evidence. The record reflects, however, that Smith, Hall and Sittig testified to their criminal records at trial. Hall and Smith were also questioned about any promises they received for their testimony and, as discussed supra, no prejudice resulted in this regard. The district court found that defense counsel adequately cross-examined these witnesses and Detective Madison, eliciting impeachment evidence. The district court's findings and its conclusion that Blackmon suffered no prejudice from his access to the witnesses are fully supported by the record. Accordingly, we conclude that no due process violation based on unfair surprise or the denial of access to witnesses occurred.

As to Blackmon's sixth amendment Massiah14 claim, the district court found that jailer Phillip Lynch told Smith and Hall about the Oklahoma murders and that they might receive some benefit in their cases if they learned more about the crime, but Smith and Hall did not question Blackmon about the Oklahoma murders in an effort to elicit incriminating statements. Blackmon asserts that this finding is erroneous.

The sixth amendment is violated when statements are deliberately elicited from the accused after the right to counsel has attached, but there is no violation when statements are obtained by luck or happenstance.15 When an agent does more than just listen, but also initiates discussion of the case which leads to incriminating statements, a sixth amendment violation occurs.16

The record reflects that Lynch briefed Hall and Smith on the charges against Blackmon and the Oklahoma murders and told them that any additional information might help their cases, but neither Lynch, Hall, nor Smith testified that Hall and Smith were told to question Blackmon about the crimes, or that they in fact did so. Instead, the record reveals that Smith and Hall obtained information from Blackmon by primarily "keeping their ears open." The only evidence of an initiation of discussion was an incident where Hall told Blackmon that what happened in Oklahoma was not going to happen to him and that he was not afraid after Hall and Blackmon became angry over a disagreement with a card game. After tempers cooled, Blackmon questioned Hall about his knowledge of the Oklahoma murders and began discussing the crime. The district court found that this incident was not initiated for the purpose of eliciting statements about the Oklahoma murders, but was the result of an angry disagreement and Hall's defense of homosexuals. Considering the record and deferring to the trial court's credibility determinations, we find no clear error in its findings. Consequently, because Hall and Smith did not deliberately elicit the statements, no sixth amendment violation occurred.

Blackmon also contends that the district court erred in not sequestering the witnesses during the evidentiary hearing and that the testimony of Robert Goodwin and Paul Ross should be stricken. Blackmon invoked the sequestration rule during the second day of testimony after witnesses entered the courtroom. The court did not order the witnesses sequestered because the rule had not been invoked at the beginning of the proceedings and a witness for Blackmon had been present in the courtroom during the preceding day's testimony.

Rule 615 of the Federal Rules of Evidence provides, "[a]t the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses...." We have held that the district court's decision on the sequestration of witnesses is reviewed for abuse of discretion and a party must demonstrate "sufficient prejudice" to warrant relief.17 Even if we were to agree that the trial court erred in not sequestering the witnesses, Blackmon is unable to demonstrate sufficient prejudice from the testimony of Goodwin and Ross. Blackmon points to two instances in the witnesses' testimony where they referred to testimony heard earlier in court. Goodwin's memory was refreshed as to names and Ross noted that he was not aware of an alibi report until he heard reference to it that day in court. These instances are insufficient to demonstrate prejudice as they do not relate to substantive issues. Although Ross' and Goodwin's testimony confirmed that of other witnesses, Blackmon suggests that such confirmation is suspect given conflicting documentary evidence. This evidence was before the court, however, and there is no indication that the court was unable to assess the witnesses' credibility under the circumstances. We perceive no prejudice.

The judgment appealed is AFFIRMED.

*****

1

Blackmon v. Scott, 22 F.3d 560 (5th Cir.1994)

2

Blackmon v. State, 775 S.W.2d 649 (Tex.Crim.App.1989) (unpublished), cert. denied, Blackmon v. Texas, 496 U.S. 931, 110 S.Ct. 2632, 110 L.Ed.2d 652 (1990)

3

The respondent challenges the propriety of the certificate of probable cause. Subsequent jurisprudence has made the issues raised moot. See Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997)

4

Kirkpatrick v. Whitley, 992 F.2d 491 (5th Cir.1993)

5

Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)

6

Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959)

7

Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972)

8

Bagley, 473 U.S. at 682, 105 S.Ct. at 3383-84; Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)

9

Wilson v. Whitley, 28 F.3d 433, 439 (5th Cir.1994) ("when the testimony of the witness who might have been impeached by the undisclosed evidence is strongly corroborated by additional evidence supporting a guilty verdict, the undisclosed evidence is generally not found to be material.")

10

Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977)

11

Lockett v. Blackburn, 571 F.2d 309 (5th Cir.1978); United States v. Clemones, 577 F.2d 1247, modified, 582 F.2d 1373 (5th Cir.1978)

12

United States v. Henao, 652 F.2d 591 (5th Cir.1981)

13

The respondent raises in its brief, for the first time in these proceedings, that Blackmon's unfair surprise claim is barred by Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Given the history of these proceedings, we find that the state waived this defense, and we decline to apply it. Blankenship v. Johnson, 118 F.3d 312 (5th Cir.1997)

14

Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964)

15

Maine v. Moulton, 474 U.S. 159, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985)

16

United States v. Johnson, 954 F.2d 1015 (5th Cir.1992)

17

United States v. Payan, 992 F.2d 1387, 1394 (5th Cir.1993)

 

 

 
 
 
 
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