Before: Nelson, Ryan, and Siler, Circuit Judges.
The opinion of the court was delivered by: Siler, Circuit Judge.
Appeal from the United States District Court for the Western District of Tennessee at Memphis. No. 94-02577--Julia S. Gibbons, Chief District Judge.
The petitioner, Philip R. Workman, under a death sentence, appeals the denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He has raised numerous issues. For the reasons stated herein, we AFFIRM the judgment of the district court.
The facts surrounding Workman's conviction are stated by the Tennessee Supreme Court in State v. Workman, 667 S.W.2d 44, 46-47 (Tenn.), cert. denied, Workman v. Tennessee, 469 U.S. 873 (1984)("Workman I").
Workman was convicted of the felony murder of Lt. Ronald Oliver of the Memphis Police Department in connection with a robbery of a Wendy's restaurant. During sentencing, he presented no evidence of mitigating circumstances. The jury recommended a sentence of death, finding five statutory aggravating circumstances:
"a) The defendant knowingly created a great risk of death to two (2) or more persons, other than the victim murdered, during the act of murder, Tenn. Code Ann. § 39-2-203(i)(3); b) The murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of the defendant or another, Tenn. Code Ann. § 39-2-203(i)(6); c) The murder was committed while the defendant was engaged in committing, or was an accomplice in the commission of, or was attempting to commit, or was fleeing after committing or attempting to commit, the offense of robbery, Tenn. Code Ann. § 39-2-203(i)(7); d) The murder was committed by the defendant while in lawful custody or in a place of lawful confinement or during the defendant's escape from lawful custody or from a lawful place of confinement, Tenn. Code Ann. § 39-2- 203(i)(8); and e) The murder was committed against any law enforcement officer, corrections official, corrections employee or firefighter, who was engaged in the performance of official duties, and the defendant knew or reasonably should have known that such victim was a law enforcement officer, corrections official, corrections employee or firefighter engaged in the performance of official duties, Tenn. Code Ann. § 39-2-203(i)(9)." Workman v. State, 868 S.W.2d 705, 707-08 (Tenn. Crim. App. 1993)("Workman III"). The Tennessee Supreme Court affirmed the conviction and sentence. Workman I, 667 S.W.2d 44.
In 1986, the Shelby County Criminal Court denied Workman's first petition for post-conviction relief. On appeal, the Court of Criminal Appeals affirmed the trial court, finding that some claims were without merit, some claims were waived, and the remaining claims were previously determined. Workman v. State, C.C.A. No. 111, 1987 WL 6724 (Tenn. Crim. App., Feb. 18, 1987)("Workman II"). The Tennessee Supreme Court denied permission to appeal, and the United States Supreme Court denied certiorari. Workman v. Tennessee, 484 U.S. 873 (1987).
In 1992, the Shelby County Criminal Court denied Workman's second petition for post-conviction relief. The Court of Criminal Appeals affirmed, Workman III, 868 S.W.2d 705, 707-08, and the Tennessee Supreme Court denied permission to appeal. Later, the United States Supreme Court denied certiorari. Workman v. Tennessee, 510 U.S. 1171 (1994).
In 1994, Workman filed a petition for a writ of habeas corpus in the United States District Court for the Western District of Tennessee pursuant to 28 U.S.C. § 2254. In 1996, the district court denied the petition, finding that some issues were defaulted and that the remaining were meritless. Workman has appealed to this court, focusing his attention on five issues. He has also presented a number of succinct issues without much Discussion or argument.
This court reviews the district court's denial of a writ by summary judgment de novo. See Hartleip v. McNeilab, Inc., 83 F.3d 767, 774 (6th Cir. 1996) (citing E.E.O.C. v. University of Detroit, 904 F.2d 331, 334 (6th Cir. 1990)). Furthermore, review of this writ of habeas corpus petition is governed by 28 U.S.C.§ 2254. Pursuant to § 2254(d), the state court's factual findings are presumed to be correct unless Workman can demonstrate one or more of the eight exceptions listed in the statute. Marshall v. Lonberger, 459 U.S. 422, 432 (1993).
B. Withholding of Evidence/ Presenting False Evidence
Workman claims that the prosecution both presented false evidence and withheld exculpatory evidence during his trial. He alleges that the prosecution presented false testimony, withheld documents, did not disclose statements by witnesses, and fabricated evidence in an effort to keep the jury from discovering that an officer struck him on the head while he was trying to surrender and that someone else, namely Memphis Police Officer Aubrey Stoddard or Stephen Parker, shot Lt. Oliver. Because both of these theories have been consolidated into a single argument, Workman's allegations will be presented together.
Through the affidavit of Dr. Kris Sperry, Workman now contends that the fatal wound in Lt. Oliver was not consistent with that typically received from a .45 caliber hollow point bullet like the one fired by Workman. Specifically, Dr. Sperry claims that the exit wound found in Lt. Oliver was slightly smaller than the entry wound, whereas the typical exit wound is significantly larger than the entry wound. Workman thus concludes that the prosecution must have presented false evidence concerning the source of Lt. Oliver's wound.
Workman also contends that a prosecution witness, Harold Davis, a black man, was not present when the incident between Workman and the officers occurred. Davis testified that Workman shot Lt. Oliver. Workman points out that five witnesses, Steve Craig, Kerry Kill, Garvin Null, Officer Parker, and Officer Stoddard, have indicated that they did not see Davis at the scene. Workman further notes that police reports taken at the scene do not mention Davis or his vehicle. Moreover, a crime scene diagram does not indicate the presence of Davis's car. Finally, Workman notes that Davis did not attend the lineup held immediately after Workman's capture, but instead viewed a photograph array approximately sixteen hours after the incident. Therefore, according to Workman, Davis must have been "planted" by the prosecution.
Workman also claims that the prosecution withheld evidence that Officer Parker fired his shotgun during the incident. For support, he cites police documents, Craig's testimony and medical records from the hospital where he was taken after the incident. The police document indicates that Parker carried a shotgun. Craig stated that he saw Parker fire his shotgun. The emergency medical records indicate that Workman was treated for shotgun wounds to his buttocks.
Finally, Workman contends that the prosecution withheld evidence that he was bludgeoned by Officer Stoddard with a flashlight while he was attempting to surrender. In this regard, he alleges that Officers Stoddard and Parker committed perjury and that the state withheld the statements of three witnesses not called at trial-- Null, Jeff Rickard, and Craig.
From this evidence, Workman generally concludes that he did not shoot Lt. Oliver, but that Lt. Oliver was shot by either Officer Stoddard or Officer Parker. However, Workman testified during trial that he shot Lt. Oliver. Clearly, any attempt to retract this confession must be viewed skeptically.
The "deliberate deception of a court and jurors by the presentation of known false evidence is incompatible with rudimentary demands of Justice." Giglio v. United States, 405 U.S. 150, 153 (1972)(citations and internal quotations omitted). This rule applies to both the solicitation of false testimony and the knowing acquiescence in false testimony. Napue v. Illinois, 360 U.S. 264, 269 (1959). In order to prove this claim, Workman must show that (1) the evidence the prosecution presented was false; (2) the prosecution knew it was false; and (3) the false evidence was material. United States v. Hawkins, 969 F.2d 169, 175 (6th Cir. 1992).
In Brady v. Maryland, 373 U.S. 83, 87 (1963), the Supreme Court held that "suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material to either guilt or punishment, irrespective of the good faith or bad faith of the prosecution." Notwithstanding a Brady request, the prosecution is under a duty to disclose exculpatory evidence that, when viewed in the context of the entire record, "creates a reasonable doubt that did not otherwise exist." United States v. Agurs, 427 U.S. 97, 112 (1976). "Evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A `reasonable probability' is a probability sufficient to undermine confidence in the outcome." United States v. Bagley, 473 U.S. 667, 682 (1985). No Brady violation occurs, however, "where a defendant knew or should have known the essential facts permitting him to take advantage of any exculpatory information, or where the evidence is available from another source." United States v. Clark, 928 F.2d 733, 738 (6th Cir. 1991)(citations and internal quotations omitted).
The respondent, Warden Ricky Bell ("State"), claims that Workman has defaulted these claims because he failed to raise them prior to his second post-conviction proceeding. Workman did, in fact, only raise these issues for the first time there, and the Shelby County Criminal Court determined that they were waived pursuant to Tenn. Code Ann. § 40-30-112(b). Workman argues that the Tennessee Court of Criminal Appeals addressed the merits of these claims in Workman III, 868 S.W.2d at 709-711, and that these claims are therefore not waived.
If a state court reaches the merits of a federal claim, then the claim is not defaulted. See Wainright v. Witt, 469 U.S. 412, 431 n.11 (1984) ("[W]here the state courts do not rely on independent state grounds for disposing of a claim and instead reach the merits of a federal question, the federal question is properly before us."). The district court determined that the decision of the Court of Criminal Appeals was based in part on state law and in part on federal law, and that "given the intertwine of federal and state law, no default would apply because of [the] plain statement requirement." This is a proper Conclusion. The Tennessee Court of Criminal Appeals reached the merits of this claim. Workman III, 868 S.W.2d at 709-710. Therefore, Workman has preserved this issue for review.
The weapon fired by Workman on the night he robbed the restaurant was a .45 caliber Colt Commander semi-automatic pistol loaded with aluminum jacketed "silver tip" hollow point bullets. These bullets, which have a soft lead core, are designed to expand, or "mushroom," upon entering the human body. Thus an F.B.I. agent who fired silver tip hollow point bullets from Workman's pistol into a water tank told the jury, in describing the condition of the bullets after they had been retrieved from the tank, that "[t]he bullets have mushroomed, being hollow-point bullets, and have had a portion of the jacket mutilated and separated from the original jacket."
Dr. Sperry, the Fulton County Deputy Chief Medical Examiner in Atlanta, Georgia, gave Workman's lawyers an affidavit on this subject in 1995. He attested that in the course of his work as a medical examiner he has seen some 30 to 40 corpses with wounds from ammunition of the sort Workman used; that in every one of these cases, "the .45 silver tip hollow point bullet expanded upon entering the human body involved"; that approximately 90 percent of the time, the hollow point bullet never emerged from the victim's body at all; that "[i]n the remaining instances [i.e., the remaining three or four cases], the exit wound created by the .45 silver tip hollow point bullet was significantly larger than the entrance wound the bullet created"; and that it would be inconsistent with the exit wounds seen by Dr. Sperry for a .45 silver tip hollow point bullet to create an exit wound smaller than the entry wound.
The report of the autopsy on Lt. Oliver's body describes both an entry wound and an exit wound. Dr. James Bell, the medical examiner who performed the autopsy, testified at trial that the entry wound (which was in the front of the chest) was half an inch in diameter and was "sort of rounded . . . ." The exit wound, in contrast, was a "sort of slit-like tear in the skin" less than a quarter of an inch in length.
If a .45 caliber hollow point bullet had gone all the way through Lt. Oliver's chest and emerged in one piece, we have no doubt that the exit wound would have been larger than the entry wound. It hardly follows, however, that Lt. Oliver could not have been shot with the type of ammunition Workman was firing -- because the record in no way compels the Conclusion that the bullet which killed the officer emerged from his body in one piece.
Soft point bullets sometimes shed fragments after entering a human body. See, for example, the paper on "Ballistic Injury" presented by Col. Martin L. Fackler, of the U.S. Army Medical Corps, at the March 1986 Symposium of the American College of Emergency Physicians. The paper, accepted for publication in the Annals of Emergency Medicine, describes one soft point bullet wound where the percentage of bullet fragmentation was calculated at 33.4 percent. Dr. Fackler gives the following description:
"As the bullet deforms on impact, small pieces of it separate. In this case, 33.4% of the bullet's total weight leaves the main mass in the form of fragments. Each fragment crushes its own path through tissue as the multiple fragments spread out laterally away from the main projectile."
If part of the bullet that killed Lt. Oliver remained in the officer's body, that would be entirely consistent with Dr. Sperry's observation that hollow point bullets remain inside the victim's body about 90 percent of the time. Dr. Bell did not recover any bullet segment, to be sure, but no x-ray was taken and the small piece of metal could simply have been overlooked. Dr. Bell did report a gunshot wound fracture of Lt. Oliver's left seventh rib, so the bullet may have fragmented on striking the rib. But regardless of when any fragmentation may have occurred, the most obvious explanation of the quarter inch "slit-like tear in the skin" on Lt. Oliver's back is that the wound was caused by the exit of a hollow point bullet fragment (possibly part of the aluminum jacket) and not by the exit of an entire bullet. Therefore, there ...