As the instant petition is one for habeas corpus, Green must demonstrate a violation of his federal constitutional rights in order to prevail. 28 U.S.C. § 2254(a).
A. The Alleged Brady Violation.
Petitioner contends that his Fourteenth Amendment due process rights were denied because the prosecution failed to disclose that it had promised Wright, its main witness, that it would attempt to enroll him in either a state or federal witness protection program, and also that it promised Wright monetary benefits in connection with those attempts.
In Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), the Supreme Court held that the prosecution cannot withhold, upon a request by the defense, evidence that is material to the defendant's guilt or punishment. After more than 30 years of Brady jurisprudence, this seminal case and its progeny now stand for the proposition that the prosecution violates a defendant's due process rights when it suppresses evidence that, had it been disclosed to the defense, would have created the reasonable probability of a different result at trial. The critical question, then, is whether in the absence of that evidence the defendant still received a trial resulting "in a verdict worthy of confidence." Kyles v. Whitley, 514 U.S. 419, 115 S. Ct. 1555 at 1566, 131 L. Ed. 2d 490 (1995); see, e.g., United States v. Agurs, 427 U.S. 97, 49 L. Ed. 2d 342, 96 S. Ct. 2392 (1976), United States v. Bagley, 473 U.S. 667, 87 L. Ed. 2d 481, 105 S. Ct. 3375 (1985).
Even if the defendant could have used the disputed evidence in some way as to actually create the reasonable probability of a different result at trial, as the Second Circuit wrote in United States v. LeRoy, 687 F.2d 610 (1982), cert. denied, 459 U.S. 1174, 74 L. Ed. 2d 1019, 103 S. Ct. 823 (1983), "evidence is not 'suppressed' if the defendant either knew . . . or should have known of the essential facts permitting him to take advantage" of such evidence. 687 F.2d at 618, see also United States v. Stewart, 513 F.2d 957, 960 (2d Cir. 1975), United States v. Zackson, 6 F.3d 911, 919 (2d Cir. 1993).
Applying these principles to the facts of the instant case, Green's petition for a writ of habeas corpus on this issue must be dismissed.
The undisclosed information did not differ significantly from the information already disclosed to the defense. Defense counsel had been informed that because of the threats made against Wright, he and his family had been moved and put in protective custody at expense to the prosecution of $ 1,000 per week. Because of the inflammatory nature of the threats against Wright, the trial court precluded the prosecution from developing that evidence in its opening statement (Transcript for Oct. 31, 1989 at 5) and in its direct case.
Although aware of Wright's protective custody status, defense counsel did not cross-examine Wright on this information, no doubt out of concern that such cross-examination might hurt his client by opening the door for the prosecution to develop before the jury the facts that necessitated Wright's protective custody.
It strains credulity to suggest now that defense counsel would have questioned Wright about his potential future witness protection status and the promises made to him concerning the costs of such protective custody, when defense counsel had already declined to ask any questions about Wright's then-current status in protective custody.
Therefore, Green cannot show that the undisclosed evidence would have created a reasonable probability that the result of his trial would have been different. Except for being placed in protective custody, there is no indication that Wright received any other benefits or promises in exchange for his agreement to testify. Wright identified Green as the perpetrator on the day of the crime, long before he received or was promised any benefits. Furthermore, Wright was not the sole witness to the shooting. Another witness, Steven Brown, also identified Green as a participant in the murder.
B. Juror Misconduct
In order to show that he has been denied his Sixth Amendment right to an impartial jury and thus to obtain a writ of habeas corpus, a petitioner must first show that the juror failed to honestly answer a material question on voir dire. He must then demonstrate that a correct response would have provided a valid basis for a challenge for cause by showing that the correct response, if given, would have affected the juror's impartiality. McDonough Power Equip., Inc., v. Greenwood, 464 U.S. 548 at 556, 78 L. Ed. 2d 663, 104 S. Ct. 845 (1984).
To determine whether bias sufficient to warrant a challenge for cause exists, two questions must be asked and answered: "are there any facts in the case suggesting that bias should be conclusively presumed; and if not, is it more probable than not that the juror was actually biased against the litigant." 464 U.S. at 558. Petitioner fails to meet this standard.
First, although Tyler intentionally failed to give a truthful answer in response to the question on voir dire as to whether she had ever been convicted of a crime, the state court found after a post-trial hearing that her answer was based on reliance on the information provided to her by her attorney and was not a deliberate misrepresentation offered out of any desire to sit on the petitioner's jury. I find absolutely nothing in the record that would lead me to disturb this ruling.
Second, there are no facts in this case that indicate to me that bias on Tyler's part should be conclusively presumed, nor is it more probable than not that Tyler was biased against Green. Tellingly, there was no evidence introduced at the post-trial hearing to show that Tyler was biased in any way against Green, nor can I find any in the record. With regard to the juror misconduct issue, the facts of this case parallel those in United States v. Langford, 990 F.2d 65 (2d Cir. 1993), where a juror withheld information concerning her prior arrests only to avoid embarrassment, and there was no evidence that she was biased or prejudiced against the defendant.
Petitioner has clearly not met the standard for habeas corpus relief on this Sixth Amendment claim.
For the foregoing reasons, petitioner's petition is dismissed.
IT IS SO ORDERED.
DAVID G. LARIMER
UNITED STATES DISTRICT COURT
Dated: Rochester, New York
April 30, 1997.
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