White v. Larkins
MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that Petitioners motion, as supplemented, to alter or amend judgment is DENIED. (Doc. Nos. 76 , 84 .) Signed by District Judge Audrey G. Fleissig on 4/19/16. (KCB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
Case No. 4:08CV00288 AGF
MEMORANDUM AND ORDER
This matter is before the Court on habeas Petitioner Christopher White’s motion
(Doc. No. 76), as supplemented (Doc. No. 84), to alter or amend the judgment entered
against him on September 16, 2014. For the reasons set forth below, the motion, as
supplemented, will be denied.
As set forth in the Court’s Memorandum and Order (Doc. No. 73) accompanying
the September 16, 2014 Judgment in this case, a jury convicted Petitioner on January 16,
2004, of acting with others, including Juanne Kennell, in the June 21, 2002 murder of
Freddie Chew and assault of Jeffrey Shockley. Kennell was convicted for his part in the
same crimes, with Petitioner’s trial commencing several days after Kennell’s conviction.
One of Petitioner’s claims for federal habeas relief was that the state violated his rights
under Brady v. Maryland, 373 U.S. 83 (1963) (holding that due process requires the
prosecution to disclose to the defense material impeachment evidence), by withholding
evidence that Shockley, who was a key prosecution witness against Petitioner, received
favorable treatment, or promises thereof, in exchange for his testimony against Petitioner.1
Kennell raised a similar Brady claim in his own action seeking federal habeas relief,
Kennell v. Dormire, 4:09CV00407 AGF (E.D. Mo.).
A detailed review of the facts underlying Petitioner’s Brady claim (and Petitioner’s
other claims) is set forth in the September 19, 2014 Memorandum and Order, and
incorporated herein. On October 14, 2014, Petitioner filed the present motion to alter
judgment. The only claim at issue in the motion to alter judgment is Petitioner’s Brady
claim. Petitioner had asserted that evidence in the record suggested that the state had
“hinted” at a deal with Shockley in connection with two state felony charges that had been
filed against Shockley on February 18, 2002, and were still pending at the time of
Petitioner’s trial. On February 9, 2004, shortly after Petitioner’s trial, Shockley pled
guilty to the state felony charges, and was sentenced to a suspended imposition of sentence
and one year of unsupervised probation. This Court concluded that even if there were a
hint from the state for sentencing leniency, any Brady violation with respect to such a hint
would have been harmless, in that despite its nondisclosure, the verdict was worthy of
confidence and that there is no reasonable probability of a different result. (Doc. No. 73 at
In support of his motion to alter judgment, Petitioner has submitted three new
exhibits. The first exhibit is an affidavit dated October 9, 2012, by David Haubrich, an
investigator hired by Petitioner and Kennell to interview Robert Stewart, the state’s other
Petitioner also asserted a dependent due process claim of prosecutorial misconduct,
arguing that the state failed to correct Shockley after he testified that he had not made any
deals with the State in exchange for his testimony.
eyewitness, besides Shockley, who testified against Petitioner and Kennell. Haubrich
attested that he interviewed Stewart on August 2, 2012, and that Stewart told him that he
(Stewart) was not offered any deal related to his arrest on July 1, 2002, to testify against
Petitioner and White. Rather, the judge in his case offered to drop the charges if he would
enlist in the army, which Stewart did. Haubrich further stated that Stewart told him that he
did not get a good look at the shooters; that when the police showed him the photo array, he
had trouble picking out the shooters; that the police then gave him a break at the same time
Shockley was on a break and that at that point Shockley “coached” him, describing
Petitioner as having darker skin and White having lighter skin; and that after that, he
(Stewart) was able to choose the photos that best fit Shockley’s description. Haubrich
went on to attest that Stewart said he never heard Shockley say he was offered “some kind
of a deal, but it was obvious, because he never went to prison on his serious [felony]
charges” and “there was something going on between the police and Shockley.” Haubrich
ended by attesting that he tried numerous times to obtain a sworn statement from Stewart,
but that Stewart refused. (Doc. No. 77-1.)
The second supplemental exhibit is a declaration by Jerome Johnson, an
acquaintance of Shockley’s and Stewart’s, dated October 24, 2012, in which Johnson
stated that Shockley and Stewart told him they could not recognize the men who shot Chew
because the shooters were wearing ski masks, and that they (Shockley and Stewart) just
guessed as to who the shooters were. (Doc. No. 77-2.) The third supplemental exhibit is
a copy of a typewritten undated, unsigned plea agreement offered to Shockley by the state.
(Doc. No. 77-3.)
The Court granted the requests of Kennell, whose habeas petition was still pending,
and Petitioner for a joint evidentiary hearing on their respective Brady claims, and deferred
ruling on Petitioner’s motion to alter judgment until after the hearing.
Federal Habeas Evidentiary Hearing (Tr. at Doc. Nos. 117 and 120)
Nine witnesses testified at the September 2015 evidentiary hearing: Stephen
Reynolds (the public defender who represented Kennell in pretrial matters); Shockley;
Stewart; Johnson; Robert Taaffe (the public defender who represented Shockley at his
February 9, 2004 guilty plea and sentencing); Kennell; Petitioner; Daryl Smallwood (an
inmate who knew Shockley and Kennell in jail/prison in 2007 or 2008); and Robert
Craddick (the prosecutor in both Kennell’s and Petitioner’s trials).
Reynolds testified that he was “relatively confident” that he was the “SR”
referenced on a February 7, 2003 Conflict Transfer Request Form, and similarly
confident that he was the author of the form. This internal Public Defender’s Office
document stated as follows:
Bob Taaffe represents Jeff Shockley in 021-0715. SR has just learned that
Bob negotiated a deal for Jeff Shockley to testify against [Petitioner], who
was just arraigned on 1/13/03, as well as possibly another defendant,
Christopher White (who may also be coming down the pike, as I think we
just interviewed that guy today).
Reynolds had no independent recollection of the form or of speaking with Taaffe about
anything noted therein, but testified that Taaffe might have told him that he (Taaffe) was
“trying to negotiate a plea agreement” for Shockley.
Shockley testified that he was not promised anything in exchange for his testimony
against Petitioner and Kennell, and that Chew was like a brother to him and that was why
he testified against Petitioner and Kennell. Shockley testified that in July 2002, about a
month after Chew’s murder, he was in danger in his apartment due to being a witness in the
case and the police moved him to a hotel for two to four weeks and covered his expenses
there. Shockley testified that the men who shot at Chew and the others were not wearing
ski masks, and that when he saw their faces he recognized them because he knew them
from before. Shockley denied that he had coached Stewart with respect to identifying the
men who shot Chew, and denied that he had told Johnson that he (Shockley) could not
identify the shooters. He also denied that he had given a copy of the Conflict Transfer
Request Form to anyone. He testified that he had agreed to testify against his brother, who
had been charged with a separate crime, because his brother asked him to so that he
(Shockley) could stay out of jail for the vehicular homicide. In the end, his brother pled
guilty to the homicide charge.
Shockley testified that he had no expectation that he was going to get any favor from
the state as a result of his testimony against Petitioner and Kennell. He testified that when
he pled guilty to his state felony charges he thought he might go to jail, and planned to
throw himself on the mercy of the plea court.
Johnson testified that after the Chew shooting, Shockley and Stewart told him that
they could not identify the shooters because the shooters had ski masks on.
Stewart testified that he was able to identify Petitioner and Kennell as two of the
shooters because he had seen them in the neighborhood on several occasions beforehand
and recognized them. He stated that he testified at their trials because his friend (Chew)
had been brutally murdered and he wanted to see justice done. He stated that no one ever
made a deal with him in exchange for his testimony and that Shockley did not coach him
with the identifications. He admitted that he spoke with David Haubrich , an investigator
for approximately 30 to 45 minutes, but denied ever telling Haubrich that it was too dark
for him to clearly see the faces or identities of the shooters, or that Shockley coached him.
He said it was evident that Haubrich was asking leading questions designed to affect the
outcome of the case.
Taaffe testified that although he attempted to negotiate a plea deal for Shockley,
no formal or tacit agreement was ever reached. Taaffe testified that once Shockley agreed
to testify against Petitioner and Kennell, Taaffe tried to get the state to agree to dismiss the
pending felony charges against Shockley, but that ultimately Shockley pleaded “open” and
the only reason for that would have been that negotiations with the state had broken down.
With respect to the Conflict Transfer Request Form, Taaffe testified that if the state made
an offer to one of his clients to testify against another individual represented by the Public
Defender’s Office, he would have reported a conflict of interest to the appropriate person.
Taaffe testified that according to his notes, at about the time the Conflict Transfer Request
Form was dated (February 7, 2003), the state had made an offer to Shockley, but Shockley
declined the offer because it did not grant him immunity. In addition, the offer required
Shockley to testify against his brother in another criminal matter, and Shockley did not
want to do that.
Taaffe believed that Shockley wanted to testify against Petitioner and Kennell
because they had killed his friend. Taaffe also explained that he was the one who
continued the felony case against Shockley until Petitioner’s and Kennell’s trials were
over, thinking Shockley would get some sentencing benefit from having testified for the
state in those cases, and that he (Taaffe) would have communicated this to Shockley, even
though there was no deal with the state. When asked by the state about his case note from
November 13, 2003, that stated that that the state “hinted at a potential nolle,” Taaffe
indicated that when Shockley agreed to testify for the state against Kennell and Petitioner,
“it was clear
. . . that he was not going to get anything worse than probation and [Taaffe] had hoped [he]
could talk the State into dismissing the charges after [Shockley] testified.” Taaffe
explained that the original recommendation was for probation anyway and that there was
“nothing in the [November 13, 2003] note to indicate that Craddick made a promise that
[Shockley] wasn’t going to go to jail,” and in fact, no such promise was made.
Nevertheless, Taaffe then stated that Craddick was the one who “hinted at a nolle.”
On cross examination, Taaffe testified unequivocally that there was no “secret deal”
with the state in exchange for Shockley’s testimony, and that he would have told Shockley
at the time he took the stand against Kennell and Petitioner that “we were hoping to get a
better deal from the State with his cooperation and/or hoping to get a better disposition
from the Court if he testified on behalf of the State.” Id. at 135-36.
Kennell testified that in January 2009, Petitioner mailed him a copy of the Conflict
Transfer Request Form described above, stating that he got it from Smallwood.
Petitioner testified that in 2007 or 2008, Smallwood gave him a copy of the Conflict
Transfer Request Form and Petitioner then sent it to Kennell. Smallwood testified that in
2007 or 2008, he was incarcerated in the same jail as Shockley, and Shockley gave him the
Conflict Transfer Request Form and asked him to give it to Petitioner, which he did.
Smallwood testified that Shockley told him he did not “see anything” at the shooting and
had lied at Kennell’s and Petitioner’s trials to get a deal. Shockley was recalled as a
witness and denied giving Smallwood the Conflict Transfer Request Form.
Craddick testified that he did not have a specific memory of conversations with
Taaffe regarding a deal for Shockley, but definitively stated that he (Craddick) never
offered to dismiss the charges against Shockley, or hinted that he would. He testified that
Shockley told him that he would testify against Petitioner and Kennell because his best
friend had been killed, and so he (Craddick) was not concerned that Shockley would
refuse to testify unless the state gave him something in exchange. Craddick explained
further that in light of Shockley’s age and lack of a criminal record, Shockley was likely
to receive supervised probation, which was what Craddick would have offered him
anyway, and so Craddick had no motivation to offer Shockley a deal because it would
have only negatively impacted Shockley’s credibility. Craddick did not recall whether
Shockley was put up in a hotel before Kennell’s and Petitioner’s trials, but he explained
that it was the prosecutor’s office’s practice to do so when a witness did not feel safe.
Post-Hearing Evidence and Arguments of the Parties
Documents from the St. Louis City Circuit Attorney’s Office indicate that the
Victim’s Services Unit paid for Shockley to stay at a hotel from July 28, 2002, until
August 5, 2002, and in October 2002, paid a little over $1,000 for Shockley and his
mother to relocate to an apartment in another neighborhood. Shockley’s probation files
were also provided to Petitioner after the hearing. They show that Shockley was placed
under the supervision of the Missouri Board of Probation and Parole, and although field
violation reports were filed by his probation officer, the plea court did not revoke
Shockley’s probation, which he completed on February 9, 2005.
The parties submitted simultaneous post-hearing briefs. Petitioner argues that
Shockley was not a credible witness at the evidentiary hearing, and that the hearing
testimony and exhibits show that there was a tacit deal between the state and Shockley for
sentencing leniency in exchange for his testimony against Petitioner and Kennell.
Petitioner also asserts that a Brady violation has been made out based on the state’s failure
to disclose the payments made to Shockley for lodging and relocation, and failure to
disclose Shockley’s agreement to become a state’s witness against his brother. This latter
non-disclosure was impeachment evidence, according to Petitioner, because it would have
shown Shockley’s willingness to testify against others to advance his own interests.
Respondent argues that the record, including the testimony at the evidentiary
hearing establishes that there was no formal or tacit agreement between the state and
Shockley that Shockley would receive some sort of benefit in exchange for his testimony
against Petitioner and Kennell. With respect to the nondisclosure of the payments to
Shockley for lodging and relocation, Respondent argues that Petitioner failed to show
prejudice, because evidence that Shockley received threats that caused him to fear for his
life and safety in the community would have had a detrimental impact on Petitioner’s case.
In Brady, the Supreme Court held that “suppression by the prosecution of
evidence favorable to an accused . . . violates due process where the evidence is material
either to guilt or to punishment, irrespective of the good faith or bad faith of the
prosecution.” Brady, 373 U.S. at 87. In Giglio v. United States, 405 U.S. 150, 153-54
(1972), the Supreme Court clarified that the rule stated in Brady applies to evidence
undermining witness credibility, such as sentencing leniency promises. Evidence
qualifies as “material” when there is “‘any reasonable likelihood’ it could have ‘affected
the judgment of the jury.’” Wearry v. Cain, 136 S. Ct. 1002, 1006 (2016) (quoting Giglio,
405 U.S. at 154). To prevail on his Brady claim, Petitioner need not show that he “more
likely than not” would have been acquitted had the new evidence been admitted; he must
show only that the new evidence is sufficient to “undermine confidence” in the verdict.
See id. (quoting Smith v. Cain, 132 S. Ct. 627, 629-31 (2012)).
Both express agreements between the prosecution and cooperating witnesses, as
well as “less formal, unwritten or tacit agreement[s]” are “subject to Brady’s disclosure
mandate.” Bell v. Bell, 512 F.3d 223, 233 (6th Cir. 2008) (en banc) (citing Wisehart v.
Davis, 408 F.3d 321, 323–24 (7th Cir. 2005). Recently, in Wearry, 136 S. Ct. at 1004, the
Supreme Court held that the fact that the police had told a witness for the state who was
seeking a deal to reduce his existing sentence that they would “talk to the D.A. if he told the
truth” was subject to Brady’s disclosure requirement.
These rules are designed to protect a defendant’s fundamental right to
fairness under the Due Process Clause of the Fifth Amendment, for when the
fate of the accused turns on the credibility of a witness, the prosecutor’s
failure to disclose a potential motive for bias or untruthfulness may result in
United States v. Rushing, 388 F.3d 1153, 1158 (8th Cir. 2004). In determining whether
the suppression of impeachment evidence is sufficiently prejudicial to rise to the level of a
Brady violation, a court must analyze the totality of the undisclosed evidence “in the
context of the entire record.” United States v. Agurs, 427 U.S. 97, 112 (1976). The
cumulative effect of all suppressed evidence favorable to the defendant is considered,
rather than considering each item of evidence individually. Wearry, 136 S. Ct. at 1004-05
(concluding that the cumulative effect of several Brady nondisclosures in a case in which
the state’s evidence “resemble[d] a house of cards,” entitled the petitioner to a new trial).
The Court concludes from a review of the evidence, and after having an opportunity
to observe the demeanor of the witnesses at the habeas hearing, that no formal or tacit
agreement existed between the state and Shockley related to his February 18, 2002 felony
charges. It is clear that no written or oral agreement was ever entered into, despite the
notation in the February 7, 2003 Conflict Transfer Request Form that Taaffe “negotiated a
deal for Jeff Shockley to testify against [Petitioner].” The Court credits the testimony of
Reynolds and Taaffe that this notation may well have meant that Taaffe and the state were
attempting to negotiate a deal for Shockley. The Court concludes that no such agreement
was ever reached. “Giglio does not require disclosure of rejected plea offers; the duty to
disclose is dependent upon the existence of an agreement between the witness and the
government.” Rushing, 388 F.3d at 1158 (citing Collier v. Davis, 301 F.3d 843, 849-50
(7th Cir. 2002)).
The evidence of a tacit agreement is the November 13, 2003 case note by Taaffe that
Shockley agreed to testify against Petitioner and White and the state “hinted that there may
be a nolle after this is over.” But this note’s probative value is weak in light of Taaffe’s
contemporaneous statements to the plea court that there was no “quid pro quo” for
Shockley’s testimony against Petitioner and White. The existence of a tacit agreement is
further refuted by the consistent testimony at the habeas hearing of Shockley and
Chaddick, whose testimony the Court finds credible on this question. Each testified that
no tacit agreement existed. Both Taaffe and Craddick testified that Shockley was likely to
get probation anyway, in light of his young age and lack of a criminal history, and their
testimony was not controverted. Indeed, the state did not “nolle” the felony charges
against Shockley after he testified against Petitioner and White, and Taaffe made no
mention of any such agreement at sentencing, further undermining the notion that the state
had hinted it would or might do so in exchange for Shockley’s testimony. To the contrary,
the state made no mention of Shockley’s trial testimony and recommended essentially the
sentence it had originally offered that did not require Shockley’s testimony against anyone.
Taaffe’s testimony at the habeas hearing, when confronted with his case note, did
not establish that Chaddick had hinted that the state might dismiss the felony charges
against Petitioner if he testified against Petitioner and White. Rather, the credible
graveman of Taaffe’s testimony was that he and Shockley hoped that his testimony would
help with the sentencing on the felony charges, and that Shockley’s motive for testifying
against Petitioner was because Petitioner had murdered Shockley’s best friend. The Court
credits Shockley’s testimony that this is why he testified against Petitioner. Shockley’s
(and Taaffe’s) hopes that Shockley’s sentencing judge might view Shockley’s cooperation
with the state favorably does not implicate Brady. See Bell, 512 F.3d at 233-34; Wisehart
v. Davis, 408 F.3d 321, 325 (7th Cir. 2005).
The Court next concludes that even if the jury had heard that the state “hinted” to
Shockley that it might dismiss his felony charges if he testified against Petitioner, there is
no reasonable likelihood this information could have affected the judgment of the jury.
As discussed below, this was not a case in which the state’s evidence was like “a house of
cards,” but rather a case in which the evidence of guilt was strong. Most importantly,
Stewart also identified Petitioner and White as two of the shooters. See Sullivan v.
Lockhart, 958 F.2d 823, 825-26 (8th Cir. 1992) (holding that evidence of an alleged deal
the state made with a witness to drop charges against her in exchange for her testimony
was not material under Brady where other witnesses testified to the same effect as the
witness in question).
The Court accords little weight to Haubrich’s hearsay affidavit that was not subject
to cross examination. Further the Court finds that Stewart’s hearing testimony regarding
his identification of Petitioner was credible. The Court did not find Johnson’s testimony
at the evidentiary hearing that Stewart told him the shooters were wearing ski masks such
that he could not identify them, to be credible, based on Johnson’s demeanor, his own
motivations, and the evidence as a whole, including that no other witnesses to the crimes
said the shooters were wearing ski masks. And, as noted above, there is no evidence of any
Brady violation or plea agreement with respect to Stewart.
With respect to the state covering the cost of Shockley’s hotel for eight days, as
well as the financial help in relocating Shockley and his mother to another apartment at a
time when he was possibly in danger in connection with the crimes at issue, the Court
assumes that this was Brady material that should have been disclosed. See United States
v. Librach, 520 F.2d 550, 553-54 (8th Cir. 1975) (holding that the government had a Brady
obligation to disclose that its witness was being held in protective custody, received
immunity, and was paid almost $1,000 a month for a total of approximately $10,000 for
subsistence). But the Court concludes that the nondisclosure does not undermine
confidence in the verdict.2 Lastly, the Court fails to see any impeachment value in the fact
that at some point Shockley was willing to testify, and may have given a statement,
against his brother in connection with an unrelated case, as there is no indication that
Shockley ever did so in return for any benefit from the state. In light of Shockley’s and
Stewart’s out-of-court identifications of Petitioner, their consistent versions of the crimes,
the corroboration of their versions (other than the identity of the shooters) by other
eyewitnesses and by physical evidence, including the evidence of Petitioner’s fingerprints
on the car driven to the shooting, the Court does not believe that it can be said that the
verdict in this case was of questionable validity or that the state’s case was built on a
“house of cards.” In sum, considering the entire record, and the cumulative effect of any
and all nondisclosures, Petitioner’s Brady claim fails.
Indeed, as respondent argues, such testimony could have invited either testimony, or
speculation by the jury, that Shockley had been threatened.
IT IS HEREBY ORDERED that Petitioner’s motion, as supplemented, to alter or
amend judgment is DENIED. (Doc. Nos. 76, 84.)
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 19th day of April, 2016.
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