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BRAGAN v. MORGAN

April 15, 1992

JERIS E. BRAGAN
v.
JACK MORGAN, Warden



The opinion of the court was delivered by: JOHN T. NIXON, CHIEF JUDGE

 Jeris Bragan has petitioned this Court for the writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging, inter alia, that the State violated the dictates of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972), by failing to disclose a plea agreement between the State and the State's key witness, and by knowingly misleading the defense counsel and the jury through the use of perjured or inaccurate testimony at trial. For the reasons stated below, the Court finds that petitioner's Fourteenth Amendment guarantee to a fair trial was violated and therefore will grant the petition and order a new trial.

 BACKGROUND

 On November 22, 1976, George Urice was found dead at the office of his Chattanooga, Tennessee private investigation firm. The police suspected foul play and on March 30, 1977, petitioner Jeris Bragan, Urice's business partner, was indicted for murder. However, the facts upon which this case turns involve another man, William Harold Torbett. Torbett, who would become the State's key witness, had been indicted in late 1976 for burglary and receiving and concealing stolen property. Attached to this latter charge was an habitual criminal count, a count which under Tennessee law carried with it a life sentence.

 Negotiations between Torbett's attorney and the State proved fruitful. The State considered the stolen property count to be problematic and therefore agreed to drop that charge and the attached habitual criminal count. Torbett was to plead guilty to the burglary on February 25, 1977, but instead of appearing in the courtroom, Torbett fled the state. He was indicted on a charge of fraudulent breach of trust and was recaptured a month later.

 In April, 1977, Torbett told police investigators that he had information concerning the Bragan case. He claimed to have refused $ 2500 Bragan had offered him to murder Urice. A few days after the murder, Torbett claimed to have seen Bragan at a bar at which time Bragan boasted of killing Urice. There was no doubt this information was crucial to the State's case and that Torbett would be a key witness for the prosecution. Torbett's purported reason for coming forward was his fear that Bragan would implicate him in the crime.

 The Bragan trial was originally set for July 5, 1977. Torbett was to enter his plea on June 7th, but this was continued to July 13th. On July 3rd, the Bragan trial was continued to September 5th and on July 13th, Torbett's plea was continued until September 28, 1977. Torbett testified at the Bragan trial that he had made no arrangements with the State regarding his pending charges and that he still faced life imprisonment under the habitual criminal count. Bragan was convicted of first degree murder on September 15, 1977 and sentenced to a 99-year jail term. On October 18, 1977, Torbett entered the plea he claimed to have arranged with the State prior to his escape nearly eight months earlier.

 Bragan filed a motion for a new trial. The trial court held hearings in January, 1978, at which time defense counsel argued, inter alia, that Torbett had made a deal with the State and that the State had misled the defense and the jury in this regard. The trial court found no error and denied the motion. The Court of Criminal Appeals affirmed the conviction on January 18, 1979 and certiorari was denied by the Tennessee Supreme Court on April 9, 1979. The current petition for habeas corpus was filed on July 11, 1989 and counsel was appointed to represent petitioner. After numerous and thorough filings by both parties, and a Report and Recommendation from Magistrate Judge Sandidge, this Court held an evidentiary hearing addressing the sole question of the State's alleged Brady and Giglio violations. *fn1"

 Petitioner's grounds for relief are based upon two claims: (1) that the testimony of the State's key witness, Harold Torbett, included perjury or materially misleading statements of which the State was aware, and (2) that the State failed to disclose exculpatory evidence which was specifically requested and which would have materially aided the defense in impeaching Harold Torbett. Under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972), if either of these claims are established a new trial would be required.

 The State's response to this petition has rested entirely on procedural grounds. The State argues that, insofar as the trial court heard petitioner's claims at his new trial hearing and found no error, this Court is obligated to presume the correctness of those findings and dismiss the petition. To the extent that petitioner raises new evidence to support his petition, the State argues that he must first bring this evidence in state court and his failure to exhaust this remedy requires dismissal of the petition. *fn2" Before the Court can address the merits of the State's procedural arguments, an analysis of the facts underlying petitioner's claims and the merits of those claims must be addressed.

 FINDINGS OF FACT

 One month before Bragan was indicted for the murder of Urice, Harold Torbett jumped bond the day he was to enter a plea. Torbett had a lengthy criminal record and was up on charges of burglary and receiving stolen property. Under the habitual criminal statute, which was attached to the stolen property count, he was facing a life sentence. The State had agreed to drop the stolen property and habitual criminal counts and let Torbett plead guilty to burglary. However, Torbett was not quite ready to serve his sentence so, when the court took its lunch break, he fled the state.

 When Torbett was recaptured, he was facing the additional charge of fraudulent breach of trust. As fate would have it, he was placed in the same cell as Bragan and shortly thereafter went to the police with the story of Bragan's confession. Although Torbett was represented by counsel, his discussions with the police were conducted in secret without the knowledge or consent of his attorney.

 An apparent typographical error in the prosecution's witness list sent defense investigators off of Torbett's track and defense counsel never had the opportunity to speak with Torbett before the trial. A "slip of the tongue" by the prosecutor further misled the defense team when the District Attorney reported that Torbett had escaped the day he was to enter his plea. This left defense counsel with two impressions: (1) that Torbett had not yet been apprehended and was therefore unavailable to testify, and (2) that the initial plea agreement was revoked due to Torbett's escape.

 The defendant's belief that no plea agreement was pending with Torbett was further confirmed when, before the trial began, the prosecutor stated in open court that "there is no agreement with any particular witness at this point." (TR at 164). In opening argument, the State said its case "was going to be one of the toughest cases that the State has ever prosecuted. . . . the State's case is going to be [based on] circumstantial evidence." (TR at 249). Because of these statements, defense counsel appeared to have been taken by complete surprise when Torbett was called to the stand and testified to Bragan's confession. (TR at 2029, 2047).

 On direct examination of Torbett, prosecutors attempted to establish that despite Torbett's criminal history and pending charges, he had nothing to gain by testifying against Bragan and, if anything, had much to lose by becoming a "snitch." After determining that Torbett had been convicted of burglary in 1967 and 1968, charged with escape and larceny during his term of imprisonment, and in 1970 was convicted on two counts of armed robbery and receiving stolen property, (TR at 1158-59), the State asked Torbett about his pending charges.

 
Q: [by District Attorney Gerbitz] Now, you have some cases pending against you right now. Do you recall what the offenses are that you're charged with right now?
 
A: [Torbett] One burglary and larceny, and one receiving and concealing stolen drugs, breach of trust.
 
Q: All right, breach of trust. That's fraudulent breach of trust?
 
A: Yes, sir.
 
Q: All right, and a habitual criminal statute is attached to one of those cases, is that right?
 
A: Yes, sir.

 (TR at 1159-60) (emphasis supplied).

 Later in direct examination, the State elicited Torbett's claim that there was no agreement with regard to the charges pending against him.

 
Q: Now, Mr. Torbett, you're charged with some offenses here in Hamilton County right now. Has anything been promised you in regard to those charges against you for your testimony today here in court?
 
A: No, sir.
 
Q: Have you been promised to be protected?
 
Q: Have you been promised any leniency in the form of probation or parole, to reduce sentences?
 
A: No, sir.

 (TR at 1179). In an attempt to unearth any agreement Torbett may have made with the State, on cross-examination, defense counsel pursued the following line of inquiry:

 
Q: [by Mr. Ruth] All right. Now, as I understand, you're a professional criminal?
 
A: Yes, sir.
 
Q: Charged with being an habitual criminal?

 A: That's right.

 Q: And those cases pending? Mr. Torbett, if you're convicted of those cases, you will go to prison for the rest of your natural life, isn't that correct?

 A: Yes, sir.

 . . . .

 Q: You'd do about anything to get out of jail, wouldn't you?

 A: No, sir.

 Q: Anything. You say there have been no promises made to you?

 A: No, sir.

 Q: But a helluva lot of hope?

 A: I hope for the best all ...


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