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Harris v. Bell

March 6, 2008

EDWARD L. HARRIS PETITIONER,
v.
RICKY BELL, WARDEN RESPONDENT.



The opinion of the court was delivered by: Jordan

MEMORANDUM OPINION

This is a petition for the writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by Edward L. Harris ("Harris"). The court previously granted the respondent's motion for summary judgment and denied a majority of Harris' claims for habeas relief; reference is made to that opinion for the procedural history and factual background of this case. The court then ordered the respondent to file his answer or other response with respect to the remaining claims for relief, which were not addressed on the merits in the motion for summary judgment. Reference is also made to the court's prior opinion for the applicable standards of review in habeas proceedings.

For the following reasons, Harris' remaining claims for relief will be DENIED. The court will refer to Harris' claims as set forth in his amended habeas corpus petition by their numeric paragraph designation assigned by Harris.

79. Petitioner was denied his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution because the prosecution withheld credible exculpatory evidence, including evidence demonstrating, inter alia, that credible disinterested witnesses were available to substantially impeach the testimony of Joseph Demodica and that credible witnesses and other evidence were available to demonstrate that the subject robbery and murders were committed by persons other than the defendant. The evidence was highly exculpatory to both the jury's determination of petitioner's guilt and its consideration of the proper sentence. There is a reasonable probability that had the evidence not been withheld Mr. Harris' jury would not have convicted him and would not have sentenced him to death. The prosecution withheld the following exculpatory evidence, material to both the guilt and sentencing phase of trial: [Subparts a-k, setting forth the alleged exculpatory evidence, are addressed in turn below].

This claim and its subparts are brought pursuant to Brady v. Maryland, 373 U.S. 83 (1963), in which 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 either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Id. at 87. Impeachment evidence as well as exculpatory evidence "falls within the Brady rule." United States v. Bagley, 473 U.S. 667, 676 (1985). "Favorable evidence is material, and constitutional error results from its suppression by the government, 'if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceedings would have been different.'" Kyles v. Whitley, 514 U.S. 419, 433-34 (1995) (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)).

At the outset, the Attorney General for the State of Tennessee, on behalf of the respondent, contended that Harris' Brady claims were procedurally defaulted because they were never presented to the state courts. The Attorney General further noted that he could not answer the Brady claims in detail because Harris did not adequately identify the documents supporting the Brady claims.

In response, Harris contended that he could not have raised his Brady claims in the state courts because the exculpatory evidence was not turned over to him during the state court process and thus his claims are not defaulted. Harris also moved to expand the record with exhibits from the Tennessee Bureau of Investigation's file and Gatlinburg Police records.

The court granted the motion to expand the record and found it appropriate for the respondent to address Harris' Brady claims on the merits. The respondent has now done so and the court will consider the Brady claims as set forth below. The exhibits from the TBI file and the Gatlinburg Police records are attached as Appendix 2 to Harris' Notice of Filing of Documents, Court File No. 266.

a. Contained within law enforcement files are police reports and witness statements showing that, contrary to the testimony of Mr. Demodica*fn1 at Mr. Harris's trial, victim Valentine was observed at the entry of the parking lot of the Rocky Top Motel, where he remained for a significant period of time. These police reports and witness statements further showed that the same eyewitnesses did not observe any other persons in the parking lot. Given the fact that Mr. Demodica's testimony had been substantially impeached during trial, and would have been even more so had trial court interference not rendered trial counsel's cross- examination of Mr. Demodica ineffective see, Paragraph 81(g), infra, there is a reasonable probability that Mr. Harris' jury would have rejected Mr. Demodica's description of Mr. Harris' involvement in the subject offenses. Absent Mr. Demodica's testimony, there was no credible evidence from which a reasonable juror could have found that the State had met its burden of proof as to each and every element of the offenses of which Petitioner was convicted. (footnotes omitted)

This claim refers to unidentified handwritten notes that the occupants of room numbers 18 and 20 at the Rocky Top Village Inn saw Mr. Valentine, the security guard, in the parking lot across from the office around 11:00 p.m.; there was no mention that they saw anyone else. [Appendix 2, pp. 2- 3]. Apparently, Harris is claiming that the witnesses' failure to see DeModica and Ashley Silvers in the parking lot would have impeached DeModica's trial testimony, since he testified they were there arguing while Harris and Kim Pelley were with Mr. Valentine and Ms. Hill.

As Harris admits, DeModica was substantially impeached during trial. These notes, however, are consistent with DeModica's testimony. He testified that while he and Ashley Silvers were arguing in the parking lot, he saw Mr. Valentine drive up in the golf cart. [Addendum 2, Transcript of Evidence, vol. XII, pp. 810, 815-16]. In addition, the notes do not indicate that the witnesses did not see anyone else, but only that they saw Mr. Valentine. Accordingly, this evidence is neither material nor exculpatory under Brady.

b. Also contained within law enforcement files are statements from one Mr. Robert Charles, the owner of the stolen car which was allegedly used by Petitioner, Joseph Demodica, Rufus Doby (a/k/a Ashley Slivers), and Kimberly Pelley, during the robbery and murders of which Petitioner now stands convicted and sentenced to death, indicating: (1) that Mr. Demodica was the person who had stolen the vehicle; that following that theft Mr. Charles had received a telephone call from a women [sic] identifying herself as "Kimberly" who informed him that she had found a checkbook belonging to Mr. Charles in a vehicle in which she was riding, that the presence of this checkbook led her to suspect that the vehicle was stolen, and that the vehicle was in the Knoxville, Tennessee, area; (3) that Mr. Charles had talked to "Kimberly" on a number of occasions, sometimes with her calling him and sometimes with Mr. Charles calling her; (4) that Mr. Charles had long-distance telephone records reflecting the times on which he called "Kimberly"; and (5) that, when Mr. Charles received his car back from Tennessee authorities he discovered letters from Ashley Silvers to Joseph Demodica, at least one of which expressed Ashley Silvers' love for Mr. Demodica, even though Mr. Demodica made Ashley Silvers "do bad things." The afore-referenced telephone records, which indicated that one of the calls, lasting three minutes, was made on the evening of the subject offenses, at a time when the State argued, and State witness Demodica testified, that Petitioner and Ms. Pelley were with Mr. Demodica in Gatlinburg, Tennessee.

This claim refers to a typed summary of the statement of Robert Charles given to Special Agent Dull. [Appendix 2, pp. 5-9]. Harris' characterizations of Mr. Charles' statement are incorrect. While Mr. Charles stated that Joey DeModica was the person who stole his car, he merely stated that he had received telephone calls from a female and that possibly her name was Kim. There is no mention in the statement that one of the calls was made on the evening of the murders.

Mr. Charles also stated that, when he received his car back from the authorities, there were personal belongings in the trunk and letters signed by Ashley, all of which he threw away. There is no mention in the statement, however, that the letters were to Joey DeModica or that Ashley professed her love for Joey in the letters. Accordingly, this evidence is neither material nor exculpatory under Brady.

c. Also contained within law enforcement files are statements from a Mr. Robert Harrison indicating that the writing on a key piece of evidence, the "Maggie Valley Note" attributed by the State to the Petitioner, was similar to the handwriting of one Amy Carlton, that Ms. Carlton used to live with Mr. Harrison, that Ms. Carlton associated with Ashley Silvers, Mr. Demodica, and Petitioner, and that the envelope in which the "Maggie Valley Note" was found was similar to envelopes kept in his home. (footnote omitted)

This claim refers to a typed summary of Robert Allen Harrison's statement given to Special Agents Dull and Zon. [Appendix 2, pp. 10-12]. There are also unidentified handwritten notes of an interview with Mr. Harrison. [Id. at 15-16]. Mr. Harrison stated that he had lived with Amy Carlton, and that on July 4, 1986, Ashley Silvers, Joey DeModica, and Harris were at Mr. Harrison's residence with Ms. Carlton. After being shown the Maggie Valley note, Mr. Harrison did state that the printing ...


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