Moore v. Illinois (408 U.S. 786)/Opinion of the Court

by Harry Blackmun

[p787] MR. JUSTICE BLACKMUN delivered the opinion of the Court.

This state murder case, with the death penalty imposed by a jury, comes here from the Supreme Court of Illinois. The grant of certiorari, 403 U.S. 953 (1971), was limited to three of four questions presented by the petition. These concern the nondisclosure to the defense of allegedly exculpatory evidence possessed by the prosecution or the police; the admission into evidence of a shotgun that was not the murder weapon; and the rejection of eight veniremen who had voiced general objections to capital punishment. The first and third issues respectively focus on the application of Brady v. [p788] Maryland, 373 U.S. 83 (1963), and Witherspoon v. Illinois, 391 U.S. 510 (1968).

I

Petitioner Lyman A. Moore was convicted in 1964 of the first-degree murder of Bernard Zitek. Moore's appeal to the Supreme Court of Illinois was held in abeyance while he petitioned the trial court for post-conviction relief. After a hearing in January 1967, that petition was denied. Moore's appeal from the denial was consolidated with his appeal from the conviction and sentence. With one justice dissenting and another not participating, the Illinois court affirmed the judgments. 42 Ill. 2d 73, 246 N.E. 2d 299 (1969).

II

The homicide was committed on April 25, 1962. The facts are important:

A. The victim, Zitek, operated a bar-restaurant in the village of Lansing, southeast of Chicago. Patricia Hill was a waitress there. Donald O'Brien, Charles A. Mayer, and Henley Powell were customers.

Another bar called the Ponderosa Tap was located in Dolton, also southeast of Chicago. It was owned by Robert Fair. William Joyce was the bartender. One of Fair's customers was Virgle Sanders.

A third bar known as Wanda and Del's was in Chicago. Delbert Jones was the operator. William Leon Thompson was a patron.

The Westmoreland Country Club was in Wilmette, about 50 miles north of Lansing. The manager there was Herbert Anderson.

B. On the evening of April 25 Zitek was tending bar at his place in Lansing. Shortly before 10 p.m. two men, one with a moustache, entered and ordered beer. Zitek admonished the pair several times for using [p789] profane language. They continued in their profanity and, shortly, Zitek ejected them. About an hour later a man carrying a shotgun entered. He laid the weapon on the bar and shot and killed Zitek. The gunman ran out, pursued by patrons, and escaped in an automobile.

C. At the trial waitress Hill positively identified Moore as one of the two men ejected from the bar and as the one who returned and killed Zitek. She testified that she had a clear and close view from her working area at the bar and that she observed Zitek's ejection of the two men and the shotgun killing an hour later.

D. A second in-court identification of Moore as the man who killed Zitek was made by the customer Powell. Powell, who at the time was playing pinochle with others, testified that he observed Moore enter the bar with a shotgun and shoot Zitek; that after the shooting he pursued Moore; and that outside the bar Moore stopped momentarily, turned, and shouted, "Don't come any further or I'll shoot you, too."

E. Sanders testified that on April 27, two days after the murder, he was in the Ponderosa Tap and that a customer there, whom Sanders identified as "Slick," remarked to Sanders that it was "open season on bartenders" and that he had shot one in Lansing. At the trial Sanders identified Moore as the man who was in the Ponderosa Tap on April 27. Moore was with another man who had a moustache. The two asked for a ride to Harvey, Illinois. The owner, Fair, agreed to give them the ride.

F. Fair testified that Moore was one of the two men who requested and were given the ride; that during the journey one of them was referred to as "Barbee"; and that one said "something like, 'Well, if we hadn't had that trouble with the bartender in Lansing, we'd have been all right.'"

G. The Ponderosa bartender, Joyce, testified that [p790] Sanders and Fair were in that tavern on April 27; that Moore was there at the same time; and that he arranged with Fair for Fair to give Moore and his companion a ride.

It is thus apparent that there were positive in-court identifications of Moore as the slayer by the waitress Hill and by the customer Powell, and that there were in-court identifications of Moore as having been present at the bar in Dolton two days later by Sanders, by Fair, and by Joyce.

H. Six months after the slaying, in the early morning hours of October 31, 1962, a Chicago police officer was shot at from a 1957 automobile. Two men fled the scene. The police "staked out" the car, and several hours later Moore and a moustached man, later identified as Jerry Barbee, were arrested when they approached and entered the vehicle. The automobile proved to be owned by Barbee. A fully loaded sawed-off 16-gauge shotgun was in the car.^[1] The shotgun was introduced in evidence at Moore's trial.^[2] The State conceded that the gun so introduced was not the murder weapon, and that the State's ballistics technician, if called, would testify that the waddings taken from Zitek's body came, in his opinion, from a 12-gauge shotgun shell.

I. The defense called manager Anderson of the Westmoreland Country Club as a witness. He testified that Moore had been hired as a waiter there on April 24 (the day before the murder); that the club records indicated there was a special party at the club on the evening of April 25; and that Moore was paid for working [p791] until sometime between 10 p.m. and midnight. The club's bartender testified to the same effect. Each of these witnesses nevertheless admitted that he could not remember seeing Moore at the club that night, but said that he would have known if he had been absent for any substantial period of time. The club records also indicated that Moore worked at the club the afternoon of April 27, when, according to the testimony of Sanders, Fair, and Joyce, Moore was at the Ponderosa Tap in Dolton.^[3]

J. O'Brien, a customer at Zitek's, testified for the defense that he observed Zitek eject two men the evening of the 25th, and that Moore was not one of them. Although he was in the restaurant at the time of the homicide, he did not see the person who shot Zitek. A police officer testified that in his opinion O'Brien was drunk at the time.

III

Prior to the trial, the defense moved for disclosure of all written statements taken by the police from any witness. The State agreed to furnish existing statements of prosecution witnesses. At the post-conviction hearing, Moore argued, and the claim is presented here, that he was denied a fair trial because six items of evidence, unknown to him at the time of the trial, were not produced and, in fact, were suppressed by the State:

A. On April 30, 1962, Sanders gave a statement to the police that he had met the man "Slick" for the first time "about six months ago" in Wanda and Del's tavern. Testimony at the post-conviction hearing by Lieutenant Turbin of the Lansing Police Department revealed that at the time of trial the police possessed an FBI report [p792] that Moore was in Leavenworth Penitentiary from 1957 to March 4, 1962. That report thus proved that Sanders could not have meet Moore at Wanda and Del's in November 1961. The defense was not given a copy of the statements made by Sanders. The prosecuting attorney asserted at the post-conviction hearing that he did not recall having seen the statement before or during the trial.

B. On the day Sanders gave his statement, that is, on April 30, the police raided Wanda and Del's looking for "Slick." "Slick" was not there, but Jones, the tavern's operator, said that he could identify "Slick." After Moore was arrested, Jones was not asked by the police whether Moore was "Slick." The defense was not advised of the raid until after the trial. At the post-conviction hearing Jones testified that Moore was not "Slick." His testimony, however, was stricken on the ground that it pertained to innocence or guil and was not admissible upon collateral review.

C. After the raid on Wanda and Del's, the police secured from their files a picture of James E. "Slick" Watts and assigned Lieutenant Turbin the task of finding Watts. His search was unsuccessful. Moore asserts that the attempt to find Watts was not made known to the defense until cross-examination of the Lansing police chief at the post-conviction hearing.

D. After Moore was arrested on October 31, he was photographed by the police. The photograph was shown to William Leon Thompson, the patron of Wanda and Del's. Thompson testified at the post-conviction hearing that he told Lieutenant Turbin that the picture "didn't, to the best of my knowledge, resemble the men that I knew" as "Slick." He identified a picture of Watts as "the Slick I know." Defense counsel testified that through the course of the trial neither the police [p793] nor the prosecutor advised them about Thompson and his disclaimer.

E. At the start of the trial Sanders observed Moore for the first time since the alleged bragging incident at the Ponderosa Tap. Sanders remarked to the prosecuting attorney and to police officers who accompanied him into the courtroom that the person he knew as "Slick" was about 30-40 pounds heavier than Moore and did not wear glasses. One of the officers responded, "Well, you know how the jailhouse beans are." Moore contends that he and defense counsel were not advised of this remark of Sanders until after the trial had concluded.

F. Mayer, one of the card players at Zitek's at the time of the murder, gave the police a written statement. On the back of the statement Officer Koppitz drew a sketch of the seating arrangement at the card table. The diagram shows that the corners of the table pointed north, south, east, and west. Cardplayer Powell was placed on the southwest side. The bar was about 10 feet north of that table. The door was to the southwest. Moore argues that the diagram is exculpatory and contradicts Powell's testimony that he observed the shooting. Defense counsel testified that they were not shown the diagram during the trial.

Moore argues, as to the first five items, that the State did not comply with the general request by the defense for all written statements given by prosecution witnesses; that the State failed to produce the pretrial statement of Sanders and the other evidence contradicting Sanders' identification of Moore as "Slick"; and that the evidence not produced was material and would have been helpful to his defense.

The Illinois court held that the State had not suppressed material evidence favorable to Moore, that the [p794] record shows that the prosecution presented its entire file to defense counsel, and that no further request for disclosure was made. 42 Ill. 2d, at 80-81, 246 N.E. 2d, at 304. Moore submits here the alternative claim that a specific request is not an "indispensable prerequisite" for the disclosure of exonerating evidence by the State and that the defense could not be expected to make a request for specific evidence that it did not know was in existence.

In Brady v. Maryland, 373 U.S. 83 (1963), the petitioner and a companion were found guilty by a jury of first-degree murder and were sentenced to death. In his summation to the jury, Brady's counsel conceded that Brady was guilty, but argued that the jury should return its verdict "without capital punishment." Prior to the trial, counsel had requested that the prosecution allow him to examine the codefendant's extra-judicial statements. Some of these were produced, but another, in which the codefendant admitted the actual homicide, was withheld and did not come to Brady's notice until after his conviction. In a post-conviction proceeding, the Maryland Court of Appeals held that this denied Brady due process of law, and remanded the case for retrial on the issue of punishment. This Court affirmed. It held "that the 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." 373 U.S., at 87.

The heart of the holding in Brady is the prosecution's suppression of evidence, in the face of a defense production request, where the evidence is favorable to the accused and is material either to guilt or to punishment. Important, then, are (a) suppression by the prosecution after a request by the defense, (b) the evidence's favorable [p795] character for the defense, and (c) the materiality of the evidence. These are the standards by which the prosecution's conduct in Moore's case is to be measured.

The record discloses, as the Illinois court states, 42 Ill. 2d, at 80, 246 N.E. 2d, at 304, that the prosecutor at the trial submitted his entire file to the defense. The prosecutor, however, has no recollection that Sanders' statement was in the file. The statement, therefore, either was in that file and not noted by the defense or it was not in the possession of the prosecution at the trial.

We know of no constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case. Here, the elusive "Slick" was an early lead the police abandoned when eyewitnesses to the killing and witnesses to Moore's presence at the Ponderosa were found. Unquestionably, as the State now concedes,^[4] Sanders was in error when he indicated to the police that he met Moore at Wanda and Del's about six months prior to April 30, 1962. Moore's incarceration at Leavenworth until March shows that conclusion to have been an instance of mistaken identity. But the mistake was as to the identification of Moore as "Slick," not as to [p796] the presence of Moore at the Ponderosa Tap on April 27.^[5] "Sanders' testimony to the effect that it was Moore he spoke with at the Ponderosa Tap in itself is not significantly, if at all, impeached. Indeed, it is buttressed by the testimony of bartender Joyce and operator Fair, both of whom elaborated the incident by their description of the man, and by Moore's request for a ride to Harvey, Illinois, Fair's providing that ride, and Fair's hearing, on that trip, the reference to one of the men as 'Barbee,'" and a second reference to trouble with a bartender in Lansing.

The other four of the five items—that Jones told police he could identify "Slick" and subsequently testified that Moore was not "Slick"; that the police had a picture of Watts and assigned the lieutenant, unsuccessfully, to find Watts; that Thompson had been shown a picture of Moore and told the police that Moore was not "Slick"; and that on the day of the trial Sanders remarked that the man he knew as "Slick" looked heavier than Moore—are in exactly the same category. They all relate to "Slick," not Moore, and quite naturally go off on Sanders' initial misidentification of "Slick" with Moore.

None of the five items serves to impeach in any way the positive identification by Hill and by Powell of [p797] Moore as Zitek's killer, or the testimony of Fair and Joyce that Moore was at the Ponderosa Tap on April 27, or the testimony of Fair that the moustached Barbee was accompanying Moore at that time, and that one of the two men made the additional and undisputed admission on the ride to Harvey. We conclude, in the light of all the evidence, that Sanders' misidentification of Moore as Slick was not material to the issue of guilt.

The remaining claim of suppression relates to the diagram on the back of Mayer's statement to the police.^[6] Moore contends that the diagram shows that Powell was seated with his back to the entrance to Zitek's and, thus, necessarily contradicts his testimony that he was looking toward the entrance as he sat at the card table, and that the State knowingly permitted false testimony to remain uncorrected, in violation of Napue v. Illinois, 360 U.S. 264 (1959).

In Napue the principal prosecution witness at Napue's murder trial was an accomplice then serving a sentence for the crime. He testified, in response to an inquiry by the prosecutor, that he had received no promise of consideration in return for his testimony. In fact, the prosecutor had promised him consideration, but he did nothing to correct the witness' false testimony. This Court held that the failure of the prosecutor to correct the testimony, which he knew to be false, denied Napue due process of law, and that this was so even though the false testimony went only to the credibility of the witness. See [p798] also Miller v. Pate, 386 U.S. 1 (1967), and Alcorta v. Texas, 355 U.S. 28 (1957).

We are not persuaded that the diagram shows that Powell's testimony was false. The officer who drew the diagram testified at the post-conviction hearing that it did not indicate the direction in which Powell was facing or looking at the time of the shooting. Powell testified that his position at the table gave him a view of the bartender; that at the moment he could not bid in the pinochle game and had laid his hand down and was looking toward the door when Moore walked in. There is nothing in the diagram to indicate that Powell was looking in another direction or that it was impossible for him to see the nearby door from his seat at the card table. Furthermore, after the shooting he pursued Moore but stopped when the man warned him that he, too, might be shot.

In summary, the background presence of the elusive "Slick," while somewhat confusing, is at most an insignificant factor. The attempt to identify Moore as "Slick" encountered difficulty, but nothing served to destroy the two-witness identification of Moore as Zitek's assailant, the three-witness identification of Moore as present at the Ponderosa Tap, the two-witness identification of Moore as one of the men who requested and obtained a ride from the Ponderosa in Dolton to Harvey, Illinois, and Fair's testimony as to the admission made on that ride.

We adhere to the principles of Brady and Napue, but hold that the present record embraces no violation of those principles.

IV

The 16-gauge shotgun was admitted into evidence at the trial over the objection of the defense that it was not the murder weapon, that it had no connection with the crime charged, and that it was inadmissible under Illinois [p799] law.^[7] During his closing argument to the jury, the prosecuting attorney stated that the 16-gauge shotgun was not used to kill Zitek,^[8] but that Moore and his companion, Barbee, were "the kind of people that use shotguns."^[9]

The Supreme Court of Illinois held that the shotgun was properly admitted into evidence as a weapon in Moore's possession at the time of his arrest, and was a weapon "suitable for the commission of the crime charged... even though there is no showing that it was the actual weapon used." 42 Ill. 2d, at 78, 246 N.E. 2d, at 303. Moore claims that the gun's introduction denied him due process.

Of course, the issue whether the shotgun was properly admitted into evidence under Illinois law is not subject to review here. The due process claim, however, appears to be raised for the first time before us. There is no claim by Moore, and there is nothing in the record to disclose, that due process was argued in the state courts. We could conclude, therefore, that the issue is not one properly presented for review.

In any event, we are unable to conclude that the shotgun's introduction deprived Moore of the due process of law guaranteed him by the Fourteenth Amendment. The 16-gauge shotgun, found in the car, was in the constructive possession of both Moore and Barbee when they were arrested after the shooting incident on October 31. There is substantial other evidence in the record [p800] that a shotgun was used to kill Zitek, and that he suffered the wounds one would expect from a shotgun fired at close range. The testimony as to the murder itself, with all the details as to the shotgun wounds, is such that we cannot say that the presentation of the shotgun was so irrelevant or so inflammatory that Moore was denied a fair trial. The case is not federally reversible on this ground.

V

Inasmuch as the Court today has ruled that the imposition of the death penalty under statutes such as those of Illinois is violative of the Eighth and Fourteenth Amendments, Furman v. Georgia, ante, p. 238, it is unnecessary for us to consider the claim of noncompliance with the Witherspoon standards. In Witherspoon, 391 U.S., at 523 in n. 21, the Court stated specifically, "Nor, finally, does today's holding render invalid the conviction, as opposed to the sentence, in this or any other case" (emphasis in original). The sentence of death, however, may not now be imposed.

The judgment, insofar as it imposes the death sentence, is reversed, Furman v. Georgia, supra, and the case is remanded for further proceedings.

Notes

1. This early morning incident was recounted in an earlier trial of Moore and Barbee for an armed robbery at Harvey, Illinois, on July 27, 1962. People v. Moore, 35 Ill. 2d 399, 401-402, 220 N.E. 2d 443, 444-445 (1966), cert. denied, 389 U.S. 861 (1967).
2. A revolver found at Moore's feet at the time of his arrest and a shoulder holster then on his person were ruled inadmissible.
3. A like alibi defense was submitted at the earlier armed robbery trial of Moore and Barbee. People v. Moore, 35 Ill. 2d, at 406, 220 N.E. 2d, at 447.
4. Brief for Respondent 4; Tr. of Oral Arg. 28.
5. The dissent observes, post, at 804, "When confronted with this fact [Moore's imprisonment at Leavenworth], Sanders indicated that it was impossible that petitioner [Moore] was the man with whom he had spoken in the Ponderosa Tavern." This is a misreading of Sanders' testimony. The question and Sanders' answer were:

   "Q. And did you tell me and also later on, did you tell the policeman from the State's Attorney's Office, that if you had known that this fellow, Lyman Moore, was in the Federal Penitentiary until March 4, 1962, you would definitely not have identified him as being Slick that you knew?

   "A. If he's in jail, it would have been impossible to be the same man." Abstract of Record 296.

6. Contrary to the assertion by the dissent that, the Mayer statement, with its accompanying diagram, was never made available to the defense, post, at 803 and 809, the trial transcript indicates that during the cross-examination of Officer Koppitz a request was made by the defense for all written statements taken by the officer from persons in Zitek's restaurant at the time of the shooting. The court granted the request and the record recites that statements of Mayer and others were furnished to defense counsel.
7. See n. 2.
8. Curiously, the State argues in this Court that it is possible that the 16-gauge shotgun was the murder weapon. Brief for Respondent 20-21.
9. Later in his closing argument the prosecuting attorney referred to the 16-gauge shotgun and stated again that a 12-gauge shotgun killed Zitek. He argued that a shotgun is not "the most humane type weapon" and that the death penalty is appropriate in a case in which a shotgun is used to murder a person.