Appeal from the United States District Court for the Northern District of Indiana, South Bend Division, No. 85 C 523 -- Allen Sharp, Judge.
Bauer, Chief Judge, Coffey, Circuit Judge, and Fell, Senior Circuit Judge.
PELL, Senior Circuit Judge.
Petitioner-appellant, Arnold Mauricio (hereinafter Mauricio), appeals from the district court's order denying his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Although the district court agreed with Mauricio's claim that the State's knowing failure to disclose the identity of an alibi rebuttal witness was a violation of due process, the court nevertheless concluded that the prosecution's transgression amounted to harmless error. Mauricio v. Duckworth, 633 F. Supp. 1302 (N.D. Ind. 1986).
Mauricio is presently serving a determinate 30-year sentence at the Indiana State Prison after being convicted by a jury of aiding felony murder and robbery. These convictions were affirmed on appeal by a 3-to-2 vote of the Indiana Supreme Court. Mauricio v. State, 476 N.E.2d 88 (Ind. 1985).
The underlying facts of Mauricio's crimes as fairly established by evidence at trial are as follows. On February 3, 1982, at approximately 8:00 p.m., Nancy Rehm, the decedent, and two other students at the Indiana Institute of Technology in Fort Wayne, Rhonda Unverferth and Joann Wenning, were stopped and ticketed by a policeman for driving snowmobiles in the street. Having been ordered by the officer not to drive farther in the street, the young women dismounted their vehicles and waited for Nancy's father, whom they had phoned, to retrieve both them and their snowmobiles. Suddenly, the students were approached by Mauricio's brother, Mark, and by a taller man alleged to be the petitioner, Mauricio. This second individual was never positively identified by the women due to his having worn a ski mask which covered his entire face. The women declined to enter into conversation with the men, who then approached the snowmobiles and instructed the women to start the vehicles. The women refused. Mark and Nancy then commenced pushing one another upon which Mark pulled a gun and fired a single shot into the ground. While the other students ran for help, two more shots rang out, causing Rhonda to return to the scene where she observed Mark still struggling with Nancy. Meanwhile, the individual accompanying Mark got onto one of the snowmobiles and drove away. Rhonda attempted to give chase but to no avail. Upon returning to the scene, Rhonda found Nancy lying face up in the middle of the street. Mark, while nowhere in the immediate vicinity, was quickly apprehended a few blocks away and positively identified. Nancy Rehm died the next day as the result of a single gunshot wound to the head.
At roughly 9:30 p.m., shortly after the third student, Joann Wenning, returned to the crime scene, a Fort Wayne policeman, Robert Jalone, was riding in a tow truck responding to snow emergencies when he observed a young man riding his snowmobile in the street. As yet unaware of the shooting involving Nancy Rehm, Lalone ordered the young man to get off the street. Three or four minutes after Lalone left the scene of this encounter, he received word over his radio of the shooting. The next morning, the snowmobile taken by Mark's confederate was located on the same street and within one block of petitioner Mauricio's house. Lalone subsequently identified Mauricio as the driver of the snowmobile he had stopped.
Both brothers were eventually indicted and tried together; their appeals from conviction were considered, and narrowly affirmed, in a single opinion by the Indiana Supreme Court.
After being formally charged but before trial, Mauricio filed with the trial court a motion for discovery which requested the names and addresses and prior statements of the witnesses the State intended to call at trial. The State filed a similar discovery request which sought, in addition, disclosure of any defenses Mauricio intended to use. Pursuant to the trial court's discovery order, Mauricio responded to the State's disclosure requests first on May 10, 1982, with a list of his potential witnesses and then on June 28, when he notified the State of his intention to rely upon an alibi. The State did not initially respond to Mauricio's discovery requests, but after two motions for the imposition of sanctions, the prosecution filed a response listing the names of some 59 potential witnesses. The name of the alibi rebuttal witness the State intended to call in the event Mauricio presented his alibi, however, was deliberately omitted from the State's witness list.
Trial commenced on November 16, 1982, and, consistent with his stated intention, Mauricio proffered an alibi based upon the testimony of Janice and William Tuttle and their daughter Lisa Michaels, all of whom had been named on Mauricio's witness list. The Tuttles each testified that at the time of the crimes with which Mauricio was charged, they had observed him at the residence he shared with their daughter. Lisa Michaels corroborated her parents' testimony. At the conclusion of Mauricio's case, the State called its previously unidentified witness, Sharon McDonald, to rebut the alibi offered by the defense. McDonald, who was flown back to Indiana by the prosecution from her new home in California, testified that the Tuttles' testimony placing Mauricio at home at approximately 9:20 p.m. on February 3 was false and that she had been present at a discussion between Lisa Michaels and Janice Tuttle during which they agreed to testify falsely in support of Mauricio's alibi. On cross-examination, McDonald admitted that she was first contacted by the prosecution concerning her willingness to testify as early as June of 1982, five months before trial and a full month before the State tendered its witness list.
Mauricio moved to have the testimony of Sharon McDonald stricken from evidence or, alternatively, for a mistrial on the grounds that the State's use of McDonald's testimony violated the discovery order and constituted a violation of due process. The State responded by arguing that it had no obligation to divulge the identity of its rebuttal witnesses. The trial court denied both of Mauricio's motions. On appeal to the Indiana Supreme Court, a 3-to-2 majority held that because the scope of Mauricio's witness discovery request was unclear and because Mauricio had failed to request a continuance to enable him to investigate and possibly impeach the testimony of McDonald, there was no error upon which to base a reversal of the trial court. Mauricio v. State, 476 N.E.2d at 94.
With no further recourse available to him in Indiana,*fn1 Mauricio filed the instant habeas petition in federal district court in September 1985. The district court denied the petition on May 2, 1986, concluding that, although the State's failure to provide the defense with the identity of its alibi rebuttal witness had deprived Mauricio of his right to due process,
[t]here does not exist a substantial possibility that the error complained of affected the verdict or that the error denied the petitioner a fundamentally fair trial. The ...