Full opinion text
MEMORANDUM OPINION EISELE, District Judge. On January 17, 1990, Mr. Eugene Wallace Perry filed a “Supplemental Petition for Writ of Habeas Corpus” on the ground that he was “awaiting execution, pursuant to a conviction obtained in violation of the 14th Amendment to the U.S. Constitution.” He raises two claims for relief: A. Newly discovered evidence that Marion Pruett, and not petitioner, committed the crime, entitles petitioner to a new trial as a matter of due process. B. The trial court’s refusal to permit the issuance of subpoenas to compel the attendance of four out-of-state alibi witnesses violated Perry’s 6th Amendment right to compulsory process. The latter issue was one of many that was dealt with by the Court as a result of petitioner’s first habeas corpus petition which was denied by the Court in 1986. The original state court trial occurred in July of 1981. This Court on July 11, 1986, reviewed from the bench the evidence adduced during the state trial. It mil be repeated here as background for a discussion of the issues raised in the 1990 Supplemental Petition. That review commences at page 159 of Volume II of the transcript of the habeas proceeding (which transcript was filed October 17,1986) and concludes at page 170, as follows: Sometime in the late afternoon of September 10, 1980, someone robbed the Sta-ton Jewelry Store in Van Burén, Arkansas, of an estimated $100,000 worth of rings, watches and other jewelry, and shot to death the owner of the store¡ Kenneth Staton, and his daughter, Suzanne Ware, who also worked in the store. A clerk at a neighboring store in the same Cloverleaf shopping Center in Van Burén discovered two bound and gagged bodies in the rear part of the store at around 6:00 p.m. Autopsies revealed that both Ware and her father had been shot twice in the head from close range. Key witnesses for the state placed the petitioner, Eugene Wallace Perry,'in and around the Staton Jewelry Store on several occasions preceding the robbery and murders. At least seven persons identified the petitioner as a man that they had seen in the Van Burén area during a period surrounding the 10th of September, 1980. In addition, various pieces of physical evidence connect the petitioner to the jewelry store and the September 10, 1980, crime. The Court believes it is important to set forth all of this evidence in some detail. Ruth Staton, the wife and mother of the victims, testified that she saw the petitioner in the Staton Jewelry Store on September 3, 1980, one week before the robbery. She stated the man she believed to be the petitioner remained in the store looking at the display cases for over 30 minutes, affording her an opportunity to observe him. Mrs. Staton testified that the man was there with a woman and that this man conspicuously kept his hands tucked under his arms or in his pockets. Two other local merchants testified that the petitioner had been in their places of business on September 9, 1980, one day before the crime. Arthur Parr said that the petitioner resembled one of the two men who entered his jewelry store in Fort Smith, Arkansas on September 9, 1980. According to Parr, both men carried motorcycle helmets and they looked at the store’s merchandise for about 15 minutes. Another witness, Walter Carson, told of a similar episode involving two men, traveling on a motorcycle, who came into Paul’s Pawn Shop on September 9, 1980. Carson stated that the two men told him that they were gold buyers. He identified the petitioner as one of these men. He believed that this man’s name was “Anderson” because he had produced a Kansas driver’s license bearing that name. State’s Exhibit 22 represents’ a pawn ticket issued by Carson to Anderson on September 10, 1980, when the latter pawned a ring for $45.00. Crucial testimony was offered by Chantina Ginn. She testified that sometime after the first of September 1980, she and a man named Rick Anderson traveled from Kansas to Arkansas on a blue Harley-Davidson motorcycle, which she identified as the one photographed in State’s Exhibits 13, 14, and 15. Ginn stated that they went to the Horseshoe Bend camping area on Beaver Lake near Rogers, Arkansas. There, according to Ginn, she and Anderson met a man named Damon Peterson and his apparent wife, Lorili Peterson, who were camped at an adjacent campsite. Ginn testified that the Petersons had a white camper trailer, which they were pulling behind a light blue Cadillac, and that they invited Rick Anderson and her to stay with them in the camper. She further noted that this camper had a cardboard license plate with the words “Lost Tag” handwritten on it. Ginn identified State’s Exhibits 27 and 28 as photographs of the Petersons’ camper and State’s Exhibits 44-46 as photographs of the Cadillac that pulled the camper. Ginn stated that on or about the third day after the two couples had met, which would have been either the 8th or 9th of September, Rick and Damon left on the motorcycle, taking with them a briefcase with a gun inside it, a change of clothes, some rope, and a woman’s brown wig. She testified that when the two men returned several nights later, they had two orange duffle bags of jewelry which they spread out on the floor of the camper and proceeded to divide among the four individuals. Ginn further stated that after the jewelry had been divided, Damon acted like he was talking to someone and said “Get down on the floor, dog.” [That’s from transcript 2588.] The following day September 11, Anderson and Peterson traded the blue Cadillac for another car, according to Ginn’s testimony. She said that the four later burned their trash at the campsite, including some jewelry tags and watch boxes that had been left on the floor of the camper the night before. The four then left the Horseshoe Bend camping area and went to a storage facility in Fayetteville, Arkansas. Ginn stated that they placed the motorcycle and the camper in a self-storage room before leaving the state en-route to Atlanta. Finally, Ginn identified the petitioner as the man whom she had known as Damon Peterson and with whom she and Rick had camped at Beaver Lake. Pat Etier also testified that an individual known to her as Damon Peterson was one and the same person as the petitioner, Eugene Perry. Etier stated that she saw Peterson and another man, who was introduced to her as “Rick,” on the afternoon of September 9, 1980 at the Wal-Mart parking lot in Van Burén. She said the two men were riding a Harley-Davidson motorcycle when she saw them. She identified State’s Exhibits 13 and 14 as photographs of that motorcycle, the same photographs which Ginn had identified as being the motorcycle that Anderson and Peter-' son were riding when they left Beaver Lake. Etier said that she and the two men left the parking lot to get a drink together. She testified that when the man named Peterson climbed into her truck and took off his motorcycle helmet, she noticed that a wig he was wearing came off inside the helmet. She said that this wig was a light brown woman’s wig. After the three had drunk some beer at Peterson’s and Anderson’s room in the Terry Motel in Fort Smith, Arkansas, Etier left. But, according to her testimony, she later returned to pick up Peterson and took him to her house where they spent the night of September 9, 1980, together. The following morning, September 10, Etier drove Peterson back to the motel. This occurred around 8:00 a.m. The cities of Fort Smith and Van Burén are immediately adjacent to each other, simply across the river, one from the other. Linda Godwin, another important witness, told the jury that she had seen two men walking briskly across the Cloverleaf Shopping Center parking lot in Van Burén shortly before 6:00 p.m. on September 10, 1980. Godwin testified that as she was leaving her office she met two men who appeared to be in a hurry. She identified the petitioner as one of these two men. A Mr. Billy Miller testified he saw two men driving a Jeep a few minutes after the robbery. The Jeep apparently belonged to one of the victims. Grant Cummins supported Chantina Ginn’s testimony which placed the petitioner at the Horseshoe Bend campground. Cummins said that he was camping on Beaver Lake in early September and that he had talked for several hours with two couples. He identified one of the group as the petitioner. Michael Jeffcoat told the jury that he had sold a used car to a man on September 11, 1980 in Rogers, Arkansas. Jeffcoat identified the petitioner as the man who had traded a blue Cadillac for the car Jeffcoat sold him. Jeffcoat testified that he soon sold the Cadillac to a salvage yard. Police located a blue Cadillac at an auto salvage yard, the same car that was pictured in one of the exhibits that Chantina Ginn identified as the vehicle Peterson drove to Beaver Lake. The search of the car led to the discovery of a single page of the Van Burén telephone book with Kenneth Staton’s phone number on it, along with a copy of the September 11, 1980 edition of the Northwest Arkansas Morning Times headlining the Staton robbery and murders. The owner of a Fayetteville self-storage facility, Gifford Heckathom, provided a lease agreement which he said he entered into on September 11, 1980 with a man who signed “Damon Peterson” on the contract. Peterson was with another man according to Heckathorn when he rented space No. 109 for a month. Heckathorn testified that he could not say which man signed the agreement. Authorities later opened this storageroom and discovered a blue Harley-Davidson motorcycle and white camper trailer. The camper had a cardboard license with “Lost Tag” written on it. Ginn identified this motorcycle and camper as the ones that they had stored on the day that Rick Anderson, Damon Peterson, Lorili Peterson and she had left the state. Items found inside the camper underscore the link between the camper and the robbery. From the camper the police obtained the following pieces of physical evidence which were introduced at the trial: a gold coin like those taken from the Sta-ton jewelry store; a buffalo nickel with an identifiable nick on its face and one that Ruth Staton testified she had kept in the store, State’s Exhibit 21; a jewelry price tag containing the handwriting of Karen Staton, State’s Exhibit 35; a brown plastic ring plug like those used at Staton’s to fill up the space in a display case after a ring is sold, State’s Exhibit 33; an orange blossom ring filler, State’s Exhibit 37; a book of matches from the restaurant at the Terry Motel in Fort Smith, State’s Exhibit 30; a book of matches from the Horseshoe Bend Marina in Rogers, Arkansas, State’s Exhibit 31. Larry Gray of the Corps of Engineers was the Park Technician at Beaver Lake in 1980. He testified that a user permit was issued by the Corps to a Damon Peterson on September 6, 1980 and again on September 8, 1980. These permits, State’s Exhibits 49 and 50, indicate that Damon Peterson was assigned campsite 2-10 on each occasion. An investigation of the area around this particular ■ campsite turned up several additional pieces of physical evidence, further linking the campers to the robbery. Police recovered at campsite 2-9, the one adjacent to the one assigned to Peterson, a jewelry box, a ring box, a watch band display holder, and some rope. A crime lab analyst testified that burned remains of a rope found at the campsite possessed characteristics similar to those of the rope which was removed from the hands and legs of the victims. Thus, to review, the evidence includes numerous pieces of tangible evidence connecting the jewelry store robbery-murder to the camper, the blue Cadillac, and to the man named Damon Peterson, who had possessed both the camper and the Cadillac in northwest Arkansas in early September 1980. The testimony of Chantina Ginn and Michael Jeffcoat, plus the lease agreement from the Fayetteville self-storage facility, also show that someone named Damon Peterson was in charge of those vehicles at the times in question. Ginn and Etier, both of whom spent a considerable number of hours in very proximate, even intimate, circumstances with the man they called Damon Peterson, identified the petitioner, Eugene Wallace Perry, as being one and the same as Damon Peterson. The final significant evidence in this case consists of two rings which the petitioner had in his possession when he was arrested in Florida. I believe that was on September 23, 1980. Those two rings, introduced as State’s Exhibits 17 and 18, were identified by Ruth Staton and Karen Staton. Ruth Staton, the wife of Kenneth, testified that State’s Exhibit 17 is identical to her husband’s wedding band. Ruth Staton’s daughter, Karen, also stated that this ring “looks like my father’s wedding band.” Karen Staton further testified that she remembered State’s Exhibit 18, a man’s yellow cluster diamond ring, from her having worked with the inventory at the family store. Thus, the two rings found in petitioner’s possession emphatically implicate him in this crime. State’s Exhibits 17 and 18, more than other items in evidence, underscore and tend to corroborate Etier’s and Ginn’s testimony that Damon Peterson is the same individual as Eugene Wallace Perry. The defendant relied upon an alibi defense. Seven of his witnesses testified in person at the trial. They were: David Redding, Frank King, Richard Hays, Tonya Perry, Dawn Perry, Wallace Perry and Eulene Perry. The four remaining defense witnesses testified by deposition — I think one on the basis of written interrogatories — and they were: Greg Bagley, Alicia Brown, Linda Ashworth, and Glenda Perry. A brief synopsis of their testimony will be useful. David Redding placed Perry in Alabama on August 30, 1980. Frank King saw Perry on September 1, 1980, and believes that Perry traded his pop-up camper on that day. Richard Hays stated that Perry was in Alabama on September 1, 1980. Hays rented a camper to a man whose picture is reflected in State’s Exhibit 25. Tonya Perry, defendant’s younger daughter, stated that her father was in Alabama on Labor Day, September 1, 1980, and that he returned one week later, September 8th and stayed with them two days before leaving on the 10th. Dawn Perry essentially gave the same testimony as Tonya. She also testified that her father took her shopping on September 9 for some clothes. Wallace Perry — that is, the father of the defendant — said petitioner arrived at his house on the night of September 10 at about 10:00 p.m. He said that Perry spent the night of the 10th and stayed most of the 11th with his parents. Eulene Perry, the mother of the defendant, essentially corroborated Wallace Perry’s testimony. The witnesses that testified by deposition testified as follows: ■Greg Bagley stated that he worked for the Red Hanger Shop in Oxford at a mall. This is Oxford, Alabama. He said that someone made payment on a lay-away account in Perry’s name on September 11, ■1980. He did not see anyone make it and said that it could have been received by mail. Alicia Brown, a teen-aged clerk at a clothing store in Oxford testified that Perry and his daughter, Dawn, came in shopping. She could only pinpoint that it was between the last week of August and the first two weeks of September. Linda Ash-worth testified by written interrogatories that she managed the store where Brown worked. She also saw a man she identified as the defendant but would only say that he was in the store sométime during the “back to school” sale. We will discuss the testimony of Glenda Perry, the ex-wife of the defendant, later. I think it can be fairly said from an examination of the record that the evidence of the defendant’s guilt was clear and strong and, if fully credited by the jury, as it obviously was, could be considered overwhelming. The case demonstrates the oft-stated proposition that circumstantial evidence can often be more damning and convincing than some eyewitness .testimony. On the other hand, a careful and meticulous review of the alibi evidence introduced on behalf of the defendant reveals that most of it is weak, uncertain, lacking in specificity, and not inconsistent with the State’s case. Only the immediate family members — that is, the defendant’s daughters, his mother and his ex-wife — provided any factual testimony that might be said to be completely inconsistent with the possibility of the petitioner’s guilt. The Court will discuss this later in connection with the confrontation issue that has been raised by the defendant. So, that’s a brief review of the evidence that was adduced during the course of the trial. As further background for an understanding of the issues raised by the 1990 supplemental petition it is important to note how the Court dealt with the second issue currently being raised (Issue B Supra) since that issue was also raised in the first habeas proceeding. The Court resolved that issue from the bench. The discussion thereof found at pages 181-198 of the transcript reads as follows: THE COURT: We will take up the compulsory process issue and then have a short break for lunch and then proceed with the other issues. One of the most troubling issues raised by the petitioner concerns the state trial court’s refusal to grant the petitioner compulsory process for a number of out-of-state witnesses whom petitioner sought to have testify at the trial. Prior to the trial, petitioner filed a motion for production of witnesses from outside the state. Therein petitioner’s defense counsel requested that the Court order the prosecutor, pursuant to his power under Arkansas Statute 43-2006, to subpoena certain witnesses to appear on petitioner’s behalf at the trial. Critically, counsel indicated to the trial court that only the prosecuting attorney held the power to bring in out-of-state witnesses pursuant to the Arkansas statute. Petitioner’s list of requested witnesses contained 17 names. Seven of these prospective witnesses were in the nature of alibi witnesses and six were character witnesses. The defense counsel for petitioner generally argued that it was a constitutional right to have these witnesses appear at the trial in person rather than by means of depositions. As a fallback position, counsel requested that the Court require the State to pay the cost of deposing these individuals on videotape. The trial judge, after hearing oral argument on the motion, ruled that the Court would not require the prosecutor to subpoena any of the defendant’s witnesses. The Court further held that the State was not going to pay any expenses, either for attendance or depositions, for petitioner’s character witnesses. But the Court did propose a choice to the defendant: the State would pay to have the remaining 11 witnesses deposed in Alabama, or the State would offer to reimburse four defense witnesses for travel expenses to the trial if these individuals were willing to come. But under no circumstances was the State going to have to subpoena anyone to appear on the petitioner’s behalf. As stated in the transcript, the Court stated: “As far as the character witnesses are concerned, the Court is not going to authorize any type of expenditures for character witnesses. If he wants character witnesses and can get them here, then fíne. If he can’t, I’m sorry. He can’t. I’m not going to require the State to use its subpoena power to require the attendance of any of the witnesses. I think I am going a long way in an effort to try to be as fair as I can in a situation that’s presented. And I’m just saying to you that you can take depositions of these 11 witnesses, or I will see that the county pays the expenses of any four witnesses that will attend. That’s as far as I am prepared to go because I think I’m going further than I’m required to go by the law anyway.” Now, although it is quite understandable, given that the defense attorney had incorrectly stated the Arkansas law at the hearing, it is nevertheless clear that the trial judge labored under the mistaken belief that the prosecutor alone could attempt' to secure out-of-state witnesses under the Arkansas law. The Court indicated its belief that the subpoena power belonged to the State only, and that if the prosecutor declined to produce the defense witnesses, the Court could not order the prosecutor to do so. As the Court stated: “Well, I’m hesitant about using the State’s subpoena power to bring in defense witnesses. The best I can tell you on that is that unfortunately it’s the responsibility the defendant has to get his witnesses here and the subpoena power, is not available except through the State.” It should also be noted that the prosecutor did nothing to disabuse the Court of this erroneous view of the law. The trial court obviously did not realize that the Court, not the prosecutor, could order the production of the out-of-state witnesses. Under Arkansas law it is clear that the defendant, as well as the prosecutor, may petition the Court to secure the attendance of material witnesses. Mackey v. State, 279 Ark. 307, [651 S.W.2d 82], 1983. See also Hall, 33 Ark Law Review 122, pages 138 and 139. Arkansas adopted the Uniform Act to Secure Attendance of Witnesses from Without the State in Criminal Cases back in 1935. Section 43-2001 is that statute. Similar acts have been adopted by virtually every state in the union in order to facilitate the interstate compulsory process. Barber v. Page, [390 U.S. 719] 88 Supreme Court 1318 [20 L.Ed.2d 255], a 1968 case, note 4. The Court notes that Alabama, the state where the witnesses at issue here were residing at the time of the petitioner’s trial, was among the states that had adopted the reciprocal statutes whereby that state agrees to produce witnesses for a court in another state which has likewise adopted the uniform act and would, therefore, produce witnesses for criminal trials in Alabama courts. The Act allows the prosecutor or the defendant to seek an order from the Court requiring the officials in a cooperating state which has adopted the uniform act to command the appearance of the particular witnesses at trial in Arkansas, 43-2006. That reads as follows: “If a person in any state, which by its laws has made a provision for commanding persons within its borders to attend and testify in criminal prosecutions or proceedings or grand jury or prosecuting attorney’s investigations commenced or about to commence, in this state, is a material witness in a prosecution or proceeding pending in a court of record in this state, or in a grand jury or in a prosecuting attorney’s investigation which has commenced or is about to commence, a judge of such court may issue a certificate under the seal of the court stating these facts and specifying the number of days the witness will be required. Said certificate may include a recommendation that the witnesses be taken into immediate custody and delivered to the officer — to an officer of this state to assure its attendance in this state. This certificate shall be presented to a judge in the court of record in the county in which the witness is found. “If the witness summhned to attend and testify in this state” — I’ll start that again. “If the witness is summoned to attend and testify in this state, he shall be tendered the sum of 12 cents a mile for each mile by the ordinary traveled route or the actual expense of travel, lodging and meals to and from the court where the prosecution or proceeding is pending or the grand jury or prosecuting attorney’s investigation is being conducted and $25.00 for each day he is required to travel and attend as a witness. A witness who has appeared in accordance with the provisions of the summons shall not be required to remain within this state a longer period of time than the period mentioned in the certificate unless otherwise ordered by the Court. If such a witness, after coming to the state, fails without good cause to attend and testify as directed in the summons, he shall be punished in the manner provided for the punishment of any witness who disobeys a summons issued from a court of record in this state.” The Arkansas Supreme Court has recognized that the defendant in a capital case is entitled to use this statute to secure the attendance of as many witnesses as the trial court deems material. See Mackey at page 314 [651 S.W.2d 82]. Thus, there is no question that Arkansas law provided a mechanism for the petitioner to request the Court to order the attendance of the defendant’s witnesses. It is equally clear that this authority did not rest exclusively with the prosecutor. To the extent that the trial judge believed that this was solely the province of the prosecutor, the Court erred or was misled by counsel. However, it is important to note that the power of the Court to issue a certificate requiring an out-of-state witness to attend the Arkansas trial is discretionary. Mackey at page 314 [651 S.W.2d 82]. And, of course, Section 43-2006 does not state the Court shall issue the certificate; it says the Court may. The Arkansas Supreme Court has so held in Mackey at page 314 [651 S.W.2d 82] where it states: “It is true that Arkansas Stats. Annotated 43-2001 provides for unlimited out-of-state witnesses in capital felony cases. However, this statute must be read in conjunction with 43-2006 which provides that such witnesses must be material. We have interpreted these statutes by declaring such right not to be absolute but, rather, resting within the sound discretion of the trial judge. Citing Wright v. State [267 Ark. 264, 590 S.W.2d 15 (1979) ]. We have also held that the right to have out-of-state witnesses in capital felony cases means material witnesses. Henry v. State [278 Ark. 478, 647 S.W.2d 419 (1983) ]. Under the circumstances contained in this case, we do not find this error to be prejudicial.” So, although the Court was unaware it had any authority to act under Section 43-2006, the result was the same as if the trial court had knowingly exercised its discretion by deciding that it would not, under the facts and circumstances of the case, issue a certificate demanding the Alabama authorities require the attendance of defendant’s witnesses. But it must be acknowledged that the Court did not knowingly exercise its discretion, believing that it had no discretion in the matter. Is it possible to tell from the record what decision the trial court would have made had it been aware of its discretionary authority? I think not. During the hearing here last month the Court expressed certain views concerning the inferences that might be drawn from the circuit judge’s remarks. The Court was speculating on whether there was some clear indication of how the judge would have ruled, had he known that he had the power to order the subpoena of out-of-state witnesses. The Court has re-read in its entirety the relevant portions of the transcript and is now convinced that one cannot with any certainty conclude which way the Court would have ruled. The best guess is he probably would have ruled essentially as he did since he was contemplating or attempting to balance the defendant’s needs against the cost to the county. However, even if we treat the trial judge’s decision as a sound exercise of his discretion to deny the compulsory process, we are still left with the question whether this decision may have violated petitioner’s constitutional rights. The Sixth Amendment expressly guarantees the right of a criminal defendant to “compulsory process for obtaining witnesses in his favor.” That’s the United States Constitution, Amendment Six. The Supreme Court has held in Washington v. Texas, [388 U.S. 14,] 87 Supreme Court 1920 [18 L.Ed.2d 1019], a 1967 case, that the Sixth Amendment’s right to compulsory process extends through the Fourteenth Amendment to the accused in a state criminal proceeding. The right of the defendant “to have compulsory process for obtaining witnesses in his favor” is so fundamental and essential to a fair trial that it is incorporated in the Due Process Clause of the Fourteenth Amendment. [388 U.S. at page 16,] 87 Supreme Court at page 1922. Drawing on previous Sixth Amendment cases, the Court held that the right to present one’s own witnesses lay at the core of the right to a defense and is as important as the right to confront those witnesses who are adverse to the defendant. As stated [388 U.S. at p. 18, 87 S.Ct.] at page 1923: “The right to offer testimony of witnesses and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution’s witnesses for purposes of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.” The Court further noted that this specific right of compulsory process has been included in the Bill of Rights because the drafters of the Constitution were bothered by the common law rule that could prevent those accused of treason or felonies from introducing any witnesses on their own behalf. [388 U.S. at page 18, 87 S.Ct.] At page 1923. The Court stated its belief that truth is more attainable when the jury hears from all the witnesses with knowledge of the issues in the case. [388 U.S. at page 20, 87 S.Ct.] At page 1924. Thus, the Court held the petitioner had been deprived of his right to compulsory process for obtaining witnesses in his favor. “The State arbitrarily denied him the right to put on the stand a witness who was physically and mentally capable of testifying to events that he had personally observed, and whose testimony would have been relevant and material to the defense.” [388 U.S. at page 22, 87 S.Ct. at] Page 1925. The Supreme Court of the United States has recently reaffirmed its holding of Washington v. Texas in the case of California v. Trombetta, [467 U.S. 479,] 104 Supreme Court 2528 [81 L.Ed.2d 413], a 1984 case. In its recent decision the Court reiterated the criminal defendant’s constitutional right to “a meaningful opportunity to present a complete defense.” [467 U.S. at page 486, 104 S.Ct. at] Page 2533. Likewise, the Eighth Circuit has cited the Washington case for the right of the accused to compulsory process. See Thomas v. Wyrick, 687 F.2d 235 at page 239, a 1982 case, as has the Eleventh Circuit, United States v. Garmany, 762 F.2d 929, 933, a 1985 case. Clearly, then, the Sixth Amendment affords one the right to call his own witness to trial, and that right cannot be doubted. These cases would suggest that when the trial court in this case denied Mr. Perry the chance to subpoena certain witnesses in his defense, it denied him his constitutional rights under the Sixth Amendment. Recent Supreme Court cases, however, indicate that something “more than mere absence of testimony was necessary to establish a violation of the right.” United States v. Valenzuela-Bernal, [458 U.S. 858,] 102 Supreme Court 3440, [73 L.Ed.2d 1193], a 1982 case. The petitioner must not only show that he was deprived of certain witnesses’ live testimony, but that such testimony was material and that its absence “fatally infected the trial.” And I quote from the Valenzuela case: “The only recent decision of this Court dealing with the right to compulsory process guaranteed by the Sixth Amendment suggests that more than the mere absence of testimony is necessary to establish a violation of the right. See Washington v. Texas. Indeed, the Sixth Amendment does not by its terms grant to a criminal defendant the right to secure the attendance and testimony of any and all witnesses: it guarantees him compulsory process for obtaining witnesses in his favor. U.S. Constitution, Amendment Six. In Washington, this Court found a violation of this Clause of the Sixth Amendment when the defendant was arbitrarily deprived of testimony that would have been relevant and material, and vital to his defense. This language suggests that respondent cannot establish a violation of his constitutional right to compulsory process merely by showing that deportation of the passengers deprived him of their testimony. He must at least find some plausible showing of how their testimony would have been both material and favorable to his defense. “Having borrowed much of our reasoning with respect to the Compulsory Process Clause of the Sixth Amendment from cases involving the Due Process Clause of the Fifth Amendment, we have little difficulty holding that at least the same materiality requirement obtains with respect to a due process claim. Due process guarantees that a criminal defendant will be treated with ‘that fundamental fairness essential to the very concept of justice. In order to declare a denial of it we must find that the absence of that fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevents a fair trial.’ Citing Lisenba v. California. In another setting, we recognized that Jencks Act violations, wherein the Government withholds evidence required by statute to be disclosed, rise to the level of due process violations only when they so infect the fairness of the trial as to make it ‘more a spectacle or trial by ordeal than a disciplined contest.’ Citing United States v. Augenblick. Such an absence of fairness is not made out by the Government’s deportation of the witnesses in this case unless there is some explanation of how their testimony would have been favorable and material.” The Supreme Court has equated the right to compulsory process and the right to effective assistance of counsel in that both are constitutionally protected means to the end of a fair trial. As such, they are not “recognized for their own sake” but because of their effect upon the trial. See United States v. Cronic, [466 U.S. 648 at page 657,] 104 Supreme Court 2039 at page 2046, [80 L.Ed.2d 657], a 1984 case. In short, therefore, unless the deprivation of compulsory process in the instant case actually affected the quality of the trial, it will not constitute a violation of the petitioner’s Sixth Amendment rights. To quote from Cronic: “Absent some effect of challenged conduct on the reliability of the trial process, the Sixth Amendment guarantee is generally not implicated.” [466 U.S. at page 657, 104 S.Ct. at] Page 2046. In thus requiring that some material deprivation be the basis for a finding that the compulsory process clause of the constitution is violated, the Court has in effect applied a prejudice standard to the issue which is like that of the Strickland standard used in the context of the Sixth Amendment right to counsel. See McNeil v. Cuyler, 782 F.2d 443, Third Circuit, 1986. The result is that this Court must review the deprivation of the compulsory process against the backdrop of all the evidence and circumstances of the case. After having completed such a review of the voluminous record in this case, the Court concludes that the absence of live testimony from the four witnesses whose testimony is offered by deposition — namely, Greg Bagley, Aheia Brown, Linda Ash-craft, and Glenda Perry — was not prejudicial to the petitioner in the face of the substantial, indeed overwhelming, evidence of his guilt. The deposition testimony of three of these individuals was, indeed, not inconsistent with the prosecution’s theory of the petitioner’s guilt. These three individuals placed the petitioner in the Oxford, Alabama area sometime in late August or early September. Because these persons did not specifically fix the petitioner’s presence at the time of the crime, it is impossible to infer that the jury disregarded their depositions entirely. Their credibility was not put in question in a significant degree. The jury could have easily found that the witnesses were truthful, that the petitioner was in Alabama in late August, but that he had come to Arkansas by September 3, 1980, the first date that any government witness placed the petitioner in the Staton Jewelry Store. It is true that the testimony of the fourth alibi witness who did not appear live, if credited, cannot be reconciled with the jury’s finding of guilt. Glenda Perry testified that her ex-husband, the petitioner, visited her and her two daughters— also the daughters of Perry — on September 1, 1980, and that he returned “about a week later” and stayed for a couple or three days. Accepting this testimony, Perry would have been in Alabama from September 8 through September 10, which is at odds with the testimony of numerous government witnesses who said they saw the petitioner frequently in Northwest Arkansas during this time. However, the Court notes that Glenda Perry’s testimony was not as strong as that given by Perry’s own two daughters who essentially corroborated the alibi defense and who did testify in person at the trial. In addition, the defense called petitioner’s parents who also testified at the trial that Perry was in Alabama through the morning of September 11, 1980. Had the jury been inclined to give credence to this version of the petitioner’s whereabouts at the time of the crime, there was ample live testimony before them which supported that version. The jury obviously unanimously rejected this alibi testimony. The Court does not find it even remotely likely that the physical presence of the one deposition witness whose account was inconsistent with the verdict — namely, that of Glenda Perry — would have lent any more credibility to the alibi defense. This is particularly so in light of the fact that the four witnesses who did appear in person testified with more certainty about their recollections than did Glenda Perry. Thus, the trial court’s refusal to allow the petitioner to avail himself of the process set forth in Section 43-2006 of the Arkansas Statutes did not, under the peculiar facts and circumstances of this case, violate petitioner’s Sixth Amendment right to compulsory process. He presented the testimony of the witnesses. And for the reasons stated, the fact that certain of the witnesses testified by deposition did not prejudice him. He did in fact present the favorable and material evidence available to him from these witnesses. In effect, he has been denied no material evidence and there is nothing to suggest the result would have been different if the deposed witnesses had testified in the courtroom in person. The Court might add that although the Supreme Court’s cases mandate that there can be no constitutional violation unless the denial of compulsory process concerned material evidence, even if the Court were today finding a constitutional violation, the law of this Circuit requires the Court to further determine if the violation was harmless error. Thomas v. Wyrick, 687 F.2d [235,] 241, a 1982 case. In Thomas, the Eighth Circuit refused to pass on the constitutionality of certain Missouri criminal discovery rules which had been used to prohibit the defendant from calling character witnesses to testify at trial because these witnesses had not been previously disclosed to the prosecutor. [Id. at] Page 236. But the Eighth Circuit held that it made no difference whether the Missouri law had worked to violate the defendant’s constitutional right to compulsory process. It stated: “Nevertheless, even if the trial court’s exclusion of character witnesses were deemed to be constitutional error, it would not affect the result in this ease. If there were constitutional error, it would be harmless beyond a reasonable doubt.” [Id. at] Page 241. Other circuits have adopted the automatic reversal or per se rule where constitutional violations of this nature are involved. The Eighth Circuit, however, has refused to follow those courts. Peeler v. Wyrick, 734 F.2d, 378, a 1984 case. Peeler involved a habeas petitioner’s claim that the government had intimidated one of his witnesses and thereby prevented him from testifying. The Eighth Circuit relied upon the Supreme Court’s opinion in United States v. Hasting, [459 U.S. 1032,] 103 Supreme Court 440 [,74 L.Ed.2d 598] a 1983 case, which addressed the applicability of harmless error doctrine in cases of constitutional violations, to conclude that “any error which may have occurred was harmless error due to the overwhelming evidence of guilt.” The court noted that in Hasting the Supreme Court stated: “That it is the duty of reviewing courts to consider the trial record as a whole and to ignore errors that are harmless, including most constitutional violations. The Court acknowledged that certain errors may involve rights so basic to a fair trial that their infraction’can never be deemed harmless; however, the Court’s examples only included the right to counsel, an impartial judge, and coerced confession. Thus, it seems clear that the Court in Hasting directs this court to apply the harmless error rule in cases such as this.” [Id. at] Page 381. The Court here concludes that the evidence from the four deposition witnesses was not sufficiently material to implicate the compulsory process clause of the Sixth Amendment, and, alternatively, that even assuming that the denial of compulsory process was unconstitutional, the evidence of petitioner’s guilt is such that any possible violation would be harmless error. As I said, that’s strictly under the peculiar facts and circumstances of this case as we have detailed them. Ordinarily, the refusal to permit a defendant in a case of this type to subpoena witnesses from out of state would be error that would require the granting of the petition. It is only the unusual circumstances here that precludes that possibility. NEWLY DISCOVERED EVIDENCE CLAIM On May 8, 1989, Marion Pruett wrote a letter to Mr. Brian Willett, an attorney in Albuquerque, New Mexico. In that letter, (See petitioner’s Exhibit 11) he made the following statements: Look Bro, about the Van Burén deal, “I didn’t want anyone else to know about it but you ”!! I was just thinking out loud to you, because my conscious has been troubling me a little, but that doesn’t mean I’m going to confess and let this guy here go free, that may sound mean, but hell Bro, if I confess then I know the D.A. in Van Burén mil end up giving me two more Death Sentences, plus I’ll even face another one in New Mexico. See Bro, Michelle was also involved in that Van burén deal. She, me, Sundance, Pat, (Sundance’s ole Lady), and Sportster Rick. Me and Sportster Rick are the two who went in the jewelry store, (Staton’s), on September 10th, 1980, and did the robbery, and it was I who shot the old man and his daughter, (around 23 years old). Michelle, Pat and Sundance stayed back at a Motel (Terry’s), in Fort Smith, then me and Michelle drove back to Alberqe (sic) with half of the jewelry, (over $75,000 dollars worth). Around September 25th Sportster Rick, the guy here on death row, and Sundance were down in Jacksonville, Fla, (Rick and Sundance has went there to sale.(sic) their share of the jewelry to a guy named “Gen Perry”, (who is the guy now here on death row). While there, the police busted in on them, but Sundance got away, and called me, so I sent him the bucks to come to Albuqe.” (sic) Now Rick and the guy here, (Gen Perry), got busted in the Motel room in Fla., so the police in Van Burén said Rick and Gen Perry was the two who did the robbery and murders. Sundances Ole Lady Pat, got mad because Sundance left her in Ft. Smith after the robbery, and he took off with another woman, so she, (Pat), went to the police and said Sundance was involved in the crime. I made Sundance go with me to Van Burén looking for her but we couldn’t find her, but Sundance knew one of the police officer’s on the Van Burén Force and he told Sundance everything the police knew about the crime, sundanee paid the Policeman to tell Rick (Rick was in the Van Burén Jail), that if he didn’t say it was him and Gen Perry who did the crime, “then I, (me), would go kill his girl-friend and sister in Kansas. Rick was really seared of me, so he did just like Sundance told him too. About three months later (after I seen Rick was going to do just like he was told), I went ahead and killed Sun-dance (I made Michelle help me), and I did away with his body there in Albuqe!! (sic) Now Sundance and Gen Perry even look alot alike, but it wasn’t Gen Perry who did the crime, (he was just going to buy the hot jewelry). Now, what I’m going to do is just wait and see if this Gen Perry guy does get a new trial from the U.S. Supreme Court, (it’ll take about another year), and if he does then I may, (or may not), be a witness for him, and just confess in front of the jury. Hell I can even prove it all, but if he doesn’t get a new trial, then I’ll handle that when the time comes, but for now I’m not going to open my mouth, and I don’t want you to mention this to anyone. When I feel the time is right, then I’ll have you get in touch with this Gen Perry guys attorney, but not instill (sic) I feel the time is right, okay?? Apparently this letter was a follow-up to one written by Mr. Pruett to Willett on April 17,1989 — the first time Pruett mentioned the matter to Willett. Petitioner’s Exhibit 10 is a.copy of the April 17, letter. The pertinent part reads as follows: Oh, I also need to run something “Big” by you that no one knows about but me, and when I tell the Newspapers about it, “all shit will hit the fan, and my name will be back in every Newspaper across America again.” I did a Jewelry Store Robbery in Van Burén, Arkansas back in 1980, (around the end of the easy) with another guy. Anyway, some shit came down and I killed the Store Owner, (a man), and his daughter, (around 25), during the robbery. A few months later the fool who helped me during the robbery got busted down in Fla. on some dumb shit, and he had part of the Jewelry still on him. To make a Long Story Short, “he got a Life Sentence out of the robbery, and the poor ass-hole who was in Fla. and with him at the time he got busted, “ended-up getting charged on the Robbery and Murders too, and he got the Death Sentence. Now Bro, that guy got the Death Sentence for a crime I truely did, and during the last year that I’ve been here it really troubles me to see his face everytime I go on the yard with him. The Federal 8th Circuit Court of Appeals just refused His Appeal, and now he only has the United States Court of Appeals left, and its a 99% chance they’ll also turn him down, and then he’ll be Executed. Shit Bro, this is really playing heavy on my conscious. (sic) It’s bad enough that I’ve cost this guy 9 years of his life, plus I have to look at him everyday now, but here he would also be executed during the next year because of me. I’ve done make my mind up Bro, that if the U.S. Supreme Court refuses his appeal too, then I’m going to come forward and tell them Exactly what happened, “even if it means I get another Death Sentence over it.” Hell, the guy that was with me already has a Life Sentence, so it can’t hurt him by me telling the truth now. Most likely the guy here on death-row will want to Kill Me after he fines (sic) out and I sure can’t blame him. “What do you think I should do Bro??” Man, I can’t just allow this innocent guy die over what I did”!! Give me some advice Bro?? On July 7, 1989, Mr. Perry’s habeas attorney, Mr. Sam Heuer, conducted a recorded interview of Mr. Willett concerning information allegedly provided to him by Mr. Pruett. The pertinent portions of the transcript are quoted as follows: WILLETT: You might remind me, that’s an interesting issue as far as ._and certainly you would be interested in coordinating with the New Mexico enforcement, perhaps because of the aspect that would add credibility to this, were there to be — well, just real quick, like the silence 22 that he had is supposedly with Sundance’s body and along with a single shot 12 gauge shotgun that was used to kill Sundance with. Some more metal, the three logging chains, I thought a metal detector would be as efficient as anything at that rate. That’s what I told Joe— HEUER: Is he not in the — is his body not in the river? WILLETT: Yes, it is. The Rio Grande is funny though. It’s dry sometimes out of the year. HEUER: Yeah. WILLETT: This is in the deepest part of it and it’s sandy, you know. My feeling is it would be down in the sand a little bit by now. ****** HEUER: Now you’ve just gone over, apparently, in the jewelry store there was a Coke can and a Dr. Pepper can. WILLETT: Uh-huh. HEUER: Pruett now thinks that the match on the finger prints would be his, and as far as the Dr. Pepper can goes. WILLETT: Most definitely, but just the fact that he’s able to place a Dr. Pepper can in a particular location at the scene which— HEUER: On the case with the— WILLETT: Cash Register. He describes three horseshoe-type display cases in the store. One of them apparently has the cash register on it and the coke can was left on the counter with the cash register of the three horse-shoe display cases in the^ — -in the Statton’s at the time. Okay, he and Sportster Rick went on — Rick Anderson— HEUER: Uh-huh. WILLETT: —went on Rick’s Sportster, they parked it at the Safeway across the street from Statton’s. They parked it, apparently there was a bank right next to the Safeway and it was parked more towards the bank side of the Safeway by some trees there. They got the Dr. Pepper and Coca-cola that soft drink machine out in front of the Safeway. And those were the cans that were taken across the street into Statton’s. That’s where they were obtained, from the machine out front of the Safeway, near where the Sportster was parked. Okay, silenced 22, I think that’s in the case, is that there was a silenced 22 used. So, weighing credibility, I mean, as far as that being a matter of record that anybody could look up, I suppose. The 22 was wrapped also in a table cloth that was taken from a table back in the work area in the back of the shop. The tablecloth has sort of a flower pattern to it, and the table cloth was used to wrap the silence 22 in to make additionally sure that the report from the gun not alert anybody outside the door I have another point after that, but I’m going to stay with this point because there should be three holes in the quilt, he called it, used as a silencer around the 22. And just right on into it here, the three holes would be because as he described it, the silence 22, not only with the silencer on it but also with the tablecloth from the table in the back of the shop where the coffee and so forth was as he describe it, initially he shot her first in the temple. I got the impression it was the left temple, but anyway, in the temple. After that, he shot the man, Mr. Station I believe it was, I’m looking at the case, anyway, right above the eyebrow, and as near as I was sort of more careful with him on this, again, the left eyebrow, I believe it was. As far as the initial two shots, one in each individual, and those were at close range. Certainly lab reports and so forth as far as forensics might show that the— those two initial wounds and entries were at quite close range. After that, he backed up some three to five feet he said and shot once at them each, more or less in the center of the forehead. Her first and then the man, Mr. Station. And he moved, after the initial two shots, one in each of them, for the second two shots from the three to five foot range, he moved the table cloth after each shot so there would be more or less three holes there should be in that table cloth. HEUER: Why wouldn’t there be four? WILLETT: Because the first two shots, one in her left temple and one in the— Mr. — over Mr. Stratton’s right eyebrow were done without moving the table cloth to a new location on the barrel. HEUER: All right. WILLETT: Okay. Okay, as to details as far as the young lady. He said her dress was unusual. He says for one thing she had big tits. He says the man was a real short little guy. She had light brown hair, almost blonde. And he said her color scheme was unusual to him, something about the way he thought the color sort of clashed. He said she had on orange high-heels and sort of a blue slip. And something about, perhaps the skirt and this stood out in his mind anyway, sort of that the colors clashed he thought. Okay, once again, her in temple first, then in the middle of the forehead. Him above left eyebrow, then in middle of forehead. I described those as far as the entry wounds. Three holes in the quilt used as a silencer, okay. Pruett said he took the man’s wedding band and he also had a red ring, like a sapphire or a ruby that was taken also. He took her diamond ring, but left the watch and necklace because he said those — the watch and necklace were kind of cheaper, you know, less valuable. He said he took a little sack of loose diamonds from the safe. They were in a little pouch and that was from the smaller of the two safes that were in there. HEUER: Did he say how he got into the safe? WILLETT: He said they were open. I asked that too, you know, I didn’t know if he was a safe cracker too or something. But he said they were open since it was during business hours. Okay, this is one that got me. I’m sort of fancy myself as half a mechanic, but I’ll get into it. Okay, they took her Jeep. It was a green — he was trying to explain the color. Not a lime green, closer to an army green, he said. It had a white canvass top he thought. He recalled, he said black, and I said Gee, you — I wrote white a while ago and he says that’s right. He says no, it was white. But he said the starter was defective on it. It just really whined and he didn’t know if it would engage or not. He said the starter was really funny on it. He said his — like Chrysler products, they’ve got the double reduction and make their own special noises, but this one, he said, he thought was really defective because it made a lot of noise and so forth when he started it up. He said he used the same style of wig, sort of a sandy blonde color, as he used in the Mississippi robberies. Okay, we do the Coke can by cash — I mean Dr. Pepper can by cash register, three horseshoe show cases, Dr. Pepper can left on counter by cash register. Oh, this is very good. There were three small diamonds in the man’s wedding band, he recalled. He had on, and then just sort of as a quick aside, it’s obvious he’s bright enough to realize that these are details that someone who was not actually on the scene might not know. The dress. The man was dressed in blue slacks, a short sleeve shirt, and was on crutches. The short sleeve shirt he wasn’t quite so clear about. It’s been several years. He thought it was light colored with blue stripes. Okay. The starter hung bad, whined real bad on the Suzuki Jeep. Her Suzuki Jeep, when they got into it, was sitting by the light post out front when they got into it. He left it in front of the laundromat for an apartment complex that was about two miles from the Cloverleaf Shopping Center. The 22 gun that was used in this robbery/murder, was his — in the Rio Grande where Sundance was put along with a single shot 12 gauge shotgun that killed Sundance. Here’s another one. Sportster Rick, Rick Anderson, had Harley wings on one arm. He couldn’t remember exactly if it was on the shoulder or upper arm, but he said on one arm. I asked him a little bit more about it, something I didn’t write down here. I said, well, how did Rick act when this was happening? The way it came up, I asked him, I said, how did you keep people from coming in while this was going on since it was during business hours. And he said Rick locked the door. Something about he had some trouble locking the door and so forth. He said mostly he was pretty quiet and did what he was told and he said that’s the only reason he didn’t end up on the floor there too. HEUER: Did he not get along with Rick, Sportster Rick? WILLETT: He didn’t even know Sportster Rick. He was real annoyed when he got — when they were planning this thing. Apparently, Sundance is the one that cased the deal and set it up. At the Terry Motel there was a room there. Pruett and his wife, Michelle, Pruett, who of course, was a federally protected witness at this time under the name of Charles Sonny Pearson. I call him Sonny. HEUER: Uh-huh. WILLETT: His wife would be then Michelle Pearson. He and Michelle showed up at the Terry Motel and Sundance had Sportster Rick there and Pruett said he was very annoyed about that. The security and so forth on it. Someone else being in it and knowing about it and so forth. Initially, he said he was very upset about Sportster Rick being in on it. But accepted it after a point apparently and because they did sort of cruise and ease the joint, he and Sportster on — on Rick Anderson’s sportster, which was also used to come to near the scene when the crime was committed. Parked, as I said before, at the Safeway over by the bank near some trees. He — and something else I didn’t write down. When they took the Jeep, he took Sportster Rick back over to the Safeway parking lot and he turned in and he let Sportster Rick out, just sort of at the entrance to it. And then Sportster Rick went back to his sportster. And whereupon, Pruett stayed by himself in the Jeep. Another thing he said, when he got out of the — out of the Jeep at the apartment complex, in front of the laundromat at the apartment complex, he said a black lady hollered at him. I don’t know why, I guess he didn’t either, but he said he just kept moving. He didn’t stop for that. Well, I’m out of my written notes. I’m just going to what I recall that was details. HEUER: Has he told you how — tell me again how the transaction occurs between him and Perry that caused Perry’s car to end up with some of this property. WILLETT: Sundance had purchased a new Buick, apparently under the alias he was using, Damon— HEUER: WILLETT: Okay, or Malentino, apparently, but Peterson, I think, you know, on this could be checked as to how that car was registered. But under that alias, I d know from the cases that that was the name the warrant was under, was Damon Peterson or Malentino, when there was a warrant on it initially. Sundance, Damon Peterson— HEUER: Uh-huh. WILLETT: — had given this new Buick to Gene Perry. I don’t know why exactly, but it was a new Buick. And so apparently, when they find Gene Perry in the new Buick, perhaps by then they had enough leads that the license plate as NCIC’d on the Buick or something, from what Pruett says, Perry wanted to keep that new Buick. He sort of says dumb shit, but then you’d have to know Pruett, I guess. Anyway, he says Gene Perry owned up to the alias of Damon Peterson because he wanted to keep that new Buick. And it was at that point when he owned up to that alias, apparently the arrest was made on the outstanding warrant, that apparently he did receive the death sentence pursuant to— HEUER: But actually, the car was registered to Damon? WILLETT: That’s my understanding. HEUER: And Damon was the one that was in northwest Arkansas and Gene wasn’t in northwest, he was in Alabama at that time. WILLETT: Actually, this happened down in Florida, is my understanding. HEUER: But when he owned up — when he was arrested, he was in Florida. WILLETT: Uh-huh. HEUER: Okay. WILLETT: With the new Buick. LAMBERT: Where did the transfer of the Buick take place, was that in Florida? WILLETT: I’m afraid I don’t have any hard information on that. I meant to ask Pruett what they kept the goods in. I was sort of keeping in mind that it was Friday, and trying to, you know, not to be too late as far as confirmed with you with being the end of the week and me needing to be back to Texas, but I was interested — also, the cases speak to the jury