United States Court of Appeals

Fifth Circuit



## FILED

April 14, 2004

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 03-10024

RICKY EUGENE MORROW,

Petitioner-Appellant,

versus

DOUG DRETKE, DIRECTOR,

TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

CORRECTIONAL INSTITUTIONS DIVISION,

Respondent-Appellee.

Appeal from the United States District Court

For the Northern District of Texas

Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

This is an application for a certificate of appealability by

Ricky Eugene Morrow, a Texas death row inmate, seeking to appeal

the decision of the federal d istrict court denying habeas relief

and ref using a COA. Morrow raises three contentions. First, he

argues that the district court erred in denying an evidentiary

hearing and presuming the findings of the State habeas court to be

corre ct even though it held no hearing. Second, he asserts that

the state habeas court committed constitutional error in rejecting1 Morrow v. State , 753 S.W.2d 372 (Tex. Crim. App. 1988).

2 Morrow v. Stat e, 910 S.W.2d 471 (Tex. Crim. App. 1995).

3 There was one exception. The Court of Criminal Appeals did

not accept a finding by the trial court that Morrow had waived his

claim of ineffectiveness because it was not properly briefed.

2 his claim that the state suppressed FBI and Dallas police reports

of interviews with prosecution witnesses. Third, he urges that the

district court erred in rejecting his claim that his counsel was

ineffective at the guilt-innocence phase of his trial. We grant

t he request for a COA on the Brady claims and ultimately a ffirm

their denial on the merits. We deny a COA on the remaining claims.

I

Morrow was convicted of capital murder by a jury in Dallas

County, Texas, in 1983 and sentenced to death. That conviction was

reversed on appeal. 1 He was tried again with the same result.

This second con viction was affirmed on appeal. 2 Morrow filed his

state habeas petition on October 21, 1996, supplemented on January

26, 1999. Because the judge who presided at the trial had retired,

the habeas case was assigned to a visiting judge who denied a

request for an evidentiary hearing and recommended denial of relief

upon the record as supplemented by affidavits and documents, a

recommendation accept ed by the Court of Criminal Appeals. 3

Morrow’s federal petition followed on September 13, 2000. The

federal magistrate judge also denied an evidentiary hearing, and on

April 9, 2002, filed her recommendations. The district court in4 28 U.S.C. § 2253(c)(1)(A) (2001).

5 Id

. § 2253(c)(2); Ba refoot v. Estelle , 463 U.S. 880, 893

(1983); Dowthitt v. Johnson , 230 F.3d 733, 740 (5th Cir. 2000).

6 Slack v. McDaniel

, 529 U.S. 473, 483-84 (2000) (internal

quotations and citations omitted); Dowthitt , 230 F.3d at 740.

7 Miller-El v. Cockrell , 123 S.Ct. 1029, 1039 (2003).

3 turn adopted the sixty-five page report of the magistrate judge,

denying relief and a COA.

II

A

Unless a COA is granted, this Court lacks jurisdiction to hear

this appeal. 4 The standard is whether Morrow “has made a

substantial showing of the denial o f a constitutional right.” 5

This standard “includes showing that re a sonable jurists could

debate whether (or, for that matter, agree that) the petition

should have been resolved in a different manner or that the issues

presented were adequate to deserve encouragemen t to proceed

further.” 6

The COA determination “requires an overview of the claims in

the habeas petition and a general assessment of their merits” but

not “full consideration of the factual or legal bases adduced in

support of the claims.” 7

B

As for the merits, under section 2254(d), an application for

a writ of habeas corpus shall not be granted with r espect to any8 28 U.S.C. § 2254(d) (2001).

9 ( Terry ) Williams v. Taylor

, 529 U.S. 362, 405-06 (2000);

Hernandez v. Johnson , 248 F.3d 344, 346 (5th Cir.), cert. denied

, 534 U.S. 1034 (2001).

10 Williams , 529 U.S. at 407-09; Hernandez , 248 F.3d at 346.

4 claim that was adjudicated on the merits in state court proceedings

unless the adjudication of the claim:

(1) resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly

established Federal law, as determined by the S upreme

Court of the United States; or

(2) resulted in a decision that was based on an

unreasonable determination of the facts in light of the

evidence presented in the State court proceeding. 8

The Supreme Court has explained that a state court decision is

“contrary” to established federal law if the state court “applies

a rule that contradicts the governing law set forth in [the

Court’s] cases,” or co nfronts facts that are “materially

indistinguishable” from a relevant Supreme Court pr ecedent, yet

re aches an opposite result. 9 Alternatively, a state court

“unreasonably applies” clearly established f ederal law if it

correctly identifies the governing precedent but unreasonably

applies it to the facts of a particular case. 10

A federal habeas court’s inquiry into reasonableness should be

objective rather than subjective, and a court “may not issue the

writ simply beca use that court concludes in its independent

judgment that the relevant state-court decision applied clearly11 Williams , 529 U.S. at 411; see also Tucker v. Johnson , 242

F.3d 617, 620-21 (5th Cir.), cert. denied , 533 U.S. 972 (2001).

12 Williams

, 529 U.S. at 411; Martin v. Cain

, 246 F.3d 471, 476

(5th Cir.), cert. denied , 534 U.S. 885 (2001).

13 Williams , 529 U.S. at 410.

14 Id

. at 410-11 (citin g Wright v. West , 505 U.S. 277, 287

(1992)).

15 Santellan v. Cockrell , 271 F.3d 190, 193 (5th Cir. 2001),

cert. denied , 535 U.S. 982 (2002).

16 28 U.S.C. § 2254(e)(1).

5 established federal law erroneously or incorrectly.” 11 Rather,

federal habeas relief is only merited where the state court

decision is both incorrect and objectively unreasonable. 12 However,

“an unreasonable application of federal law is different from an

incorrect application of federal law.” 13 In other words, habeas

relief is inappropriate when a state court, at a minimum, reaches

a “satisfactory conclusion.” 14 This court has also held that it is

the state court’s “ultimate decision” that is to be tested for

reasonableness, “not every jot of its reasoning.” 15

Additionally, section 2254(e)(1) also requires federal courts

to presume correct the factual findings of the state courts unless

the petitioner “rebut[s] the presumption of correctness by clear

and convincing evidence.” 16

C

For reasons we will explain, we deny Morrow’s request for a

certificate of appealability on his claim that the district court17 Ferguson married Morrow after the crime occurred.

6 erred in denying an evidentiary hearing and in presuming the state

court findings to be correct, as well as his claim of ineffective

assistance of counsel. We grant the certificate for Morrow’s claim

that the State suppressed FBI reports and interviews with

prosecution witnesses. However, we reject this claim on its merits

and affirm the judgment of the district court insofar as it denied

Morrow relief on this claim.

III

The federal district court described the robbery and murder as

follows:

Trial testimony adduced the following facts regarding the

events at issue. In the late morning of January 19,

1982, Morrow and [Linda Fergus on Morrow] 1 7 proceeded to

a laundromat so that Ferguson co uld do their laundry

while Morrow went to a pawnshop to purchase a radio. He

later returned for Ferguson and they in turn went back to

the paw nshop ostensibly to purchase a television. They

instead purchased two handguns

– a smaller .25 pistol and

a larger .38 revolver. After purchasing the weapons,

they proceeded to a mall to purchase ammunition.

Ferguson and Morrow arrived at Metropolitan [Savings] at

around 4:15 p.m. Morrow went inside the bank and

“started screaming and cursing and hollering and

directing profanities at everyone in the ba nk and

demanding the money.” Joena Bailey Shipley, Jean Cullum

Blum, W.L. Miller, and Carol Fritchie were work ing at

Metropolitan at the time of the robbery. Morrow exited

the bank with a sack of money, including coins. As he

exited, the sack ripped and his gun discharged. He

stopped to retrieve the dropped money. Two bystanders,

L ouis Wong and Bo Holmes, witnessed a man leavi ng the

scene with money falling from a ripped sack. No one

disputes that the man they saw was petitioner Ricky

Morrow.7

John Norton, a Dallas police officer at the time of the

robberies, interviewed witnesses at Metropolitan. After

the Metropolitan robbery, Dallas police officer K.C.

Edmonds interviewed Shipley, Blum, Miller, and Fritchie.

Agent Nelso n Borrero of the Federal Bureau of

Investigation also interviewed Blum.

After leaving Metropolitan, Morrow and Ferguson arrived

at First Texas [Savings] between 4:30 and 5:00 p.m. As

Morrow entered First Texas he approached Kathy Knoebber

Crouse at her desk. When Mark Frazier, another bank

employee, asked Morrow if he needed assistance, Morrow

“started screaming and ranting and raving and cursing and

hollering it was a robbery.” He led Frazier at gunpoint

to Tammy Roy’s tell er window and pointed one pistol at

her and another pistol at Frazier. After getting a sack

o f money from Roy, Morrow shot and killed Frazi er and

exited the bank.

Jo Brown, Operations Supervisor at First Texas, witnessed

the events at First Texas on January 19, 1982. Nancy

Galloway, another employee of First Texas, also witnessed

the events of that date. Jan Noble, a real estate agent

with an office in t he same building at First Texas,

witnessed Morrow and Ferguson leave the scene in their

vehicle.

After robbing First Texas, Morrow and Ferguson proceeded

to the Park Cities Inn and rented Room 311. Richard A.

Acree, a police officer then employed by the University

Park Police Department, spotted their vehicle at the inn.

He spoke with Sherry Baker, the clerk-receptionist for

the inn, and ascertained that Morrow and Ferguson were in

r oom 311. He called for assistance and several units

arrived on the scene soon thereafter.

Numerous law enforcement officers from the FBI, Dallas

Police Department, and University Park Police Department

arrived at the inn, converged on Room 311, and demanded

that Morrow and Ferguson surrender. FBI Agent Thomas

Yunessa, armed with an assault rifle, and Dallas Police

Offi c er P.T. Barnum, armed with a shotgun, crouched

b ehind a toppled coke machine in the hall outsi de the

room. Officers Edmonds, Luke Robertson, and Harold Rice,

as well as Detectives Charles Hallam, John Landers, and

Jack Baird of the Dallas Police Department, wer e also

present at the inn. Ferguson voluntarily surrendered.

Morr ow then fired his .38 revolver. Law enforcement18 28 U.S.C. § 2254(e)(1).

19 Valdez v. Cockrell

, 274 F.3d 941, 950- 51 (5th Cir. 2001),

cert. denied , 537 U.S. 883 (2002).

20 373 U.S. 83 (1963).

21 514 U.S. 419 (1995).

8 officers fired weapons and Morrow subsequently

surrendered.

Special Agent Richard T. Garcia of the FBI interviewed

Crouse after the robbery and shooting at First Texas.

Special Agent H. Lamar Meyer interviewed Nancy Galloway

and Jan Noble regarding the events at First Texas.

IV

We must deny a COA for Morrow’s first claim that the federal

district court erred in applying a presumption of correctne ss to

the state habeas findings because they rested on the papers filed

and not on testimony at an evidentiary hearing. The presumption of

correctness under AEDPA is accorded adjudications by state courts.

If the state has rejected a petitioner’s habeas claim on its

merits, it has adjudicated the claim. The AEDPA requires that we

presume correct the habeas court’s findings of fact unless the

petitioner “rebut[s] the presumpt ion of correctness by clear and

convincing evidence.” 18 This is so even if the hearing was a

“paper” hearing and may not have been full and fair. 19

V

Morrow contends that the state did not disclose evidence

favorable to his defense in violation of its duty set out in Brady

v. Maryland

, 20 and Kyles v. Whitley

, 21 and that it used false22 405 U.S. 150 (1972).

23 United States v. Agurs , 427 U.S. 97, 108 (1976).

24 United States v. Bagley , 473 U.S. 667, 682 (1985).

9 testimony knowing it to be fa lse, a denial of his due process

rights as described in Giglio v. United States

. 22 Morrow did not

seek a certificate of appealability on the latter claim from this

court. We read this assertion in his brief as a variation of his

request for a certificate of appealability on his second issue,

“whether the state suppressed favor able evidence that denied

appellant due process of law and a fair trial.” To the extent it

is anything more, it is not before us and we will not treat it as

a separate issue.

A

A prosecutor must disclose evidence favorable to an accused if

it “is of sufficien t significance to result in the denial of the

defendant’s right to a fair trial.” 23 It is material “if there is

a reasonable probability that, had the evidence been disclosed to

the defense, the res ult of the proceeding would have been

different.” 24 It is not whether the result would have been

different. Rather, it is whether given the non-disclosures of

material evidence the verdict is less worthy of confidence. In

defining the scope of the duty of disclosure, it is no answer that

a prosecutor did not have possession of the evidence or that he was

unaware of it. Rather, the prosecutor “has a duty to learn of any25 Kyles , 514 U.S. at 437.

26 That is, whether he was upset and crying or cavalier --

“satisfied,” “demonstrated a don’t care attitude” or “laughing.”

10 favorable evidence known to the others acting on the government’s

behalf in the case, including the police.” 25

With these general and settled principles, we turn to the

specific contentions.

B

The claimof suppressed or undisclosed evidence relates to

three sets of fact questions at the trial:

1) Morrow’s mental state at the time of the two robberies,

specifically whether he was “high” on drugs or alcohol.

2) The manner of the fatal shooting inside the bank as it bore

on whether it was intentional and deliberate.

3) Rela tedly, the manner of Morrow’s flight from the First

Texas Bank after the fatal shooting, specifically as it bore on his

emotional state. 26

1

As detailed in its opening st atement and voir dire, the

defense maintained that Morrow was guilty only of felony murder,

not capital murder, because he was so intoxicated on drugs and

alcoh ol that he could not form the intent to kill and that the

shooting of Frazier was an accident. The prosecutor’s response, as

reflected in his summation, was that Morrow might have been “high,”27 The state does not contest its duty to disclose these

documents on the basis that they were possessed by the FBI. We

11 but it was on “fear” or a “murder high.” With these opposing

stances at trial, the State called Jean Blum, an employee of

Metropolitan Bank, who testified that Morrow was not intoxicated on

drugs or alcohol. She denied telling police officers a different

story, explaining that she told Officer K.D. Edmonds that Morrow

was “high like on adrenaline,” “excited with the thrill of what was

going on.” Joena Bailey Shipley, an employee of Metropolitan,

testified that Morrow was not drunk out of his senses, that he did

n ot stagger or slur his words. Officer Jack Baird, present at

Morrow’s arrest, testified that Morrow appeared “high” on drugs or

adrenaline, and prompted by the pro secutor, accepted that Morrow

could have been on a “murder high.”

Morrow’s Brady argument here is that the fol lowing five

documents were not disclosed:

an FBI report reflecting that Jean Blum told Agent Nelson

Borrero that Morrow, while at Metropolitan B ank, had

bloodshot eyes, a “wild look,” and appeared to be “on

drugs” or intoxicated;

an FBI report reflecting that Jo Brown told an agent that

Morrow was “high” at First Texas;

an FBI teletype reflecting that witnesses at Metropolitan

Bank said that Morrow was “high” on drugs or alcohol;

an FBI memo reflecting that witnesses at both banks said

that Morrow was “high” on drugs or alcohol; and

an FBI report prepared by agent David Cutcomb reflecting

that Morrow had slightly slurred speech and “wide” eyes

when he was arrested. 27accept that there was a duty of disclosure on the facts of this

case but express no opinion in that regard. See United States v.

Anton e , 603 F.2d 566 (5th Cir. 1979); Moon v. Head

, 285 F.3d

1301,1309-10 (11th Cir. 2002); United States v. Upton

, 856 F.Supp.

727, 749-50 (E.D.N.Y. 1994).

28 Habeas Exhibit C.

29 Habeas Exhibit D.

30 Habeas Exhibit G.

12 Mor row argues that with these documents he could have

impe ached these witnesses regarding the level of Morrow’s

intoxication; that they were material to Morrow’s intent to kill

Frazier; that the state habeas judge erroneously narrowed the

prosecuto r’s duty of production to admissible evidence and was

clearly in error in crediting a state prosecutor’s affidavit that

the documents were produced over affidavits of defense counsel in

both trials that they were not.

An FBI report of Agent Borrero indicates that Ms. Blum told

him that Morrow had “somewhat bloodshot” eyes and that he

“[a]ppeared to be on drugs or intoxicated, and had a wild look in

his eyes; a very excited person.” 28 An FBI agent commented that Jo

Brown, a bank teller, indicated that Morrow was “high,” “shouted

obscenities,” and “ranted and raved.” 29 FBI Agent Cutcomb recorded

that Morrow “spoke in a manner such that his words were slightly

slurred” and that he “widened his eyes while speaking .” 30 An FBI

teletype records that unidentified witnesses at Metropolitan31 Habeas Exhibit E.

32 Habeas Exhibit F.

13 believed Morrow to be high on drugs or alcohol. 31 Finally, an FBI

m emorandum records that unidentified “[w]itnesses at both bank

robberies advised that [Morrow] was apparently high on drugs or

alcohol at the time of instant bank robbery.” 32

T he magistrate judge below concluded that the exhibits were

not material by the measures of Brady and K yles ; that “the jury

would have reached the same result had they considered the exhibits

related to the intoxication issue.” Her opinion recounts at length

the extensive testimony regarding intoxication, including that of

Mor row, Officer K.C. Edmonds, Officer Norton, and others.

Significantly, Officer Edmonds interviewed witnesses Joena Bailey

Shipley, Jean Cullum Blum, W.L. Miller, an d Carol Fritchie at

Metropolitan. The variances between their statement to Edmonds and

at trial was explored by counsel. Ultimately, the magistrate judge

concluded that the “allegedly withheld documents...[were]...merely

cumulative to the intoxication issue and not material withi n the

meaning of Brady

and its progeny.” We agree.

To place the issue of intoxication into its factual setting at

trial, it is important that Morrow plead guilty to the robbery of

the Metropolitan Savings & Loan and to attempted capital murder of

the police officers who arrested him at the Park City Inn. These

pleas of guilty were to offenses having an element of14

intentionality and were put before the jury by Dan Hagood, the

prosecutor, in his cross-examination of Morrow. This left Morrow

confessing that he was sober enough in his first robbery, minutes

before the fatal shooting in the second robbery - where he claims

he was stoned. Yet he was again sufficiently sober a short while

after the homicide to have the intent to kill arresting officers.

With his claims of intoxication now tightly sandwiched between

another bank robbery and shooting, Morrow attempted to explain in

his trial testimony that he did not intend to shoot Frazier;

rather, concerned that the cocked .38 pistol he had trained on

Frazier at a distance of two feet might accidentally discharge, he

testified that he attempted to uncock the gun by lowering the

hammer with his thumb while releasing it by pulling the trigger.

The detailing at trial of his tho ught processes while attempting

this maneuver was plainly in tension with his claim that he was so

drunk that he had no intent to kill and even more so his pleas of

guilty to the first robbery and to attempting to kill the arresting

officers a short while after the second robbery with its fatal

shooting. Evidence of some impairment is relevant to the claim

that the shooting was accidental, but evidence that he was so drunk

as to lack cognitive awareness was undercut by his detailed

explanation of how the shooting occurred. On this record accidental

shooting was Morrow’s only arguably plausible defense to capital33 The trial judge ch arged the jury on Morrow’s defense of

voluntary intoxication, althou gh he was not entitled to it under

state law.

34 Habeas Exhibits D & I, and a supplemental report of the

Dallas Police Department, Habeas Exhibit T.

15 murder. 33 Perversely, the government’s contended-for description

of his condition

- that he was pumped up on adrenaline

- lies more

comfortably with Morrow’s claim that he did not intend to fire at

all, and that Morrow was high on something was hardly an issue at

trial.

We turn now to the second set, the manner in which the

shooting occurred.

2

Morrow complains that two FBI reports and a supplemental

report of the Dallas Police Department were not disclosed. 34 Morrow

urges that disclosure of these reports would have enabled him to

impeach the testimony of Brown and Crouse that Morrow’s shooting of

Frazier appeared deliberate.

The State called only one witness, Jo Brown, to describe the

shooting of Mr. Frazier. Brown testified that when Morrow entered

the bank, Frazier approached him, asking if he could be of help;

that Morrow had a big gun in hi s right hand and a smaller one in

his left. Brown’s account of the shooting was graphic, telling the

jury that Morrow picked up the money bag with his left hand, turned

his head slightly, raised the .38 pistol very deliberately and shot

Frazier in the face as he stood two feet away. In her words, it35 Habeas Exhibits D and T.

36 Habeas Exhibit D.

16 “was as deliberate as anythin g I have ever seen”; there was a

“slight pause” before he pulled the trigger. Finally, she

testified that Morrow “turned ar ound and very calmly walked out

with a springy little step right up on the balls of his feet with

a smirky little look on his face” – a “satisfied look,” and an “I

don’t care attitude.”

Two of the reports discuss Brown’s observations. 35 According

to Morrow, the Da llas Police Department report compromises her

trial testimony because it does not state that Brown saw the

shooting. He also argues that the FBI report contains the notes

that he could have used to impeach Brown regarding her testimony on

how the shooting occurred. 36

The magistrate judge found that these three reports were not

material because none of them indicated how the shooting occurred.

We agree. That the exhibits lacked the same level of detail as her

trial testimony did not make them material.

The defense called Kathy Knoebber Crouse. According to an FBI

report, Crouse told Agent Garcia that Morrow held the smaller gun

in his right hand and the larger one in his left an d she did not

recall which gun fired the sh ot and did not know where the money

bag was , whether the money bag was on the counter or in Morrow’s37 Habeas Exhibit I.

17

hand when the shot was fired. 3 7 Although not completely clear,

Crouse’s trial testimony suggests that Morrow fired the gun in his

right hand and the gun in his left was the smaller one.

Q. Okay. So he reaches into that opening with his left hand

and that is to grab the money bag, right?

A. Yes.

Q. And that gun is still right here, isn’t it?

A. Yes, it was.

Q. Okay. And all sort of in one movement – all in this one

movement, the gun was fired, wasn’t it?

A. No, he reached forward and then he leaned back and as he

was standing, he raised his arm and his hand went from

being down at waist level up to Mark’s head and he shot

him.

As we have recounted, Morrow testified at trial that the gun

discharged accidentally as he tried to uncock the hammer on the gun

in his right hand whil e he reached for the bag of money with his

left; that he was hysterical and c rying when he returned to his

car. Officer Rice testified for the State in rebuttal that after

proper warnings, he interrogated Morrow who told him that he shot

Frazier when he pulled a lighter from his pocket which he mistook

for a pistol; that Morrow never suggested in the interview that the

shooting was accidental.

The magistrate judge concluded that any inconsistencies

between the documents not produced and the trial testimony were not

material alone or collectively. We agree. That Crouse stated in38 Habeas Exhibits D, I, and J.

39 Habeas Exhibit E.

40 Habeas Exhibit T.

41 Exhibit K.

18 the report that Morrow held the smaller gun in his right hand and

the larger in his left, but reversed this description during trial

is a minor difference at best, unlikely to affect the verdict. The

other inconsi stencies between the report and Crouse’s trial

testimony are similarly inconsequential. Significantly, nothing in

the report casts doubt on Crouse’s testimony that the shooting did

not appear accidental. Even if Morrow had cross-examined Crouse

based on the report, there is no reasonable probability that the

outcome would have changed. We turn to the third set, the manner

in which Morrow departed First Texas Bank.

3

Morrow claims that the State failed to disclose three FBI

reports 38 and an FBI teletype report 39 material to the manner in

which he departed First Texas. Relatedly, Morrow claims that a

supplemental offense report of Dallas Police Officer Leslie Myer 40

and an FBI report of Agent Lamar Meyer 4 1 were material to the

testimony of Jan Noble, a trial witness who testified about

Morrow’s departing in an automobile and his demeanor at the time.

The magistrate judge found, and we agree, that the FBI

teletype report - an account of a witness who observed Morrow run42 Exhibit J.

43 Exhibit I.

44 Habeas Exhibit K.

19 from the bank and enter a late model Oldsmobile

- was not material

because it did not ascribe the report to an identified witness;

that both witnesses to events immediately out side Metropolitan

Savings and Loan, Wong and Holmes, testified that Morrow ran from

the bank to the car.

The other two documents are more problematic. The reports of

Agent Meyer’s interview of Nancy Gallaway 42 and an FBI repo rt of

Kathy Crouse’s statement 43 are not fully consistent with their trial

testimony. Both told agents that Morrow ran out the front door of

First Texas and at trial testified that he just walked out, not

looking perturbed. But the difference would have offered little to

the defense. The other evidence, notably Morrow’s own testimony,

was that Morrow walked from the door.

Finally, Morrow points to additional reports of Special Agent

Lamar Meyer that were not disclosed. The first report was that:

Jan Noble works in the office suite 240 that is above the

bank and she was able to look out on Berkshire and

observe the male AP [arrested person] get into a red and

white vehicle, she wrote down the partial license number

of SWY.

The second report of Meyer made on the date of the offense 44 reads

as follows:

Noble stated that her place of business is located above

the First Texas Savings Association on the third floor,20

and that [at] approximately 4:40 p.m. she left her office

and was outside the building unl ocking the door of her

personal automobile parked near the front entrance to the

First Texas Savings. Noble continued that before she

could enter her car she observed an automobile pull out

very fast from in front of the Savings Association front

door and headed in her direction. As the vehicle passed,

t raveling very rapidly, she saw a woman driving and a

white male seated in the passenger side. She described

the white male as being in his late twenties or early

thirties, with brown curly hair. She could not further

describe the person driving other than being a white

female. She described the vehicle as a red, older car

with a white top, bearing Texas license plate SWY. Noble

stated that she could not recall the last three digits of

the license plate.

Jan Noble testified at trial that she worked as a realtor in

the bank building and was leaving for her car when she heard a

shot. She got into her car, arranged her things, and then learned

as she looked back that a car blocked her exit. The male passenger

bent down as if he were putting something down or picking something

up; when he looked up, t heir eyes met, and he was laughing and

smiling, which “chilled” her. She watched him for a brief period,

perhaps 30 to 60 seconds, until the car entered traffic. Because

the car “whipped around” in a dangerous manner, she felt that

something was wrong and obtained a partial license plate number.

When she arrived at her destination, having seen police cars

traveling toward the scene with flashing lights, she called First

Texas, learned of the robbery, and went to the bank to describe the

car to the officers. On the following day, she identified a photo

of Morrow as the man she had observed.21

Keith Jagmin, defense counsel, cross-examined Noble in detail

about what she had seen and her opportunity to distinguish laughter

from crying. He developed that Ms. Noble in testimony in another

trial had difficulty identifying Morrow although she had identified

him from a picture display shortly after the robbery.

In assessing the materiality of the FBI reports o f their

interview of Jan Noble, it bears mention that the State placed

great value on Noble’s testimony. Her testimony was accented in

the State’s summation at both the guilt and punishment stages of

the trial. In his summation at the guilt stage, the prosecutor

reminded the jury of the detailed cross-examination of Noble,

referring to the “conte mpt in his [Jagmin’s] voice” as

demonstrating belief that Noble was either mistaken or a liar. The

prosecutor concluded that she did not forget what she saw and

probably never would. Defense counsel responded that he was not

saying that Noble was a liar, only that she was wrong , as Morrow

was crying rath er than laughing. That did not end it. In

rebuttal, another prosecutor argued:

Why the goal line stand with Jan Noble? Well, she is so

critical to the defense because she tells you everything

you need to know about Ricky’s true character. If you

believe Jan Noble, this man is a dead man. She tells you

everything you need to know about Ricky Morrow. She

tells you that he obtained pleasure, it was a thrill, it

was fun, it was something to laugh about, lea ving that

boy dying in his own blood there on that floor.45 The state does not concede that the documents relating to

Noble’s testimony were not disc losed. The state habeas judge

ad opted the state’s proposed finding that these documents were

produced, resolving the conflict between the affidavits of defense

counsel and the prosecutor in favor of the state. This finding

taxes the deference we are mandated to accord state adjudications

including credibility findings by judges who have never heard any

evidence in the case. It is, however, the law of this circuit. If

the exhibits were produced as urged by the State and found by the

hab eas court, the claim becomes that defense counsel was

ineffective in not making use of them to impeach Jan Noble. This

potential col lision of prosecution theories perhaps explains the

State’s reluctance to rest on the finding that they were produced.

That they were not material would defeat both the Brady and

ineffectiveness of counsel claims.

22 This prosecutor then repeated that the defense could not permit the

jury to believe Noble because she spoke “so much about [Morrow’s]

character.”

Summing up at the punishment stage, the prosecutors argued

that Noble’s testimony showed that Morrow took pleasure in the

murder, that he acted deliberately while in full control of his

faculties, and that he shot Frazier “because he wanted to kill him,

because he rejoiced in killing him, because he took pleasure in

killing him.”

The magistrate judge concluded that withholding these exhibits

violated no duty of disclosure. 45 She explained:

Although the report of Officer [Leslie] Myers appears to

indicate that Noble made her observations from her office

and such indication is contrary to her trial testimony

a nd [H. Lamar] Meyer’s FBI report, the Court do es not

find this discrepancy material to Morrow’s defense.

Morrow himself testified that he believed that “no doubt”

Noble “was in the parking lot and no doubt she was

backing up, no doubt she was looking back, as she said.”

In addition, the FBI report which indicates that Morrow’s

“vehicle passed” Noble “traveling very rapidly,” is not23

inconsistent with her trial testimony that when Morrow’s

vehicle left the scene, it “went forward very rapidly.”

Noble mentioned twice at trial that the vehicle moved

away quickly. More importantly, the fact that the

reports do not mention Noble’ s observation of Morrow’s

demeanor does not render them inconsistent with her trial

testimony. The reports do not indicate that she did not

observe Morrow’s demeanor[;] they simply do not address

the issue at all.

The state also argues that the documents at best were relevant

to the punishment phase and given the nature of the charged crime

and Morrow’s criminal record, including his record in confinement

post-trial, the failure to produce could not have shaken confidence

in the outcome – the death sentence.

VI

We ultimately agree with the State and the federal district

court that no B rady violation has been shown. Viewed singly and

cumulatively, the documents assertedly withheld were not material

in the sense of Brady as explicated in Kyles and were at best

cumulative.

That said, as we move from consideration of each isolated

piece of evidence and survey the entire trial picture, the

cumulative impact of the failure to produce the documents held by

the FBI - assuming that there was a failure - has given us pause.

The most powerful argument for their materiality is that they would

have given defense counsel the ability to remind the jury of the

frailty of recollection of startling and frightening events; that

it should be cautious in resting its life or death decision upon an24

unskeptical acceptance of such recollection – coming years after

the events.

The materiality of the documents

– what use might have been

made of them and its flip side, the injury suffered by their

a bsence

- must in the end be a judgment call, resting o n a firm

grasp of the entire record and an intimacy with the factual play,

the narrative drama of the trial. Inevitably, how we see it is a

product of our mastery of the details and our own experience.

In widening our view to bring the full trial into focus, we

return to two aspects of the claim of non-production. The first is

the testimony of Jan Noble

– that Morrow sat in his car outside the

First Texas Bank laughing. The prosecutors wanted that testimony

– a curtain closer to a brutal murder. Defense counsel, sensing

its bite, fought to contain it, skillfully developing Ms. Noble’s

earlier misidentification. The withheld documents could also have

pointed out that the reports of the FBI of her accoun t, brief as

they were, made no mention of M orrow’s demeanor. That the quick

explanation may well ha ve been that she was not asked about it

would not drain the omission of all worth. It had residual value.

And if we locked our gaze here, Morrow’s claim that the documents

were material would have purchase. But there was much more -- more

than Morrow’s able trial counsel could fend off. Morrow’s effort

to portray himself as a robber who would not shoot – distraught

over the “acciden tal” shooting – cannot survive his criminal

history, including his plea of guilty to attempted capital murder25

of the officers trying to arrest him within hours of the shooting

of Mr. Frazier at First Texas and his plea of guilty to robbing the

M etropolitan Savings & Loan minutes before moving on to Fi rst

Texas. Nor for that matter does a robber who would not shoot need

to so carefully load and practice firing his weapons.

Our review of this trial has left us with the firm view that

any failure by the State prosecutor to obtain and produce the FBI

m aterials in no measure lessens our confidence in the jury’s

decisions. Morrow has been well represented by court-appointed

counsel in two trials and in habeas proceedings, includin g those

before this court. Two juries have spoken and many courts. In

short, Morrow has received his due a s a person charged with a

capital crime.

We reject Morrow’s Brady claims on their merits and refuse a

certificate of ap peability for his two remaining contentions for

essentially the reasons found by the magistrate judge and adopted

by the district court.

AFFIRMED IN PART AND DISMISSED IN PART.