REVISED, March 25, 1998

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 97-10809 _____________________

JOHNNY DEAN PYLES,

Petitioner-Appellant,

v.

Gary L JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellee.

_________________________________________________________________

Appeal from the United States District Court for the Northern District of Texas _________________________________________________________________ March 5, 1998

Before KING, HIGGINBOTHAM, and DAVIS, Circuit Judges.

KING, Circuit Judge:

Petitioner-appellant Johnny Dean Pyles, a Texas death row

inmate convicted of capital murder, appeals the district court’s

denial of his petition for a writ of habeas corpus. For the

reasons set forth below, we affirm.

I. FACTUAL BACKGROUND

While on routine patrol at 12:50 a.m. on June 20, 1982,

Officer Charles Mitchell, a deputy sheriff with the Dallas County

Sheriff’s Department, noticed a beige Jeep in the parking lot of

a small convenience store in the city of Sunnyvale. The store

was closed. Mitchell used his patrol car’s spotlight to examine the vehicle and the store as he slowly drove past. Mitchell did

not see anyone, but a couple in an automobile flashed their high

beams as he drove away, and Mitchell stopped. After a

conversation with the couple, Mitchell called for backup and

indicated that a white male suspected of criminal activity was in

the area of the convenience store. Mitchell then parked behind

the Jeep with his high beams and spotlight on the vehicle.

Mitchell exited his patrol car and, using a flashlight, inspected

all four sides of the convenience store building in search of the

suspect. Mitchell did not see anyone and concluded that the

store was secure.

Officers Ray Kovar and Dwaine Crain, responding to

Mitchell’s request for backup, approached the scene with their

emergency lights and siren on, but turned them off when they got

within one half to three quarters of a mile of the store.

Mitchell heard the backup unit’s siren before the officers turned

them off. Kovar and Crain arrived at the scene at approximately

1:00 a.m. After the three officers again secured the building,

they began a search of the area.

Mitchell saw Kovar walk around the east side of the

building, with a flashlight in his left hand and his pistol in

his right hand. Crain took a shotgun and went to the west side

of the building to search there. Mitchell and Crain both heard

Kovar tell someone, “Halt, get up.” Then a series of gunshots

were fired. Mitchell ran to help Kovar and found him lying face

2 down. Kovar had suffered a bullet wound to the chest from which

he later died.

Crain heard Mitchell shout that Kovar was down and called in

a report to that effect on his radio to his dispatcher before

joining Mitchell. Crain noticed that Kovar’s flashlight was

turned on. Two police officers unsuccessfully attempted to

resuscitate Kovar, and several others searched the scene of the

shooting but were unable to locate a suspect.

Richard Hart, a reserve deputy sheriff who was called out to

assist in the search for the person who killed Officer Kovar, set

up surveillance in an unmarked car almost two miles from the

scene of the shooting. Around 4:00 a.m., Hart saw a white male,

later identified as Johnny Dean Pyles, walking toward him on

Collins Road. He immediately radioed a description of Pyles to

the dispatcher and then left the car, pointing his flashlight and

pistol at Pyles and ordering him to halt. At first, Pyles turned

around and took several steps back the way he came. Hart again

ordered Pyles to stop, saying, "One more step and that's it."

Pyles turned around and raised his hands. He told Hart that he

was not armed. Hart ordered Pyles to lie face down on the road.

He noticed that Pyles’s right hand was swollen, and that he was

bloody and covered with mud. Hart handcuffed Pyles and placed

him in the back seat of the car lying face down. Hart recited

Pyles’s Miranda warnings on the way to the Sunnyvale Substation,

and Pyles indicated that he understood his rights.

3 The magistrate again read Pyles his rights and advised him

that he was being charged with capital murder, a crime punishable

by life imprisonment or death. The magistrate asked Pyles if he

was in pain and if he wanted to go to the hospital. Pyles did

not ask for medical attention and did not complain of being in

pain. After a paramedic bandaged and elevated Pyles’s arm, the

magistrate asked Pyles if he was up to talking to the police.1

Pyles responded affirmatively and the magistrate left for a brief

period.

The magistrate returned as Pyles was preparing to sign a

statement admitting that he had shot Officer Kovar. The

magistrate informed Pyles that he did not have to sign the

statement, and, according to the magistrate, Pyles replied, “I

might as well, Judge. I did it.” Pyles then signed the

statement with his left hand.

Afterward, Sergeant Larry Williams of the Dallas County

Sheriff’s Office interrogated Pyles. A second statement was

prepared based on the conversation between Pyles and Williams,

and Pyles signed that statement.

At Pyles’s capital murder trial, the medical examiner

testified that the cause of Officer Kovar’s death was a gunshot

1 In his brief, Pyles states, without record citation, that he received no medical attention until after he provided the police with a confession. However, the Texas Court of Criminal Appeals found that Pyles received the above-described medical treatment prior to signing statements containing his confessions. Pyles does not challenge this factual finding or its entitlement to a presumption of correctness pursuant to

(d) (1994).

4 wound to his chest. A .38 caliber bullet was removed from

Kovar’s body. An officer from the Physical Evidence Section of

the Sheriff’s Office testified about the scene of the shooting.

He explained that a .357 magnum pistol was found where Officer

Kovar fell. The weapon contained six spent casings. A .38

caliber pistol, found twenty-seven feet from Kovar, contained

four spent casings and one empty chamber. Both weapons had been

completely emptied by firing.

Pyles testified on his own behalf, explaining that he was

not aware at the time of the shooting that Kovar was a police

officer. Pyles claimed that he acted in self-defense, firing

because he saw a flashlight and a gun pointed at him and heard a

voice telling him to halt.

II. PROCEDURAL BACKGROUND

On October 14, 1982, Pyles was convicted of capital murder

after a seven-week jury trial. On October 15, 1982, after a

separate punishment hearing, the jury answered the three special

issues presented to them pursuant to the version of article

37.071 of the Texas Code of Criminal Procedure in effect at the

time of Pyles’s trial in the affirmative. The state district

court later sentenced Pyles to death. The Texas Court of

Criminal Appeals affirmed Pyles’s conviction and sentence on June

1, 1988.

Pyles filed an application for writ of habeas corpus in

state district court on December 5, 1990. On July 15, 1991, the

district court entered an order adopting the proposed findings of

5 fact and conclusions of law set forth in the state’s response and

recommending that the application be denied. On July 19, 1991,

the Texas Court of Criminal Appeals accepted the district court’s

recommendation and denied Pyles’s application.

On July 22, 1991, Pyles filed a petition for writ of habeas

corpus in federal district court. An evidentiary hearing was

held before a magistrate judge on January 24 and 25, 1996. On

January 16, 1997, the magistrate judge entered findings and a

recommendation that the petition be denied. After a de novo

review, the district court adopted the magistrate’s

recommendation and denied Pyles’s petition on June 16, 1997.

This appeal follows.2

III. ANALYSIS

Pyles contends that the district court erred in denying his

petition for a writ of habeas corpus because (1) his conviction

was based in part upon extrinsic evidence obtained as a result of

2 The district court granted Pyles a certificate of appealability (COA) on August 18, 1997. Prior to the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),

Stat. 1214, a habeas petitioner was required to obtain a certificate of probable cause (CPC) in order to appeal the district court’s denial of his habeas petition. See

(1994). The AEDPA eliminates the CPC requirement of

and substitutes a requirement that a petitioner seeking review of a district court’s denial of a petition for federal habeas relief under

obtain a COA from a circuit judge. Because Pyles filed his habeas petition before the AEDPA’s effective date, he must obtain a CPC rather than a COA. See United States v. Roberts,

(5th Cir. 1997). We therefore construe the district court’s COA as a CPC. See Cannon v. Johnson, ___ F.3d ___, ___, No. 96-50934,

(5th Cir. Jan 30, 1998). “Thus, [Pyles] does not need further certification from a circuit judge before we can hear the merits of his appeal.”

6 a juror’s unauthorized visit to the crime scene, (2) the state

knowingly presented false testimony at his trial, and (3) the

state withheld exculpatory evidence. We address each of these

issues in turn.

A. Juror Misconduct

Pyles contends that his conviction was tainted by juror

misconduct because one of the jurors in his case, Geraldine

Sarratt, made an unauthorized visit to the crime scene. In

support of his claim, Pyles offers two affidavits from Sarratt.3

Both affidavits state that, during the guilt/innocence phase of

Pyles’s trial, Sarratt made an unauthorized visit to the scene of

the shooting. According to the second affidavit, she made the

visit during daylight hours. The affidavits also state that,

based on the evidence presented at trial, which included

photographs of the crime scene taken during day and night,

Sarratt “was not convinced that Johnny was guilty of capital

murder.”

3 Pyles presented only the first of the two affidavits to the state courts in connection with his state habeas proceeding. Citing Keeney v. Tamayo-Reyes,

(1992), the state argues that this court is prohibited from considering the second affidavit because Pyles has made no showing of cause for his failure to present the second affidavit to the state court and prejudice resulting from our refusal to consider it. Pyles responds that the state has waived this issue of evidentiary default by failing to object at the district court level to consideration of the second affidavit. As explained, infra, only a portion of each affidavit is competent summary judgment evidence because each contains statements that are inadmissible under Rule 606(b) of the Federal Rules of Evidence. Because we conclude that Pyles is not entitled to habeas relief even if we consider the admissible portions of both affidavits, we need not address this issue.

7 Each affidavit contains a description of the manner in which

Sarratt perceived the actual crime scene, viewed in person, to

differ from the photographs of the crime scene presented at

trial. The first affidavit states:

Because I had questions in my mind, I went to the scene of the crime. The lot was much smaller than I pictured from the trial. Although photos were in evidence with officers testifying about the scene, pictures never tell the whole story. The visit to the scene of the crime helped me decide that if there had been a police car and officers in the lot, that anyone hiding in the lot would have known a police officer was present.

The second affidavit states:

During the trial, while I was sitting on the jury of Mr. Pyles’ capital murder trial and prior to his conviction, I went to the exact scene of the crime. I went to the scene because the photographs and diagrams presented at trial were inadequate for me to understand the dimensions of the area. Most, if not all, of the photographs introduced during the trial were taken of the building and the lot at night. I went to the scene during the day light hours. At that time, I was able to clearly see the dimensions of the area where the crime occurred. The dimensions of the scene in person were very different than the photographs and diagrams shown to the jury during trial.

Specifically, the lot was much smaller than the photographs and diagrams indicated at trial. Viewing the area in person, I was able to see that Mr. Pyles and the victim were much closer in proximity to each [other] than any of the photographs and diagrams shown to the jury had indicated. My visit to the scene of the crime surprised me because it looked so much different to me than the photographs and diagrams in evidence. It was only after viewing the crime scene for myself, in person, that I decided that if there had been a police car and police officers in the lot, that anyone hiding in the lot would have known a police officer was present.

As the district court observed, a substantial portion of

Sarratt’s affidavits are inadmissible as evidence under Rule

8 606(b) of the Federal Rules of Evidence.4 Rule 606(b) bars juror

testimony regarding the following four topics:

(1) the method or arguments of the jury’s deliberations, (2) the effect of any particular thing upon an outcome in the deliberations, (3) the mindset or emotions of any juror during deliberation, and (4) the testifying juror's own mental process during the deliberations.

United States v. Ortiz,

(5th Cir. 1991).

However, the rule provides that “a juror may testify on the

question whether extraneous prejudicial information was

improperly brought to the jury’s attention or whether any outside

influence was improperly brought to bear upon any juror.” FED.

R. EVID. 606(b); see also United States v. Ruggiero,

(5th Cir. 1995); Ortiz,

. We have interpreted

this portion of Rule 606(b) as follows:

Post-verdict inquiries into the existence of impermissible extraneous influences on a jury’s

4 Rule 606(b) provides as follows:

Inquiry into validity of verdict or indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may a juror’s affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.

FED. R. EVID. 606(b).

9 deliberations are allowed under appropriate circumstances so that a jury-man may testify to any facts bearing upon the question of the existence of any extraneous influence, although not as to how far that influence operated upon his mind.

Llewellyn v. Stynchcombe,

(5th Cir. 1980)

(citations and internal quotation marks omitted). Put another

way, under Rule 606(b), “the district court is precluded from

investigating the subjective effects of any [allegedly

prejudicial extrinsic matter] on any jurors.” United States v.

Howard,

(5th Cir. 1975).

Pyles concedes that those portions of Sarratt’s affidavits

indicating that the evidence at trial failed to convince her that

Pyles knew that Kovar was a police officer when he shot him but

that she was convinced that this was the case after visiting the

scene of the crime are inadmissible under Rule 606(b). He

contends, however, that Sarratt’s statements that “[t]he lot was

much smaller than [she] pictured from the trial” and that the

scene “looked so much different to [her] than the photographs and

diagrams in evidence” are admissible for purposes of evaluating

his claim of juror misconduct. These statements by Sarratt are

not merely descriptive of the outside influence brought to bear

upon her while she served as a juror in Pyles’s trial. Rather,

they describe her impression of that outside influence as

compared to the evidence adduced at trial. Specifically, these

statements relate to the mental picture of the crime scene that

Sarratt drew from the evidence presented at trial and the impact

that her visit to the crime scene had on that mental picture.

10 Therefore, Sarratt’s statements regarding the manner in which she

perceived the crime scene viewed in person to differ from the

image of the crime scene that emerged from the evidence presented

at trial can have no bearing on our evaluation of Pyles’s claim

because such statements constitute impermissible testimony

regarding a juror’s “mental processes.” FED. R. EVID. 606(b). We

may consider only those portions of Sarratt’s affidavits which

indicate that Sarratt visited the crime scene during daylight

hours. We turn now to the issue of whether Sarratt’s alleged

visit to the crime scene entitles Pyles to habeas relief.

The Sixth Amendment right to a trial by jury, enforceable

against the states as a result of incorporation through the

Fourteenth Amendment’s due process clause, see Duncan v.

Louisiana,

(1968), “implies at the very least

that the ‘evidence developed’ against a defendant shall come from

the witness stand in a public courtroom where there is full

judicial protection of the defendant’s right of confrontation, of

cross-examination, and of counsel.” Turner v. Louisiana,

(1965). Sarratt’s unauthorized visit to the

crime scene therefore constituted constitutional error. The next

step of our inquiry is a determination of whether Pyles is

entitled to habeas relief based on this constitutional error.

Pyles contends that Sarratt’s unauthorized visit to the

crime scene entitles him to habeas relief unless the state proves

that no reasonable probability exists that Sarratt’s visit

influenced the jury. In support of this contention, he relies

11 upon Remmer v. United States,

(1954), a case that

involved a federal criminal defendant’s claim on direct appeal

that the jury improperly considered information acquired

extrajudicially in reaching its verdict. In contrast, Pyles’s

claim is before us in the context of a collateral attack on a

state conviction and sentence. We conclude that interests in

comity and federalism, as well as “the State’s interest in the

finality of convictions that have survived direct review within

the state court system,” mandate that we apply a more deferential

standard of review in evaluating Pyles’s claim. Brecht v.

Abrahamson,

(1993). Specifically, we hold that

Pyles’s claim is subject to harmless error analysis and that,

because the claim is presented as a collateral attack on a final

state conviction, Pyles is not entitled to habeas relief on the

claim unless Sarratt’s unauthorized visit to the crime scene

“‘had a substantial and injurious effect or influence in

determining the jury’s verdict.’”

at 623 (quoting Kotteakos

v. United States,

(1946)). Before turning to

the analytical justification for this legal conclusion, we note

that, in drawing the conclusion that we have, we join three other

circuits that have addressed the appropriate standard of review

in evaluating a habeas petitioner’s claim that the jury

improperly considered extrinsic material evidence in reaching its

verdict. See Jeffries v. Wood,

(9th Cir.

1997) (applying the Brecht harmless error standard in evaluating

a habeas petitioner’s Sixth Amendment claim based on a juror’s

12 disclosure of information regarding the petitioner’s criminal

history to other members of the jury); Sherman v. Smith,

(4th Cir. 1996) (holding that a juror’s

unauthorized inspection of a tree in which the petitioner

allegedly hid the murder weapon did not warrant habeas relief

because it did not have a substantial and injurious effect in

determining the jury’s verdict); Bibbins v. Dalsheim,

(2d Cir. 1994) (concluding that the petitioner was entitled to

relief on his claim that the jury considered extra-record

information in reaching its verdict only if the petitioner

demonstrated that the error had a substantial and injurious

effect or influence in determining the jury’s verdict).

In determining whether a constitutional error is subject to

harmless error analysis, the Supreme Court has drawn a

distinction between “trial error” and “structural error.” Trial

error is error that “‘occur[s] during the presentation of the

case to the jury.’” Brecht,

(quoting Arizona v.

Fulminante,

(1991)) (brackets in original).

Such error “is amenable to harmless error analysis because it

‘may . . . be quantitatively assessed in the context of other

evidence presented in order to determine [the effect it had on

the trial].’”

(quoting Fulminante,

)

(ellipses and brackets in original). “Structural error” is error

“affecting the framework within which the trial proceeds, rather

than simply an error in the trial process itself.” Fulminante,

13

. By its very nature, structural error “def[ies]

analysis by ‘harmless-error’ standards.”

.

Pyles contends that Sarratt’s unauthorized visit to the

crime scene constituted structural error and is therefore not

subject to review for harmless error. We reject this contention

and conclude that the unauthorized visit to the crime scene by

Sarratt is error of a type that is subject to harmless error

analysis.

Pyles first argues that, because Sarratt’s visit to the

crime scene did not “occur during the presentation of the case to

the jury,” it does not fit the Supreme Court’s definition of

trial error5 and therefore is not amenable to harmless error

analysis. Pyles’s argument rests upon an oversimplified

conception of the Supreme Court’s inquiry into the amenability of

particular constitutional error to harmless error analysis. In

Brecht, the Court described a “spectrum of constitutional

errors,” with trial errors--errors amenable to harmless error

analysis--at one pole and structural errors--errors that are not

amenable to harmless error analysis and therefore “require[]

automatic reversal of the conviction because they infect the

entire trial process”--at the other. Brecht,

;

see also Cupit v. Whitley,

(5th Cir. 1994)

5 Sarratt’s second affidavit states that she went to the crime scene “during the trial, while [she] was sitting on the jury of Mr. Pyles’ capital murder trial and prior to his conviction.” We assume arguendo that Sarratt’s visit to the crime scene does not fit the Supreme Court’s definition of trial error.

14 (acknowledging the possible existence of “‘hybrid,’ or ‘unusual’

cases that do not fit so neatly into one of [the] two primary

categories of error”). We conclude that the constitutional error

at issue here rests quite near the “trial error” end of the

spectrum because the impact of Sarratt’s unauthorized visit to

the crime scene “‘may . . . be quantitatively assessed in the

context of other evidence presented in order to determine [the

effect it had on the trial].’”

at 629 (quoting Fulminante,

). That is, it is possible for us to

quantitatively evaluate what impact the additional information,

if any, that Sarratt acquired from the visit to the crime scene

had on the jury’s conviction of Pyles in light of the evidence

presented at trial regarding Pyles’s knowledge that he was

shooting a police officer.

Pyles next argues that, “[b]ecause Mr. Pyles’ counsel was

not present when Mrs. Sarratt visited the scene, Mr. Pyles was

absolutely denied the assistance of counsel.” Pyles notes that

the complete denial of the assistance of counsel constitutes

structural error, and that the error in this case was structural

because it was tantamount to a deprivation of the assistance of

counsel. See Fulminante,

(observing that “the

total deprivation of the right to counsel at trial” constitutes

structural error). While it is clear that Sarratt’s unauthorized

visit to the crime scene implicated Pyles’s Sixth Amendment

rights to counsel, confrontation, and trial by an impartial jury,

Pyles’s contention that this constitutional error constituted a

15 complete denial of his right to counsel is sheer hyperbole. To

conclude otherwise would, for example, necessarily imply that the

erroneous admission of hearsay into evidence constitutes

structural error because the general rule against the admission

of hearsay rests on the protection of many of the same

constitutional interests at issue here. See Ecker v. Scott,

(5th Cir. 1995). Generally speaking, when hearsay

testimony is offered into evidence, the defendant’s attorney will

not have been present when the declarant made the out-of-court

statement at issue and will have had no opportunity to cross-

examine the declarant on the statement when it was made. Yet, we

have held that the erroneous admission of hearsay evidence is

amenable to harmless error analysis. See Cupit,

.

We see no reason to reach a different result in evaluating

Pyles’s claim of juror misconduct.

We also note that Pyles’s contention that the juror

misconduct at issue here is structural error that does not lend

itself to harmless error analysis is inconsistent with his

position that he is entitled to habeas relief unless the state

proves that no reasonable possibility exists that the

unauthorized visit influenced the jury. As noted earlier, this

is the standard applicable in determining whether a criminal

defendant is entitled to a new trial on direct appeal based upon

the jury’s consideration of extrinsic information. See Ruggiero,

(“[I]t is well-settled that a defendant is

entitled to a new trial when extrinsic evidence is introduced

16 into the jury room unless there is no reasonable possibility that

the jury’s verdict was influenced by the material that improperly

came before it.” (internal quotation marks omitted)). This

standard is in essence another way of stating the standard for

harmless error review established in Chapman v. California,

(1967).

In Chapman, the Court held that, “before a federal

constitutional error can be held harmless, the court must be able

to declare a belief that it was harmless beyond a reasonable

doubt.”

. In adopting this rule, the Court relied

heavily upon its previous decision in Fahy v. Connecticut,

(1963). In Fahy, the Court concluded that the petitioner

was entitled to a new trial on the basis of the erroneous

admission of unconstitutionally obtained evidence at his criminal

trial because “there [was] a reasonable possibility that the

evidence complained of might have contributed to the conviction.”

. The Chapman Court observed that

[t]here is little, if any, difference between our statement in Fahy v. Connecticut about “whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction” and requiring the beneficiary of a constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.

Chapman,

; see also Lowery v. Collins,

(5th Cir. 1993) (observing that, under the Chapman

standard, “a defendant convicted on the basis of constitutionally

inadmissible evidence is entitled to a new trial unless the error

‘was harmless beyond a reasonable doubt’--i.e., that there [wa]s

17 [no] reasonable possibility that the evidence complained of might

have contributed to the conviction” (brackets in original)

(footnote omitted)).

Thus, in arguing that he is entitled to habeas relief unless

the state proves that no reasonable possibility exists that

Sarratt’s unauthorized visit to the crime scene influenced the

jury, Pyles implicitly concedes that the constitutional error at

issue here is subject to harmless error analysis because the

standard that he asks us to apply is in essence a different way

of articulating the Chapman harmless error standard. Pyles in

effect asks us to conduct a harmless error analysis of the

constitutional error at issue here, albeit under an incorrect

standard.

In Brecht, the Supreme Court held that the Chapman harmless

error standard is inapplicable in evaluating constitutional

claims presented on collateral review. See Brecht,

. As noted earlier, the Court went on to hold that a

constitutional trial error warrants habeas relief only if it “had

a substantial and injurious effect or influence in determining

the jury’s verdict.”

(internal quotation marks

omitted). We therefore proceed to a determination of whether the

unauthorized crime scene visit at issue here had such an effect

18 or influence in determining the jury’s verdict.6 We conclude

that it did not.7

Pyles contends that Sarratt’s visit to the crime scene had a

substantial and injurious effect on the jury’s verdict “[b]ecause

the only real dispute at trial was whether Pyles knew [Kovar] was

a peace officer at the time he shot.” Pyles’s capital murder

conviction depended upon proof that he knew he was shooting a

peace officer. See TEX. PEN. CODE ANN. § 19.03(a)(1) (providing

that a person commits capital murder if “the person murders a

6 Pyles also argues that Brecht’s more deferential harmless error standard presupposes that the state court reviewing the claim in the first instance applied the Chapman standard and concluded that any constitutional error was harmless beyond a reasonable doubt. He therefore argues that we should apply Chapman’s less exacting harmless error standard in this case because, in evaluating his juror misconduct claim, the state court did not indicate that it found Sarratt’s crime scene visit harmless beyond a reasonable doubt. We recently rejected this same argument in Hogue v. Johnson,

(5th Cir. 1997), and therefore reject it here as well. 7 Pyles contends that we should remand the case to the district court so that it may apply the proper standard of review. However, the district court evaluated Pyles’s claim under the standard that he suggests and determined that no reasonable possibility existed that Sarratt’s visit of the crime scene influenced the jury’s verdict. The district court would necessarily reject Pyles’s claim under the “less onerous” harmless error standard that we hold is applicable in evaluating it. Brecht,

. Remand would therefore serve no purpose.

Pyles also contends that remand is warranted because the state contests whether Sarratt ever actually made the visit she claims to have made in her affidavit. Because the state is unwilling to concede that Sarratt made the unauthorized visit to the crime scene, Pyles contends that genuine issues of material fact exist regarding his claim of juror misconduct. However, whether Sarratt made the unauthorized visit to the scene is immaterial because we conclude that, even if she made the visit as she claims, Pyles is nonetheless not entitled to habeas relief. Remand is therefore not warranted on this basis either.

19 peace officer . . . who is acting in the lawful discharge of an

official duty and who the person knows is a peace officer”).

Pyles therefore argues that “the physical characteristics of the

scene were of primary importance in reaching a verdict.” While

we agree that the physical characteristics of the scene were of

importance in determining whether Pyles knew that he was shooting

a peace officer, we disagree with Pyles’s contention that this

fact alone leads inexorably to a conclusion that Sarratt’s visit

to the crime scene had a substantial and injurious effect in

determining the jury’s verdict. A great deal of evidence

regarding the physical characteristics of the crime scene was

admitted at trial. The state introduced nineteen photographs of

the crime scene, including photographs taken during daytime and

nighttime. Pyles himself testified that the photographs admitted

at trial were accurate representations of the scene. Second, the

state admitted a detailed diagram of the lot where the shooting

took place that included the dimensions of the area.8 A number

of witnesses testified about the crime scene, using the diagram

to aid their testimony. The jury thus heard and saw a great deal

of evidence regarding the physical characteristics of the crime

scene at trial.

Furthermore, while evidence of the physical characteristics

of the crime scene was doubtless important to the jury’s

8 Many of these photographs and diagrams were not included in the record on appeal. However, Pyles does not contest that the photographs depicted the crime scene during daytime and nighttime. He also does not dispute that the diagram of the lot accurately reflected the scene’s dimensions.

20 determination of whether Pyles knew he was shooting a peace

officer, it was certainly not the only type of evidence germane

to this determination. The record contains a large amount of

other evidence indicating that Pyles knew that he was shooting a

police officer. Perhaps most important in this regard is Pyles’s

first confession, which included the statement, “I didn’t see the

person I shot, but I knew it had to be a police officer.”9

Pyles’s “own confession [was] probably the most probative and

damaging evidence that [could] be admitted against him.” Bruton

v. United States,

(1968) (White, J.,

dissenting). Furthermore, Pyles testified that he saw the

lights of a vehicle behind his Jeep. Officer Collins testified

that he was in his police uniform on the night of the shooting

and that, before Kovar and Crain arrived, he inspected all four

sides of the building with a flashlight to determine whether it

was secure. This provides strongly probative evidence that

Pyles, who testified that he was hiding behind the building prior

to the shooting, knew that police officers were on the scene.

Additionally, Collins testified that he could hear the sirens of

Kovar and Crain’s patrol car as it approached, though they turned

off the lights and sirens before reaching the scene.

9 Pyles’s opening brief contains no claim that this confession was involuntary, nor did he challenge its admissibility on any other grounds. His reply brief contains a footnote in which he attempts to challenge the voluntariness of his confession. However, because he failed to raise the issue in his opening brief, Pyles has waived any challenge to the voluntariness of his confession. See Cinel v. Connick,

(5th Cir. 1994) (“An appellant abandons all issues not raised and argued in its initial brief on appeal.”).

21 In sum, given the sizeable amount of evidence regarding the

physical characteristics of the crime scene, including daytime

photographs of the area, we conclude that Sarratt’s daytime visit

to the crime scene was largely duplicative of the evidence

presented at trial. Furthermore, the record contains a great

deal of evidence unrelated to the physical characteristics of the

crime scene that constitutes powerful proof that Pyles knew he

was shooting a peace officer. We therefore conclude that

Sarratt’s unauthorized visit to the crime scene did not “ha[ve]

substantial and injurious effect or influence in determining the

jury’s verdict.” Brecht,

(internal quotation

marks omitted). The district court therefore properly denied

Pyles’s request for habeas relief on this claim.

B. Knowing Presentation of Perjured Testimony

Pyles contends that the prosecution knowingly presented

false testimony during his trial. “A state denies a criminal

defendant due process when it knowingly uses perjured testimony

at trial or allows untrue testimony to go uncorrected.” Faulder

v. Johnson,

(5th Cir.) (citing Napue v.

Illinois,

(1959)), cert. denied,

(1996). To obtain a reversal based upon a prosecutor’s use of

perjured testimony or failure to correct such testimony, a habeas

petitioner must demonstrate that “1) the testimony was actually

false, 2) the state knew it was false and 3) the testimony was

material.” See id.; Blackmon v. Scott,

(5th

Cir. 1994).

22 During Pyles’s trial, Gary LaCour and Robert Banschenbach,

two former cellmates of Pyles, testified as witnesses for the

state. LaCour testified that Pyles told him that, on the night

of the shooting, “he was trying to burglarize a store and that he

saw a police car pull up.” Banschenbach testified that he asked

Pyles “did you know that it was a copy [sic] you were shooting

at?” and that Pyles responded “Yeah, I knew who he was.”

During its cross-examination of Pyles, the state offered

evidence that the phrases, “Kill All Whie [sic] Pig Ploice [sic]”

and “Kill Kill Judge DA,” were scratched into the walls of

Pyles’s jail cell. Pyles claimed that the phrases were on the

cell wall before his arrival. LaCour testified as a rebuttal

witness that he saw Pyles scratching an “L” into one of the

phrases. Pyles contends that this testimony was false and that

the state knew that it was false before offering it.

The magistrate judge held an evidentiary hearing on Pyles’s

claim that the prosecution knowingly presented false testimony.

The magistrate judge concluded that LaCour and Banschenbach

testified falsely at Pyles’s trial based upon their invocation of

their Fifth Amendment privilege against self-incrimination when

asked to answer questions relating to the veracity of their trial

testimony.10 However, the magistrate judge went on to determine

10 Prior to the evidentiary hearing, LaCour informed the magistrate judge that he intended to invoke his Fifth Amendment privilege against self-incrimination in response to any questions about his trial testimony or prior discussions with law enforcement authorities. Both parties agreed that it was unnecessary for LaCour to appear in court for this purpose. The magistrate judge therefore quashed the writ of habeas corpus ad

23 that he was “unable to conclude that the prosecutors knew

Banschenbach and LaCour were lying.” The magistrate therefore

recommended that the district court deny relief on Pyles’s claim

that the prosecution knowingly offered false testimony, and the

district court accepted the recommendation.

Pyles acknowledges that we must accept factual

determinations, such as the magistrate judge’s conclusion that

the prosecutors did not know that Banschenbach and LaCour were

lying, unless they are clearly erroneous. See Washington v.

Johnson,

(5th Cir. 1996). However, he contends

that, at the evidentiary hearing, he offered evidence that

conclusively established that the prosecution knew that the

testimony of Banschenbach and LaCour was false prior to

presenting it. He points to the fact that, when asked at the

evidentiary hearing, “Did you give . . . the District Attorneys .

. . any indication that any part of your testimony was

inaccurate?” Banschenbach invoked his Fifth Amendment privilege.

Pyles argues that Banschenbach’s invocation of the privilege was

proper only if Banschenbach’s truthful answer to the question

would have been affirmative because this is the only answer that

would have indicated that Banschenbach actually lied at trial.11

testificandum previously issued to LaCour. 11 Strictly speaking, it is not the case that an affirmative answer to this question would have implied that Banschenbach lied at trial. Banschenbach could have given the prosecutors reason to believe that some of his testimony was inaccurate in a way that would not necessarily imply that he was lying. For example, Banschenbach could have told prosecutors that he did not have a good memory or that his recollection was

24 Pyles argues that a truthful negative answer to the question

would have merely indicated that Banschenbach gave the

prosecutors no reason to believe that his testimony was false.

This could be the case either (1) because Banschenbach’s trial

testimony was truthful or (2) because Banschenbach is a good

liar. Therefore, Pyles argues that the magistrate should have

inferred from Banschenbach’s invocation of the privilege that

Banschenbach had in fact given the prosecution a reason to

believe that his testimony was false.

We have held that “[t]he Fifth Amendment ‘does not forbid

adverse inferences against parties to civil actions when they

refuse to testify in response to probative evidence offered

against them.’” FDIC v. Fidelity & Deposit Co. of Maryland,

(5th Cir. 1995) (quoting Baxter v. Palmigiano,

(1976)). The same is true regarding an invocation

of the privilege by a non-party witness in a civil action. See

However, the fact that the Fifth Amendment does not prohibit

such inferences does not imply that the fact-finder is required

to make them. Moreover, even if the magistrate were required to

conclude by implication that Banschenbach would have testified

that he “gave the district attorney some indication that . . .

part of his testimony was inaccurate,” the magistrate judge was

free to make a negative credibility assessment regarding

Banschenbach’s implied testimony. See Orduna S.A. v. Zen-Noh

hazy regarding certain details surrounding his interaction with Pyles.

25 Grain Corp.,

(5th Cir. 1990) (“The

credibility determination of witnesses . . . is peculiarly within

the province of the district court.”).

Pyles also offered an affidavit from LaCour, which states

that his “entire testimony was untrue and the state knew it.”

The magistrate judge declined to consider this statement in

LaCour’s affidavit because it was hearsay. Pyles contends that

the portion of LaCour’s statement indicating that the state knew

that his testimony was false is admissible under Rule 804(b)(3)

of the Federal Rules of Evidence as a statement against interest.

He argues that the statement potentially subjected LaCour to

civil liability under

. Given that Pyles cites

no authority in support of this proposition, we cannot say that

the district court abused its discretion in concluding that the

statement was not so against LaCour’s interest “that a reasonable

person in the declarant’s position would not have made the

statement unless believing it to be true.” FED. R. EVID.

804(b)(3).12

12 Pyles also contends that the prosecutors knew that LaCour’s statement that he saw Pyles scratching the incriminating phrases into the wall of his cell was false because they had received a statement from Scottie Cetnar, another cellmate of Pyles, stating that Pyles did not scratch the phrases on the wall. Cetnar stated that the phrases were on the wall before he moved into the cell block. However, the state points out that Pyles was transferred to the cell block on August 10, 1982, LaCour was transferred to the cell block on August 16, 1982, and Cetnar was transferred to the cell block on August 26, 1982. Pyles does not dispute the accuracy of these transfer dates. Thus, the state observes that, because LaCour never specified the date on which he saw Pyles scratching the comments into his cell wall, it is possible that Pyles scratched the phrases into the wall any time between August 16 and 26, 1982.

26 Pyles also points to the fact that, at the evidentiary

hearing, Winfield Scott, one of the prosecutors involved in

Pyles’s trial, testified that he had formed a “suspicion” that

the phrases were “probably written by some non-white semi-

literate” because some of the phrases contained misspellings and

had racial overtones. Scott also provided the following

testimony regarding the veracity of LaCour’s testimony:

[T]o this day I don’t know whether [LaCour’s] testimony is true or false. My only concern was how is it going to impact the jury. I certainly had no, you know, no way of knowing whether his testimony to this day is true or false.

Pyles contends that this testimony indicates that the prosecution

did “not s[eek] out information readily available to it”

regarding the truth or falsity of LaCour and Banschenbach’s

testimony. United States v. Auten,

(5th Cir.

Unit A 1980). However, Pyles provides no indication of what

information revealing the falsity of LaCour and Banschenbach’s

testimony was “readily available” to the prosecution.13

On this record, we cannot say that the magistrate judge

clearly erred in concluding that the prosecution did not

knowingly present false testimony from LaCour and Banschenbach.

The district court therefore properly denied Pyles’s request for

habeas relief on this claim.

13 It is worth noting that Scott also testified that he wished to have a polygraph performed on LaCour, but was informed that the results would be unreliable because of LaCour’s history of drug use.

27 C. Withholding Exculpatory Evidence

Pyles finally contends that the government withheld

exculpatory evidence regarding LaCour and Banschenbach’s history

as informants and regarding assistance that the state provided

LaCour in exchange for his testimony. “The prosecution’s

suppression of evidence favorable to the accused violates the Due

Process Clause if the evidence is material either to guilt or to

punishment.” Kopycinski v. Scott,

(5th Cir.

1995) (citing Brady v. Maryland,

(1963)). This

includes evidence that may be used to impeach a witness’s

credibility. See

(citing United States v. Bagley,

(1985)). “[E]vidence is material only if there is a

reasonable probability that, had the evidence been disclosed to

the defense, the result of the proceeding would have been

different.” Bagley,

; see also Kopycinski,

. If the prosecution withholds evidence that

satisfies the above definition of materiality, then harmless

error analysis is inapposite and habeas relief is warranted. See

Kyles v. Whitley,

(1995). This is so because,

[a]ssuming, arguendo, that a harmless-error enquiry were to apply, a Bagley error could not be treated as harmless, since a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different necessarily entails the conclusion that the suppression must have had substantial and injurious effect or influence in determining the jury’s verdict.

(internal quotation marks and citations omitted).

Pyles first claims that the state failed to disclose the

fact that prosecutors had promised LaCour that they would

28 recommend two-year concurrent sentences for his pending burglary

convictions. At trial, LaCour testified that the prosecution had

agreed to request that his state sentences run concurrently with

the federal time that he would be serving as a result of

revocation of his federal probation. LaCour testified that he

was hoping that he would at least get a deal whereby he would be

paroled from state prison as soon as he finished serving his

federal sentence, which could have continued for another four

years, but that the prosecution had made no specific promise.

Several months after Pyles’s trial, Gerald Banks, the lead

prosecutor, recommended that LaCour receive concurrent two-year

sentences on his pending burglary charges. At the federal

evidentiary hearing, Banks testified that he had not withheld any

portion of the deal that he had negotiated with LaCour in

exchange for his testimony.14

The magistrate judge concluded that the state had not

withheld any information regarding any promises made to LaCour

prior to trial, and we cannot say that this factual finding is

clearly erroneous. None of the evidence presented at the

evidentiary hearing establishes that the state had promised

LaCour that it would recommend concurrent two-year sentences on

14 As noted before, Pyles offered LaCour’s affidavit as evidence at the evidentiary hearing. The affidavit states that prosecutors had promised LaCour prior to Pyles’s trial that they would recommend concurrent two-year sentences on his pending burglary convictions. However, it appears that the magistrate judge did not consider this portion of the affidavit because it was not inconsistent with LaCour’s trial testimony and therefore did not constitute a statement against interest. See FED. R. EVID. 804(b)(3).

29 his burglary charges prior to Pyles’s trial. Moreover, even if

the state had withheld evidence regarding such a promise, such

evidence was immaterial. During cross-examination by Pyles’s

counsel, LaCour did not mince words in indicating that self-

interest motivated his testimony:

Q: Well, you saw a chance, after you talked to Johnny

Pyles and learned that he was tried for capital

murder of a police officer, you saw a chance to

help yourself out with your problems with the law?

A: Yes, sir.

. . .

Q: Your [sic] trying to help yourself out in your own

problems, aren’t you?

A: Yes, sir. Yeah, no question.

Assuming that the state had promised LaCour a better deal than he

indicated at trial, disclosure of the terms of such a deal would

have at best had a marginal negative impact on the jury’s

credibility assessment of LaCour. Therefore, “there is [no]

reasonable probability that, had the evidence been disclosed to

the defense, the result of the proceeding would have been

different.” Bagley,

.

Pyles also claims that the state withheld evidence of

Banschenbach and LaCour’s past informant activities.

Specifically, Pyles argues that he established at the evidentiary

hearing that prosecutors were aware that Banschenbach had acted

as an informant in a state prosecution in Las Vegas. He also

30 argues that he established that LaCour had operated as an

informant for various law enforcement agencies, and that the

prosecution had actual or constructive knowledge of some of these

activities. Banks testified at the federal evidentiary hearing

that he did not disclose what information he had regarding the

history of LaCour and Banschenbach as informants because he did

not consider it exculpatory. Assuming that the state had an

obligation to disclose information regarding all of LaCour and

Banschenbach’s alleged informant activities,15 Pyles is not

entitled to habeas relief based upon the state’s failure to

produce this evidence because it is not material.

LaCour testified at trial that he was on unadjudicated

probation for burglary, was currently incarcerated for two

pending burglary charges to which he intended to plead guilty,

and had a conviction for bank larceny. He also testified that he

is a heroin addict and that he worked as an informant while on

federal probation. Additionally, as noted earlier, LaCour

acknowledged on cross-examination that his testimony was

motivated in part--if not entirely--by the prospect that he would

receive help from prosecutors in obtaining a lenient sentence on

his burglary charges. Banschenbach testified that he had prior

convictions for robbery, assault, burglary, grand theft, and

passing bad checks. During direct examination, the prosecutor

15 The parties dispute (1) whether the prosecution team had actual or constructive knowledge of some of the informant activities in question and (2) whether some of the informant activities alleged by Pyles ever occurred.

31 acknowledged that Banschenbach had “[b]een rather busy in [his]

life of crime.” Furthermore, he testified that he had previously

worked as an informant in a county jail. Given the substantial

body of impeachment evidence in the trial record against LaCour

and Banschenbach, “any incremental impeachment value” that Pyles

would have garnered from disclosure of additional informant

activities by LaCour and Banschenbach “does not raise a

reasonable probability that, had the [information] been disclosed

. . ., the outcome of the proceeding would have been different.”

Drew v. Collins,

(5th Cir. 1992); see also

United States v. Vgeri,

(9th Cir. 1995) (holding

that the prosecution’s failure to disclose information regarding

a witness’s past cooperation with law enforcement did not

constitute a Brady violation in light of other impeachment

evidence in the record, including testimony regarding the

witness’s extensive drug use and past cooperation with the DEA);

United States v. Abello-Silva,

(10th

Cir. 1991) (holding that the government’s failure to disclose a

deal whereby it dismissed a drug indictment against a witness who

“was crucial to the government’s case” was immaterial in light of

testimony regarding the witness’s prior felony convictions,

extensive involvement in the drug trade, and past informant

activity). The district court therefore properly denied Pyles

habeas relief on his claim that the state withheld exculpatory

evidence.

32 III. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the

district court.

33