On Appeal from the United States District Court for the District of New Jersey. (D.C. Civil Action No. 91-04456).
Before: Scirica and Alito, Circuit Judges and Pollak, District Judge*fn*
Petitioner Maurice J. Robinson, currently confined in a New Jersey state prison, appeals the district court's denial of his application for a writ of habeas corpus under 28 U.S.C. § 2254 (1988). Robinson asserts the writ should have been granted because the New Jersey prosecutor failed to correct a witness's perjured denial that his cooperation had been secured by the prosecutor's promise to tell the sentencing Judge of his cooperation.*fn1 The district court found the failure of the prosecution to correct the witness's perjured testimony was harmless error because there was no reasonable likelihood the perjured testimony had affected the judgment of the jury. This finding rested on the court's judgment that the jury had sufficient evidence before it to assess the credibility of the witness. For reasons that follow, we will affirm the denial of the writ.
A jury found Robinson guilty of: (1) murder, under N.J. Stat. Ann. § 2C:11-3 (West 1982 & 1993 Supp.); (2) armed robbery, under N.J. Stat. Ann. § 2C:15-1b (West 1982); (3) possession of a handgun without a permit, under N.J. Stat. Ann. § 2C:39-5b (West 1982); and (4) possession of a handgun for unlawful purposes, under N.J. Stat. Ann § 2C:39-4a (West 1982). Co-defendant Melvin Shark was granted a severance and a jury found him guilty of the same charges. On February 24, 1984, Maurice J. Robinson was sentenced to a thirty-year term of imprisonment for murder, with a minimum of fifteen years without parole. He also received a concurrent fifteen-year term for armed robbery, with a minimum of seven years without parole.
After exhausting state remedies,*fn2 Robinson petitioned for habeas corpus relief in United States District Court. The district court agreed the prosecutor had failed to correct the witness's testimony, but it found no reasonable likelihood that the error had affected the judgment of the jury.
In his opening statement at trial, the prosecutor informed the jury that Melvin Shark had previously been found guilty and that an agreement had been made with Shark in return for his testimony at Robinson's trial. The prosecutor stated:
Mr. Shark is going to be a witness in this trial and the State is going to call him as a witness. I would like you to understand at this point that Mr. Shark has had his day in court and has already been adjudicated. And in terms of why he would be coming here at this time, I'd like you to know beforehand that Mr. Shark denied his guilt when he was on trial and subsequently he was found guilty. He has agreed to testify for the State, and what was promised to him was merely he would be kept away from Mr. Robinson, that is it. He will -- He was told, and the extent of any promise made to him when his sentence came, his cooperation would be made known to the sentencing Judge, but no deal in terms of time, years, anything like that.
I'd also like to note to you that Mr. Shark will be testifying under what's known as immunity, because he has been recently convicted and he has not yet been sentenced, as I said earlier.
At trial, however, Shark initially denied that he had been promised anything at all in return for his testimony. On direct examination, Shark testified:
Q. Mr. Shark, in reference to your testimony in this courtroom today, was there a deal made with you so you would testify?
Q. What is your understanding of why you were -- what you expect to gain as a result of testifying here?
A. Can you repeat that one more time, please?
Q. What prompted you to testify at this particular trial after your own trial?
Q. Mr. Shark, do you know what will be done with you as a result of your trial and your conviction?
A. I know I'll be going for a long time.
Q. Did you discuss that with your lawyer?
Q. And were you promised anything in exchange for testifying here as a result of your trial?
Q. Are you telling the truth today?
On cross-examination, Shark acknowledged that he was promised immunity for his testimony:
Q. Mr. Shark, is it not a fact that you have been promised immunity from Prosecution based on anything you said in court here today?
But he still denied the agreement included making his cooperation known to the sentencing Judge:
Q. Is it not a fact, sir, that the prosecutor promised you that if you would get on that stand and testify today for the State against Mr. Robinson, they would tell the Judge of your cooperation?
A. Well, he didn't promise me he'd talk to the ...