told her she did not remember writing a letter to her brother. During the conversation with the paralegal Wright also stated that her mother had taken notes of a conversation at home, but not at the hospital as the tape indicated. Further, Wright stated that she had not given these writings to Dougherty.
The prosecution also offered a letter from Wright, written on July 10, 1993. In the letter Wright stated that she had found a letter written to her brother, but that it did not contain any reference to the three sex offenses. Additionally, Wright wrote that she had found her own notes, and believed she had incorporated her mother's notes into her own. These notes had previously been disclosed to the defense.
Gallo argues that the "rustling paper" sounds on the tape clearly indicate that the letter and notes were handed over to the prosecution. Gallo's contention is without merit. The recorded sounds are ambiguous. The sounds could just as easily be interpreted to be Wright looking through her belongings for the items. There is no other evidence in the record from which this court could conclude that Wright had either the letter or notes with her, or that she turned them over to the prosecution. Thus, the trial court's finding is fairly supported by the record and not clearly erroneous. Gallo's due process claim regarding the letter and notes is DISMISSED.
3. The Victim's Relationship with the Investigating Officer
Gallo contends that the prosecution's failure to disclose information about Wright's romantic relationship with a Redwood City police officer is a violation of his due process rights under Brady. Gallo claims that at some point during the proceedings, Wright became involved with Officer Prevot and subsequently married him. Prevot initially investigated Wright's claim of sexual assault in the hospital. However, Prevot did not testify at Gallo's trial.
Gallo claims that "information about Wright's relationship and marriage to Prevot was material evidence bearing on Wright's credibility." Specifically, Gallo argues that he could have attempted to show that Wright's testimony about the sex offenses had "jelled" at the time of trial because of "information she had received from Prevot." Gallo argues he would have suspected that "the testimony about the sex offenses was so cursory and indefinite because it was a conscious or unconscious fabrication or exaggeration stemming from discussions with Prevot." Additionally, Gallo states he would have attempted to show that Prevot, based on his police experience, suggested that Wright change the location of the sodomy from the hospital to her home.
Gallo cites no pertinent authority to support his contention that evidence of Wright and Prevot's relationship is material. Gallo relies on two California Court of Appeal/ cases involving misconduct by the defense counsel. Those cases are inapposite. In People v. Singer, 226 Cal. App. 3d 23, 275 Cal. Rptr. 911 (1990), defendant's trial attorney was romantically involved with the defendant's wife. Likewise, in People v. Jackson, 167 Cal. App. 3d 829, 213 Cal. Rptr. 521 (1985), defense counsel was involved with the prosecuting attorney. Gallo urges this Court to analogize Wright's relationship with Prevot to the relationships in Jackson and Singer. Gallo claims that the State, acting through the police officer, is involved in the impropriety. Therefore, he claims, the evidence is material.
Respondent however, contends that this evidence was not suppressed. Alternatively, Respondent claims that the relationship between Wright and Prevot is not material.
The court agrees. It is not clear from the evidence presented by Gallo whether the prosecution withheld information of the relationship. Gallo offers as proof letters sent from his counsel to Dougherty asking for acknowledgment of its existence. Dougherty refused. Therefore, Gallo asks that this court grant an evidentiary hearing to determine whether the information was suppressed.
This court declines to do so. In order for the suppression of evidence to constitute a violation of due process, the evidence must be sufficient to undermine confidence in the outcome of the trial. Bagley, 473 U.S. at 678. Prevot's involvement in the case was limited solely to the events occurring in Redwood City. Prevot was not a witness in the Santa Clara County case against Gallo. Moreover, Wright and Prevot's conduct does not rise to the level of gross impropriety practiced by defense counsel in Jackson or Singer. The affect of their relationship on the trial is far more attenuated. Accordingly, Gallo's due process claim is DISMISSED.
C. Due Process - Recusal
A criminal defendant is entitled to an impartial prosecutor who can make an unbiased use of all the options available to the prosecutor's office. Jones v. Richards, 776 F.2d 1244, 1247 (4th Cir. 1985). However, review of claimed due process violations in a state court proceeding is narrow. Newman v. Frey, 873 F.2d 1092, 1093 (8th Cir. 1989). A court may only grant relief if a prosecutor's misconduct affects the fairness of the trial. Id. Gallo contends that he was denied due process of Law in violation of the Fourteenth Amendment to the United States Constitution when the superior court failed to recuse deputy district attorney Dougherty. Gallo asserts that Dougherty's actions showed a personal and emotional involvement in his prosecution. He argues that he was prevented from receiving a fundamentally fair trial, with an impartial prosecutor. This Court disagrees.
Gallo points to several actions taken by Dougherty to support his position. Gallo argues that Dougherty's unique treatment of his case demonstrated her hostility toward him. Gallo takes exception to the following actions: Wright was the only victim that Dougherty ever visited in the hospital; Wright was the only victim whose divorce proceedings she attended; Gallo's case was the only non-homicide case in which Dougherty opposed bail; Gallo's case was the only case in which she urged a municipal court preliminary examination even though the defendant did not have counsel; Dougherty did not let her plea bargain stand until the time of trial; and lastly, Dougherty contacted the appointment administrator about her objection to an able and well known attorney. The state appellate court found that the record provided valid explanations for each of these actions. Additionally, they found that Dougherty prosecuted petitioner vigorously, and did not deprive him of a fair trial. After careful review of the record, this Court agrees.
Gallo asks this Court to speculate as to the insidious nature of Dougherty's actions. There are any number of legitimate explanations for the actions taken by Dougherty. Dougherty's failure to recuse herself is not a due process violation. Accordingly, this claim is DISMISSED.
Lastly, the Court is in receipt of communication from one of Petitioner's attorneys purporting to point out new, pertinent case law of another circuit. The Court has reviewed the proffered case finds this case inapposite from the instant matter.
For the foregoing reasons, Petitioner's Petition for a Writ of Habeas Corpus is DENIED.
IT IS SO ORDERED.
DATED: June 4, 1996
ROBERT P. AGUILAR
United States District Judge
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