This Cоurt granted applications for certificates of probable cause from Mark Jason Jones, Kenneth Eric Gardiner, and Dominic Brian Lucci to appeal the denials of their petitions for writs of habeas corpus. The cases are consolidated, and for the reasons that follow, we reverse in each.
Jones, Gardiner, and Lucci were tried and found guilty of malice murder in the shooting death of Stanlеy Jackson, as well as of possession of a firearm in the commission of a felony. See Gardiner v. State,
Shortly after 10:00 that night, near the intersection of 33rd Street and East Broad Street, James White saw two men fire military-type automatic or semiautomatic rifles
After production of records from the police file about the case in response to a 2010 open records request, the three men filed habeas petitions asserting that, contrary to Brady v. Maryland,
As the habeas petitions of each of the thrеe men presented the same assertions, the petitions were consolidated. After an eviden-tiary hearing, the habeas court determined that the claims were procedurally defaulted and denied relief. The three men applied to this Court for certificates of probable cause to appeal from the habeas court’s order. In 2014, this Court determined that the claims were not procedurаlly defaulted, granted the petitions, and remanded the case to the habeas court, directing it to perform a Brady analysis.
Upon remand, the habeas court denied relief, determining that the Yamacraw Report would not have been admissible at trial and thus would not qualify as Brady material; the habeas court rejected the argument that, if the report had been produced to the defense at trial, “additional exculpatory evidence could have been gathered” as simply speculation, and ruled that there was no reasonable probability that producing the Yamacraw Report would have changed the outcome of the trial. As to White’s habeas testimony, which was contrary to his trial testimony as discussed below, the court noted that there was considerable evidence presented at trial regarding the level оf certainty of White’s identification, and specifically discredited White’s habeas testimony. The petitioners again sought certificates of probable cause to appeal, and these appeals followed.
“ ‘In reviewing the grant or denial of a petition for habeas corpus, this Court accepts the habeas court’s factual findings and credibility determinations unless they are clearly erroneous, but we independently apply the law to the facts.’ [Cit.]” Humphrey v. Lewis,
To prevail on a Brady claim, appellants] must demonstrate that the prosecution wilfully or inadvertently suppressed evidence favorable to the accused, either because it is exculpatory or impeaching. Brady v. Maryland,373 U. S. at 87 . However, “the Constitution is not violated every time the government fails or chooses not to disclose evidence that might prove helpful to the defеnse.” Kyles v. Whitley,514 U. S. 419 , 436-437 (115 SC 1555, 131 LE2d 490) (1995). Brady comes into play only when the suppressed evidence is material, i.e., “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. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” United States v. Bagley,473 U. S. 667 , 682 (105 SC 3375, 87 LE2d 481) (1985).
Young v. State,
1. During the habeas hearing, White testified that: he told the investigator outside Club Asiа that the car the defendants were in “looked like” the shooters’ car, but that he did not recognize the three suspects and could not identify any of them as the shooters; he asked investigators to provide him a lineup for identification purposes, but they would not; he was pressured by investigators, prosecutors, and members of the community — including clergymen — to identify the defendants as the shooters; he received anоnymous telephone calls to his house that included threats to his family if he did not identify the defendants as the shooters; at a preliminary hearing, he identified Jones and Gardiner as the shooters; when he subsequently told an investigator that he could not truly identify them, he was threatened with being prosecuted for perjury if he did not testify at trial as he had at the preliminary hearing, and he was told that there would “be rioting in the city” if the defendants wеre not convicted; he then testified at trial, identifying Jones and Gardiner as the shooters;
The habeas court specifically found that White’s habeas testimony “lacked credibility.” The court further noted that the defense had information that a detective noted that White’s identification was incomplete or uncertain, and the uncertainty of his identification was fully explored on cross-examination at trial. Although the рetitioners contend that the result of the trial would have been different, if the defense had known that White definitively informed investigators that he could not identify the defendants, and that he had been coerced by the State to make a definitive identification at trial, this ignores the factual findings of the habeas court that White’s testimony that these events occurred was not credible.
2. At the time Jackson was killed, Officer B. J. Herron was assigned to patrol Yamacraw Village, a housing project in Savannah. The Yamacraw Report is handwritten, and was filled out on a Savannah Police Department form by Herron. The report shows Herron as the writer, with a preparation date of February 1, 1992, and the report is addressed to police precincts “1 & 2.” The report form’s field for “Reference” is filled in with: “Threats on citizen in Yamacraw.” The body of the report states:
I was advised by a subject that on 2/1/92 [at 1:00 a.m.] two vehicles entered Yamacraw, silver 2 door 89-91 Ford Thunderbird and a white Chevy pick-up. Both vehicles were occupied by white males who were suрposedly armed with semi-automatic weapons. All suspects appeared to have military style haircuts. Any contact with these suspects in any housing area, retain information. 10-0. [6 ] Suspects threaten to shoot blacks who hang out on corners.
Herron testified during the habeas hearing that, while he was on foot patrol on February 1,1992, a man he knew in the community came up to him and gave him the information he placed in the report; Herron could not remember exactly who gave him the information, but believed that, at the time Jackson’s killing was being investigated in 1992, he “probably could have found [him] again.” At the top of the report, in an unknown handwriting, was written, “Lt. Ragan”; at the time, Ragan was the lieutenant who oversaw the violent crime unit of the police department. In his testimony during the habeas hearing, Lt. Ragan said that he had no memory of the report being routed to him. The report was ultimately included in the police file about this case.
The habeas court found that the defendants were not provided the Yamacraw Report “and could not have reasonably obtained it”; the court also stated in its order that there was no indication the State actively suppressed it.
encompasses evidence “known only to police investigators and not to the prosecutor.” [Cit.] In order to comply with Brady, therefore, “the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in this case, including the police.” [Cit.]
Strickler v. Greene,
The habeas court also stated in its order that, “in order to be considered Brady material, the Yamacraw Report would have to be admissible evidence.” However, this is a misstatement of the appropriate standard. The admissibility of the undisclosed material itself is not a prerequisite to finding a Brady violation; the question is whether, had the material ‘Teen disclosed to the defense, the result of the proceeding would have been different,” in reasonable probability. Young, supra (Citation and punctuation omitted.) Thus, “inadmissible evidence may be material [under Brady] if it. . . could have led to the discovery of [material] admissible evidence. [Cit.]” Johnson v. Folino,
As to whether the Yamacraw Report is material within the meaning of Brady, the question is whether in the absence of the production of the report, the defendants
received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A “reasonable prоbability” of a different, result is accordingly shown when the government’s evidentiary suppression “undermines confidence in the outcome of the trial.” [Cit.]
Brownlow v. Schofield,
During the habeas hearing, investigating detectives recognized that the incident reported in the Yamacraw Report presented certain similarities to the allegations against the defendants, and would have warranted further investigation as to that incident’s relation to Jackson’s slaying. The prosecutor who conducted the trial testified that, had the Yamacraw Report been in his file, he would have either disclosed it to the defense, “or been specific about why I was withholding it.” And, the Yamacraw Report clearly would have been helpful to the defense; it was evidence that others similar in appearance were threatening a racial attack similar to that alleged to have been suffered by Jackson, but three hours after his slaying,
It is certainly true that, due to the passage of time, the man who provided the information in the Yamacraw Report was not located so as to enable him to testify at the habeas hearing, and thus the information that he might have given if his existence had been known to the defеnse at the time of trial — and what further information this might have produced — is unknown. However, even if he had merely testified at trial to a repetition of that which he had told Herron, the information would have been impactful, given how the case would have proceeded at trial.
Although White’s subsequent claims about his trial testimony do not constitute Brady violations, and thus are not grounds for habeas relief, we must consider the importаnce of identity testimony on the course of the trial. The State’s case was heavily dependent on White’s testimony and his eyewitness identification of the defendants. That testimony was attacked as unreliable at trial, as was the quality of the police investigation into White’s identification; the defense attorneys elicited testimony that the investigators failed to ask on the night of the shooting whether White could identify the suspеcts by their faces, and that the investigators conducted no identification lineup, then or later, either in person or by photograph, even though the detective who coordinated White’s view of the suspects the night of the shooting testified that the preferred method of establishing an identification of a suspect at that point in an investigation was to do a photographic lineup.
Jackson was killed shortly аfter 10:00 p.m. on January 31, 1992. There was trial testimony from several witnesses that, until 9:15 or 9:30 p.m., the petitioners were at the rehearsal of Jones’s wedding,
There were also significant racial overtones to the trial; in addition to those factors mеntioned in our prior opinion, see Gardiner, supra at 330 (1), 332 (2), 333 (4), and 334 (9), witnesses were regularly asked about the defendants’ attitudes toward members of other races; had the jury been presented with information that other persons, not the defendants, were in the area that same night, apparently ready to engage in racially motivated violence, the outcome of the trial might well have been different,. Thus, in light of the totality of the circumstances, confidence in the outcome of the
Judgments reversed.
Notes
Ballistic evidence presented at trial indicated the weapons were possibly AK-47s.
The car he identified was a black Chevrolet Cavalier with a prominent white stripe on the side.
The officer who accompanied White during this time filed her report on the matter at 11:40 p.m. on January 31, 1992.
His trial testimony included the statement that he was “positive” that Gardiner and Jones were the men he saw shooting from the car.
While the petitioners note that the habeas court’s written order does not specifically address testimony presented regarding the reliability of eyewitness testimony in the circumstances faced by White, neither the testimony, nor the habeas court’s failure to specifically address it, renders the court’s credibility determination clearly erroneous. See Humphrey, supra.
Testimony established that this was a police department code meaning that officers approaching the suspects should use caution.
Testimony presented during the habeas hearing indicated that the report only surfaced in response to the 2010 open records request for the police file about the case.
During the habeas hearing testimony regarding the distance from Yamacraw Village to the scene of Jackson’s killing varied from a few blоcks to “approximately five miles.”
Regarding Wallace’s testimony of her encounter with Jones on January 31, 1992, Jones’s commanding officer testified that Jones had signed out of the battalion on leave at 12:55 a.m. on January 30, 1992, was not due to return to duty until February 12, 1992, and would not be on base for any inspections. Wallace also testified that she saw Jones on a television news broadcast that started at 11:00 p.m. on January 31,1992, and thаt he was then reported to have been accused in Jackson’s shooting.
The only physical evidence presented against the defendants was that a swab from Jones’s hand tested positive for the presence of gunshot residue; despite prominent directives on the swab collection form stating otherwise, the person who took the sample from Jones did not “thoroughly wash and dry” his hands, did not wear gloves, and сartridge cases from the scene of the shooting were not included with the swab sample sent to the laboratory, and thus no comparison test was done between the gunshot residue from Jones’s hand and the residue from the cartridge cases. There was also evidence that Jones had handled clothing that had been worn during a machine gun range exercise the previous day, and that a transfer of gunshot residue could have occurred at that time.