Leo Wilson v. John P. Whitley, Warden, Louisiana State Penitentiary

found that judge magistrate hearing, the BARKSDALE, ry Circuit SMITH Before not disclosed Judge:1 prosecution WALTER, District Judges, and included BARKSDALE, And, HAWKINS RHESA investigating officers. robbery to the Judge: Circuit versions comparing the after report and presented in relief habeas challenges the Louisiana found judge magistrate testimony, the conviction his state Leo granted rec- respects, and in material they differed being whether robbery, the issue for armed pursuant granted that relief ommended Maryland, Brady v. violated prosecution thorough In a most claim.2 process due 373 U.S. recom- adopted district opinion, the report that disclosing (1963), by not relief. habeas granted mendation the credibil- impeach been used tended asserting that this line-up, photographic Louisi- District Judge of Western 1. District of Pierce's endorsement the court's to indicate ana, designation. sitting by magistrate Neither identification. in-court counsel his trial claimed Sixth this 2. Wilson court reached district judge nor the judge enter- object failing for ineffective ing claim. Amendment photographs used deliver room to here, II. Brady. is covered United States v. Bagley, 473 U.S. at 105 S.Ct. at 3380. Maryland, Supreme Court Giglio had earlier Court held v. Unit- suppression by prosecution that “the States, ed upon of evidence favorable to an accused “[wjhen (1972), that, 104 L.Ed.2d the ‘relia- request process violates where the evi due bility given may aof witness well be determi- guilt punish dence is material either to or innocence,’ guilt native of nondisclosure of ment, irrespective good or bad faith affecting credibility falls within 87, prosecution”. faith of the 373 U.S. at 83 154, [Brady’s] general rule”. Id. at 92 S.Ct. guiding S.Ct. at “The principle 1196-97. Illinois, (quoting at Napue 766 v. 360 U.S. Brady jury permitted is that a should be to 269, 264, 1173, 1177, 3 L.Ed.2d 1217 going hear all and evaluate relevant evidence (1959)). punishment”. to a guilt defendant’s Ful (5th 354, Maggio, v. 692 F.2d 357 Cir. ford prevail Brady, To under Wilson must 1982), part grounds, rev’d in on other 462 (1) report disclosed,3 show that was not 111, 2261, U.S. 103 76 794 S.Ct. (2) it contained evidence favorable to his (1983). Bagley: As stated in United States v. (3) defense, and that evidence was material. require- rule is based on the Sink, 1041, United States v. 586 F.2d 1051 process. purpose ment of due Its (5th not to denied, Cir.1978), 912, cert. 99 displace adversary system pri- as the 3102, (1979). 61 S.Ct. L.Ed.2d 876 The first uncovered, mary means which truth is factor is not issue.4 justice but a miscarriage to ensure that Thus, prosecutor

does not occur. A. required deliver file his entire In order to determine whether the counsel, defense evi- to disclose report contained evidence favorable to Wil sup- dence if favorable accused son, contrast, necessary detail, it is pressed, deprive the defendant of a report testimony. and Pierce’s trial The re fair trial. (narrative section) port describes the (foot- 675, 473 U.S. at 105 at S.Ct. 3379-80 as follows: omitted). and behind from came NM and he arms, free I broke folding buck his 4" with had C. Bowie he and from off. my glasses unk knocking first hit me Then They refused. knife. face L. Pierce NM, struck with knife person who as the Wilson identified Pierce then [ejnsued. Pierce was L. struggle and that, his before He testified him. struck jabbed 1 who # ground NM forced good look off, agot he knocked glasses were telling buttock back and lower Pierce L. Wilson, that and up give ground and the] stay [on him to off, I turned glasses my knocked he [a]fter 1 then Subject # money. Wanted they had if happened, what to see removing pocket back L. into went turned, [Wil- he I not. When broken his from taking 1 bill $5.00 and his wallet wrestled and behind from grabbed me son] wallet. ground. tome w[h]il[e] that also stated Pierce Leonard That took is subject ground. # 2 off the get on wanted going tried this I was with third me up and behind came person Bowie Charles from when $6.00 my three friend All gone over subject watch. He had stood knife. wanted gave and him his coming he up car and subjects heard he held and wanted un- to me then over Broad back St. he came money Florida and down fled my placed tried then was and Bowie knife Pierce knife Mr. known. Pierce or I would my L.Mr. back no avail. arch but I had them to follow side. through They went phoned he home stabbed. continued then and pants his out that took noticed my pockets and He police. They a small took he noticed wallet. then dropped it was just and cut were his subject # 1 in me with pricking they wanted were and incision made knife time good me one have hit must He left buttock.... knife. lower time, it, at that but know even by phone I didn’t was contacted Bowie' Charles A car stabbed. I was when confirmed that M. Stewart by Officer was the look-out up got C.Mr. Pierce. two L. statement above they all corner by the already during the armed down injured was Bowie ran. robbery. importance infra, critical As discussed was not that Wilson testified Pierce sign did not Pierce fact him, was instead stabbed one who otherwise that he no evidence there held a him; Wilson holding one who statement. own as his narrative adopted the point however, some back, to his knife eviden- testify federal at the (Pierce did not “abso- incident; he was during the hearing.) tiary identification, “no and had sure” lutely person following account Wilson gave the doubt” At glasses, him, off knocked robbed robbery: On him. back, punched to his knife theAt Touro. A.P. going down I was he cross-examination, Pierce normally Broad, I Touro A.P. end “cut across when first saw Wilson across station pumping go behind the closest further He testified walking field”. were weAs tracks.... railroad got face”, to him “[f]ace “less any prosecutorial standard for failure to dis- away than a foot my face”. close evidence favorable the accused: The evidence is material if there is a To the extent there are be- reasonable probability had the evi- tween the and Pierce’s testimony, dence been defense, disclosed to the they Wilson, are favorable to they result of the proceeding would have been impeach have been used different. A probability’ ‘reasonable is a credibility and his identification of Wilson.5 probability sufficient to undermine confi-

Accordingly, we turn to discrep- whether the dence in the outcome. ancies are material. Id. 105 S.Ct. at 3383. “The of materiality present B. cases in which the complains accused pros noted, As Supreme held in Unit- Cqprt ecutorial suppression of material evidence is Bagley ed purposes, [a] question[ mixed ]' law and fact rejected any it had distinction im- between calling ultimately legal for a determination”.6 peachment evidence and exculpatory Heyd, Davis v. Cir. 676, evidence. 473 U.S. at 105 1973); S.Ct. at 3380. see Ballinger v. Kerby, 3 F.3d It reasoned that 1371, Cir.1993)' (“The 1375 question of accused”, “evidence favorable to an within materiality and possible the effect of ... Brady, meaning the of “so if disclosed withheld evidence on the verdict[ ] is a mixed effectively, and used may it the question law”) (internal make differ- of fact and quotation ence between acquittal”. conviction and Id. marks, citation, omitted); and brackets Unit The adopted Court following the Rivalta, ed States materiality v. (2d 596, 925 F.2d 598 5. The district court there were material to commit the crime”. at (quoting Id. 155 n. 3 report the 14:24). between and Pierce's La.Rev.Stat. testimony concerning the Considering manner in which only the version robbery victims, the approached three assailants the report, described in the principal. Wilson was a identity person Antoine, the 334, who struck Pierce in See State (La.Ct. v. 444 So.2d 337 face, pushed the ground, Cir.1983) (defendant App. to the and took 1st the participated in pocket. from his robbery It armed principal, concluded that though the even he did report information son, guns in the not hold register, personally favorable to Wil- the or empty the cash finding according where he "knew in advance [co- of clearly implicated was "not robbery plans, part defendants’] took the at in the of discussion proposed the robbery, knew [one of the co-defen- air. gun, dants] had the money, received the stolen The implicate does Wilson. As the dis- and drove vehicle the which enabled them to flee noted, trict report’s descrip- court fits the crime"); the scene Lawry, the of 430 So.2d at 2”, Subject tion "Wanted of # discussed (evidence infra. target defendant "chose the of The report states subject "wanted # 2 took robbery, the recruited perform two men to the $6.00 from Charles Accordingly, Bowie". robbery, guns supplied to be used in the Wilson; exculpatory instead, is not as to getaway and drove the prove car” sufficient to implicates him perpetrators as one of the three of guilt principal). defendant's as a robbery, the armed each of aided and whom abetted others. parties incorrectly The assert that the district 6.' jury are not instructions included materiality "finding” court's subject record; therefore, we are unable to confirm that clearly erroneous Bagley's standard of review. govern- was instructed on law Louisiana (whether materiality of formulation standard ing liability principals. of Under Louisiana there is a reasonable that the out- law, "[ajrmed robbery anything is the theft of proceeding come of the differ- person value from the of another which is or disclosed) ent had the evidence been is derived another, the immediate control use of force 668, Washington, v. Strickland 466 U.S. intimidation, or dangerous 2052, 2070, while armed with 80 L.Ed.2d 674 weapon”. Lawry, (1984). v. 430 So.2d Bagley, 155-56 473 U.S. at 105 S.Ct. at Cir.1983) (La.Ct.App.2d n. 4 (quoting Strickland, (citing La.Rev. 3391-92 466 U.S. at 14:64). person Stat. A 2068). is criminally Strickland, liable as a S.Ct. at In 466 U.S. at absent, principal, present "whether or 104 S.Ct. at held that Court same they directly whether constituting commit the inquiry act in the context of ineffective an assistance offense, commission, aid and abet in its or presented of counsel claim a mixed directly indirectly procure counsel or another law and fact. however, indicates, transcript — —, U.S. Cir.), cert. knew that counsel Wilson’s (same). (1991) of Officer During cross-examination existed. investi- in the involved became Bayard, who robbery,8 Wil- after months two gation when asked counsel son’s ‘any concern evidences “Bagley Bayard signed it. dated, wrote who failure prosecutor’s [e]ffect adverse Septem- dated report was responded prepara might respond robbery), but (the day of the 10, 1982 ber defendant’s presentation tion name. author’s recall n. 4 ”, Black, at 966 Smith case’ Montev- that Stewart stated prosecutor 683, 105 at S.Ct. Bagley, (quoting initially inter- officers were erde According J.)). Blackmun, (opinion report. prepared the victims viewed materiality standard Bagley although ly, the trial court request, counsel’s At Wilson’s re general request, specific ato applies for those subpoenas the issuance ordered may proper all, “it request at or no quest, officers. more ‘the accused weigh in favor evi certain requests the defense specifically attempted to cross- counsel Wilson’s When notice prosecutor dence, putting contents, thus report’s Bayard about examine Whitley, 926 James objec- hearsay value’”. of its the State’s sustained Bagley, Cir.1991) (quoting 1433, 1439 cross- event, counsel Wilson’s tion. (opinion 682, 105 state- their about victims both examined J.)).7 Blackmun, day officers ments of defense presentation During the robbery. of one only a noted witnesses, trial, made to Prior (not identified (“Motion officers subpoenaed Brady material the two request general courtroom. name) Discovery entered by Particulars for Bill at federal subsequently identity fixed or does obtain State “Did Inspection”): Montev- Richard hearing, when evidentiary or evidence exculpatory the State (the Stewart of Michael so, erde, partner if defendant favorable evidence the hear- prior to author, died report’s of such nature what the officer he was ing), testified “None”. responded, evidence?” (citing James, 1439 F.2d at 926 James, request. See quoted in Bagley, passage from 7. The 3383, 682-83, at S.Ct. 105 U.S. at only by Bagley, 473 joined opinion, Blackmun’s Justice Black, Blackmun, J.)); 668, Smith (opinion of at Bagley, 473 3384 See O’Connor. Justice 685, at Bagley, 473 U.S. (quoting 3376; S.Ct. 2 at 105 n. id. at 963 F.2d see 904 682-83, at S.Ct. 105 J., Burger, White, (opinion Black- joined 3383-84 at (opinion of S.Ct. 105 at 3385 C.J., J.) ("Given flexibility speci request’s regard Rehnquist, mun, J.)) ("Bagley did nature inherently factbound materiali assessment of standard pertinent ficity as I see applied, will be specific to which it response to a cases incomplete ty, that 'an in rele- on the attempt to elaborate reason no of certain defense only deprives the request not specificity of the inquiry of the vance representing evidence, effect also has but disclosure, generally either request for defense’s not exist.' does the evidence defense However, case”.). respect to this with not affect specificity did noted that Court Ritchie, S.Ct. 107 Pennsylvania figured as of review standard different (1987), majority of the a 40 94 L.Ed.2d ”.) 'totality of circumstances’ aspect of one of Justice portion approval that cited Court v. Wein original); United (emphasis in that, "[ajlthough the noting opinion, Blackmun’s Cir.1989) (5th 6 traub, 1261 n. 871 F.2d does material exculpatory obligation to disclose at U.S. at Bagley, 473 (citing request, specific a presence of depend on the J.)) ("The Blackmun, fact (opinion of Ritchie's specificity degree of we note that request is ... specific a defendant court’s bearing the trial may a request may assess consider reviewing court a factor materiality of the on remand assessment evidence”). materiality withheld ing the at n. Id. at nondisclosure”. 682-83, 105 at Bagley, 473 U.S. (quoting Pierce, from photographs Bayard Blackmun, J.)). showed (opinion of at one of identified Justice applied cited has also Our court robbers. specificity of regarding the opinion Blackmun’s to in transcript. referred the trial The rec- Accordingly, Brady request Wilson’s is not supports ord therefore the inference that the weight entitled favorable in our assess- author, Stewart, report’s present ment trial. of the materiality of the undisclosed testify. He did not Black, information. See Smith v. 904 F.2d at 966 n. 4. Wilson’s trial counsel the feder- hearing al evidentiary that he did not receive copy a report prior trial, during In assessing the materiality of undis did not learn of the day until the impeachment closed evidence, “we must con before evidentiary hearing. fed- Wilson’s sider the nature evi eral questioned habeas counsel trial counsel dence improperly withheld and the additional about the references to the trial evidence of the guilt independent defendant’s transcript: disputed testimony”. United States v. Q. you questioned When the officers Weintraub, Cir. existence was dis- 1989).9 “The materiality material cussed, you at exactly did that time know depends almost entirely on the value of the what that was? evidence relative to the other evidence mus No_ A. But it was obvious that there tered the state”. Collins, Edmond v. was some serious differences the de- (internal Cir.1993) quota scriptions given beforehand and [Wilson] omitted). tion marks and citation For exam [sic ] the time from Iwhat had come to ple, when the testimony of the witness who during learn the trial of the ease. And might impeached have been by the undis questions for[,] that’s all the attempt are closed evidence strongly corroborated determine from the officer who additional evidence supporting guilty ver report[,] handled prior descrip- dict, the undisclosed generally is not tions. material, found to Weintraub, 871 F.2d at apparent It is during Wilson’s 1262; but, hand, on the other “where the aware, counsel very least, at the that a withheld evidence seriously undermine report existed, but was unaware of its con- the testimony of key witness on an essen learning tents. After at trial about the exis- tial issue or there is no strong corroboration, however, tence of the Wilson neither the withheld evidence has been found to be

requested copy a nor asked the court to material”.10 Id. it, camera, review in to determine whether it Nearly all of the evidence at trial consisted contained any And, favorable evidence. al- of Pierce’s identification testimony, sup- though judge, the trial request at the of ported by testimony Bowie, the who was counsel, Wilson’s subpoenas issued for the identify able to only by his build.11 investigating officers, although Officer There was no other corroborating evidence of Stewart, report’s author, the present guilt. Thus, Wilson’s eyewitness Pierce’s trial as a result and testify, available to Stew- testimony was essential to Wilson’s convic- art was not called as a witness. tion. Our court has noted that is a “[i]t light facts, In of these we cannot commonplace conclude eyewitness that testimony is that prosecutor’s the respond failure to highly regarded to by juries, rather more than general request Wilson’s objective material its appraisal might warrant”. adversely trial Black, affected strategy. counsel’s Smith v. 904 F.2d at 967. According- Collins, 9. See Drew v. Whitley, Williams 940 F.2d 132 Cf. 1992) (incremental impeachment 1991) Cir. (remanding value Cir. hearing from for evidentiary minor materiality taped report inconsistencies between witness' in which victim's wife, and written statements who was the identify did raise a witness to not reasonable defen- murderer, probability dant the having as had the admitted to statement visited been dis counsel, murder). a shortly methadone clinic closed to defense before the the outcome the denied, proceeding different), have would been cert. -, - L.Ed.2d 11. Bowie testified at get trial that he a did (1993). chance to look at facial Wilson’s features. the that Monteverde reason- is a there determining whether five”.13 ly, in victim’s accurately reflect to supposed is trial of the outcome that able fur- He testified officers. statements is on different, focus our been have tran- a verbatim is not however, that it ther, that information contains whether victim’s cross-examination, scription statements.14 used, on could have credibili- Pierce’s between discrepancy undermine significantly to The first assail- testimony involves ty.12 (Pierce is report states approach. ants’ our to importance noted, of critical As came said) men two having that as reported discrepan- materiality of analysis of from behind a third Pierce from behind report was by which manner cies is he Pierce testified pumping station. officers Monteverde, one of prepared. left, field a across man cut saw hours within Pierce interviewed who sta- pumping behind from came evidentiary another federal at the robbery, testified him with behind tion, another by prepared report was hearing contains, addi- But, a knife.15 year during the Stewart, died partner, de- in which narrative indepen- tion no he had hearing; prior to re- approach the assailants’ scription of reflected events recollection dent features facial ported, procedure normal “[t]he report; their seen had Pierce If of them. witness, ... two the victim interview facial their described faces, not have could very he then key points down write re- in the reflected manner in the you features where an area relocate thereafter soon enti- addition, a section it contains narra- report, the write can reflect port.16 Scaglione, 446 report was Cf. court district 12. The cita Cir.) (internal quotation marks (5 184 th dif- because, considering marked “the material omitted), cert. tions statement initial Pierce's between ferences (1971): report would testimony, police and his 3500,] Act, § [t]he U.S.C. informa- the Jencks [Under substantial Wilson with provided as his testimony”. has the witness inquiry is whether Pierce's impeach tion investigator’s selec- product the sole "Pierce own concluded It interpolations^] tions, impeach- pre-trial, interpretations identify Wilson eyewitness to use permitted should affected the defense testimony so that of his ment done has not witness If the impeach him. it to the trial”. outcome language, to use grossly unfair so it of someone interpolations magistrate interpretations and by the questioning response to 13. In impeach him. "normal else reiterated judge, Monteverde to "relocate reports was preparing procedure” was mate- that this shop found district donut be a whether place quiet to a version, because, take our time rial difference we could the station back view opportunity greater from the accurately we can it as write therefore, his report; the in described received”. than as we would information credibility. his testimony enhanced in- Weintraub, F.2d 14. See description following on statements based claim the report contains a volved The "N”; race, "UNK”; not were testimony name, that during subject: a witness' first the of sex, summarizing 20”; birth, height, the “M"; “DEA-6” "APX in a of included date investigators. Our Sub- "Wanted "5'7"”; weight, For statements "120”. witness’ and verbatim not reports were in hair a the DEA-6 for black that checked noted are ject” boxes no. statements, mustache, pretrial black witness' goatee and style, a accounts "Afro” short " concise, ‘short, face, summaries eyes, small a were instead brown round complexion, to the recounted as the facts The teeth, appearance. dirty version nose, witnesses' a and good (quoting Description/Cloth- at 1260 agents' ”. Id. "Additional entitled section Cir.1985)). Merida, Teeth", F.2d the fol- contains and ing—Tattoos—Scars testi- piece "Thus, specific jeans that with the fact blue off "Eyes squinted, cut lowing: necessar- a DEA-6 socks, in mony 4" possession is not included in T-Shirt, sneakers w/o witness, credibility the the ily a reflection knife”. folding buck agent's tran- of an may result but instead name, as: described subject is second The Considering "the re- techniques”. Id. scription birth, "M”; "N”; sex, race, date "UNK”; our court process”, this summation alities “5'7""; weight, "150". 20”; height, "APX under prosecution was that concluded duty are checked Subject” no. boxes For "Wanted report. Id. DEA-6 to disclose “Suspects tied Offense”, Actions Before in The district interpretation court’s checked, which boxes are cryptic for both “wanted labels used in to describe subject” area”, perpetrators no. and no. (One in certainly plausible. “loiters up victim”, “approaches why “walks wonders report used, from be- author hind”, in sentences, three consecutive “follows on foot”. victim three differ- (“first ent NM”, terms 1”, unk “NM # discrepancies other found to be mate- 1”) Subject “Wanted describe, # apparent- rial the district court concern the identity ly, individual.) any event, same con- of the perpetrator struck who Pierce sidering the circumstances of report’s face, pushed down, him and took money. his preparation, the fact that Pierce neither report, quoted supra, states “the signed nor adopted otherwise the report, and NM, unk first with knife struck L. Pierce the lack testimony about the [ejnsued”; struggle face and that Pierce was author, either Pierce or its extremely ground forced to the 1”, “NM # difficult to impact, evaluate any, if jabbed buttock, the lower back and disclosure report, and cross-examina- telling stay him to ground give up tion of Pierce about discrepancies be- money; Subject and that “Wanted # 1” tween it and his testimony on direct examina- then “went into” pocket, Pierce’s back re- tion, would have had on the outcome of the wallet, moving his taking bill. At $5.00 trial. trial, Pierce testified perpetrator As our court stated in Lindsey King, later identified as up him “[wjheth- Cir.1985), go through tried to pockets; his that he hit er it is reasonably probable that a different free, Wilson and broke but then Wilson hit might result have obtained had the evidence him, knocking glasses off; his that Wilson disclosed [can be] a agoniz- grabbed him from behind and wrestled him ing In making closeness”. the close call ground; to the “guy” with the knife presented here, we must not solely focus placed side; the knife in his “they” and then testimony between Pierce’s through went pockets his and took his mon- report. and the We must consider also items ey- (1) which are date, time, consistent: interpreted district court location of robbery, the number of assail- using NM”, 1”, terms “first unk # “NM involved, ants money amount of tak- Subject and “Wanted # 1” to refer to the en from each of the victims are the same in same individual —an assailant than Wil- (2) both the report and testimony; Pierce’s son. It therefore according concluded physical Wilson fits of “want- report, an assailant other than Wilson subject ed report, #2” and Pierce’s Pierce, struck him ground, wrestled to description of Wilson at trial is consistent and took version that differed report’s (3) with the description Wilson;17 —a materially from testimony Pierce’s trial testimony suspect third Wilson struck him glasses knocked during stood watch is consistent off, grabbed him from behind and (4) wrestled with the report; and testimony ground, “they” took his that Wilson held him while the other assail- money. ant stabbed him is consistent hair, long, build, for heavy stocky black day brown on the robbery, responded: Pierce complexion, long shape, eyes, large facial brown 5'7"”; big”; hair, "somewhat "[a]bout "a of lot nose, teeth, good dirty appearance. and A box is large"; style, somewhat "[h]igher hair "bush” Hair”, also checked under the section for "Facial side”; top on the wearing than on the a short- portion but this illegible, and it is sleeved, light jeans, blue shirt and cut-off blue unclear whether “neat” or "unshaven” was socks; and tennis large” shoes with no a “rather space checked. the In description, for additional face”, nose with "somewhat eyes acne on his subject the wearing “light second is described as closed”, that were "somewhat "a lot of on flesh” shirt, blue jeans, cut off blue sneakers w/o head, forehead; 19”, his age and a “low” "18 or socks". complexion dark, light “in and between” and a trial, "stout, (not 17. On at "skinny”) cross-examination when asked to muscular” build. state how had he described Wilson to the report’s the Because inci- a small noticed states which interpretation an subject to robbery is In addi- # 1”. subject by “wanted sion presented incriminating than less the rob- regarding testimony tion, Pierce’s should testimony, State the Pierce’s the version with consistent generally bery is of conduct although the But, it. disclosed Bowie, the to testified robbery the of by the affected have been might the other victim.18 conclude so, cannot we do to failure strong that, had present not did Finally, Wilson is a reasonable there alibi Although 12 the trial identity. disclosed, outcome the mistaken for case been incul- Considering the the the time at different. been testified witnesses the version some nature exculpatory, football playing patory, was robbery, Wilson consistency with appel- report’s the the state agree with the away, we distance opportu- Pierce’s testimony, testimo- of their much characterization late court’s his and Wilson, robbery during the v. Wilson State nity to see definite”. than ny as “less trial, at of Wilson noted, identification very those definite that court As at 657. 463 So.2d testi- Bowie’s and consistency to fix events reason no “had witnesses testimony of definite than less mony, and weeks until in their minds robbery day of the say that witnesses, cannot we or, alibi charged Wilson’s was [Wilson] when thereafter has the trial the outcome confidence our later months or six eases, five until most to failure by the State’s undermined out sought them mother [Wilson’s] when report.20 disclose at 656.19 Id. witnesses”. him, wres- he ... punched he glasses. After identify noted, Bowie 18.As was he ground.... [W]hile to the tled him described Bowie At his build. with ground, man wrestling Leonard as follows: money. my He took me and 4:00_ to came the knife my- was It around left school [W]e guys rob help over back went the route We took Pierce. Leonard and self gave the knife with the man we Leonard. had ... and pumping station going past the holding that was guy [Wilson] Ave- Florida knife towards A.P. Touro go down back going Leonard. around wereWe .... nue knife "held the came dude that Wilson when testified ... Bowie station pumping first pumping station. one that and the back back Leonard's around from out, guy pockets and through his go another came proceeded time he same At knife put it wearing a he a knife and was with money”; that Wilson us and from behind came take his man jeans, third white and back blue Pierce's and cut-off light in Mr. shirt blue us from blocked and he left from across socks. without tennis shoes behind from the man and the left going ... blocking us was station that the pumping contended appeal, On direct 19. back So, in Leonard’s knife they put the right. trier a rational insufficient evidence was money asking for Leonard ... he was testimony and of his disbelieve fact could ground they wrestled and Wilson, he hit him and So.2d alibi witnesses. doing man with they were while appellate state contended He also my for and asked me to me knife came polygraph consider court should back he went gave $6 and money him and I told his witnesses one of (indicating he wrestling Leonard. was guy that at the trial) he introduced the truth the man knife to gave the knife one with at 657. trial. Id. a new hearing his motion they proceeded holding Leonard thorough well-reasoned extremely an pockets and take through his go rejected those appellate court opinion, state ran, that, they just after pockets and out of Id. contentions. coming. a car was they left because walking Pierce's that he Bowie are issue example, the For Leon- side, wrestled man that that "the right eyewitness’s in an compelling those than far less down, of both the left he cut across [Pierce] ard testimony in statement undisclosed up at. he came that is of us Cir. Lindsey King, why he one. That the closest Leonard conviction capital 1985). murder Lindsey's wrestled grabbed Leonard testimony of two rested death sentence identifying cross-examination, coun- defense ground”. On prosecution did eyewitnesses. The doing dur- he saw Wilson what Bowie sel asked them by one statement earlier an disclose not responded: robbery, Bowie ing the Al- face. perpetrator’s see the not he did Leon- hit and he ... up to Leonard [H]e testi- eyewitness’ identification though jaw.... [H]e him in punched He ard. that, in court concluded positive, our mony was his broke glasses and Leonard’s off knocked [t]hus, ... eyewitness Pierces’ testimony was essential to Wilson’s conviction our [and] bottom, At rule is focus is on whether contains infor- seeking methods for due process— ensure mation that could have been used on cross a fair trial. Wilson received that. Accord- examination, to significantly undermine ingly, we judgment REVERSE the Pierces’ credibility.” (majority opinion p. district court and REMAND for consider- 439). police The report contained only ation of Wilson’s Sixth Amendment claim. capable of providing the defense REVERSED AND REMANDED. with an opportunity to undermine Pierce’s credibility. His testimony was by enhanced WALTER, Judge District dissenting: a sworn version of the robbery that allowed I respectfully agree dissent. I with the him greater opportunity to view the rob- majority that question “the determinative is bers than the account described the re- ‘material’; whether the report is, was [that] port. Pierce’s credibility was further but- whether ‘there is a reasonable by tressed testimony that he “absolutely was that, had Wilson, disclosed to sure” and had “no doubt” that Wilson was the result trial would have been person who robbed him. Pierce testified different.’” United States v. Bagley, 473 that Wilson was “face to face ... less than a 667, 682, 87 foot away my face.” police The (1985). However, L.Ed.2d 481 I disagree clearly material to the defense it majority police that a report, sworn provides evidence that contradicts Pierce’s unsworn, adopted not, is not “material” trial testimony regarding his opportunity to it directly calls into the accu- view his attackers. Without the ability to racy and credibility testimony use, of, or even know the police inconsistent given by the State’s sole witness able to report of officer, the investigating the testi- positively identify Wilson as one of the rob- mony provided by the State’s sole identifying bers.1 witness all was impregnable. Wilson majority recognizes that other than deprived right of his to a fair trial. See the testimony victim, of the other who Giglio identi- States, v. United 405 U.S. fied by build, his “there was no (1972) (defendant’s 31 L.Ed.2d 104 other corroborating evidence guilt of Wilson’s rights fundamental process of due were vio- light poor circumstances for identification cutor to establish fingerprint placed that his presence at the scene of the defendant’s on the door at the time robbery rather companion, striking "bore a who resemblance” than at some other agreed, time. Our court defendant, the undisclosed statement was holding that the police victim’s statement to the Id. materiality material. at 1042-43. The evalu- "is evidence of goes the sort that ation also to have by seems been influenced directly to a substantive issue and could be used fact that Lindsey capital was a case and there in urging that testimony the in-court has been possibility was “a real wrong that the man is to 'improved’ by the erroneous addition of what the be executed”. Id. prosecution support theory”. needed to its Id. at example, As another at issue significant are also less those in than Monroe v. majority 1. The bases its on decision Blackburn, follow- (5th Cir.1979), 607 F.2d 148 cert. ing: police report unsigned unac- Pierce, knowledged police report (1980), con- guilt which the crucial evidence of many tained testimony similarities to the trial was the fingerprint defendant’s taken from the gave and the other victim a similar account and door handle of the victim’s truck. Id. at "identified” victim, majority build. The 152. At admitted implicate states that "the does Wilson ... get good cross-examination he did not look implicates perpetrators him as one of the at identify three the robber positively and was able to such, robbery, of the armed each of them defendant as aided and that he abetted disagree. heard a noise the others.” the door Footnote 5. I of his truck immedi ately But, police robbery. report merely gives general before descrip- Id. state ment to the tion of robbery, two hours after three armed robbers victim’s hearing the victim did not mention they account noise. Id. events unfolded. It does identify defendant contended particular victim's testi Wilson in as one of the mony about the prose- was relied perpetrators. noise im evidence non-disclosure lated credibility of reliability and peached ev impeaching potentially key witness presented never idence v. Ox States consideration) United See Cir.1984) (3rd 1298, 1313 man, significantly evidence (when impeaching a wit quality incriminatory impairs the de testimony is disclosed ness’ granted must fense, a new incriminating witness anof truth attacking the significant affect” testimony “might fulness doubt reasonable jury’s assessment trial). outcome thereby affect

Considering wrongfully with- evidence, it was it contained prosecution, by the the rob- account different substantially court, had open presented bery than defense disclosed been the evidence effectively, result used been differ- probably proceeding dissent. respectfully I

ent. America, STATES

UNITED

Plaintiff-Appellee, MARTINEZ, Henry

Patrick Defendant-Appellant.

No.

Summary Calendar. Appeals, Court Circuit.

Fifth 29, 1994.

July notes reporting [to] Leonard Pierce stated of- trial) (fair process For obvious due M. ficers Stewart and R. Monteverde that reasons, evidence, inas issue on PM and he Charles Bowie 9-10-82/4:30 "Brady rights puted report police are denied infor where the was used defense at trial fully purposes impeachment, despite mation was available to the defendant and for the fact was, obtaining presenting wrongfully probability, reason for not and such in all prosecution); information lack United was his of reasonable dili withheld States v. 551, Cir.1981) (consider Dean, 92, (5th gence”. Fogg, F.2d United States v. 722 652 559 F.2d 95 (5th 1983) ing relationship (deputy defendant’s close with two wit Cir. sheriff who testified for trial, easily nesses testified for Government de defendant could have told defendant the could have grand fendant obtained contents of their content of his state trial), denied, ments); Black, 950, grand jury statements before cert. see also Smith v. 904 F.2d 905, 1751, (5th Cir.1990) 456 (1982). 102 72 L.Ed.2d 162 (Brady "exempts 964 U.S. S.Ct. information that the defense other obtained from by exercising diligence”), sources reasonable cert, granted judgment vacated on 4. Under Louisiana law in effect the time of - -, grounds, U.S. 117 trial, police reports were not discover- Wilson's (1992), part L.Ed.2d 609 reinstated in relevant on Whitley, Kirkpatrick See able. remand, (5th Cir.1992); 970 F.2d 1383 Cir.1993). Louisiana amended Wicker, (5th Cir.) States v. F.2d public provide public records for its statutes to (no Brady spe violation where defense no reports. of initial See Hudson v. Whit- disclosure information, request Cir.1992). cific for fee witness defense ley, At the government paying counsel was aware that evidentiary was hearing, Wilson federal expenses during proce witness’ hotel his mother from the obtained information), And, payment dure public attorney’s argument, witness fees is office. oral district - -, t. not avail- the State conceded that the cer (1991); Maggio, proceed- post-conviction 116 L.Ed.2d 439 able to Wilson until the Fulford (no ings. 692 F.2d at 357 reversible dis- error where station, field ... a pumping around A.P. Tureaud lake bound walking were station pumping my left N. reaching Upon Broad St. toward across cut guyA my right. he noticed Tureaud A.P. St. and Broad guy come another I saw field. Pierce didn’t L. him. behind male unk blk came one another station pumping continued them and any attention pay guy knife. awith me reaching from behind Upon Ave. Florida down home my back knife put the knife L. Pierce A.P. Tureaud Ave. Florida money and I my give me told from behind come NMunk third saw a cut across guy Bowie. C. he refused toward station pumping go into he tried me and up unk first two field states L. Pierce I that.... stopped I also my pockets demand

Case Details

Case Name: Leo Wilson v. John P. Whitley, Warden, Louisiana State Penitentiary

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Aug 24, 1994

Citation: 28 F.3d 433

Docket Number: 93-3201

Court Abbreviation: 5th Cir.