PEOPLE v CHENAULT
Docket Nos. 146523 and 146524
Supreme Court of Michigan
Decided April 4, 2014
Rehearing denied at 495 Mich 998
495 MICH 142
Argued December 12, 2013 (Calendar No. 6).
In a unanimous opinion by Justice MCCORMACK, the Supreme Court held:
Brady and its progeny do not support a diligence requirement, and Lester must be overruled.
1. Brady held that the prosecution‘s supрression of evidence favorable to an accused upon request violates due process when the evidence is material to either guilt or punishment, irrespective of the prosecution‘s good or bad faith. The United States Supreme Court articulated the essential components of a Brady violation in a three-factor test: (1) The evidence at issue must be favorable to the accused, either because it is exculpatory or because it is impeaching, (2) the prosecution must have suppressed that evidence, either willfully or inadvertently, and (3) prejudice must have ensued, that is, the evidence must be material. The government is held responsible for evidence within its control, even evidence unknown to the prosecution, without regard to the prosecution‘s good or bad faith. Evidence is favorable to the defense when it is either exculpatory or impeaching. To establish materiality, the defendant must show 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. This standard does not require demonstrating by a preponderance of the evidence that disclosure of the suppressed evidence would have ultimately resulted in the defendant‘s acquittal. The question is whether in the absence of the suppressed evidence, the defendant received a fair trial, that is, a trial resulting in a verdict worthy of confidence. In assessing the materiality of the evidence, courts must consider the suppressed evidence collectively, rather than piecemeal.
2. In Lester, the Court of Appeals added an additional requirement to the Brady test: that the defendant did not possess the evidence and could not have obtained it himself or herself with any reasonable diligence. Neither the United States Supreme Court nor the Michigan Supreme Court has endorsed this element. Any concerns that a diligence requirement might address are already confronted in the context of Brady‘s suppression requirement and the Sixth Amendment‘s guarantee of the effective assistance of counsel. A diligence rule of the sort adopted in Lester is contrary to Brady. The Brady rule is aimed at defining an important prosecutorial duty; it is not a tool to ensure competent defense counsel.
3. Defendant‘s Brady claim failed because thе suppressed evidence was not material to his guilt. The prosecution conceded that the evidence in question was suppressed, leaving the questions of whether the suppressed evidence was favorable to defendant, either as exculpatory or impeaching evidence, and whether it was material. Only three people witnessed the shooting. Other than Holloway‘s and Chambers‘s testimony, no other evidence at trial identified defendant as the shooter. Because the videotaped statements could have impeached Holloway and Chambers as well as undermined the strength of Holloway‘s identification of defendant, the evidence was favorable to the defense. The suppressed evidence was not material, however. The question was not whether defendant would more likely than not have received a different verdict with the evidence, but whether in its absence defendant received a fair trial, understood as a trial resulting in a verdict worthy of confidence. Even in the absence of the suppressed evidence, defendant received such a trial because the cumulative effect of the evidence was not material. The promises of leniency made to both Holloway and Chambers were not material; they were not conditioned on any behavior on their part. The evidence would not have undermined Holloway‘s identification of defendant in a material way. Despite minor discrepancies, Holloway identified defendant with confidence, and her qualifications about her ability to view the shooter did not undermine the overall strength of her identification. The suppressed evidence also did not contain information that would lead to the conclusion that defense counsel would have asserted that Holloway misidentified defendant rather than the cover-up theory pursued at trial.
4. Defendant could not establish the prejudice necessary to prevail on his claim of ineffective assistance of counsel. Defendant claimed that defense counsel was ineffective for failing tо investigate and acquire the recordings during trial. Defendant could not establish a Brady violation because the suppressed evidence was not material, however, and Brady materiality is assessed under the same reasonable-probability standard as that used to assess prejudice for purposes of ineffective assistance of counsel.
Court of Appeals’ result affirmed.
Under Brady v Maryland, 373 US 83 (1963), the prosecution‘s suppression of evidence favorable to an accused upon request violates due process when the evidence is material to either guilt or punishment, irrespective of the prosecution‘s good or bad faith; the controlling test is that articulated in Strickler v Greene, 527 US 263 (1999): (1) the prosecution has suppressed evidencе (2) that is favorable to the accused and (3) viewed in its totality, is material; it is not necessary to show that the defendant did not possess the evidence and could not have obtained it himself or herself with any reasonable diligence; evidence is favorable to the defense when it is either exculpatory or impeaching; to establish materiality, the defendant must show 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, which does not require demonstrating by a preponderance of the evidence that disclosure of the suppressed evidence would have ultimately resulted in the defendant‘s acquittal; the question is whether in the absence of the suppressed evidence, the defendant received a fair trial, that is, a trial resulting in a verdict worthy of confidence; in assessing the materiality of the evidence, courts must consider the suppressed evidence collectively, rather than piecemeal.
Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Jessica R. Cooper, Prosecuting Attorney, Thomas R. Grden, Chief, Appellate Division, and Marilyn J. Day, Assistant Prosecuting Attorney, for the people.
Elizabeth L. Jacobs for defendant.
Amici Curiae:
David A. Moran and Imran J. Syed for the Michigan Innocencе Clinic.
Kym L. Worthy and Timothy A. Baughman for the Prosecuting Attorneys Association of Michigan.
MCCORMACK, J. In this case we consider the proper test for applying the United States Supreme Court‘s
We hold that a diligence requirement is not supported by Brady or its progeny. Thus, we overrule Lester and reaffirm the traditional three-factor Brady test. Because the defendant cannot establish that the suppressed evidence was material, however, his Brady claim nevertheless fails. Accordingly, we affirm the result reached by the Court of Appeals.
I. FACTS AND PROCEDURAL BACKGROUND
The defendant‘s convictions for felony murder,
On June 29, 2008, Chambers arranged a transaction between the defendant and Harris. The defendant and Chambers, together with several others, met Harris on a side street in Pontiac. Harris pulled up behind the defendant‘s car. Holloway was in Harris‘s passenger seat. As both Chambers and the defendant approached Harris’ car, shots were fired at Harris, and he was struck in the head.
The Pontiac Police Department conducted an investigation and interviewed Holloway on June 29 and July 2, 2008, and Chambers on June 30, 2008. All of
Holloway was more forthcoming in her second interview than in her first. At her first interview, Holloway told the police that two unknown men walked up to the car and shot Harris. During her second interview, which took place after Harris died on June 30, 2008, Holloway said that Harris had been shot as part of a drug deal. Although Holloway identifiеd the defendant in a photo array, neither of Holloway‘s written statements mentioned Chambers‘s presence. According to Wittebort‘s report, Holloway said that she did not get a good look at the shooter but that she could identify him. The report also revealed that she confidently selected the defendant‘s photo from an array.
The defendant never denied that he was present at the scene of the shooting, and most of the facts were likewise not in dispute. The sole question at trial concerned the identity of the shooter. Only the defendant, Holloway, and Chambers witnessed the shooting and, unsurprisingly, they did not agree about what happened: the defendant identified Chambers as the shоoter while Holloway and Chambers identified the defendant.1 There was no physical evidence to tie either the defendant or Chambers to the shooting. The defense theory was that Chambers shot
On the last day of trial, the prosecution called Wittebort as its final witness. When questioned, Wittebort was surprised that Holloway‘s second written statement did not confirm that she had mentioned Chambers and was confident that the video recordings would verify his recollection. He was also surprised to learn that the recordings had not been provided to the defendant. On March 11, 2010, the defendant was convicted of felony murder and felony-firearm.
On April 13, 2010, defense counsel filed a motion for a new trial and requested a copy of the interview recordings. Later, counsel amended the motion to add claims of ineffective assistance of counsel and prosecutorial misconduct regarding the failure to provide the recorded statements. There was no dispute that the defendant never had the recordings.2 The trial court conducted two evidentiary hearings on the motion. On February 29, 2012, Wittebort testified that the police generally let the prosecution know when recordings are available, but the regular practice was to provide them only “if there‘s an admission or something of that nature from the person of interest or defendant in that matter.”3 On March 8, 2012, the trial court granted the defendant‘s motion for a new trial, concluding that his due process rights were violated pursuant to Brady because the suppressed videotaped recordings undermined confidence in the outcome of the trial.
The Court of Appeals reversed the trial court. People v Chenault, unpublished opinion per curiam of the Court of Appeals, issued November 27, 2012 (Docket Nos. 309384 and 310456). The Court of Appeals analyzed the Brady claim using the four-factor test articulated in Lester. The Court held that trial counsel had not exercised due diligence, and that the suppressed evidence was neither favorable nor material. It also held that the defendant was not denied the effective assistance of counsel because there was no prejudice.
On June 5, 2013, this Court granted leave to appeal, directing the parties to address:
(1) whether the Court of Appeals’ decision in Lester correctly articulates what a defendant must show to establish a Brady violation; (2) whether the Court of Appeals erred when it reversed the trial court‘s grant of a new trial, which was premised on the prosecution‘s violation of the rule from Brady; and (3) whether trial counsel rendered ineffective assistance of counsel under Strickland for failing to exercise reasonable diligence after learning of the existence of the videotaped interviews. [People v Chenault, 494 Mich 862 (2013) (citations omitted).]
II. LEGAL BACKGROUND
The Supreme Court of the United States held in Brady that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective оf the good faith or bad faith of the prosecution.” Brady, 373 US at 87. In identifying the essential components of a Brady violation, the Supreme Court has articulated a three-factor test:
The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have
ensued. [Strickler v Greene, 527 US 263, 281-282; 119 S Ct 1936; 144 L Ed 2d 286 (1999).]
Stated differently, the components of a “true Brady violation,” are that: (1) the prosecution has suppressed evidence; (2) that is favorable to the accused; and (3) that is material. Id.
The contours of these three factors are fairly settled. The government is held responsible for evidence within its control, even evidence unknown to the prosecution, Kyles v Whitley, 514 US 419, 437; 115 S Ct 1555; 131 L Ed 2d 490 (1995), without regard to the prosecution‘s good or bad faith, United States v Agurs, 427 US 97, 110; 96 S Ct 2392; 49 L Ed 2d 342 (1976) (“If the suрpression of evidence results in constitutional error, it is because of the character of the evidence, not the character of the prosecutor.“). Evidence is favorable to the defense when it is either exculpatory or impeaching. Giglio v United States, 405 US 150, 154; 92 S Ct 763; 31 L Ed 2d 104 (1972) (“When the ‘reliability of a given witness may well be determinative of guilt or innocence,’ nondisclosure of evidence affecting credibility falls within this general rule [of Brady].“), quoting Napue v Illinois, 360 US 264, 269; 79 S Ct 1173; 3 L Ed 2d 1217 (1959). To establish materiality, a defendant must show that “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 cоnfidence in the outcome.” United States v Bagley, 473 US 667, 682; 105 SC 3375; 87 L Ed 2d 481 (1985). This standard “does not require demonstration by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendant‘s acquittal....” Kyles, 514 US at 434. The question is whether, in the absence of the suppressed evi-
In contrast to the three-factor Brady test articulated by the United States Supreme Court, our Court of Appeals adopted a four-factor Brady test in 1998:
In order to establish a Brady violation, a defendant must prove: (1) that thе state possessed evidence favorable to the defendant; (2) that he did not possess the evidence nor could he have obtained it himself with any reasonable diligence; (3) that the prosecution suppressed the favorable evidence; and (4) that had the evidence been disclosed to the defense, a reasonable probability exists that the outcome of the proceedings would have been different. [Lester, 232 Mich App at 281, citing United States v Meros, 866 F 2d 1304, 1308 (CA 11, 1989).]
The inclusion of the second factor is the only difference between the Lester test and the test articulated in Strickler. Although Lester did not involve a question of a defendant‘s diligence, the Court of Appeals relied on authority from the United States Court of Appeals for the Eleventh Circuit for this additional requirement, now widely referred to as a “due diligence” or “reasonable diligence” factor. This test has been applied by our Court of Appeals since Lester.
III. BRADY DISCLOSURES
A. PEOPLE V LESTER AND THE ADDITION OF A DILIGENCE REQUIREMENT
This is the first occasion on which this Court has examined the merits of the diligence requirement. Some understanding of its doctrinal history is useful. As noted, the Court of Appeals borrowed the four-factor
We disagree with the prosecution‘s suggestion that the diligence requirement is consistent with оr implied by United States Supreme Court precedent. Nor do we conclude that a diligence requirement is consistent with the Brady doctrine generally. We believe that the concerns that a diligence requirement might address are already confronted in the context of Brady‘s suppression requirement as well as in the Sixth Amendment‘s guarantee of the effective assistance of counsel. For these reasons, we reject the addition of a diligence requirement to the Brady test and we overrule Lester.
In Agurs, the Supreme Court identified three different contexts in which Brady applies, stating that “[e]ach involves the discovery, after trial, of information which had been known to the prosecution but unknown to the defense.” Agurs, 427 US at 103. The phrase is best understood as a general description of what constitutes Brady evidence, instead of the imposition of a new hurdle for defendants.5 We see no additional meaning to the рhrase given its context.
The Kyles Court held that “showing that the prosecution knew of an item of favorable evidence unknown to the defense does not amount to a Brady violation without more.” Kyles, 514 US at 437. The phrase is used in a larger discussion of the materiality requirement and the prosecution‘s duty to gauge the likely effect of potential Brady evidence: although the mere showing that the prosecution knew of evidence that was unknown to the defense does not amount to a Brady
Moreover, we do not believe that the goals of Brady counsel in favor of adopting a diligence requirement. The Supreme Court has consistently stated that, when confronted with potential Brady evidence, the prosecution must always err on the side of disclosure. Kyles, 514 US at 439; Agurs, 427 US at 108. Just recently the Supreme Court underscored this obligation:
Our decisions lend no support to the notion that defendants must scavenge for hints of undisclosed Brady material when the prosecution represents that all such material has been disclosed. As we observed in Strickler, defense counsel has no “procedural obligation to assert constitutional error on the basis of mere suspicion that some prosecutorial misstep may have occurred.” ...
The State here nevertheless urges, in effect, that “the prosecution can lie and conceal and the prisoner still has the burden to ... discover the evidence,” so long as the “potential existence” of a prosecutorial misconduct claim might have been detected. A rule thus declaring “prosecutor may hide, defendant must seek,” is not tenable in a system constitutionally bound to accord defendants due process.... We have several times underscored the “sрecial role played by the American prosecutor in the search for truth in criminal trials.” Courts, litigants, and juries properly anticipate that “obligations [to refrain from improper methods to secure a conviction] ... plainly rest[ing] upon the prosecuting attorney, will be
faithfully observed.” Prosecutors’ dishonest conduct or unwarranted concealment should attract no judicial approbation.6
In fact, we conclude that a diligence rule of the sort adopted by the Court of Appeals in Lester is contrary to Brady, i.e., a rule requiring a defendant to show that counsel performed an adequate investigation in discovering the alleged Brady material. The Brady rule is aimed at defining an important prosecutorial duty; it is not а tool to ensure competent defense counsel. Adding a diligence requirement to this rule undermines the fairness that the rule is designed to protect. However, as we previously explained, evidence that the defense knew of favorable evidence, will reduce the likelihood that the defendant can establish that the evidence was suppressed for purposes of a Brady claim.7
We decline to adopt the four-factor Lester test, as we believe it is not doctrinally supported and undermines the purpose of Brady. We hold that the controlling test is that articulated by the Supreme Court in Strickler, no less and no more: (1) the prosecution has suppressed evidence; (2) that is favorable to the accused; and (3) viewed in its totality, is material.
We now apply the controlling Brady test to the defendant‘s claim. As an initial matter, we note that the prosecution has conceded that the evidence in question was suppressed.8 That leaves two questions: whether the suppressed evidence was favorable to the defendant, either as exculpatory or impeaching evidence, and whether it was material.
In contrast to the question of materiality, the favorability of evidence is a simple threshold question that need not delay us long. Only three people witnessed the shooting: Holloway, Chambers, and the defendant. Other than the testimony of Holloway and Chambers, there was no other evidence at trial that identified the defendant as the shooter. Because thе
We are not convinced, however, that the suppressed evidence was material. “The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” Kyles, 514 US at 434. We conclude that, even in the absence of the suppressed evidence, the defendant received a trial that resulted in a verdict worthy of confidence, bеcause the cumulative effect of the evidence was not material.
We disagree with the defendant that Wittebort‘s promises of leniency to both Holloway and Chambers were material. While the detectives assured both witnesses that they would not be investigated or charged for drug crimes, these promises of leniency were not conditioned on any behavior on the part of the witnesses. Indeed, Chambers decided not to make any written statement even after such promises were made, and, likewise, any alleged promises of leniency occurred after Chambers implicated himself in the drug activity. For her part, Holloway also admitted that she lied in her first interview, promises of leniеncy notwithstanding, and in her second interview, the alleged promises were made after she disclosed the drug activity.
We are similarly unconvinced that the evidence would have undermined Holloway‘s identification of the defendant in a material way. While there were minor discrepancies between the characterization of Holloway‘s identification as expressed in the disclosed material and at trial as contrasted with her recorded identification, she was able to quickly identify the defendant as the shooter in her
Finally, we disagree with the defendant that the suppressed evidence supports his trial theory that Chambers was the shooter, and that Holloway only identified the defendant as the shooter out of fear of Chambers. Although Holloway was not forthright in her first statement about Chambers‘s involvement, in her second interview she expressed confidence that Chambers must have been involved. If Holloway were frightened of Chambers to the extent that she would implicate an innocent third party, she would not have engaged in a discussion with the police about Chambers‘s own culрability. The suppressed evidence did not contain information that leads us to conclude that defense counsel would have asserted the defense that Holloway misidentified the defendant, rather than the cover-up theory that defense counsel pursued at trial. Furthermore, another witness placed the defendant on the side of Harris‘s car where the shooter indisputably stood.
We therefore conclude that, even in the absence of the suppressed evidence, the defendant received a trial
IV. INEFFECTIVE ASSISTANCE OF COUNSEL
The defendant also raises a claim that trial counsel was ineffective for failing to investigate and acquire the video recordings during trial. Whether a defendant received ineffective assistance of counsel presents a mixed question of fact and law. People v Armstrong, 490 Mich 281, 289; 806 NW2d 676 (2011). A trial court‘s factual findings are reviewed for clear error; questions of law are reviewed de novo. Id. We have determined that the defendant cannot establish a Brady violation because the suppressed evidence was not, in sum, material. As Brady materiality is assessed under the same “reasonable probability” standard that is used to assess prejudice under Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 LEd2d 674 (1984),10 we similarly conclude that the defendant cannot establish prejudice in order to prevail on his ineffective assistance of counsel claim.
V. CONCLUSION
We conclude that Brady does not support the adoption of a diligence requirement and we therefore over-
YOUNG, C.J., and CAVANAGH, MARKMAN, KELLY, ZAHRA, and VIVIANO, JJ., concurred with MCCORMACK, J.