Summary
analyzing Kyles,supra, and finding that, "[o]nly after a piece of evidence is identified as having been suppressed and as being either exculpatory or impeachment evidence, does the materiality inquiry come into play"
Summary of this case from Davis v. JonesOpinion
CIVIL ACTION NO. 97-T-640-N
April 22, 2002
Morris S. Dees, Jr., Rhonda Brownstein, Montgomery, AL, for JOHN SPELLMAN aka John Charles Spellman, Plaintiff
Paul David Bjurberg, William H. Pryor, Jr., Montgomery, AL for JOE S. HOPPER, Commissioner of the Alabama Department of Corrections, Defendant
WILLIAM H. PRYOR, JR., for The Attorney General of the State of Alabama, Defendant
Paul David Bjurberg, William H. Pryor, Jr., Montgomery, AL, for ROY HIGHTOWER, Warden, Defendant
Paul David Bjurberg, William H. Pryor, Jr., Montgomery, AL, for MICHAEL W. HALEY, Commissioner of the Alabama Department of Corrections, Defendant
Paul David Bjurberg, William H. Pryor, Jr., Montgomery, AL, for EDDIE NAGLE, Warden, Bullock County Correctional Facility, Defendant
OPINION
Petitioner John Charles Spellman brings this habeas-corpus petition pursuant to 28 U.S.C.A. § 2254(b), seeking relief from his state-imposed conviction and life sentence for murder. The petition is now before this court on Magistrate Judge Charles S. Goody's recommendation that relief be granted and on objections, filed by the respondents (hereinafter the State), to the recommendation. The magistrate judge's recommendation is adopted, albeit for slightly different reasons.
I. BACKGROUND
Cynthia Ann Wuolukka, an employee at the Y Zippy Mart in Ozark, Alabama, was abducted and killed in the early morning hours of August 22, 1983. In 1985, Spellman was convicted of the murder and was sentenced to life imprisonment. In 1994, Spellman filed a pro se state-court post-conviction relief petition, in which he presented two major arguments: that the State did not have jurisdiction over his prosecution and that new forensic and DMA technology would now prove him innocent of the crime. The state court denied the petition on August 9, 1994, and the Alabama Court of Criminal Appeals affirmed that decision. Spellman v. State, 678 So.2d 805 (Ala. Grim. App. 1995), cert. denied, 675 So.2d 565 (Ala. 1995).On April 24, 1997, Spellman filed a second post-conviction relief petition in state court, alleging violations of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763 (1972). The state court denied that petition as well, and the denial was affirmed by the Alabama Court of Criminal Appeals. Spellman v. State, 744 So.2d 959 (Ala. Grim. App. 1998), cert. denied 768 So.2d 429 (Ala. 1999).
Because the evidence presented at trial is in many ways critical to this habeas petition, a short summary of that proof is in order. At trial, there were no eyewitnesses to the actual abduction or murder. No physical evidence linked Spellman to the location where Wuolukka's body was found. However, sufficient circumstantial evidence was presented to convince the jury that Spellman committed the crime. Specifically, Charles Grider testified for the State, stating that Spellman was at the Y Zippy Mart that night arguing with and threatening Wuolukka. Additionally, Grider testified that Spellman threatened him with bodily harm if he told anyone what he saw in the Y Zippy Mart. He was the only witness that heard Spellman threaten to kill Wuolukka. Carl McGinnis, a neighbor of Spellman, testified that he saw Spellman walking toward the Y Zippy Mart that night. Harold McRae, the second cousin of Spellman, testified that Spellman was acting strangely the day after the murder and that paneling in Spellman's van had been pulled loose. Tommy Rivers, an alleged prison confidant of Spellman, testified that Spellman had admitted to him that he killed Wuolukka. (Rivers has since recanted his testimony, but, as the magistrate judge has discussed, this development is not sufficient to support a claim deserving of federal habeas relief.) Among other evidence, witnesses testified that Spellman had red marks on his neck days after the murder, that Spellman's van contained women's underwear and a tank top a few days after the murder, and that Spellman wrote a love letter to Wuolukka.
The magistrate judge recommends that habeas relief be granted because there were material Brady and Giglio violations in Spellman's trial and conviction. The State objects to this recommendation on several grounds: first, that the statute of limitations contained in Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C.A. § 2244(d), for the filing of federal habeas petitions bars this petition; second, substantively, that the issues raised by Spellman do not rise to the level of Brady or Giglio violations; and, third, that, in finding Brady violations on several of petitioner's claims, the magistrate judge did not give proper deference to state court decisions on those issues. After the court discusses the statute-of-limitations issue, it will turn collectively to the remaining issues, which are necessarily intertwined.
As to all of the following discussion, the court agrees with and relies upon the magistrate judge's discussion of the ability of Spellman to overcome procedural default through a showing of cause and prejudice.
II. DISCUSSION A. STATUTE OF LIMITATIONS
The State argues that the statute of limitations precludes consideration of Spellman's habeas petition in its entirety. The AEDPA establishes a one-year limitations period for bringing a federal habeas petition, running in this case from the enactment of AEDPA and discounting time when a properly-filed state-court collateral-review petition is pending. 28 U.S.C.A. § 2244(d). Spellman submitted his second state-court post-conviction petition on April 24, 1997, within the one-year period following the enactment of AEDPA. The petition was stamped "FILED" at that time, but the court clerk informed Spellman that he needed either to pay the filing fee or submit an affidavit of indigency. The State argues that Spellman's failure of to do so at that time makes his state-court petition notproperly filed within the meaning of § 2254(d)(2), and that the one-year period expired before the problem was corrected. Compellingly, the State cites the recent decision of Artuz v. Bennett, 531 U.S. 4, 121 S.Ct. 361 (2000), in which the Supreme Court held that the failure to pay a required filing fee prevents a petition from being properly filed under 28 U.S.C.A. § 2244(d)(2), even though the petition was received in the clerk's office. Had the State raised the issue of proper filing in its earlier statute-of-limitations argument, this intervening change in the law may have been dispositive of this petition.
Because Spellman's conviction in state court became final before the effective date of AEDPA, the one-year period runs from AEDPA's effective date rather than the date of final direct review in state court, so as to give him effective notice of the newly established requirement.
The State did raise the statute-of-limitations argument previously in this litigation; however, at that time, the State was not arguing that Spellman's second state-court petition was not properly filed; rather the State argued that Spellman's petition, filed in the state court on April 24, 1997, was untimely and barred by the statute, which they asserted expired on April 23, 1997, one year from the enactment of AEDPA by their interpretation.
The district court, in its discretion, can modify or vacate non-final orders at any point before final judgment. Fed.R.Civ.P. 54(b); Bon Air Hotel, Inc. v. Time, Inc., 426 F.2d 858, 862 (5th Cir. 1970); Richards v. United States, 67 F. Supp.2d 1321, 1322 (M.D. Ala. 1999). However, litigants should not use motions to reconsider as a knee-jerk reaction to an adverse ruling. Id. Nor can motions for reconsideration be used to present new legal theories or to raise legal arguments that could have been raised previously. Publishers Resource, Inc. v. Walker-Davis Publications, Inc., 762 F.2d 557, 561 (7th Cir. 1985); U.S. Fidelity Guar. Co. v. John Buck Co., 2001 WL 1298708, at *1 (N.D. Ill. Oct. 24, 2001). Reconsideration could be proper as a result of an intervening change in the law, Richards, 67 F. Supp.2d at 1322; however,re-consideration assumes that the argument on which the intervening change in the law bears was actually made in the first instance. The State did not argue proper filing. This court declines to revisit its ruling to incorporate a legal argument that should have been made earlier. American Home Assurance Co. v. Glenn Estess Associates, Inc., 763 F.2d 1237, 1239 (11th Cir. 1985) ("There is a significant difference between pointing out errors in a court's decision on grounds that have already been urged before the court and raising altogether new arguments on a motion to amend; if accepted, the latter essentially affords a litigant `two bites at the apple.'").
In Bonner v. City of Prichard, Alabama, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit Court of Appeals adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981.
Of course, if AEDPA's time limit creates a jurisdictional requirement for the hearing of habeas petitions, Spellman's failure to properly file his petition would strip this court of its ability to proceed. The subject-matter jurisdiction of the court, or, rather, the lack thereof, may be raised at any time during the litigation. According to most courts, the statute-of-limitations language under AEDPA is not jurisdictional; rather, it is an affirmative defense that may be waived by the government and may be subject to equitable tolling. See, e.g.,Dunlap v. United States, 250 F.3d 1001, 1007 (6th Cir. 2001); Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) (collecting cases); Miller v. New Jersey State Dep't of Corrections, 145 F.3d 616, 617-18 (3d Cir. 1998); Chiem v. Wells, 2001 WL 705830, at *5 n. 9 (D. Me. June 21, 2001); Fadayiro v. United States, 30 F. Supp.2d 772, 779 (D.N.J. 1998); Stang v. Smith, 23 F. Supp.2d 972, 973 (E.D. Wis. 1998) (collecting cases). By so stating, these courts recognize that the language of AEDPA indicates that this requirement is only a statute of limitations, not a jurisdictional bar. For substantially the reasons expressed in those opinions, this court agrees. Therefore, because this court is not compelled to reconsider the issue as a jurisdictional matter, and because the State has effectively waived the argument by not presenting it in a timely manner, the statute-of-limitations argument is foreclosed.
B. SUBSTANTIVE VIOLATIONS
Having dispensed of the procedural preliminaries, the court now turns to the substantive question of whether certain statements and evidence was suppressed by the prosecution in violation of Brady and Giglio. The magistrate judge found Brady and Giglio violations resulting from the suppression of pretrial tapes and statements.
However, the magistrate judge did not undertake an analysis of the deference to be granted to the prior state court decisions on these issues. As will be explained, having considered the state-court decisions, this court modifies the magistrate judge's recommendation to take account of the deference due the state courts.
Viewing the violations in the aggregate, the magistrate judge found that they created a lack of confidence in the result of Spellman's trial, such that there was a reasonable probability of a different result had the violations not occurred. Therefore, the magistrate judge recommended habeas relief be granted. Although the court slightly modifies the recommendation to take account of the proper deference to prior state-court decisions, this court adopts the crux of his recommendation and will order habeas relief.
1. LEGAL STANDARDS a. Brady Standard
To establish a Brady violation, a petitioner must show three things: "[(1)] the evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; [(2)] that evidence must have been suppressed by the State, either willfully or inadvertently; and [(3)] prejudice must have ensued." Strickier v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 1948 (1999). In considering the prejudice prong of this test, the Supreme Court has prescribed a cumulative analysis. Kyles, 514 U.S. at 436 n. 10, 115 S.Ct. at 1567 n. 10. Therefore, in structuring this decision, the court will analyze for each individual piece of evidence whether it is favorable to the accused and whether it was suppressed. Once this process has been undertaken for all the disputed evidentiary material, those pieces of evidence that were suppressed and are favorable to the petitioner will become part of a cumulative materiality inquiry. Habeas relief is appropriate if the cumulative effect of all of the suppressions is to prejudice the petitioner materially. Prejudice inheres when "the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict." Strickler, 527 U.S. at 281; 119 S.Ct. at 1948.
b. Giglio Standard
To establish a Giglio violation, a petitioner must establish that the prosecutor knowingly used perjured testimony or failed to correct what he subsequently learned was false testimony and that the falsehood was material. Tompkins v. Moore, 193 F.3d 1327, 1339 (11th Cir. 1999). The materiality inquiry under Giglio follows a lesser standard than for violations of Brady; the standard for materiality is whether there is a reasonable likelihood that the falsehood could have affected the jury's verdict. United States v. Alzate, 47 F.3d 1103, 1110-11 (11th Cir. 1995).
c. Deference to Decisions of State Courts
AEDPA constricted the availability of habeas-corpus relief by requiring great deference to the prior legal or factual decisions of the state court:
"An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."28 U.S.C.A. § 2254(d).
A legal decision by a state court may be "contrary to" clearly established federal law in two ways: (1) when it reaches a conclusion contradictory to that of the Supreme Court on a legal question or (2) it confronts materially the same facts as those in a Supreme Court decision and nevertheless reaches a different result. Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 1519 (2000). To be "contrary," the state court's decision must be substantially different from governing precedent. Id.
A legal decision "involve [s] an unreasonable application" of federal law "if the state court identifies the correct governing legal rule from [Supreme Court] cases but unreasonably applies it to the facts of the particular state prisoner's case" or "if the state court either unreasonably extends a legal principle from precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Id. at 406, 120 S.Ct. at 1520.
The claim may also be reviewed if the decision of the state court was based on an unreasonable factual finding based on the evidence. 28 U.S.C.A. § 2254(d)(2). A factual finding made by a state court is presumed to be correct, and the petitioner may rebut that presumption only with clear and convincing evidence. § 2254(e).
2. SUBSTANTIVE CLAIMS a. Grider Tapes
Except as otherwise discussed in the body of this section, the court agrees with the magistrate judge's recommendation as to the proper disposition of petitioner's claims.
On September 2, 1983, Grider was hypnotized to give his description of the events at the Y Zippy Mart on the night of the murder. At that session, which was tape-recorded, Grider was not able to identify the other person in the store, nor did he describe any sort of altercation between the man and Wuolukka or confrontation between himself and anyone in the store. The defense was not provided a transcript of this session or a copy of the recording.
On September 9, 1983, Grider was interviewed by two police officers; this interview was also recorded. Grider now described a man with a hood over his head who confronted him outside the store. Grider denied knowing Spellman. After this story and this denial, the police vigorously accused him of having himself committed the murder. After this accusation, the recording of the interview abruptly ends and picks back up on the other side of the tape. On side two, Grider now claims to know Spellman, to have seen Spellman and Wuolukka arguing inside the Y Zippy Mart that night, and that he specifically heard Spellman threaten to kill Wuolukka. The physical description of the other man Grider saw in the store changed significantly.
(1) Deference to State Courts
The state courts explicitly considered this issue now before this court on habeas review: the suppression of the Grider tapes as a Brady violation. At trial, James Grider was a crucial witness for the prosecution, placing Spellman at the convenience store and describing an altercation, involving threatened physical harm, between Spellman and Wuolukka. As the magistrate judge reconsidered the issue of the suppressed Grider tapes without engaging in the analysis required under 28 U.S.C.A. § 2254(d), this court will now decide whether deference was properly granted to the relevant state-court decisions.
(a) Unreasonable Application of Federal Law
The magistrate judge found that the district court is permitted to revisit the state court Brady findings because the application of theBrady framework by the state court was unreasonable in light of relevant Supreme Court precedent, specifically that the state court engaged in an item-by-item materiality inquiry in determining whether a Brady violation occurred. This mode of analysis is explicitly foreclosed by the Supreme Court decision of Kyles v. Whitley, 514 U.S. 419, 436-37 n. 10, 115 S.Ct. 1555, 1567 n. 10 (1995), which makes clear that, once the suppression of Brady material (that is, impeachment or exculpatory evidence) is found, the court must make the materiality inquiry for all suppressions in the aggregate. If the effect of all the violations, considered collectively, is to reduce confidence in the verdict such that there is a reasonable probability that it would have been different had the violations not occurred, then a Brady violation must be found.
The question is whether the state court impermissibly engaged in an item-by-item inquiry. It does not appear that it did so; instead, the state court analyzed item-by-item whether the information had been suppressed. The Alabama Court of Criminal Appeals found that, for all but one of the argued pieces of evidence, Spellman did not present evidence showing suppression. Spellman v. State, 744 So.2d 959 (Ala.Crim.App. 1998) (unpublished table decision), Memorandum Order at 3, released November 20, 1998. With respect to the McGinnis statements — the only piece of evidence that the Court of Criminal Appeals did not dismiss on suppression grounds — that court "agree[d] with the circuit court that because there is no reasonable probability that admission of this statement would have resulted in a different outcome, the statement did not fall under Brady." Id. Having conceivably found only one suppression, the state court was not obligated to undertake the materiality inquiry "collectively" for all of the presented claims.Kyles, 514 U.S. at 436 n. 10, 115 S.Ct. at 1567 n. 10. ("We evaluate its cumulative effect for purposes of materiality separately and at the end of the discussion." (emphasis added)). Only after a piece of evidence is identified as (1) having been suppressed and (2) as being either exculpatory or impeachment evidence, does the materiality inquiry come into play. Therefore, the Criminal Appeals Court's discussion of materiality as to the one arguably suppressed piece of evidence is sufficient and a proper application of Brady. However, the claim may be reviewed based on that court's unreasonable factual conclusions in reaching its Brady decision on the Grider tapes.
(b) Unreasonable Factual Determination
The state-court trial judge considered the Brady implications of the Grider tapes, finding no violation. He based his decision on the fact that Spellman's counsel had been told by the prosecution that Grider did not initially identify his client because Grider was afraid of Spellman. Finding that this description was consistent with Grider's taped conversations with the police, the state court found no Brady violation and no suppression of the contents of that tape. The Alabama Court of Criminal Appeals noted that the trial court found that Spellman's counsel was told "of the substance of Grider's statement, particularly that Grider did not initially identify Spellman due to a fear of Spellman," agreeing with the trial court that there was no suppression of Grider's statements and, consequently, no Brady violation. This decision (that there was no Brady violation) is a legal one, and this federal court may not revisit that decision unless one of the prongs of 28 U.S.C.A. § 2254(d) is met, which is to say, unless the decision was contrary to or based on an unreasonable application of clearly established federal law or was based on an unreasonable view of the facts in light of the evidence presented to the state court.
In his opinion, the state court judge said that "it was obvious . . . that Grider was terrified of Spellman, and initially did not want to identify Spellman. Upon receiving assurances from the police that he would be protected, Grider then identified Spellman as the man who left the Zippy Mart on the night in question. The court finds that this impeachment evidence falls short of the materiality test."
The summary of the conversation given to Spellman, that Grider did not initially identify Spellman because of his fear of Spellman, does not accurately describe the substance of the taped conversations. It was an unreasonable interpretation of the facts for the state trial court and state appellate court to so find. Based on this unreasonable interpretation of the facts, they found that no suppression had occurred because the prosecution tendered to Spellman the substance of the statements. Spellman did not know, and was not told by the prosecution, that Grider identified him only after being threatened, rather forcefully, with prosecution for the murder. Spellman also did not know and was not told by the prosecution that Grider's initial statement was inconsistent, in several ways, with his testimony at trial. The prosecution capitalized on the entirely ephemeral consistency of Grider's trial testimony by telling the jury that his story had not changed from day one when, indeed, it had. Under 28 U.S.C.A. § 2254(d), this court may review the Brady claim as to the Grider tapes.
Correlatively, clear and convincing proof sufficient to rebut the presumption for the factual finding of the state court is present in the record of the state court proceedings.
(2) Brady Implications
With regard to the Grider tapes, Grider's testimony at trial, contrasted with his statements over the range of tapes, establishes the impeachment character of the tapes-a number of significant inconsistencies become apparent when the recorded statements are compared with his trial testimony. Secondly, it is apparent that the tapes were not turned over to Spellman before trial, that is, they were suppressed by the prosecution.
(3) Giglio Implications
The prosecutor at Spellman's trial emphasized the unchanging nature of witness Grider's testimony, even though he was actually or constructively aware of the tapes in which Grider tells a markedly different story to investigators. As Grider was the sole eyewitness to Spellman's arguing with Wuolukka and, indeed, even being inside the Y Zippy Mart that night, the variance in his story would have been very helpful to a successful defense. This court, following the magistrate judge's recommendation and for substantially the reasons contained therein, finds that it is reasonably likely that the violation of Giglio as to the Grider tapes could have affected the jury's verdict. Especially when considered in conjunction with the other violations outlined in this opinion, the prosecutor's actions on this account are not excusable under the law.
b. McRae Statements
Harold McRae, the first cousin of Spellman's mother, Cathy Newton, lived in one of four houses owned by Newton. He routinely came to the home of Newton, which is where Spellman was living at the time. According to McRae's testimony at trial, when he came to the house on the morning after the murder, several unusual events aroused his suspicion of Spellman. McRae testified that the door to Newton's house was locked and that Spellman refused to let him inside to have a cup of coffee. He said that the lights were off and the house was dark. He noticed that newly installed paneling in Spellman's van had been torn off recently, and that the van had been moved during the night.
The magistrate judge found Brady and Giglio violations in the suppression of McRae's prior inconsistent statements, a trial witness that described Spellman's suspicious behavior the morning after Wuolukka was killed. At the state court post-conviction hearing, Spellman raised this issue, having included it in the state-court "composite" petition filed on January 29, 1998. At the hearing, three exhibits were admitted, purporting to be statements made by McRae. Although Spellman introduced the allegedly suppressed statements at the evidentiary hearing, he failed to present any testimony that the statements were suppressed by the State or that the he did not receive them until after his trial.
This state court found, therefore, that because "there was no testimony presented that the state suppressed these statements . . . this ground is deemed to be waived by Spellman." Order, Dale County Circuit Court, John Charles Spellman v. State of Alabama, CC-84-224.61, filed April 10, 1998, at 5-6. The state court made a legal decision that Spellman failed to meet his burden of proof on the Brady claim as to the McRae statements.
Spellman then argued on appeal in his brief to the Supreme Court of Alabama that he did not present affirmative evidence that the statements of McRae were suppressed because the prosecution did not contest that point. According to Spellman, the prosecution "failed to file an answer to the Appellant's Second Amended Petition, which contained this claim" and "did not take issue with the Appellant's claim that the McRae statements had been suppressed" in a post-hearing brief. Corrected Petition for Writ of Certiorari and Brief in Support of Petition, John Charles Spellman v. State of Alabama, No. CR-97-1428, filed March 3, 1999, at 40.
Clearly, the claim itself has been preserved for review in this federal court. However, the only way that this federal court may revisit this legal decision is if it falls within one of the two prongs of 28 U.S.C.A. § 2254(d), that is, it is contrary to or an unreasonable application of clearly established federal law or based on an unreasonable view of the facts as presented to the state court. As neither of these bases applies, the claim regarding the McRae statements may not be heard. Because Spellman failed to produce evidence of suppression in state court, and the State's failure to contest that issue does not of itself excuse Spellman's lapse of evidence, the state court properly decided his Brady claim as to the McRae statements.
d. Dubose Statement
Although the Brady claim as to specifically the Dubose statement to the Criminal Investigation Division ("CID") was not presented to the state court, the claim was still "fairly presented" to the state court as it is intimately related to the claim regarding the Brady claim as to the footprint photographs. Henry v. Dep't of Corrections, 197 F.3d 1361, 1366-67 (11th Cir. 1999). Indeed, Spellman presented a Giglio claim as to Dubose's testimony to the state court. The truthfulness of the trial testimony of Dubose seems to have been a component of Spellman's argument, at least as to the exculpatory nature of the photographs, if not substantively as to a Giglio violation, even in the state court proceedings. Although neither the State nor Spellman has raised the issue of exhaustion as to this particular claim, this court thought it prudent to address the exhaustion issue, given the unlikelihood that the issue would be waived by the State's silence. 28 U.S.C.A. § 2254(b)(3).
In addition, because the state court never squarely reached the issue, there is no deferential posture to be adopted with respect to the claim. The Alabama Court of Criminal Appeals did not consider any claim as to the statement of Dubose to CID. Therefore, there is no state-court decision to which deference is entitled pursuant to 28 U.S.C.A. § 2254(d). While the State argues that the prior state-court decision operates as a blanket barrier to all consideration of Brady issues by this federal court, the requirements of deference under § 2254(d) are analyzed on a claim-by-claim basis under the text of that statute (" . . . with respect to any claim . . . ").
Officer T. D. Dubose of the Ozark City Police Department, was one of the initial investigators of the Wuolukka murder. During the course of the investigation, Dubose was able to determine, from the physical evidence at the scene, that a partial footprint found closest to the body belonged to someone who wore size eight shoes. In a written statement to the army investigators of the Criminal Investigation Division ("CID"), who were involved because the body was found on the Fort Rucker Army Post, Dubose related this finding and posited that Spellman must have had an accomplice if he participated in the killing, as Spellman wears a size twelve shoe. Spellman was not made aware of Dubose's statement to CID until long after trial.
Dubose's statement to CID is clearly exculpatory information that was not given to Spellman by the prosecution, though the State was actually or constructively aware of its existence. As such, it will be considered in the materiality analysis.
The State argues that there can be no Brady violation as to Dubose's statement because the statement was readily available to Spellman if he had requested it from CID. The State cites Wright v. Hopper, 169 F.3d 695, 702 (11th Cir. 1999), which illustrates the idea that a prosecutor is not required to furnish a defendant with Brady material if that material is "fully available through the exercise of due diligence." However, this statement and its recordation by Dubose was not known to Spellman and therefore cannot be said to have been "fully available" such that the requirement of due diligence comes into play. United States v. Severdija, 790 F.2d 1556, 1560 (11th Cir. 1986); United States v. McMahon, 715 F.2d 498, 501 (11th Cir. 1983); United States v. Brown, 628 F.2d 471, 473 (5th Cir. 1980). Nor should Spellman have known of the propensity of Dubose to make a statement to CID concerning the size of the footprint. To take the State's excuse on this matter, even if not to its logical extreme, would eviscerate the requirement of Brady altogether.
The contested evidence in Hopper was the preliminary-hearing testimony of a witness, whose testimony was recorded in open court. 169 F.3d at 702. The ready availability of public transcripts of a court proceeding stands in marked contrast to the memorandum of an investigating officer buried in a file in a non-prosecuting law enforcement office, as is true in this case.
The obligation of the prosecutor under Brady is to turn over all materially favorable evidence to the defendant. This duty may be breached even when the defendant has not requested the evidence or when the evidence is requested in only a general way. Kyles, 514 U.S. at 433-34, 115 S.Ct. at 1565 (citing United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383 (1985) (Blackmun, J.)). The duty may be breached even if the prosecutor himself had no knowledge of the particular piece of evidence; that is, the prosecutor is imputed with knowledge of all the evidence known to the investigatory team. Kyles, 514 U.S. at 437-38, 115 S.Ct. at 1567-68. The prosecutor, whose primary duty is not to win cases, but to do justice, is charged with learning of all favorable evidence known to the other state agents working on the case and turning any material evidence within that set of knowledge over to the defendant. Id.
The prosecutor did not do so in this case with respect to the Dubose statement. Therefore, this suppression is properly a subject of the materiality analysis and may provide a predicate for a Brady violation.
3. PREJUDICE FROM VIOLATIONS
It falls now to the court to determine whether the Brady suppressions found above rise to the level of violations; that is, whether there is a reasonable probability that the jury's verdict would have been different but for the suppressions. Kyles, 514 U.S. at 434, 115 S.Ct. at 1566. The "reasonable probability" standard does not denote a demonstration by a preponderance of the evidence that disclosure of the suppressed facts would have resulted in an acquittal. Id.
The standard is whether there is a reasonable probability of a different result, whether the suppressions "undermine confidence in the outcome of the trial." Bagley, 473 U.S. at 678, 105 S.Ct. at 3381 (1985). The standard is to show that "the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." Kyles, 514 U.S. at 435, 115 S.Ct. at 1566. Based on the suppression of the Grider and Dubose statements, there is a reasonable probability of a different result.
Along these lines, the standard is also not a sufficiency-of-the-evidence test. Kyles, 514 U.S. at 434-35 n. 8, 115 S.Ct. at 1566 n. 8. The petitioner is not required to show that "after discounting the inculpatory evidence in light of the undisclosed evidence, there would not have been enough left to convict." Id. TheKyles majority specifically took the dissenters to task for assuming that "Kyles must lose because there would still have been adequate evidence to convict even if the favorable evidence had been disclosed." Id. at n. 8.
The impeachment of these two witnesses by the suppressed statements strikes at the very heart of the prosecution's case against Spellman.Cf. Nixon v. Newsome, 888 F.2d 112 (11th Cir. 1989) (failure of trial counsel to impeach star witness with prior inconsistent statements regarding the identity of the person who shot the victim established prejudice for purposes of habeas review). Grider, the only eyewitness to Spellman's threatening Wuolukka, is confronted with instances when he didnot place Spellman at the scene and with his timely recurring memory, which allowed him to identify Spellman only after being threatened with prosecution for the murder himself.
At trial, Dubose testified that, while there was a partial footprint at the scene, he could not draw any conclusions from it except the direction it was headed. On cross-examination, he stated that he could not identify the size of the print because it was only a partial. Because the testimony at trial is a bit unclear as to how many partial footprints were recovered from the scene, this testimony by Dubose cannot be characterized as false. In this respect, this court agrees with the magistrate judge's opinion. However, in the sense that Dubose's testimony at trial indicated that he could not determine from any of the footprints at the scene what size shoe the perpetrator(s) must have worn, that testimony is patently inconsistent with his statement to CID. Dubose, on the stand, knew that he had previously stated in his report to CID that the size of a partial footprint indicated a size eight shoe. Impeachment on this point would be invaluable in the creation of a reasonable doubt in the minds of the jury as to Spellman's guilt.
Without the strong testimony of Dubose or Grider, the case of the State against Spellman is significantly weaker. The only other trial evidence that strongly implicates Spellman was a supposed jailhouse confession reported by Tommy Rivers, who was incarcerated with Spellman in the Dale County Jail. Rivers reported that he had discussed Wuolukka's murder with Spellman on several occasions, and that he approached an officer of the jail to tell him what Spellman had said. Rivers was subsequently wired in an attempt to record Spellman's confession, but the wire did not work. Rivers, however, testified at trial that Spellman admitted that although he did not remember many details due to drug use on the night in question, he did remember taking Wuolukka from the Zippy Mart that night. At trial, Spellman's attorney effectively cross-examined Rivers as to his bias and motive for testifying, exposing pending charges against Rivers and a deal with the State under which the State would recommend immediate release on the charges against him in exchange for his testimony against Spellman. In light of the doubt cast upon the testimony of Grider and Dubose, and of the significant impeachment material that should have been available against those witnesses that would have created doubts in the jury's mind, the isolated Rivers's testimony concerning a jailhouse confession should not be given any undue weight in considering the remaining evidence against Spellman.
As noted earlier, Rivers has since recanted his testimony that Spellman confessed to the crime. However, for reasons discussed in the magistrate judge's recommendation, this recantation is not sufficient of itself to raise a distinct claim in this habeas petition. Rather, the discussion herein seeks to highlight the inherent weakness, even at trial, of Rivers's testimony. Rivers's later recantation is irrelevant for the purposes of analyzing whether the evidence at Spellman's trial is sufficiently altered, with the identified Brady and Giglio violations, to support a request for habeas relief.
An appropriate judgment will therefore be entered granting Spellman's petition for writ of habeas corpus.
DONE.
JUDGMENT
In accordance with the memorandum opinion entered today, it is the ORDER, JUDGMENT, and DECREE of the court that:
(1) The respondents' objections, filed on February 21, 2001 (Doc. no. 63), are overruled.
(2) The recommendation of the United States Magistrate Judge, entered February 8, 2001 (Doc. no. 62), is adopted.
(3) The petition for writ of habeas corpus, filed by petitioner John Charles Spellman on April 24, 1997 (Doc. no. 1), is granted to the extent that the respondents should release petitioner Spellman from custody unless within 120 days from the date of this judgment, the State retries petitioner Spellman.
It is further ORDERED that costs are taxed against respondents, for which execution may issue.
DONE.