Opinion
NO. 2018 KW 0162
05-09-2018
STATE OF LOUISIANA v. BRUCE ALVIN ROBERTSON
In Re: Bruce Alvin Robertson, applying for supervisory writs, 19th Judicial District Court, Parish of East Baton Rouge, No. 04-06-0211. BEFORE: McCLENDON, WELCH, AND THERIOT, JJ.
WRIT DENIED.
MRT
PMc
Welch, J., dissents and would grant the writ. Relator alleges the State failed to reveal his co-defendant's plea deal in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In the instant case, on July 17, 2006, the District Court issued an order accordingly setting a date for the disclosure of any or all Brady evidence or information for September 25, 2006. In its answer, the State selectively disclosed a few pertinent police investigative reports, subpoena listing nine state police witnesses, and the arrest records of Eddie Thomas (the co-defendant) and Bruce Robertson (relator), but the State did not disclose the details of the plea agreement reached between the State and Thomas prior to Robertson's trial. At Robertson's trial during direct examination by the state attorney, Thomas testifed falsely that there had been no agreement between him and ADA Haney as to what sentence he would get. On or about March 24, 2016, relator received a copy of his East Baton Rouge Docket Report Results, filed March 22, 2016. In this Docket Report, relator discovered that Thomas had received a "six month sentence" in an entry dated July 30, 2009. At his sentencing hearing on July 30, 2009, the docket record suggested that Thomas did have a sentencing arrangement contrary to his testimony. In fact, Thomas's agreement was that he would plead guilty and testify against Robertson on the condition that the state would not file a habitual offender bill of information against Thomas. During trial, Thomas's testimony was the only direct evidence produced by the State to prove the State's prosecution theory that petitioner participated in an attempt to burglarize Capitol Wholesale during the early morning hours of January 23, 2006. The Brady rule encompasses evidence that impeaches the testimony of a witness when the reliability or credibility of that witness may determine guilt or innocence. United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985); Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972); State v. Knapper, 579 So.2d 956, 959 (La. 1991). In State v. Lindsey, 621 So.2d 618 (1993), the Louisiana Second Circuit Court of Appeal found that the prosecution's failure to correct a witness's assertion at trial that she was not expecting consideration in return for her testimony exacerbated the state's violation of defendant's due process rights. "The Brady rule is based on the requirement of due process. It requires disclosure of evidence that is both favorable to the accused and material either to guilt or to punishment. Impeachment evidence, because it is evidence favorable to the accused, falls within the Brady rule. If disclosed and used effectively, impeachment evidence may make the difference between conviction and acquittal." Id. at 626. A Brady violation occurs when the evidentiary suppression undermines confidence in the outcome of the trial. Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 1566, 131 L.Ed.2d 490 (1995). A witness's "hope or knowledge that he will receive leniency from the state is highly relevant to establish his bias or interest." State v. Brady, 381 So.2d 819, 821-22 (La. 1980); State v. Vale, 95-1230 (La. 1/26/96), 666 So.2d 1070, 1072. Moreover, when the "reliability of a given witness may well be determinative of guilt or innocence," nondisclosure by the prosecutor of evidence going to the credibility of a witness denies the defendant due process. See Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217 (1959). See also Knapper, 579 So.2d at 959. The State does not meet its requirement per Brady by demonstrating that the defendant should know there is a plea bargain when the co-defendant testifies against the defendant at trial. The State has an affirmative duty to disclose a plea agreement with a witness prior to that witness testifying. In light of the State's failure to disclose that Thomas was promised that the State would not file a habitual offender bill of information coupled with the trial testimony of Thomas that there was no "agreement" which was clearly false, I would grant the request for postconviction relief. COURT OF APPEAL, FIRST CIRCUIT /s/_________
DEPUTY CLERK OF COURT
FOR THE COURT