United States Court of Appeals,
Fifth Circuit.
No. 94-20711.
Gary Gordon KOPYCINSKI, Petitioner-Appellant,
v.
Wayne SCOTT, Director, Texas Department of Criminal Justice,
Institutional Division, Respondent-Appellee.
Sept. 20, 1995.
Appeal from the United States District Court for the Southern
District of Texas.
Before WISDOM, DUHÉ and BARKSDALE, Circuit Judges.
DUHÉ, Circuit Judge:
Gary Gordon Kopycinski appeals the district court's denial of
his petition for writ of habeas corpus. Kopycinski contends that
the state suppressed impeachment evidence and failed to disclose
false testimony during his murder trial in violation of the Due
Process Clause, as construed by Brady v. Maryland, 373 U.S. 83, 87,
83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963), and Napue v.
Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217
(1959). He asks us to reverse and grant the writ or,
alternatively, to remand for an evidentiary hearing. We affirm.
BACKGROUND
Kopycinski divorced his wife and became housemates with Tim
Rogers, the murder victim. On May 29, 1985, Kopycinski and Rogers
attended a baseball game with Robbin Homan and his wife. Homan
testified that Kopycinski, in the parking lot after the game, asked
him for flares so that Kopycinski and Rogers could set fire to
1
Kopycinski's ex-wife's car. Later that night, a fire set
purposefully in the area of Kopycinski's ex-wife's garage destroyed
her townhouse.
On June 14, Kopycinski and Rogers were in a bar with Roger
Daniels, a friend of Rogers. Daniels testified that Rogers
appeared worried and scared and that Kopycinski appeared nervous
and angry. Kopycinski asked Daniels five or six times during the
evening what Rogers had told Daniels. Daniels then heard
Kopycinski threaten to kill Rogers if he did not keep his mouth
shut. Rogers disappeared two days later. Kopycinski telephoned
Rogers' mother on June 28 to tell her that her son was missing, and
she reported her son missing to the police on July 8.
The police interviewed Fred Balke, Kopycinski's first cousin.
Balke gave the police a written statement implicating Kopycinski in
Rogers' murder and took police to an isolated wooded area where
Rogers' skeletal remains lay. A medical examiner testified that,
in his expert opinion, the cause of death was either a gunshot
wound to the chest or a blow to the head. The police found one
live and one used .380 caliber bullet near the body, but no gun.
Kopycinski, who had been arrested for arson, was then also charged
with murder.
At trial, Sue Ellen Stapp, whose best friend was Kopycinski,
testified that she kept a .380 automatic between the mattresses on
her bed. Only Kopycinski, her boyfriend (now husband), and her
ex-roommate knew about Stapp's hiding place for the pistol. Before
Rogers disappeared, Stapp let Kopycinski into her house because he
2
told her that he needed to retrieve his sunglasses. The next time
Stapp checked on the pistol, it was gone, and she has never
recovered it.
Bobby Atkins was kept in the same jail cell as Kopycinski.
Atkins testified that he contacted the police about a conversation
he had with Kopycinski. According to Atkins, Kopycinski said that
he killed Rogers because Rogers was trying to blackmail Kopycinski
and that he hid the gun where nobody would find it. On cross
examination, Atkins was impeached with an aggravated robbery
conviction, for which the State posted his appeal bond in exchange
for his testimony in this case. Atkins also admitted that he was
convicted of possession of a prohibited firearm after he was
released on bond.
The State's main witness, however, was Balke. Balke testified
that Kopycinski took him to the murder scene in July 1985 and
showed him the body. Kopycinski admitted to Balke shooting Rogers
to keep him quiet about the fire Kopycinski set to his ex-wife's
townhouse. Rogers had wanted money. Kopycinski disposed of the
gun and washed his hands in gasoline. On cross examination, Balke
was impeached with felony convictions for burglary and credit card
abuse. He denied any misdemeanor convictions for offenses
involving moral turpitude, such as theft or fraud. He also denied
having been offered anything by the police for his cooperation.
Before trial, the court required the State to disclose to the
defense any prior convictions of, and any compensation received by,
its witnesses. The State failed to disclose that Balke had
3
received a $1000 CrimeStoppers reward for giving information to the
police about the crime. Furthermore, the State failed to correct
Balke's allegedly false testimony when he testified that he had not
been offered any compensation for his cooperation. The State also
failed to disclose two prior convictions. Although Balke admitted
to convictions for burglary and credit card abuse,1 he also had a
prior felony conviction for theft. The State not only failed to
disclose that conviction but also allowed Balke to testify falsely
that he had no other convictions involving moral turpitude, which
includes theft. Finally, although Atkins admitted to his felony
convictions for aggravated robbery and possession of a prohibited
weapon, he also had a prior misdemeanor conviction for theft that
went undisclosed.
Kopycinski asserted these due process claims in a state habeas
petition filed in 1990. The Texas Court of Criminal Appeals denied
his petition without an evidentiary hearing. Kopycinski then filed
this habeas petition in federal court. On the recommendation of a
magistrate judge, the district court granted the State's motion for
summary judgment without holding an evidentiary hearing. The
district court denied a certificate of probable cause to appeal,
but we granted it.
DISCUSSION
We review a district court's grant of summary judgment de
novo. Weyant v. Acceptance Ins. Co., 917 F.2d 209, 212 (5th
1
Although Kopycinski argues to the contrary, Balke admitted
to his prior conviction for credit card abuse during cross
examination. See III Record at 173.
4
Cir.1990). We consider all the facts contained in the summary
judgment record and the inferences to be drawn therefrom in the
light most favorable to the non-moving party. Id.
The prosecution's suppression of evidence favorable to the
accused violates the Due Process Clause if the evidence is material
either to guilt or to punishment. Brady, 373 U.S. at 87, 83 S.Ct.
at 1196-97. Brady encompasses evidence that may be used to impeach
a witness's credibility. United States v. Bagley, 473 U.S. 667,
676, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985). Likewise, the
prosecution's knowing failure to correct false testimony violates
the Due Process Clause if the false testimony reasonably could have
affected the judgment of the jury. Napue, 360 U.S. at 271, 79
S.Ct. at 1178.
In either case, the nondisclosed evidence must be material to
require a new trial. Giglio v. United States, 405 U.S. 150, 154,
92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972). Therefore, we must
affirm the district court if we conclude that the nondisclosed
evidence is immaterial.2 Evidence is material if a reasonable
probability exists that, had the evidence been disclosed to the
defense, the proceeding's result would have been different.
Bagley, 473 U.S. at 682, 105 S.Ct. at 3383-84.
2
We require a federal evidentiary hearing on a
constitutional claim when the state court did not provide a
hearing; the petitioner's factual allegations, if proved, would
entitle him to relief; and the record reveals a genuine issue of
fact. Lincecum v. Collins, 958 F.2d 1271, 1278 (5th Cir.), cert.
denied, --- U.S. ----, 113 S.Ct. 417, 121 L.Ed.2d 340 (1992). In
this case, because we conclude that no material evidence was at
issue, we deny Kopycinski's request for an evidentiary hearing.
5
The Supreme Court discussed the materiality standard recently
in Kyles v. Whitley, --- U.S. ----, 115 S.Ct. 1555, 131 L.Ed.2d 490
(1995). A "reasonable probability" of a different result is shown
when the nondisclosure puts the case in a different light so as to
undermine confidence in the jury verdict. Id. at ----, 115 S.Ct.
at 1566. The inquiry is not whether the outcome more likely than
not would have been different or whether the uninfected inculpatory
evidence is sufficient to convict. Id. We apply the materiality
inquiry to the suppressed evidence collectively, not item by item,
and if the evidence is material, we do not engage in further
harmless-error review. Id. at ----, 115 S.Ct. at 1566-67. Our
materiality inquiry, therefore, is whether the prosecutor's
disclosure of Balke's $1000 reward and the prior convictions and
the prosecutor's corrections of Balke's false testimony would have
placed the case in a different light so as to undermine confidence
in the jury verdict.
Kopycinski focuses his materiality argument on the importance
of Balke's testimony to the State's case and the lack of physical
evidence against him.3 Kopycinski suggests that Balke wanted the
reward money so that he could feed his addiction to heroin. When
the withheld evidence seriously undermines or impeaches a key
witness's testimony on an essential issue, we look to whether the
3
Kopycinski also raises Atkins' undisclosed prior conviction
for misdemeanor theft. Atkins' value as a witness for the State,
however, was minimal; he was a prison inmate with two disclosed
felony convictions and a questionable motive for testifying. His
undisclosed conviction measured collectively with the other
undisclosed evidence does not meet the materiality benchmark.
6
testimony was strongly corroborated by other evidence. United
States v. Weintraub, 871 F.2d 1257, 1262 (5th Cir.1989). The
parties acknowledge that Balke was the key witness in the State's
case, but they dispute the importance of the nondisclosed evidence.
Without deciding whether the nondisclosed evidence would have
seriously impeached Balke's testimony, we consider whether other
evidence exists to corroborate his testimony.4
The key evidence supporting Balke's testimony is his leading
the police to a remote wooded area where Rogers' skeletal remains
were located. This evidence, coupled with Balke's testimony,
limits the possibilities of what probably happened to two: either
Balke told the truth or he actually participated in the murder
himself. We have scoured this record, but we have not found any
suggestion, let alone a scintilla of evidence, that links Balke to
the murder. The only other possibility is that Balke told the
truth. Therefore, despite the prosecutor's nondisclosure of
impeachment evidence and failure to correct false testimony,
Balke's leading the police to the body essentially makes his
testimony unimpeachable.
Furthermore, the testimony of Stapp and Atkins combined with
the bullets recovered at the murder scene support Balke's testimony
about the actual shooting. Although the police did not find the
4
In other words, we circumvent the question whether the
nondisclosed impeachment evidence in this case was cumulative and
thus immaterial. See Edmond v. Collins, 8 F.3d 290, 294 (5th
Cir.1993) (noting that nondisclosed impeachment evidence is
cumulative when the witness was impeached sufficiently at trial).
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murder weapon, it appears to have been a .380 caliber gun in view
of the bullets found at the murder scene. Stapp stated that
Kopycinski was one of four people that had access to Stapp's .380
automatic, which has never been found. Atkins confirmed that
Kopycinski had shot Rogers and then disposed of the gun. This
evidence corroborates Balke's testimony that Kopycinski shot Rogers
with a gun and then disposed of it.
Finally, the testimony of Homan, Daniels, and Atkins
corroborates Balke's testimony about Kopycinski's motive for
murdering Rogers. Homan illustrated Kopycinski's intent to set
fire to his ex-wife's car the night of the fire. Daniels described
Kopycinski's threatening of Rogers to keep quiet that was made
almost contemporaneously with Rogers's disappearance. Atkins
confirmed that Kopycinski killed Rogers because he was blackmailing
Kopycinski. This evidence corroborates Balke's testimony that
Kopycinski murdered Rogers because of his knowledge of the fire and
his attempt at blackmail.
In view of the foregoing, we conclude that the nondisclosed
impeachment evidence and the uncorrected false testimony are not
material because they do not put the case in a different light so
as to undermine our confidence in the jury's guilty verdict.5
AFFIRMED.
5
Our decision in United States v. Auten, 632 F.2d 478 (5th
Cir.1980), is not to the contrary. We remanded that case for an
evidentiary hearing because we did not know the extent of the key
witness's criminal record nor the defendant's prejudice as a
result of nondisclosure. Id. at 483. This case is different
because the record is clear and other evidence strongly
corroborates Balke's testimony.
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