concurring.
While I agree that Tyson’s counsel failed to use reasonable diligence to discover the full details of the retainer agreement between D.W. and Edward Gerstein, I am unable to agree with the majority that the testimony of D.W. and her parents was not misleading. Although perhaps many of the various answers given with respect to the relationship with Gerstein were literal responses to the questions as phrased, and although the witnesses certainly had no duty to volunteer information, in light of the facts known by the witnesses, the answers were misleading.
D.W.’s answers carried the clear implication that Gerstein was retained only to “help me through this” (Maj.Op. at 487), i.e., the criminal trial, and that when the trial was over, her parents would pay him. Maj.Op. at 487. Additionally, she belied the fact that she was the client when she testified that Gerstein was counsel for the family. More importantly, when asked whether there had been any discussions between Gerstein and the family concerning compensation, she unequivocally said: “No.” Record at 154.
Mrs. Washington testified that Gerstein was counsel for the family but that there was no written agreement relating to the relationship. In light of the fact that Mrs. Washington was a signator to the retainer agreement between D.W. and Gerstein, that answer was also misleading.
Mr. Washington, also a signator to the agreement between D.W. and Gerstein, stated that he had retained Gerstein’s services but categorically stated that the purpose was “to help ward off the media”. Maj.Op. at 488. He also denied that any consideration whatsoever had been given to the possibility of a civil suit against Tyson. Maj.Op. at 488. Further, he denied that he had a contingency fee agreement with Ger-stein and stated that his only agreement was to pay expenses. Again, in the context of the facts, the natural and logical implication of the testimony of all three witnesses was that there was no contingent fee agreement with Gerstein with regard to representation in civil proceedings.
In point of fact, the retainer agreement was entered into and signed on August 1, 1991. Although Donald C. Washington and Mary B. Washington were signators, as well as D.W., the agreement clearly states that D.W. is the only client — not the “family” and not Mr. and/or Mrs. Washington. It also clearly spells out that the purpose of the agreement is not to get D.W. or the family through the criminal trial or to “ward off the media,” but rather was to procure legal representation regarding pos*491sible civil liability on the part of Tyson and others as a result of the “incident” of July 19, 1991.
If the information given by these witnesses were the only information available to defense counsel, the deposition and trial answers would have been sufficiently misleading as to indicate that further inquiry or issuance of a subpoena duces tecum would be wasteful and unavailing.
Be that as it may, it is clear that at least as of September 9, 1991, the date of Tyson’s indictment by the grand jury, defense counsel knew that D.W. and/or her family had retained the services of Gerstein. Counsel was also aware that financial offers large enough to pay for college had been received from persons wishing rights to D.W.’s story. Furthermore, before and during trial Tyson sought to elicit facts to show that D.W. had a financial stake in the criminal prosecution. It is clear, as noted by the majority, that based upon knowledge already possessed, trial counsel simply did not ask the right questions. This lack of due diligence defeats Tyson’s “newly discovered evidence” argument. I concur in the conclusion of the majority opinion in Part I that the trial court did not err in denying relief upon this ground.
I also concur in Part II of the majority decision which remands the matter to the post conviction court for a hearing as to the prosecution’s failure to divulge, upon request, exculpatory or impeaching evidence.
I note with interest, however, that in reaching its conclusion, the majority places considerable emphasis upon the well-established principle that the defendant is entitled to “impeachment evidence as well as exculpatory evidence, because it is ‘evidence favorable to the accused’.... so that, if disclosed and used effectively, it may make the difference between conviction and acquittal.”, and upon the principle that “ ‘The jury’s estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence’ _” Maj.Op. at 489 (emphasis supplied).
This acknowledgment seems somewhat anomalous, in light of the majority holding in Tyson v. State (1993) 2d Dist. Ind.App., 619 N.E.2d 276, which found no error in exclusion of evidence because “as impeaching evidence, the excluded testimony is cumulative.... ” 619 N.E.2d at 287. The majority upheld the trial court’s view that the evidence “was not vital to Tyson’s defense”. Id.
I find it somewhat difficult to reconcile the two positions taken by the majority although they consider evidentiary principles in different contexts, i.e., a trial court’s discretionary evidentiary ruling in the first instance and failure of the prosecution to disclose evidence in this instance. Nevertheless, as postulated in my separate dissent in the earlier Tyson case, the excluded evidence might well have made the difference between conviction and acquittal. Here the majority acknowledges that similar evidence may not be summarily viewed as unimportant. The majority, in quoting from Brady v. Maryland (1963) 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, clearly acknowledges that evidence, even if merely impeaching, is favorable to the accused and that a defendant is entitled to use it effectively, unless for some other reason the evidence is inadmissible.
Subject to this observation and to my view that D.W. and her parents gave misleading testimony, I concur.