dissenting.
Upon review of withheld evidence, doctored police logs, evidence that suspiciously appeared after several years, and the absence of convincing direct proof, my confidence in the original jury verdict has been undermined. Mr. Grube did not receive the fair trial to which he is entitled under our constitutional system. Therefore I respectfully dissent.
It should be noted at the outset that the evidence at trial linking Grube to Amy’s shooting was scant. The prosecution’s case rested on two grounds. First, the prosecution showed that Grube, who had some psychological problems, obsessed about Amy for years after her death.2 Second, the prosecution attempted to link Grube’s shotgun to the scene of the shooting. It attempted to make this link by demonstrating that Grube’s shotgun had contacted the trim around Amy’s window and by showing that the shot pattern produced by Grube’s gun was consistent with the shot pattern on Amy.
Key to the prosecution’s case was evidence that Grube’s shotgun had scraped against the aluminum trim of Amy’s window frame. Both the transfers on the gun barrel and the tool marks on the window trim were obvious to every person who examined the evidence in 1991. Investigators had removed the window trim from' the Hossners’ house late in 1983. The trim was sent to Edward Peterson, a firearms expert at the Bureau of Alcohol, Tobacco, and Firearms (ATF), in November 1983. In 1983, several persons had noticed that the trim had a dent in it. For eight years, however, none of the city, county, state, or federal investigators working on the Hossner case noticed either the tool marks on the aluminum trim or the aluminum and paint transfers on Grube’s shotgun. Mysteriously, investigators discovered these marks only in 1991 after Briggs’s statements to police made Grube a suspect again.
*32The defense’s theory was the police manufactured this evidence sometime after 1983 to pin the blame on Grube and exonerate Steven Brood, an Ashton police officer and an original suspect. Abundant evidence supported this theory:
• In 1983 or 1984, Idaho investigators specifically requested that ATF firearms expert Peterson inspect the suspect guns for brown paint residue. In reply, Peterson told State investigator Jim Mason that he did not find any brown paint on the barrels of any of the suspect guns.
• Peterson examined Grube’s shotgun again after the aluminum and paint marks were found in 1991. He testified that he could not reproduce the tool marks by recoil, that the shotgun would have to pivot in an extremely unusual pattern on recoil to receive the transfer, and that he could reproduce the marks on the shotgun only by mechanically scraping the gun barrel with the window trim.
• Ashton Police Chief Sebek testified that he did not see the tool marks on the window frame trim until 1991. He “couldn’t believe that [he] didn’t see them before.” He was surprised to see the tool marks at Grube’s preliminary hearing because they looked fresh and he’d never seen them before. Sebek conceded that tool marks on the trim were not visible in pictures taken in 1983.
• Bob Perez, who joined the Ashton police force in June 1983, looked at Grube’s gun when it was handed to the police in 1983. He never saw transfers on the barrel before 1991.
• Burt Bates, the lead investigator for Fremont County, did not notice any unusual marks, dents, or scratches on Grube’s gun when police took possession of the gun in 1983. At that time, he noticed the dent in the window trim, and a place where brown paint was scraped off the trim, but he first saw tool marks in the window trim in 1991.
• State investigator Stephen Watts, who left State employ in 1985, knew of the dent in the window trim but never knew of transfers on Grube’s gun or tool marks on the window frame.
• Kurtis Hillman, a Fremont County deputy who took charge of the Fremont County evidence after Bates left the force in August 1988, received Grube’s shotgun and the window trim back from the ATF in November 1988. The first time he noticed tool marks on the window trim was in January 1991.
• John Lewoczko, an FBI tool marks examiner, stated that it was impossible to determine when the tool marks were made on the window trim. David Nichols, an FBI materials analyst, stated that there was no way to determine how long the brown paint was on Grube’s gun barrel.
In addition, the evidence linking the shot pattern of Grube’s gun to the shot pattern at the scene was inconclusive at best. The shot that killed Amy went through two panes of glass and a curtain. In 1983, ATF firearms expert Peterson test-fired Grube’s shotgun and the two shotguns of Brood. Peterson conducted the test firings through two panes of glass and a curtain. When Peterson compared the shot patterns from his test firings to the pattern in Amy’s room, he eliminated Grube’s shotgun as the murder weapon but could not eliminate Brood’s two guns. When the State began reinvestigating Grube in 1991, its firearms examiner conducted four series of test firings, again using intervening objects. Peterson opined that the State’s first three tests were consistent with the results of his own 1983 test firing. On the basis of the State’s fourth test on deer necks, conducted during the trial, Peterson stated that he could not eliminate Grube’s gun, but he emphasized that the pattern differed from the shot pattern on the victim and another test shot was needed. Even though Peterson had testified for the State, the prosecution brought in an FBI firearms expert, Gerald Wilkes, to refute Peterson’s equivocal testimony. Wilkes opined that it was not possible to reproduce shot patterns through intervening objects, and thus that it was unreasonable for Peterson to eliminate Grube’s gun on the basis of test firings done through glass. However, Wilkes ultimately *33stated that it was not possible to eliminate any shotgun as the murder weapon and stated that the shot pattern from his own test firing had “no relevance to the Defendant.”
No evidence placed Grube near the scene on the night of the shooting. One neighbor testified to hearing a shotgun blast at 4:24 a.m. the morning of the shooting, followed within a few minutes by a souped-up vehicle starting up and driving off. The prosecution did not attempt to link Grube to any vehicle. Although the State provided some evidence that Grube sometimes walked around town late in the evening, it provided no evidence of Grube ever driving. Grube introduced abundant testimony that he had no access to any vehicles and that none of the family vehicles were “souped-up.” No one saw Grube either walking or driving on the night of the shooting. In addition, Grube presented three witnesses who testified that he was in his room, along with his two brothers, from 11:00 p.m. on the night before the shooting until 7:00 a.m. the following morning, and that it was extremely difficult to sneak out of the house unnoticed by his father and brothers.
Further, fingerprint evidence tended to exonerate Grube. On the night of the shooting, electricity in the Hossners’ house (but not elsewhere in the neighborhood) was off for forty-five minutes. The electrical box for the Hossners’ house was direetly outside Amy’s window. Seven fingerprints were lifted from the electrical box. Six prints were from persons involved in the investigation, but one suspicious partial print was on the edge of the electrical box. Testifying for the State, fingerprint expert Robert Kerchusky testified that the print was negative as to Grube.
Here, the State withheld evidence that its investigator, Scott Birch, had interviewed Lynn Gifford, who had impeaching and exculpatory information. Gifford impeached the testimony of Brenda Fredrickson Briggs, the witness whose testimony placed Grube outside Amy’s bedroom shortly after the shooting. Gifford testified to telling Birch that he had been the person to first inform Grube that Amy had been shot, and that Grube reacted as though he were sincerely surprised at the news. Gifford’s testimony also cast serious doubt on Brood’s alibi. Gifford testified to telling Birch that he saw Brood driving the Ashton patrol car between 2:00 and 2:30 a.m. (shortly before the time of the shooting) in the vicinity of the Hossners’ house. Gifford noted that Brood departed from his usual late-night routine in dealing with juveniles. He emphasized that he knew both of Ashton’s police officers well by sight and that he had clearly recognized the officer in the patrol car as being Brood. As a direct result of Gifford’s testimony, defense counsel reexamined prosecution documents. This led to the discovery that police logs for the night of the shooting had been altered.
In Brady v. Maryland the U.S. Supreme Court held, “[S]uppression by the prosecution of evidence favorable to an accused ... violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady v. Maryland 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215, 218 (1963). The duty to disclose encompasses impeachment as well as exculpatory evidence, and evidence known only to police as well as that known by prosecutors. Strickler v. Greene, 527 U.S. 263, 275, 119 S.Ct. 1936, 1948, 144 L.Ed.2d 286, 301 (1999). The U.S. Supreme Court recently clarified:
There are three components of a true Brady violation: 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.
Id
To show prejudice, it is not enough to show “that it made [a defendant’s] conviction more likely” than if the withheld evidence had been used, or that “discrediting [a witness’s] testimony might have changed the outcome of the trial.” Id. at 279, 119 S.Ct. at 1952, 144 L.Ed.2d at 291. “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.” Id. (quoting Kyles v. Whitley, 514 U.S. 419, *34434, 115 S.Ct. 1555, 1565, 131 L.Ed.2d 490, 505 (1995)).
In light of the weak evidence linking Grabe to the shooting, the State’s suppression of Gifford’s testimony, along with the newly discovered evidence uncovered as a result of his testimony, was prejudicial to Grabe. Gifford’s testimony placed Brood near the scene shortly before the shooting. It directly contradicted the alibi that had Brood leaving his girlfriend’s house at 1:00 a.m. and spending the rest of the evening at home, far removed from the Hossners’ house. More importantly, however’, Gifford’s testimony directly supported the defense’s theory of a police coverup. It directly contradicted Chief Sebek’s testimony about his activities on the night of the shooting. Gifford’s information led directly to the discovery that the Ashton police patrol logs for the night of the shooting had been deliberately altered. The doctored logs lend substantial credence to the defense’s assertion that the police manufactured the tool mark and transfer evidence directly linking Grabe’s shotgun to the window of Amy’s bedroom.
In conclusion, it is my opinion that Rauland Grabe was convicted of murder based on possibly doctored physical evidence, on inconclusive test-firing evidence, and on evidence that Grabe had an unhealthy obsession with Amy after her death. Gifford’s direct evidence impeached several key prosecution witnesses, put another suspect, who was a policeman, near the murder scene, and led to the discovery that the police logs for the night of the shooting had been doctored. The possibility that police lied on the witness stand and doctored the police logs undermines the validity of the physical evidence linking Grabe to the shooting. Combined with the weakness of the other evidence presented in the trial, this is enough to undermine confidence in the original verdict. Therefore, the State’s suppression of the Gifford evidence meets Strickler’ s prejudice prong, and the case should be sent back to give Mr. Grabe a fair trial.
Justice SCHROEDER concurs.. The prosecution introduced evidence that Amy had, for several months before her death, received strange and distressing phone calls from a man. The prosecution failed to show, however, that Grube made these calls. Indeed, Briggs testified that Amy had told her, in the months before her death, that a guy named Jack was calling her on the telephone and scaring her. It is undisputed that Amy and Grube attended the same church and knew each other. Mrs. Hossner testified that Grube made four to six "pointless” phone calls to her in the six months before Amy’s death, but he did not mention Amy during these calls. It is difficult to understand why Grube identified himself to Mrs. Hossner if he was concealing his identity from Amy.