UNITED STATES COURT OF APPEALS
for the Fifth Circuit
___________________________
No. 96-11227
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WAYNE EAST,
Petitioner-Appellant,
VERSUS
GARY JOHNSON, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
___________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
___________________________________________________
September 15, 1997
Before POLITZ, Chief Judge, and KING and DAVIS, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
Wayne East, a Texas death row inmate, appeals the district
court’s denial of his petition for writ of habeas corpus. As
grounds for relief, East alleges that the district court erred in
its conclusion that certain undisclosed evidence was not material
and therefore did not violate Brady v. Maryland, 373 U.S. 83
(1963). We find merit in his contention and vacate his sentence of
death.
I.
In August of 1982, East was convicted of capital murder and
sentenced to the death penalty in connection with the November 23,
1981, killing of Mary Eula Sears. In 1992, after exhausting his
claims in state court, East filed a federal habeas petition
alleging 23 grounds for reversing his conviction and death
sentence. The district court dismissed East’s petition. East
appealed to this Court and we granted him limited relief. East v.
Scott, 55 F.3d 996 (5th Cir. 1995). Specifically, we vacated the
district court’s dismissal of both East’s due process claim and
East’s Brady claim and remanded those portions of East’s habeas
petition to the district court for proceedings consistent with our
opinion. East, 55 F.3d at 999-1005.1 We affirmed the district
court’s dismissal of all of East’s other claims.
On remand, the district court permitted East to engage in
discovery on the due process and Brady claims. During this
discovery, East, by unopposed motion, amended his habeas petition
to include a new Brady claim. East’s new Brady claim alleged that
the prosecution had failed to disclose exculpatory evidence that
contradicted a former suspect’s alibi witnesses.2 A magistrate
judge conducted an evidentiary hearing on all of East’s claims.
The magistrate judge recommended that East’s habeas petition
be denied, concluding that there was no evidence to indicate that
1
East’s Brady claim alleged that the prosecution failed to
disclose the criminal record of Barbara Hardaway, one of the
state’s sentencing-phase witnesses, and that production of
Hardaway’s criminal record would have led East to discover her
mental history and allow East to impeach her testimony.
East’s due process claim was based on the involvement of a
private prosecutor in East’s trial.
2
The alleged exculpatory evidence consisted of the
undisclosed statements of Richard Miller and Earlie Payne. These
statements, according to East, substantially contradicted evidence
put on by the state regarding the whereabouts of Troy Robinson, who
was originally charged in connection with the murder.
2
the private prosecutor was in charge of the prosecution and that
despite the Brady violations, there was not a reasonable
probability that if the evidence had been disclosed to East, the
result of the proceeding would have been different. The district
court adopted the magistrate judge’s report and dismissed East’s
habeas petition.
East applied for a certificate of probable cause, or in the
alternative a certificate of appealability, which the district
court denied. East then filed a timely notice of appeal and this
Court issued a certificate of appealability. East v. Johnson, No.
96-11227 (5th Cir. Feb. 25, 1997).3
II.
A. Issues and Standard of Review
In our grant of a certificate of appealability, we limited
East’s appeal to the issues of whether the district court correctly
concluded that the prosecution’s failure to disclose the statements
of Richard Miller and Earlie Payne and the criminal history of
Barbara Hardaway did not violate Brady v. Maryland, 373 U.S. 83
(1963).
We review the district court’s Brady determinations de novo.
United States v. Green, 46 F.3d 461 (5th Cir. 1995). To establish
3
The Supreme Court in Lindh v. Murphy, No. 96-6298 (June 23,
1997), held that the Antiterrorism and Effective Death Penalty Act
(“AEDPA”), signed into law on April 24, 1996, does not apply
retroactively. East petitioned for a certificate of probable cause
or in the alternative a certificate of appealability prior to April
24, 1996. Therefore, we treat our ruling as a grant of a
certificate of probable cause. See Rector v. Johnson, --- F.3d ---
, No. 96-50443, 1997 WL 469447 (5th Cir. Aug. 18, 1997).
3
a Brady claim, a petitioner must demonstrate that (1) the
prosecution suppressed or withheld evidence (2) favorable to the
defense and (3) material to guilt or punishment. Westley v.
Johnson, 83 F.3d 714, 725 (5th Cir. 1996). Undisclosed evidence is
material "if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the
proceeding would have been different." United States v. Bagley,
473 U.S. 667, 682 (1985). A reasonable probability is established
when the suppression of evidence "’undermines confidence in the
outcome of the trial.’" Kyles v. Whitley, 514 U.S. 419 (1995)
(quoting Bagley, 473 U.S. at 678).
B. Hardaway’s Criminal History
We turn first to East’s claim that the district court erred in
concluding that Barbara Hardaway’s testimony was immaterial and,
therefore, that the nondisclosure of impeachment evidence could not
support a Brady violation. The state called Hardaway as a witness
in the sentencing phase of the trial to support its argument that
East posed a future danger to the public.4 Hardaway testified in
graphic detail that East robbed and raped her three months before
Ms. Sears’ murder. Hardaway testified that on the morning of
August 15, 1981, she accepted a ride in an automobile that East was
driving. East then drove to a remote area and demanded sex from
Hardaway. Hardaway stated that she attempted to flee but was
4
The prosecution offered this testimony to support an
affirmative answer on the second special sentencing issue for
capital cases: whether the defendant would likely commit future
criminal acts of violence that would constitute a continuing threat
to society. See Tex. Crim. P. Code Ann. art. 37.071.
4
forcibly restrained by East, who then proceeded to brandish a gun
and point it at Hardaway. Then, according to Hardaway, East
disrobed her and raped her in the back seat of the car. Hardaway
testified that after the rape, East threatened her by stating that
he was “going to blow [her] brains out” and told her that he had
murdered several other women. East also allegedly stole
approximately 120 dollars from Hardaway’s purse before driving
Hardaway home.
Hardaway was a key witness for the prosecution on the future
dangerousness issue and was the only witness who provided the jury
with evidence of other murders East allegedly committed. The
balance of the state’s evidence at the sentencing phase was bland
when compared with Hardaway’s testimony. The bulk of the state’s
evidence was almost perfunctory testimony by a succession of law
enforcement officials stating that East would probably commit
criminal acts of violence in the future.5 Other testimony at the
sentencing phase included alleged spousal abuse by East, East’s
involvement in the unauthorized use of a motor vehicle, East’s
involvement in the theft of railroad ties, East’s involvement in an
attempted burglary, and an altercation between East and prison
guards while awaiting sentencing. The state also presented the
testimony of a teenage boy who said that when East was sixteen
years old, he had committed an act of sodomy on the witness, who
5
The law enforcement officials based their opinions on
East’s general reputation and their knowledge of East’s prior
incidents with police. This sort of testimony was given by at
least eight of the nineteen witnesses called at the sentencing
phase.
5
was five years old at the time.
The state obviously considered Hardaway’s testimony important.
In its closing arguments during the sentencing phase, the
prosecution referred to Hardaway’s testimony at least eight times.
The prosecution recounted East’s threats to Hardaway and the other
details surrounding the alleged rape.
In his earlier appeal, East argued that he could have
impeached Hardaway’s testimony with evidence of her mental illness.
He pointed to a mental status report on Hardaway that was in
existence at the time of East’s trial. The report, prepared as
part of a competency hearing in a state court criminal trial,
concluded that Hardaway experienced bizarre sexual hallucinations
and believed that unidentified individuals were attempting to kill
her. The report found that Hardaway was incapable of
distinguishing between reality and the fantasies caused by her
hallucinations. See East, 55 F.3d at 1003. According to the
report, Hardaway was mentally incompetent to stand trial on a
pending burglary charge. In reviewing East’s prior appeal,
this Court stated:
Given the importance of Hardaway’s testimony to the
prosecution’s case during sentencing, her mental records
are likely material as impeachment evidence . . . .
Under these circumstances, we disagree with the state’s
assertion that East’s ability to effectively impeach
Hardaway is immaterial because it would not undermine the
remainder of the state’s case at sentencing.
East, 55 F.3d at 1003. We remanded for reasonable discovery on
whether Hardaway’s criminal record would have led East to discover
her mental history.
6
On remand, the magistrate judge found that if the prosecution
had disclosed Hardaway’s rap sheet, “her mental history, which was
available in a Bexar County proceeding involving a question of her
competency, would have become available to East.” However, both
the magistrate judge and the district court ultimately found that
even if Hardaway’s testimony had been successfully impeached, the
details of the Sears murder and other evidence the state produced
sufficiently supported the jury’s affirmative answer to the future
dangerousness question. Therefore, the district court concluded
that the undisclosed evidence did not undermine confidence in the
verdict.
The government argues that the magistrate judge and the
district court properly concluded that the potential impeachment of
Hardaway was immaterial to East’s sentence. It contends (1) that
much of Hardaway’s testimony was corroborated by an investigating
police officer; and (2) that the revelation of Hardaway’s mental
status does not undermine confidence in the jury’s sentencing
verdict. We address these contentions in turn.
1. Corroborating Evidence
The assertion that Hardaway’s testimony was adequately
corroborated is not supported by the record. The officer in
question, Elmer Graham, testified that Hardaway reported that she
had been raped on August 15, 1981. He said Hardaway was examined
but that no injuries were discovered. Graham questioned East in
connection with the alleged rape, and East denied any involvement
according to Graham.
7
Officer Graham stated that he then asked East whether East had
purchased any beer from a convenience store in the area where the
alleged rape had occurred. Graham testified that East denied ever
visiting a convenience store near the scene of the alleged crime.
Graham responded to East’s denial by telling East that the
convenience store employee had reported seeing East on the day of
the alleged rape. According to Graham, East then changed his
story, saying that he had indeed stopped at the convenience store
to purchase beer. Graham further testified that East initially
denied knowing Hardaway, but later said he might have met Hardaway
at a party and that she may have been in his car on the day of the
alleged rape.
At most, this testimony corroborates Hardaway’s testimony that
she met East and was in the car with him. However, and more
importantly, it does not corroborate her tale of rape, assault, and
unreported murders.
2. Confidence in the Sentencing Verdict
The government also points to evidence of other acts of
violence committed by East, including the testimony of the teenage
boy who said he was sexually assaulted at the age of five by East.
It argues that this testimony, along with the evidence of Ms.
Sears’ murder and other evidence of violent acts, independently
demonstrated East’s propensity for violence. Therefore, it
contends that Hardaway’s testimony was not so important to the
state’s case that impeachment of Hardaway would undermine
confidence in the jury’s sentencing recommendation.
8
Rather than consider whether impeachment of Hardaway’s
testimony would undermine confidence in the jury’s sentencing
recommendation, the district court apparently considered whether
the evidence was sufficient to support the recommendation without
Hardaway’s testimony. The Supreme Court has warned that the Brady
materiality analysis
is not a sufficiency of evidence test. A defendant need
not demonstrate that after discounting the inculpatory
evidence in light of the undisclosed evidence, there
would not have been enough left to convict. The
possibility of an acquittal on a criminal charge does not
imply an insufficient evidentiary basis to convict. One
does not show a Brady violation by demonstrating that
some of the inculpatory evidence should have been
excluded, but by showing 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 v. Whitley, 115 S. Ct. 1555, 1566 (1995). In applying this
standard to undisclosed impeachment evidence, we have recognized
that when the testimony of a witness who might have been impeached
by undisclosed evidence is strongly corroborated by additional
evidence, the undisclosed evidence generally is not found to be
material. Wilson v. Whitley, 28 F.3d 433, 439 (5th Cir. 1994),
cert. denied, 513 U.S. 1091 (1995). In contrast, when “`the
withheld evidence would seriously undermine the testimony of a key
witness on an essential issue or there is no strong corroboration,
the withheld evidence has been found to be material.’” Id.
(citation omitted).
While Ms. Sears’ murder and other testimony provided evidence
of East’s violent nature, Hardaway was a key witness for the state
in demonstrating East’s propensity toward violence and his future
9
dangerousness. The state produced no corroborating evidence for
Hardaway’s most damaging statements regarding her alleged rape and
assault and East’s alleged confession to other murders. In its
closing, the state placed more reliance on Hardaway’s testimony
than any other item of evidence to establish East’s future
dangerousness. We are satisfied that Hardaway’s testimony was a
critical part of the state’s case that East would likely commit
future criminal acts of violence that would pose a continuing
threat to society. We therefore conclude that the prosecution’s
Brady violation was material and necessitates that we vacate East’s
sentence.
C. Robinson and the Alibi Witnesses
On remand, after conducting discovery, East added another
Brady claim alleging that the prosecution failed to disclose
exculpatory evidence that contradicted the alibi witnesses of
another suspect in the murder, Troy Robinson. Circumstantial
evidence linked Robinson to Ms. Sears’ murder. For example,
Robinson’s car was parked in the victim’s driveway and the knife
that was the murder weapon belonged to him. In addition, a pawn
shop dealer testified that Robinson sold him some of the victim’s
jewelry. Law enforcement officials initially focused their
investigation on Robinson, which led to his arrest and indictment
for the murder of Ms. Sears.
The state eventually concluded that East rather than Robinson
committed the murder. This change occurred when an accomplice to
the murder, Dee Dee Martin, provided eyewitness testimony that East
10
had committed the murder. At the trial, the state presented the
testimony of four witnesses to establish that Robinson was not
present when the murder was committed.6 On remand after his first
appeal, East discovered two sworn statements in prosecution files
that, according to East, materially undermined the testimony of the
state’s “Robinson alibi” witnesses. According to the state’s four
trial witnesses, East borrowed Robinson’s car, leaving Robinson at
his girlfriend’s home in the Wildcat Apartment Complex, where he
remained from about 3 a.m. until 9:30 a.m. on the day Ms. Sears was
murdered. The Wildcat Apartments are located several miles from
the murder scene. The evidence established that Robinson’s car
remained in Ms. Sears’ driveway until at least 8:45 a.m. and that
the murder occurred sometime before that.
The two newly discovered affidavits East relies on were
executed by Richard E. Miller and Earlie Lee “Bubba” Payne. In his
affidavit, Miller stated that he saw Robinson walking down the
street in the vicinity of the Wildcat Apartments before daylight on
the morning of November 23. Miller stated that he gave Robinson a
ride to the home of Danny J. Rogers. Earlie Lee “Bubba” Payne
stated, by affidavit, that he was living with Danny J. Rogers on
the day of the murder and that Robinson visited Rogers’ home that
morning around “8:00 or 9:00 in the morning.” Trial witnesses
Danny J. Rogers and Linda Blanton testified that East visited
Rogers’ apartment sometime between 8:00 and 10:00 the morning of
6
These witnesses were Robert Lee White, Danny J. Rogers,
Linda Blanton, and Bonnie Covington.
11
the murder.
East argues that the affidavits of Miller and Payne would have
undermined the prosecution’s theory of the case at the guilt-
innocence stage of his trial and called into question the manner in
which the police constructed its case against East. The district
court, analyzing the same claim, concluded that although the
prosecution improperly failed to disclose the affidavits to East,
the affidavits were not material to East’s guilt. Assuming
arguendo that the nondisclosure by the state was improper, we agree
with the district court.
While the affidavits may call into question Robinson’s precise
whereabouts around the time of the murder, particularly the exact
time he left Covington’s and arrived at Rogers’ home, they in no
way place him at the scene of the crime. Also, the affidavit of
Miller actually strengthens a key point in the prosecution’s case,
that East had borrowed Robinson’s car. Nor do the Miller and Payne
affidavits contradict the evidence supporting East’s conviction,
including the eyewitness testimony of Dee Dee Martin. Martin was
the most crucial witness in the state’s case against East. Miller
and Payne’s affidavits do not undermine that testimony.
As the district court reasoned, “whether Troy Robinson
actually participated in the crime or not does not materially
affect the evidence inculpating East as guilty of a capital murder
committed during the course of a burglary.” The affidavits provide
no evidence that East was not involved in the murder and do not
“put the whole case in such a different light as to undermine
12
confidence in the verdict.” Kyles, 115 S. Ct. at 1566. In sum,
the Miller and Payne affidavits do not undermine our confidence in
East’s guilt.
III.
For the reasons stated above, we VACATE East’s death sentence
because the prosecution failed to disclose material Brady evidence
to East at the sentencing phase. We therefore REMAND this case to
the district court with instructions to issue the writ of habeas
corpus unless the State of Texas takes steps within a reasonable
time to conduct a new sentencing hearing. We AFFIRM the judgment
of the district court in all other respects.
AFFIRMED in part.
VACATED and REMANDED in part.
13