Garrison v. Maggio

• Decision Date: 22 October 1976
• Docket Number: No. 75-2798,75-2798
• Citation: 540 F.2d 1271
• Parties: Warren GARRISON, Petitioner-Appellee, v. Ross MAGGIO, Jr., acting warden, Respondent-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1271

540 F.2d 1271

Warren GARRISON, Petitioner-Appellee, v. Ross MAGGIO, Jr., acting warden, Respondent-Appellant.

No. 75-2798.

United States Court of Appeals Fifth Circuit.

Oct. 22, 1976.

Joseph B. Tosterud, Jr., William Brockman, Asst. Dist. Attys., New Orleans, La., for respondent-appellant.

F. Irvin Dymond, William L. Crull, III, New Orleans, La., for petitioner-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before WISDOM, COLEMAN and GEE, Circuit Judges.

GEE, Circuit Judge:

Warren Garrison is serving a 99-year sentence in Louisiana on a 1968 conviction for armed robbery. After exhausting his state remedies, Garrison filed this federal habeas corpus action. Looking simply to the record in the state proceedings, the district court granted relief on the theory that the prosecutor's failure to provide Garrison with certain material violated the requirements of due process enunciated in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). We reverse.

The material which was not disclosed to the defense was a supplementary police report which summarizes an interview between an investigating officer and the armed robbery victim. This report describes the first of the robbers as being "about 6'1 ," having a "slender build," and wearing a white shirt and khaki pants. It also indicates that this robber beat the victim with a shovel. The other robber is described as "shorter" and "stocky." At trial, the victim made a positive identification of Garrison. His description of Garrison's clothing and his role in the robbery correspond to that attributed to the first suspect in the police report. But Garrison is about five feet, five inches in height and stocky in build, so his physical stature is completely inconsistent with that assigned to the first suspect in the police report. The victim also indicated at trial that he had given a description of the robbers to the police which paralleled his testimony on the stand. At no point in the proceedings has either the victim or the officer who prepared the supplementary report testified to its accuracy.

Garrison's trial counsel was unaware of the report, and he did not seek pretrial discovery or request Brady material. ¹ The report was found in the official police department records when they became public after the conviction, but the prosecutor, testifying in the state habeas action, did not remember whether the report had been in his trial file. We assume without deciding that the prosecutor actually possessed and read the report before Garrison's trial. ²

Our analysis commences with the recognition that the district court's assumption that Brady and Giglio are applicable here is erroneous. The former involves prosecutorial suppression, after specific request by the defense, of evidence favorable to the defense on either guilt or punishment, while the latter involves prosecutorial tolerance of perjured testimony. It is recent Supreme Court teaching that the elements of the potential due-process violation arising from prosecutorial nondisclosure vary with the factual circumstances. See United States v. Agurs, --- U.S. ----, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). Agurs employs three distinct categories of cases to delineate the due process issues in this area; Giglio falls in the first analytic category, Brady in the second, and Agurs itself is the leading case in the third category. Id. at ----, 96 S.Ct. 2392.

Despite Garrison's citation of Giglio, he does not seriously argue that this case involves a knowing failure to correct false testimony, and we do not consider his potential Giglio claim to be before us on this appeal. There being no specific defense request for the undisclosed evidence, this case therefore falls in the same category as Agurs it involves a prosecutor's failure voluntarily to disclose evidence favorable to the defense.

Agurs states that such a nondisclosure is a constitutional error only when the undisclosed evidence creates a reasonable doubt about defendant's guilt which did not otherwise exist. Id. at ----, 96 S.Ct. 2392. ³ Although the prosecutor's conduct here corresponds to that in Agurs, the factual differences in the cases justify application of a more stringent standard. A case such as this one, where the undisclosed evidence is useful only for impeachment, is significantly different from one like Agurs, where the undisclosed evidence was pertinent to the merits of a self-defense claim. Requiring a prosecutor to disclose substantive evidence always enhances the search for truth and maintains or increases the amount of evidence available to the trier of fact. But requiring a prosecutor to volunteer impeachment evidence about his witnesses entails the risk that government witnesses will be less open with the prosecutor or may even refuse to testify voluntarily. Thus, forcing disclosure of impeachment matter may actually inhibit a full presentation to the trier of fact. It may be that existing precedent in this circuit does not leave us free to rule that the duty to volunteer evidence does not extend to purely impeaching evidence. ⁴ We believe, however, that we are free after Agurs to hold that an even stricter standard of materiality, one requiring petitioner to demonstrate that the new evidence probably would have resulted in an acquittal, is appropriate before a new trial must be granted for the nondisclosure of purely impeaching evidence. Adoption of this strict standard, the same applied to motions under Fed.R.Crim.P. 33 for a new trial based on newly discovered evidence, still gives special significance to the prosecutor's obligation to serve the cause of justice because it represents a relaxation of this circuit's general rule that newly discovered evidence useful only for impeachment never requires a new trial. E. g., United States v. Rodriguez, 437 F.2d 940 (5th Cir. 1971).

By this standard, Garrison's cause must fail. But even under the reasonable-doubt standard of Agurs, the supplementary report does not pass the test. The contents of the report are not in themselves exculpatory. The report merely indicates that the victim may have previously offered a somewhat different version of the crime. In view of the facts that the victim's trial identification was unequivocal and that the report summarizes an interview conducted while the victim was still in the hospital recovering from severe injuries, the report does not raise a reasonable doubt about Garrison's guilt. ⁵

As the Supreme Court noted, the ultimate issue is whether the prosecutor's omission is of sufficient significance to result in a denial of the defendant's right to a fair trial. United States v. Agurs, supra at ----, 96 S.Ct. 2392. The inevitable uncertainty about the impact of impeachment matter means that such evidence can very rarely clear the bar, and consequently a prosecutor is seldom required to volunteer it to the defense.

REVERSED.

WISDOM, Circuit Judge (dissenting):

I respectfully dissent.

First, I disagree with the strict standard of materiality the majority promulgates for determining whether the prosecution's nondisclosure of "purely impeaching" evidence requires a new trial. Second, I cannot agree that a police report, in which the victim and sole eyewitness of the crime describes the robber who beat him in terms drastically inconsistent with his testimony at trial, is "purely impeaching" evidence. Finally, I believe that under the proper materiality standard, the petitioner in this case is entitled to relief.

I.

In United States v. Agurs, 1976, --- U.S. ----, 96 S.Ct. 2392, 49 L.Ed.2d 342, the Supreme Court set forth the standard of materiality that triggers a prosecutor's duty to disclose voluntarily exculpatory evidence to the defense. The Court held that such disclosure is required when the "evidence creates a reasonable doubt that did not otherwise exist." --- U.S. ----, 96 S.Ct. at 2401, 49 L.Ed.2d at 355. In formulating this standard, the Court explicitly rejected the notion that the harsh materiality standard applied in evaluating motions for new trial under Fed.R.Crim.P. 33 the standard which the majority today adopts with respect to prosecutorial nondisclosure of impeaching evidence should be applied to exculpatory evidence within the prosecution's control.

(T)he fact that such evidence was available to the prosecutor and not submitted to the defense places it in a different category than if it had simply been discovered by a neutral source after trial. For that reason the defendant should not have to satisfy the severe burden of demonstrating that newly discovered evidence probably would have resulted in acquittal. If the standard applied to the usual motion for a new trial based on newly discovered evidence were the same when the evidence was in the State's possession as when it was found in a neutral source, there would be no special significance to the prosecutor's obligation to serve the cause of justice.

--- U.S. ----, 96 S.Ct. at 2401, 49 L.Ed. at 354 (footnote omitted).

Although the Court in Agurs spoke only to the nondisclosure of exculpatory evidence, the above reasoning loses none of its cogency when applied to the nondisclosure of impeaching evidence. In its decisions dealing with the prosecution's duty with respect to evidence favorable to the defense, the Supreme Court has repeatedly recognized that critical impeachment evidence may play as large a role in determining the outcome of a trial as exculpatory evidence. Giglio v. United States, 1972, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104; Giles v. Maryland, 1967, 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737; Napue v. Illinois, 1959, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217. See Note, Materiality and Defense Requests: Aids in Defining the Prosecutor's Duty of Disclosure, 59 Iowa L.Rev. 432, 438 (1973). In Giglio,...