Goudy v. Basinger

• Decision Date: 03 May 2010
• Docket Number: No. 08-3679.,08-3679.
• Citation: 604 F.3d 394
• Parties: Walter Lee GOUDY, Petitioner-Appellant,v.James BASINGER, Superintendent, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

604 F.3d 394

Walter Lee GOUDY, Petitioner-Appellant,v.James BASINGER, Superintendent, Respondent-Appellee.

No. 08-3679.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 11, 2009.

Decided May 3, 2010.

Rehearing Denied June 21, 2010.

Andrew Caridas (argued), Skadden, Arps, Slate, Meagher & Flom LLP, Chicago, IL, for Petitioner-Appellant.

Steve Carter, James B. Martin (argued), Office of the Attorney General, Indianapolis, IN, for Respondent-Appellee.

Before BAUER, RIPPLE and KANNE, Circuit Judges.

BAUER, Circuit Judge.

An Indiana jury convicted Walter Lee Goudy of murder and attempted murder in December 1995. After exhausting the remedies available to him in Indiana courts, Goudy filed the instant habeas corpus petition in the district court under 28 U.S.C. § 2254. That court denied his petition. He timely appealed. At issue in this case is whether the government's failure to disclose three eyewitness statements that implicated one of its main witnesses, and the failure of Goudy's counsel to introduce his brother's tape-recorded confession as evidence denied Goudy a fair trial.

I. BACKGROUND

Walter Goudy was convicted for fatally shooting the driver of a car, Marvin McCloud, and wounding one of its passengers in Anderson, Indiana, a town forty miles northeast of Indianapolis. Goudy's conviction was based on the testimony of five eyewitnesses. The five were Damon Nunn, Jill Barclay, Jackie Barclay, LaTonya Young and Kaidi Harvell.

Nunn and Jill Barclay were passengers in McCloud's car. Nunn was in the front seat and was shot several times. Jill Barclay was in the backseat, but was not wounded. Both testified that McCloud pulled into a parking lot near an after-hours hangout and picked up Jill Barclay. They told the jury that as McCloud pulled out of the lot, Goudy and a shorter accomplice approached on either side of the car and fired several shots, killing McCloud; both testified that Goudy was the man on the passenger side of the car. Nunn said Goudy wore a brown or beige corduroy jacket, was around five feet eight to five feet ten inches tall, had an Afro hairstyle and wore a cap on his head. Jill Barclay said Goudy wore a dark sweatshirt, had a jeri-curl hairstyle that was partially covered by the hood from the sweatshirt. Both witnesses said they saw Goudy and three other men earlier in the evening at a nearby club called the Oasis.

Jackie Barclay, Jill's sister, and LaTonya Young testified that they witnessed the shooting from across the street. Jackie Barclay and Young had also been at the Oasis that night and both said they saw Goudy and three other men. After the Oasis closed, both went to the after-hours club. Jackie Barclay testified that she was talking with some friends outside the club when she saw Goudy and another man approach McCloud's vehicle. She said Goudy was around six feet tall and wore a dark jacket, dark pants or jeans, and had braids in his hair that were partially covered by his hood. The shooter on the driver's side was shorter, wore a “brown uniform,” and had no facial hair. LaTonya Young told the jury that Goudy was the shooter on the driver's side, that he was around five feet eight inches tall with braids and a ponytail and wore no hat or hood. Young also testified in court that a recording of Goudy's car alarm was the same alarm she heard in the Oasis parking lot that night.

A roommate of Goudy's, Kaidi Harvell, was the state's primary witness and testified that he had been with Goudy in Anderson on the night of the shooting. He told the jury that he, Goudy and Goudy's two brothers, Romeo Lee and Lamont Thomas drove up from Indianapolis together that night to go to some bars. Harvell said that Goudy and Lee coveted the tires and rims on McCloud's car and had been talking about “jacking” them. After the group left the Oasis, they headed toward the after-hours club with other locals, where Goudy and Lee planned to steal McCloud's car. According to Harvell, he and Thomas were instructed to drive around the block while Goudy and Lee would steal the car. Harvell told the jury that Goudy shot into the driver's side of McCloud's car, and that he wore a brown “prison coat,” black cap and gloves. Lee shot into the passenger side.

In addition to the evidence produced at trial, the government possessed three police reports that outlined statements by Jill and Jackie Barclay, Young, Harvell, and another witness (who did not testify at trial) named Donzetta Clay. The first report describes a phone call to police from Jill Barclay in which she said she saw one of the gunmen at an Indianapolis mall. She stated that she thought he kept looking at her “over his shoulder” and that she later saw him outside “attempting to look at her license plate.” She later identified this man as Harvell and said she was positive he was one of the gunmen. The report additionally describes a photo lineup viewed by the Barclay sisters and Young. All three “positively and without hesitation” identified Harvell as the gunman on the driver's side of McCloud's car, and said he wore brown clothing. The second police report details an in-person lineup viewed by Nunn, Jill and Jackie Barclay, and Donzetta Clay. Clay and the Barclay sisters identified Harvell; Nunn identified a non-suspect as the shooter. The third report contains a statement from Harvell indicating that he had been in contact with one of Goudy's alibi witnesses. He says he “talked with” her and that she “wants to change her story.”

The government did not disclose any of these statements to Goudy, even though they implicate Harvell and conflict with Harvell's version of events; contradict Young's statement at trial that Goudy was the driver's side shooter, and conflict with Nunn's description of the gunmen. Though it does not seem that the non-disclosure was intentional, none of this information was heard by the jury at Goudy's trial.

Goudy was convicted on December 21, 1995. Goudy's counsel learned of the police reports in October 1997, when the government disclosed the information they contained during Romeo Lee's subsequent murder trial. By that time, Goudy's direct appeal was pending in the Indiana Supreme Court, which denied his petition to reopen the record.

In addition to the undisclosed evidence contained in the police reports, the jury did not hear a tape-recorded confession given by Romeo Lee, Goudy's brother. While in prison in Arizona on another charge, Lee told Goudy's counsel and a private investigator that he and Harvell had been the two shooters. Lee said he and his brother were often confused for each other because of their similar looks. In his confession, Lee said Harvell was the gunman on the driver's side of McCloud's car and that he wore brown work clothing. Lee said that he was on the passenger side of the car and wore a black Raiders jacket. He said the shooting was the culmination of a verbal altercation between Harvell and McCloud that began at the Oasis earlier that evening.

When authorities transported Lee from Arizona to Indiana to testify at Goudy's trial, Lee's appointed counsel advised him to assert his Fifth Amendment right not to testify. When called, Lee refused to answer any questions on cross-examination and the court struck what little testimony he had given. The prosecution later used the confession at Lee's own trial to convict him of the murders. Neither party offers an explanation for counsel's failure to introduce Lee's confession. While Goudy's post-conviction petition suggests the possibility that counsel was unaware that the confession was self-authenticating and admissible under Indiana Rule of Evidence 804(b)(3), the record is not clear as to exactly why counsel never attempted its admission. At any rate, the jury never heard Lee's version of events.

Goudy appealed his conviction, claiming among other things that the trial court erred in rejecting Goudy's request for an in-camera review of the police reports to determine whether they contained exculpatory information. The Indiana Supreme Court rejected Goudy's arguments. After receiving the police reports from Lee's counsel, Goudy filed a petition with the supreme court to supplement or expand the record on appeal. The supreme court denied Goudy's petition, but noted that “the documents ... were not available to [Goudy's counsel] and that [he] acted with diligence.” Goudy v. State, No. 48A02-0409-PC-740, at 3, 2006 WL 370710, 842 N.E.2d 451 (Ind.Ct.App. Jan. 12, 2006). The court suggested Goudy seek post-conviction relief.

Goudy then petitioned for post-conviction relief, asserting that the failure to disclose the evidence in the police reports was a violation of the rule in Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Goudy also argued that the failure to introduce Lee's tape-recorded confession denied him a fair trial.

The Court of Appeals of Indiana denied Goudy's petition. The court held that Goudy waived his claim regarding the suppressed evidence because he could have asserted it on direct appeal. And while it labeled counsel's conduct “deficien [t],” the court did not engage in a detailed analysis of whether Goudy's counsel was constitutionally ineffective. Goudy v. State, No. 48A02-0409-PC-740, 834 N.E.2d 235, 2005 WL 2114285, Slip op. at 12 (Ind.Ct.App. Aug. 26, 2005). It instead rejected Goudy's second claim on the basis that he “suffered no prejudice” as a result of his counsel's failure to introduce Lee's recorded confession. Id.

However, when it subsequently rejected Goudy's petition for rehearing, the appeals court acknowledged that it had erred in holding that Goudy waived his Brady claim. Goudy v. State, No. 48A02-0409-PC-740, 2006 WL 370710, 842 N.E.2d 451, slip op. at 3 (Ind.Ct.App. Jan. 12, 2006). It acknowledged the fact that Goudy's counsel could not have pressed that claim on direct appeal because he was unaware that the suppressed statements existed. Id. Addressing whether the suppression of...