Montgomery v. Bagley

• Decision Date: 29 September 2009
• Docket Number: No. 07-3882.,No. 07-3893.,07-3882.,07-3893.
• Citation: 581 F.3d 440
• Parties: William T. MONTGOMERY, Petitioner-Appellee/Cross-Appellant, v. Margaret BAGLEY, Warden, Respondent-Appellant/Cross-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

581 F.3d 440

William T. MONTGOMERY, Petitioner-Appellee/Cross-Appellant, v. Margaret BAGLEY, Warden, Respondent-Appellant/Cross-Appellee.

No. 07-3882.

No. 07-3893.

United States Court of Appeals, Sixth Circuit.

Argued: June 17, 2009.

Decided and Filed: September 29, 2009.

ARGUED:

Stephen E. Maher, Office of the Ohio Attorney General, Columbus, Ohio, for Appellant. Richard Marvin Kerger, Kerger & Hartman, LLC, Toledo, Ohio, for Appellee.

ON BRIEF:

Charles L. Wille, Office of the Ohio Attorney General, Columbus, Ohio, for Appellant. Richard Marvin Kerger, Kerger & Hartman, LLC, Toledo, Ohio, Lori A. McGinnis, Loudonville, Ohio, for Appellee.

Before: MERRITT, CLAY, and GIBBONS, Circuit Judges.

MERRITT, J., delivered the opinion of the court, in which CLAY, J., joined. GIBBONS, J. (pp. 453-456), delivered a separate dissenting opinion.

OPINION

MERRITT, Circuit Judge.

I. Summary

In this death penalty case, the State of Ohio, through the Respondent, Warden Margaret Bagley, appeals the District Court's new trial order granting William T. Montgomery's petition for a writ of habeas corpus under 28 U.S.C. § 2254, and its subsequent denial of the State's motion to reconsider that order. See Montgomery v. Bagley, 482 F.Supp.2d 919 (N.D.Ohio 2007). The District Court issued the writ based on a finding that the State, in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), withheld an exculpatory, pretrial police report that would likely have altered the outcome of the case — a pretrial report that several witnesses had seen one of Montgomery's purported victims alive four days after the State alleged that he had killed her. Montgomery cross-appeals the District Court's denial of his petition on several alternative grounds, including the state trial court's failure to grant a change of venue despite negative pretrial publicity, the State's failure to disclose certain other Brady material, and the trial court's failure to dismiss an incompetent juror.

The key issue for us to resolve under Brady is whether the withheld police report is "material" to Montgomery's jury conviction or the jury's imposition of the death sentence when viewed in light of the other evidence presented at trial. The Warden's argument that the withheld police report is not "material" has two components: First, given the strength of the other evidence at trial implicating Montgomery, the introduction of the police report would have made no difference in the outcome of the trial. Second, in affidavits submitted to the habeas court 23 years after the jury trial and seven weeks after the court had issued the writ, the State now claims that several of the pretrial police-report witnesses have retracted their earlier statements, which now proves that the exculpatory report could neither be effectively used in a new trial to cast doubt on the state's case, nor could it have led to such evidence in the past.

Montgomery argues that the evidence at trial implicated his co-defendant, Glover Heard, as the trigger man so that introduction of the withheld police report would have given the jury reasonable doubt as to his guilt. Alternatively, on the issue of death, Montgomery also contends that the police report would probably have created enough doubt in at least one juror's mind to raise a question about his role as the trigger man, resulting in that juror's rejection of the death penalty for Montgomery. Under Ohio law, if only one juror rejects the death sentence, a life sentence would be imposed. Ohio Rev.Code Ann. § 2929.03(D)(2).

The law under Brady follows the common sense proposition that the State must disclose the "material exculpatory evidence to the defendant before trial," not afterward. See Dist. Attorney's Office for the Third Jud. Dist. v. Osborne, ___ U.S. ___, 129 S.Ct. 2308, 2319, 174 L.Ed.2d 38 (2009) (emphasis added). It directs us not to retry the case by weighing the existing evidence against the excluded evidence, but rather to determine whether the excluded 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, 514 U.S. 419, 435, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). The Brady due process rule concerning disclosure of exculpatory evidence complements and supports the Sixth Amendment rule requiring that "in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State." The Brady rule contemplates the ultimate trial of factual issues in a contemporary trial by a jury, not by a subsequent trial in federal habeas court. See Kyles v. Whitley, 514 U.S. at 439-40, 115 S.Ct. 1555 (explaining that "the criminal trial ... [is] the chosen forum for ascertaining the truth about criminal accusations").

In this capital case, the State is unable to effectively rebut three crucial propositions that control the outcome: (1) the withheld report is exculpatory and should have been disclosed before trial, (2) it is "material" because, if true, it would likely change the outcome of the trial, and (3) the ultimate determination concerning the truth of the withheld report — i.e., what actually happened — is for the state courts to resolve. Because, like the District Court, we believe that the withheld, exculpatory report "undermines confidence in the verdict" as to both the guilt and sentencing phases of Montgomery's trial, we hold that Montgomery deserves a new trial where all of the relevant evidence is considered by the jury. For the reasons that follow, we affirm the District Court's issuance of the writ and later denial of the State's motion to reconsider. We pretermit the remaining issues raised in Montgomery's cross-appeal.

II. Facts Found by State Courts and Procedural Background

A. The Underlying Crime

The Ohio Court of Appeals summarized the facts of the underlying crimes as follows:

On March 25, 1986, the Lucas County Grand Jury returned a two count indictment charging [Montgomery] with the aggravated murders of Debra D. Ogle and Cynthia Tincher while committing or attempting to commit aggravated robbery, in violation of R.C. 2903.01(B)....

On September 29, 1986, the case proceeded to a jury trial at which numerous witnesses testified, including Glover Heard, who was also indicted for the aggravated murders of Ogle and Tincher but who pled guilty to one count of complicity to murder. Through those witnesses, the following key evidence was presented. On February 20, 1986, [Montgomery] purchased a Bursa .380 automatic handgun from Cleland's Gun Shop in Toledo, Ohio. This gun was subsequently identified as the weapon that was used to kill both Ogle and Tincher. At approximately 5:00 a.m. on March 8, 1986, after an apparent argument with his girlfriend, [Montgomery] went by taxi with Glover Heard to an apartment shared by Ogle and Tincher. [Montgomery] was acquainted with the victims but Heard was not. At this time, [Montgomery] was wearing a dark blue pinstriped suit jacket that he had borrowed from Randolph Randleman, his uncle. Subsequently, [Montgomery] asked Ogle to give him a ride home. After Ogle agreed, she, [Montgomery] and Heard left in her car. Before arriving at the destination, however, [Montgomery] had Ogle stop the car. He then walked her into a wooded area along Hill Avenue in Toledo, Ohio, while Heard remained in Ogle's car, and then, for no apparent reason, [Montgomery] shot Ogle three times with the fatal wound inflicted while the gun was in direct contact with the top of her forehead. [Montgomery] then returned to the car and he and Heard drove back to the girls' apartment. [Montgomery] instructed Heard to take Ogle's car. Heard took the car but then abandoned it approximately one block from his residence. [Montgomery] returned to the girls' apartment and shortly thereafter left with Cynthia Tincher in her car. After leaving the apartment, [Montgomery] had Tincher pull to the side of the road and thereupon shot her through the head from a range of twelve inches or less. Several witnesses testified that they saw a man of approximately [Montgomery's] height and weight leaving Tincher's car on the morning of March 8, 1986 at approximately 7:15. Those witnesses testified, however, that the person they saw was wearing a dark jacket with a hood pulled up around his face. Tincher's body was discovered in her car at the corner of Wenz and Angola Roads in Toledo, Ohio at approximately 7:30 a.m. on March 8, 1986. [Montgomery] lives approximately one-half mile from that location. Thereafter, at approximately 12:00 noon on March 8, 1986, [Montgomery], Heard and two friends, Sidney Armstead and Eric Wilson, got together to go to a mall. [Montgomery], however, was carrying a plastic bag and directed Armstead to first drive him to a dry cleaner. Armstead drove appellant to One Hour Martinizing where [Montgomery] got out of the car with the bag. Although they were unable to identify [Montgomery], employees of the laundry testified that on March 8, 1986, a black male showed them a soaking wet dark blue pin-striped suit jacket that he wanted cleaned in one hour. The employees explained that the jacket would have to dry out before it could be cleaned. They then hung the jacket to dry. One employee testified that as it dried, the jacket made a "brownish dripping mess on the floor." She further testified that the jacket was badly stained and that she had to clean the jacket three times using a chemical cleaner. She could not identify, however, what the stains were. Subsequently, the jacket was picked up. Several days later, police officers obtained the jacket from Randolph Randleman who identified the jacket in court as the one which he had loaned to [Montgomery].

As stated above, on March 8, 1986 at approximately 7:30 a.m., Tincher's body was discovered in her car at the corner of Wenz and Angola. Soon thereafter, Ogle was listed as missing. The following...