Crawford v. Cain ( 2007 )

United States Court of Appeals
Fifth Circuit
UNITED STATES COURT OF APPEALS F I L E D
FOR THE FIFTH CIRCUIT August 30, 2007
Charles R. Fulbruge III
Clerk
No. 06-30892
GEORGE CRAWFORD,
Plaintiff-Appellant,
v.
BURL CAIN, Warden, Louisiana State Penitentiary,
Defendant-Appellee.
Appeal from the United States District Court for the
Eastern District of Louisiana, New Orleans Division
2:04-CV-748
Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
On January 7, 1997, George Crawford (“Crawford”) and Larry
Lindsey were convicted by a jury of first-degree murder in
Louisiana state court. Both men were sentenced to life in prison
without the possibility of parole. During postconviction
proceedings, Crawford alleged, inter alia, that his conviction
should be overturned because the prosecution withheld exculpatory
*
Pursuant to 5th Cir. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5th Cir. R. 47.5.4.
and impeachment evidence in violation of Brady v. Maryland and its
progeny. On February 12, 2003, the Louisiana Fourth Circuit Court
of Appeal issued a lengthy opinion denying him relief. The court
agreed with Crawford that the prosecution had withheld relevant
material to which he was entitled, but also concluded that the
undisclosed evidence was not material for Brady purposes. Crawford
began habeas proceedings in the Eastern District of Louisiana on
March 15, 2004. On July 11, 2006, the district court agreed with
the state court and denied the habeas petition. On appeal, the
sole question before us is whether the state court was “objectively
unreasonable” in its disposition of Crawford’s Brady claim. We
find that it was not and AFFIRM.
I. FACTS
Shortly after 2:00 PM on September 22, 1994, Elijah Mitchell
and Sheri Bailes were sitting in Bailes’s black Corvette near the
2000 block of Thayer Street in the Fischer Housing Project in
Algiers, Louisiana. Two men approached and began shooting into the
car. Bailes was shot twice and killed. Mitchell was shot many
times but survived, and later proved to be a key witness at trial.
Detective Anthony Graffeo was the lead detective in the case.
He received a call from Shirley Davis, a resident of the Fischer
Project, who said she witnessed the shooting. Davis told Graffeo
she recognized one of the gunmen as Larry Lindsey, who was her
sister’s former boyfriend; the other she knew only as “George.”
Graffeo put together a photo array with a picture of Lindsey in it,
2
and Davis identified him. Police arrested Lindsey on October 6,
1994, and Lindsey stated that he was not involved in the shooting,
but he had heard that the perpetrator was a black male by the name
of George Crawford. Based on this information, Graffeo put
together a photo array with a picture of Crawford in it. The
police showed that photo to Shirley Davis and Elijah Mitchell, who
had recovered somewhat since the shooting. Both of them identified
Crawford as the shooter. Both also provided tape recorded
statements to Graffeo that were not turned over to the defense.
At trial, the prosecution’s case was based almost entirely on
the testimony of Davis and Mitchell, along with the photographic
identifications. Lindsey and Crawford were convicted by a jury of
first-degree murder and sentenced to life in prison without the
possibility of parole. During his postconviction proceedings,
Crawford argued to the Fourth Circuit Court of Appeal in Louisiana
that the prosecution had failed to turn over exculpatory and
impeachment material as required by Brady v. Maryland, 373 U.S. 83(1963). The Fourth Circuit issued a lengthy opinion that
ultimately affirmed the sentence on the basis that the undisclosed
evidence was not material for Brady purposes. State v. Crawford,
848 So.2d 615 (La. Ct. App. 2003). Crawford then began habeas
proceedings in the Eastern District of Louisiana. The district
court denied Crawford’s habeas petition as to all claims, but
granted a Certificate of Appealability solely as to the Brady
claim. That appeal is now before us.
3
II. STANDARD OF REVIEW
Under 28 U.S.C. § 2254(d)(1), a federal court may grant a writ
of habeas corpus if the state court’s decision was either (1)
“contrary to . . .” or (2) involved an “unreasonable application
of” clearly established federal law, as determined by the Supreme
Court of the United States. Crawford brings his claim only under
the second standard, alleging that the Fourth Circuit unreasonably
applied Brady and its progeny when it concluded that the
undisclosed evidence was not material.
There are two ways in which a state court decision can involve
an unreasonable application of the law. First, the court can
identify the right legal rule but apply it unreasonably to the
facts of a case, and second, the Court can unreasonably extend a
legal principle to a new and inappropriate context, or unreasonably
refuse to extend it to a context where it should apply. Williams
v. Taylor, 529 U.S. 362, 405–07 (2000). Under this standard, we
should only grant the writ when the state court’s decision was
erroneous and “objectively unreasonable.” Id. at 409–11. In
conducting this inquiry, we review the federal district court’s
findings of fact for clear error and its conclusions of law de
novo. Thompson v. Cain, 161 F.3d 802, 805 (5th Cir. 1998)
(citations omitted).
III. DISCUSSION
“[T]he suppression by the prosecution of evidence favorable to
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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, 373 U.S. at 87. To
establish a Brady claim, a petitioner must demonstrate that (1) the
prosecution suppressed evidence, (2) the evidence was favorable to
the petitioner, and (3) the evidence was material. Kyles, 514 U.S.
at 432–34 (1995); Spence v. Johnson, 80 F.3d 989, 994 (5th Cir.
1996) (citation omitted). “Favorable” evidence includes that which
is exculpatory and that which could be used to impeach a
prosecution witness. United States v. Bagley, 473 U.S. 667, 676–77
(1985).
The test for materiality is “whether the disclosure of the
evidence would have created a reasonable probability that the
result of the proceeding would have been different.” United States
v. Sipe, 388 F.3d 471, 485 (5th Cir. 2004) (internal quotation
omitted); see also Kyles v. Whitley, 514 U.S. 419, 433–34 (1995)
(citations omitted). Evidence may be material under Brady even
when it is not admissible, provided that it satisfies the same
test. Sipe, 388 F.3d at 485. The Supreme Court has identified
four aspects of the materiality inquiry. First, “[t]he 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.” Kyles, 514 U.S. at 434. Second,
the materiality inquiry is “not a sufficiency of the evidence
5
test.” Id. Rather, the reviewing court should ask whether “the
favorable evidence could reasonably be taken to put the whole case
in such a different light as to undermine confidence in the
verdict.” Id. at 435. Third, if the evidence is material, there
is no need for a harmless error analysis. Id. Finally, though the
court may have to go over each piece of evidence item by item, it
must ultimately evaluate the cumulative effect of the evidence for
purposes of materiality. Id. at 436.
A. Whether or not the suppressed evidence was favorable to
Crawford
There is no dispute that the prosecution did suppress
evidence. It remains, however, for Crawford to show that the
evidence was (a) favorable to his defense, and (b) material. Both
the state court and the district court readily concluded that much
of the suppressed evidence would have been favorable to Crawford’s
defense, and we agree. There are four separate documents that
contained exculpatory or impeachment evidence. These include: (1)
a supplemental police report; (2) Shirley Davis’s pretrial
statement; (3) Elijah Mitchell’s pretrial statement; and (4) the
911 log. We summarize the relevant contents of those documents
here before turning to the question of materiality.
1. The Supplemental Police Report
The supplemental report contained three favorable statements:
(1) When Shirley Davis initially called police, she stated that the
perpetrators were Larry Lindsey and George Ascort; (2) Davis also
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told police “she would come forward and give a statement only if
she could be relocated from the Fisher Housing Project,” because
the perpetrators had threatened to kill her; and (3) On the morning
after the shooting, an anonymous caller told Graffeo that the
second shooter’s name was possibly George Jefferson, and that he
lived on the 200 block of LeBoeuf Court in the Fisher Project. The
first of these statements would have conflicted with Davis’s trial
testimony that she did not know George’s last name at the time of
the shooting or when she first spoke to police. The second
suggests bias, and thus fabrication. The third presents the
possibility of a different shooter altogether.
2. Shirley Davis’s Pretrial Statement
At least two portions of Davis’s pretrial statement were
favorable to Crawford. First, Davis said she knew George’s name to
be George Caldwell, which is inconsistent with both her trial
testimony and her first statement to Graffeo. Second, her
description of the shooters’ clothing was different from what it
was at trial. In her statement she told police that Lindsey was
wearing a dark colored shirt, while George was wearing a purple and
white long-sleeve shirt with a hood, but at trial the descriptions
were effectively switched. There were other minor inconsistences,
or possible inconsistencies, as well.1
1
For instance, in the pretrial statement Davis states that
“you couldn’t really tell [the perpetrators] had guns on them when
they first got out of the car,” but at trial she said that the
7
3. Elijah Mitchell’s Pretrial Statement
Two excerpts of Mitchell’s pretrial statement are at least
somewhat favorable to Crawford. First, the statement reveals that
Mitchell did not know George’s last name at the time of the
shooting, which is plainly inconsistent with his trial testimony.
Second, his statement that Lindsey used a 9 mm gun, while George
used a “small caliber gun” might have been used to impeach Mitchell
because evidence revealed the guns were actually the same type.
4. The 911 Log
Two portions of the 911 log were favorable to Crawford.
First, one caller described a perpetrator as wearing a “multi-
striped hooded shirt.” Another stated that the two wore “a
multicolor shirt and green pants” and “a colorful shirt and black
jeans,” respectively. This evidence is inconsistent with
Mitchell’s testimony that the second shooter wore a light colored
shirt and tan pants. Second, the one caller said the shooters ran
after the shooting, which is inconsistent with Davis’s testimony
that the shooters walked away from the scene.
B. Whether the favorable evidence was material
Having reviewed the favorable evidence, we must now consider
whether the evidence satisfies the Supreme Court’s test for
shooters did have guns in their hands when they got out of the car.
Also, there is also a possible inconsistency in Davis’s pretrial
statement that she went up to the car and observed the victims
after the shooting was over, and her testimony at trial that she
went immediately inside.
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materiality. It is clear to us that none of this evidence,
standing alone, would have been sufficient to undermine confidence
in the jury’s verdict. However, as has already been stated, we
must consider the materiality of the evidence cumulatively, in
light of the record as a whole. Kyles, 514 U.S. at 436–37.
1. The Impeachment of Elijah Mitchell
The state court readily found the impeachment evidence
immaterial as to Mitchell. Mitchell’s statement that he knew
Crawford’s last name at the time of the crime was inconsequential
in light of his testimony that he had known Crawford for over a
month, and his ability to identify him in an untainted photo array.
Similarly, Mitchell’s statement about the size of the guns was
immaterial because the jury knew there was an inconsistency between
his account of the guns and Davis’s account of the guns. Mitchell
testified at trial that Crawford had a small gun and Lindsey did
not, while Davis testified that both guns were “big.” Any other
inconsistencies between the testimony of Mitchell and Davis, or
between Mitchell’s testimony and the physical evidence, were aired
at trial and thus fully presented to the jury. We cannot say that
the state court’s conclusions were objectively unreasonable.
2. The Impeachment of Davis
Crawford argues that Davis’s real motivation for testifying
was to obtain new housing, and notes that she changed George’s last
name several times over the course of the investigation. The state
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court considered these arguments at length but ultimately found
them unavailing. First, the court found that any evidence of bias
would have done Crawford more harm than good because it would have
opened the door to evidence that Davis had been threatened by the
assailants.2 Furthermore, the court noted that Davis subsequently
declined the offer of new housing long before trial, but
nonetheless proceeded to testify against Crawford as planned, which
seriously undercuts its value as impeachment evidence. For those
two reasons, then, the state court found that the suppressed
evidence of bias was immaterial, and we cannot say that this
conclusion was objectively unreasonable.
As to the many inconsistencies in Davis’s various statements
over time, including and especially the changes in George’s last
name, the state court concluded that any inconsistency was
illusory. The jury did not know that Davis gave two incorrect
names, but it did hear that Davis did not know George’s last name
at the time of the shooting. According to the state court, the
difference between the two, if any, is minor, and means very little
in light of the fact that she successfully identified Crawford in
the photo array. Again, whether or not we agree with that
conclusion, we surely cannot say it is objectively unreasonable.
The same holds true for the other minor inconsistencies in Davis’s
2
In fact, the trial court granted Lindsey’s motion to preclude
any mention of threats on that very basis, and specified that if
the defense mentioned the housing switch to show bias, that would
open the door to evidence of threats.
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testimony, such as her transposed descriptions of the perpetrators’
clothing, or the differing versions in the 911 log. These
inconsistencies do not affect Davis’s credibility so much as to
undermine confidence in the verdict.
3. George Jefferson
Crawford claims that the anonymous tipster’s identification of
a “George Jefferson” would have allowed the defense to point the
finger at another suspect, and to illustrate that the police
investigation was sloppy and unreliable. Graffeo did follow up on
the lead, but found no “concrete information.” 848 So.2d at 630.
A “George Jefferson” did in fact live in or near the housing
projects where the shooting occurred, but that name did not surface
again after the very early stages of the investigation. The state
appellate court found this omission immaterial because the jury
“was aware that the police had the names of several Georges,” id.
at 631, particularly early on in the investigation, and while Davis
and Mitchell were unsure of the last name, they both positively
identified Crawford, whom they had known for some time. This
conclusion was not objectively unreasonable.3
4. Cumulative Impact
3
Crawford makes an additional argument in his brief that he
might have been able to impeach Graffeo if he had had access to the
Supplemental Report and Davis’s pretrial interview. In so doing,
however, Crawford misreads Graffeo’s testimony to create
inconsistencies where there are none. We find this argument
unpersuasive and unsupported by the record.
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Finally, Crawford suggests that the state court did not
evaluate the evidence cumulatively. He relies largely on the fact
that the court did not specifically quote the relevant language
from Kyles on the question of cumulative impact. 514 U.S. at436–37. We are not persuaded. The state appellate court cited the
relevant excerpts from Brady and quoted at length from Kyles and
other cumulative review cases. Though the court did not cite the
precise language we have to signal its cumulative review, it is
plain to us that the inquiry was conducted properly. In the end,
the accounts of Davis and Mitchell were largely in line with one
another and, of course, both knew Crawford personally and
identified him in untainted photo arrays. Taken as a whole, the
evidence does not support Crawford’s contention that the state
court was objectively unreasonable in concluding that the
suppressed evidence was immaterial.
V. CONCLUSION
There is no doubt that the state failed to turn over to
Crawford favorable evidence to which he was entitled.
Nevertheless, the state court thoroughly considered whether the
suppressed evidence was material according to the guidelines
provided by the Supreme Court. For the reasons stated above, we
cannot say that the state court’s conclusions were objectively
unreasonable, and we therefore AFFIRM the district court’s denial
of the petition.
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