Warren Garrison v. Ross Maggio, Jr., Acting Warden , 540 F.2d 1271 ( 1976 )

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.

5 . Garrison does not specifically seek resentencing on the theory that the report is material to his punishment. We intimate no view on the merits of such an argument or on whether Garrison has exhausted his state remedies as to it. or something like that. (Emphasis added.)

1 . Under Louisiana law, he would not have been entitled to the police report. E. g., State v. Cardinale, 251 La. 827, 206 So.2d 510 (1968), cert. denied, 394 U.S. 437, 89 S.Ct. 1162, 22 L.Ed.2d 398 (1969).

2 . Applying the presumption of 28 U.S.C. § 2254(d), the district court accepted the state habeas court’s findings that the prosecutor did not know of the report and that it was not in his file before or during trial. These findings are tainted, however, by the state court’s misunderstanding of the prosecutor’s testimony, revealed by its incorrect statement that the prosecutor testified he had never seen the police report and did not know of its existence before or after trial. In fact, he testified merely that he did not remember whether he had seen it before or whether it had been in his file. The only fact suggesting that he had not read this report, as he read the other reports in the case, is its. absence from the prosecutor’s file when it was produced years later at the state hearing. On the other hand, there is convincing evidence that the prosecutor had read the supplementary report. His notes on his own pretrial interview with the victim contained a notation that a remark attributed to one of the robbers was “same as report.” The only one of the three police reports which contained this remark was the supplementary report at issue here. Our statement in text is equivalent to assuming without deciding that the state findings are not fairly supported by the record. See 28 U.S.C. § 2254(d)(8) (1970); Townsend v. Sain, 372 U.S. 293, 313, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). In view of our disposition of this case, this extraordinary assumption is justified because it permits us to avoid complicated issues about the duty of the police to furnish the prosecutor with all the evidence generated by their investigation.

3 . It likewise equates a general request with the no-request situation presented here.

4 . In Davis v. Heyd, 479 F.2d 446 (5th Cir. 1973), we anticipated Agurs’ ruling that the absence of a request is not fatal to a Brady claim. We reversed a district court which had relied in part on the fact that the undisclosed evidence, including a prior inconsistent statement of a prosecution witness, was useful only for cross-examination. Although the standard of materiality used in Davis is inconsistent with Agurs and that aspect of Davis is therefore overruled, it is maintainable that nothing in Agurs permits reevaluation of the scope of the duty to volunteer established by Davis.