Smith v. Cain , 132 S. Ct. 627 ( 2012 )

(Slip Opinion) OCTOBER TERM, 2011 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
SMITH v. CAIN, WARDEN
CERTIORARI TO THE CRIMINAL DISTRICT COURT OF
LOUISIANA, ORLEANS PARISH
No. 10–8145. Argued November 8, 2011—Decided January 10, 2012
Petitioner Juan Smith was convicted of first-degree murder based on
the testimony of a single eyewitness. During state postconviction re-
lief proceedings, Smith obtained police files containing statements by
the eyewitness contradicting his testimony. Smith argued that the
prosecution’s failure to disclose those statements violated Brady v.
Maryland, 373 U. S. 83. Brady held that due process bars a State
from withholding evidence that is favorable to the defense and mate-
rial to the defendant’s guilt or punishment. See id., at 87. The state
trial court rejected Smith’s Brady claim, and the Louisiana Court of
Appeal and Louisiana Supreme Court denied review.
Held: Brady requires that Smith’s conviction be reversed. The State
does not dispute that the eyewitness’s statements were favorable to
Smith and that those statements were not disclosed to Smith. Under
Brady, evidence is material if there is a “reasonable probability that,
had the evidence been disclosed, the result of the proceeding would
have been different.” Cone v. Bell, 556 U. S. 449, 469–470. A “rea-
sonable probability” means that the likelihood of a different result is
great enough to “undermine[ ] confidence in the outcome of the trial.”
Kyles v. Whitley, 514 U. S. 419, 434. Evidence impeaching an eye-
witness’s testimony may not be material if the State’s other evidence
is strong enough to sustain confidence in the verdict. United States v.
Agurs, 427 U. S. 97, 112–113, and n. 21. Here, however, the eyewit-
ness’s testimony was the only evidence linking Smith to the crime,
and the eyewitness’s undisclosed statements contradicted his testi-
mony. The eyewitness’s statements were plainly material, and the
State’s failure to disclose those statements to the defense thus violat-
ed Brady. Pp. 2–4.
2 SMITH v. CAIN
Syllabus
Reversed and remanded.
ROBERTS, C. J., delivered the opinion of the Court, in which SCALIA,
KENNEDY, GINSBURG, BREYER, ALITO, SOTOMAYOR, and KAGAN, JJ.,
joined. THOMAS, J., filed a dissenting opinion.
Cite as: 565 U. S. ____ (2012) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 10–8145
_________________
JUAN SMITH, PETITIONER v. BURL CAIN, WARDEN
ON WRIT OF CERTIORARI TO THE ORLEANS PARISH CRIMINAL
DISTRICT COURT OF LOUISIANA
[January 10, 2012]
CHIEF JUSTICE ROBERTS delivered the opinion of the
Court.
The State of Louisiana charged petitioner Juan Smith
with killing five people during an armed robbery. At
Smith’s trial a single witness, Larry Boatner, linked Smith
to the crime. Boatner testified that he was socializing at a
friend’s house when Smith and two other gunmen entered
the home, demanded money and drugs, and shortly there-
after began shooting, resulting in the death of five of
Boatner’s friends. In court Boatner identified Smith as
the first gunman to come through the door. He claimed
that he had been face to face with Smith during the initial
moments of the robbery. No other witnesses and no physi-
cal evidence implicated Smith in the crime.
The jury convicted Smith of five counts of first-degree
murder. The Louisiana Court of Appeal affirmed Smith’s
conviction. State v. Smith, 797 So. 2d 193 (2001). The
Louisiana Supreme Court denied review, as did this
Court. 2001–2416 (La. 9/13/02), 824 So. 2d 1189; 537 U. S.
1201 (2003).
Smith then sought postconviction relief in the state
courts. As part of his effort, Smith obtained files from the
2 SMITH v. CAIN
Opinion of the Court
police investigation of his case, including those of the lead
investigator, Detective John Ronquillo. Ronquillo’s notes
contain statements by Boatner that conflict with his tes-
timony identifying Smith as a perpetrator. The notes from
the night of the murder state that Boatner “could not . . .
supply a description of the perpetrators other then [sic]
they were black males.” App. 252–253. Ronquillo also
made a handwritten account of a conversation he had with
Boatner five days after the crime, in which Boatner said
he “could not ID anyone because [he] couldn’t see faces”
and “would not know them if [he] saw them.” Id., at 308.
And Ronquillo’s typewritten report of that conversation
states that Boatner told Ronquillo he “could not identify
any of the perpetrators of the murder.” Id., at 259–260.
Smith requested that his conviction be vacated, arguing,
inter alia, that the prosecution’s failure to disclose Ron-
quillo’s notes violated this Court’s decision in Brady v.
Maryland, 373 U. S. 83 (1963). The state trial court re-
jected Smith’s Brady claim, and the Louisiana Court of
Appeal and Louisiana Supreme Court denied review. We
granted certiorari, 564 U. S. ___ (2011), and now reverse.
Under Brady, the State violates a defendant’s right to
due process if it withholds evidence that is favorable to the
defense and material to the defendant’s guilt or punish-
ment. See 373 U. S., at 87. The State does not dispute
that Boatner’s statements in Ronquillo’s notes were fa-
vorable to Smith and that those statements were not dis-
closed to him. The sole question before us is thus whether
Boatner’s statements were material to the determination
of Smith’s guilt. We have explained that “evidence is
‘material’ within the meaning of Brady when there is a
reasonable probability that, had the evidence been dis-
closed, the result of the proceeding would have been dif-
ferent.” Cone v. Bell, 556 U. S. 449, 469–470 (2009). A
reasonable probability does not mean that the defendant
“would more likely than not have received a different
Cite as: 565 U. S. ____ (2012) 3
Opinion of the Court
verdict with the evidence,” only that the likelihood of a
different result is great enough to “undermine[] confidence
in the outcome of the trial.” Kyles v. Whitley, 514 U. S.
419, 434 (1995) (internal quotation marks omitted).
We have observed that evidence impeaching an eyewit-
ness may not be material if the State’s other evidence is
strong enough to sustain confidence in the verdict. See
United States v. Agurs, 427 U. S. 97, 112–113, and n. 21
(1976). That is not the case here. Boatner’s testimony
was the only evidence linking Smith to the crime. And
Boatner’s undisclosed statements directly contradict his
testimony: Boatner told the jury that he had “[n]o doubt”
that Smith was the gunman he stood “face to face” with on
the night of the crime, but Ronquillo’s notes show Boatner
saying that he “could not ID anyone because [he] couldn’t
see faces” and “would not know them if [he] saw them.”
App. 196, 200, 308. Boatner’s undisclosed statements
were plainly material.
The State and the dissent advance various reasons why
the jury might have discounted Boatner’s undisclosed
statements. They stress, for example, that Boatner made
other remarks on the night of the murder indicating that
he could identify the first gunman to enter the house, but
not the others. That merely leaves us to speculate about
which of Boatner’s contradictory declarations the jury
would have believed. The State also contends that Boat-
ner’s statements made five days after the crime can be
explained by fear of retaliation. Smith responds that the
record contains no evidence of any such fear. Again, the
State’s argument offers a reason that the jury could have
disbelieved Boatner’s undisclosed statements, but gives us
no confidence that it would have done so.
The police files that Smith obtained in state postconvic-
tion proceedings contain other evidence that Smith con-
tends is both favorable to him and material to the verdict.
Because we hold that Boatner’s undisclosed statements
4 SMITH v. CAIN
Opinion of the Court
alone suffice to undermine confidence in Smith’s convic-
tion, we have no need to consider his arguments that the
other undisclosed evidence also requires reversal under
Brady.
The judgment of the Orleans Parish Criminal District
Court of Louisiana is reversed, and the case is remanded
for further proceedings not inconsistent with this opinion.
It is so ordered.
Cite as: 565 U. S. ____ (2012) 1
THOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 10–8145
_________________
JUAN SMITH, PETITIONER v. BURL CAIN, WARDEN
ON WRIT OF CERTIORARI TO THE ORLEANS PARISH CRIMINAL
DISTRICT COURT OF LOUISIANA
[January 10, 2012]
JUSTICE THOMAS, dissenting.
The Court holds that Juan Smith is entitled to a new
murder trial because the State, in violation of Brady v.
Maryland, 373 U. S. 83 (1963), did not disclose that the
eyewitness who identified Smith at trial stated shortly
after the murders that he could not identify any of the
perpetrators. I respectfully dissent. In my view, Smith
has not shown a “reasonable probability” that the jury
would have been persuaded by the undisclosed evidence.
United States v. Bagley, 473 U. S. 667, 682 (1985) (opinion
of Blackmun, J.). That materiality determination must be
made “in the context of the entire record,” United States v.
Agurs, 427 U. S. 97, 112 (1976), and “turns on the cumu-
lative effect of all such evidence suppressed by the gov-
ernment,” Kyles v. Whitley, 514 U. S. 419, 421 (1995).
Applying these principles, I would affirm the judgment
of the Louisiana trial court.
I
The evidence presented at trial showed the following
facts. On March 1, 1995, Larry Boatner and several
friends gathered at Rebe Espadron’s home in New Or-
leans. Boatner and others were drinking and talking in
the kitchen when Boatner heard the loud sound of a car
without a muffler outside. As Boatner opened the kitchen’s
outside door to investigate the noise, armed men pushed
2 SMITH v. CAIN
THOMAS, J., dissenting
their way through the door, demanding drugs and money.
Tr. 153–154 (Dec. 5, 1995). The first man though the door
put a gun in Boatner’s face and pushed him backwards.
Id., at 154–155. The men initially ordered Boatner and
his friends to the floor, but then ordered Boatner to stand
up. At that time, the man who had been the first one
through the door placed his gun under Boatner’s chin. Id.,at 156–157. When Boatner asked what the men wanted
him to do, the first man struck Boatner on the back of the
head with his gun, knocking Boatner back to the ground.
Id., at 157–158.
After hearing the commotion, Espadron emerged from a
back bedroom, where she had been when the men entered
the house. As Espadron opened an inside door leading to
the kitchen, a man with a “covering” over his mouth point-
ed his gun at her face and ordered her to the floor. Id., at
70–71. Disregarding his command, Espadron ran back
toward the bedroom, at which point the intruders opened
fire. Id., at 71–72, 159.
When the shooting was over, four people lay dead. A
fifth person, 17-year-old Shelita Russell, was mortally
wounded and died later at the hospital. Of those original-
ly gathered in the house, the only survivors were Boatner,
who suffered a severe laceration to his head from the first
man’s blow but was otherwise uninjured; Espadron, who
escaped unharmed; and Reginald Harbor, who had re-
mained in a back bedroom during the shooting. The police
also found a man named Phillip Young at the scene.
Young was alive but had suffered a gunshot wound to the
head. Because Boatner, Espadron, and Harbor had never
seen Young before, the police surmised that Young had
been one of the perpetrators.1
——————
1 Young was indicted along with Smith for the murders, but he was
deemed incompetent to stand trial due to the brain damage he suffered
Cite as: 565 U. S. ____ (2012) 3
THOMAS, J., dissenting
New Orleans police officer Joseph Narcisse was a first
responder to the scene of the shooting. He testified at trial
that he encountered Boatner in the bathroom of Espa-
dron’s home, where Boatner was attempting to care for the
laceration to his head. According to Narcisse, “Mr. Boat-
ner . . . had let inside the perpetrators and did see them.”
Id., at 21 (Dec. 4, 1995). Narcisse further explained that
Boatner “had a description” of the person that he saw, the
details of which Narcisse could not recall. Id., at 32.
Detective John Ronquillo, the lead investigator of the
shootings, testified that Boatner had described the first
man through the kitchen door as having a “short-type
haircut,” “a lot of golds in his teeth,” and “brown-ski[n].”2
Id., at 115 (Dec. 5, 1995). Ronquillo further testified that
Boatner could describe no other perpetrator, but that
Boatner had viewed the first man twice: once when the
man initially came through the door and again when
Boatner was ordered to stand up and the man held a gun
to his chin. Id., at 117–118.
Ronquillo also testified that, during the four months
following the shootings, Boatner viewed 14 six-person
photograph arrays of potential suspects—only one of
which contained a picture of Smith. Id., at 89–100. Three
weeks after the crime, Ronquillo presented Boatner with
one of the arrays that did not include a picture of Smith.
Ronquillo recalled that Boatner noted that one man in the
array had a “similar haircut” and “a similar expression on
his face” as the “gentleman that came into the house
initially with the gun that [Boatner] confronted,” but that
——————
as a result of being shot. 1 Record 49.
2 “Golds” are permanent or removable mouth jewelry, also referred to
as “grills.” See Mouth Jewelry Wearers Love Gleam of the Grill, South
Florida Sun-Sentinel, Feb. 4, 2007, p. 5, 2007 WLNR 2187080. See also
A. Westbrook, Hip Hoptionary 59 (2002) (defining a “grill” as a “teeth
cover, usually made of gold and diamonds”).
4 SMITH v. CAIN
THOMAS, J., dissenting
Boatner “was positive this wasn’t the individual.” Id., at
97; see also 5 Record 828. A few months later, Ronquillo
presented Boatner with the array that included a photo-
graph of Smith. Tr. 99–101 (Dec. 5, 1995). Ronquillo
testified that Boatner identified Smith “immediately,”
stating, “ ‘This is it. I’ll never forget that face.’ ” Id., at
100. Of the 84 photographs that Boatner viewed, Smith’s
photograph was the only one that Boatner identified.
Boatner identified Smith again when he was called to
the stand during Smith’s trial. Boatner testified that
Smith’s face was the “[s]ame face,” id., at 174, and that
Smith’s mouth was the “[s]ame mouth” “full of gold,” ibid.,
as that of the first man who came through the kitchen
door on the night of the attack. Boatner also testified that
Smith’s hair at trial was “shaved on the sides” as it was
during the crime, but that “the top was a little bit lower”
at the time of the murders. Id., at 165. Boatner explain-
ed that, during the attack, he had focused on the first
man through the door—who was unmasked—but that he
“didn’t notice” the faces of any of the other assailants or
whether they were masked. Id., at 154. On cross-
examination, Boatner testified that he had described the
first man’s build, haircut, and gold teeth jewelry to the
police. Id., at 178.
Based on this evidence, the jury convicted Smith of first-
degree murder. Following the conclusion of direct review,
Smith petitioned the trial court for postconviction relief.
Smith argued that the State had failed to disclose various
police notes revealing favorable evidence material to
Smith’s guilt. As relevant here, those items include pre-
trial statements by Boatner; statements by victim Shelita
Russell and Espadron’s neighbor, Dale Mims; a pretrial
statement by firearms examiner Kenneth Leary; state-
ments by cosuspect Robert Trackling and Trackling’s
fellow inmate, Eric Rogers; and a statement by cosuspect
Phillip Young. After holding a 4-day evidentiary hearing,
Cite as: 565 U. S. ____ (2012) 5
THOMAS, J., dissenting
the postconviction judge—who had also presided over
Smith’s 2-day trial—denied Smith’s Brady claims.
Like the postconviction court below, I conclude that
Smith is not entitled to a new trial under Brady. In my
view, Smith has not established a reasonable probability
that the cumulative effect of this evidence would have
caused the jury to change its verdict.
II
A
Smith first identifies two undisclosed statements by
Boatner, which the Court concludes are “plainly material.”
Ante, at 3. First, a note by Ronquillo, documenting a
conversation he had with Boatner at the scene, states that
Boatner “could not . . . supply a description of the perpe-
trators other th[a]n they were black males.” 5 Record 809.
Second, a handwritten note by Ronquillo, documenting a
phone conversation he had with Boatner on March 6, five
days after the murders, states that “Boatner . . . could not
ID anyone because couldn’t see faces . . . glanced at 1st
one—saw man—through door—can’t tell if had—faces
covered didn’t see anyone . . . Could not ID—would not
know them if—I saw them.” 13 id., at 2515. Ronquillo’s
typed summary of this note states that Boatner advised
him that he “could not identify any perpetrators of the
murder.” 5 id., at 817.
Smith is correct that these undisclosed statements could
have been used to impeach Boatner and Ronquillo during
cross-examination. But the statements are not material
for purposes of Brady because they cannot “reasonably be
taken to put the whole case in such a different light as to
undermine confidence in the verdict.” Kyles, 514 U. S., at
435. When weighed against the substantial evidence that
Boatner had opportunities to view the first perpetrator,
offered consistent descriptions of him on multiple occa-
sions, and even identified him as Smith, the undisclosed
6 SMITH v. CAIN
THOMAS, J., dissenting
statements do not warrant a new trial.
The evidence showed that, notwithstanding Ronquillo’s
on-scene note, Boatner offered a description of the perpe-
trator at the scene. Officer Narcisse testified that Boatner
provided him with a description of the perpetrator that
Boatner saw. Narcisse’s testimony thus corroborated
Boatner’s trial testimony that he saw the first man and
described him to police.3 Narcisse’s testimony also miti-
gated the impeachment value of Ronquillo’s on-scene note
by indicating that, although Boatner may have provided
no detailed description to Ronquillo at the scene, Boatner
had described the first man to another officer.4
In any event, Ronquillo’s notes reflect that Boatner
provided a description of the first perpetrator at the police
station only a few hours after the shootings occurred. Tr.
403 (Jan. 22, 2009). Boatner was asked if he could “de-
scribe the subjects wh[o] shot the people in the house.” 5
Record 866. He responded: “I can tell you about one, the
one who put the pistol in my face, he was a black male
with a low cut, gold[s] in his mouth . . . about my complex-
ion, brown skinned.” Ibid. When asked, “[Y]ou say you
——————
3 Ina pretrial hearing, Boatner testified that he “gave a description
to the officer that came to the scene.” Tr. 24 (Oct. 27, 1995). Boatner
responded negatively when asked whether this officer was Detective
Ronquillo. Ibid. Boatner further testified that he told the officer that
the first man through the door was “heavy built with his hair with a
fade, with a little small top with a lot of gold teeth in his mouth.” Ibid.That testimony was consistent with the testimony that Boatner and
Officer Narcisse gave at trial.
4 Moreover, Boatner’s reticence toward Ronquillo at the scene of the
crime was entirely understandable. As Ronquillo noted at the postcon-
viction hearing, “there were dead bodies everywhere,” and Boatner was
“a little shook up.” Id., at 402–403 (Jan. 22, 2009). Similarly, Narcisse
testified at trial that Boatner, while “not as frantic” as Espadron, was a
“bit emotional” when Narcisse encountered him at the scene. Id., at 34
(Dec. 4, 1995).
Cite as: 565 U. S. ____ (2012) 7
THOMAS, J., dissenting
can’t describe any of the other shooters besides the one
who put the gun in your face after you opened the door,”
Boatner replied, “No, I can’t.” Ibid. In his brief, Smith
cites this station house statement as an example of favor-
able, undisclosed evidence. But this statement actually
corroborates Boatner’s trial testimony that he saw and
described the first perpetrator to police and that he did not
get a good look at the other assailants. Moreover, the
description Boatner provided was consistent with Smith’s
appearance. The Court completely ignores Boatner’s
station house statement, but our cases instruct us to
evaluate “the net effect of the evidence withheld by the
State” in assessing materiality. See Kyles, supra, at 421–
422.
The evidence not only shows that Boatner described the
first perpetrator twice in the immediate aftermath of the
crime, but also that Boatner described him again three
weeks later when he viewed a photograph array and elim-
inated a similar-looking individual. The evidence before
the jury further indicated that, several months after the
crime, Boatner confidently identified Smith in an array,
after evincing a discriminating, careful eye over a 4-month
investigative period. What is more, the reliability of
Boatner’s out-of-court identification was extensively tested
during cross-examination at Smith’s trial. In particular,
Boatner was asked whether the fact that he saw Smith’s
picture in a newspaper article naming Smith as a suspect
had tainted his identification. Boatner did not waiver,
responding, “I picked out the person I seen come in that
house that held a gun to my head and under my chin and
the person that was there when all my friends died.” Tr.
190 (Dec. 5, 1995). That Boatner credibly rejected defense
counsel’s “suggestion” theory is supported by the fact that
Boatner did not identify cosuspect Robert Trackling—
whose photograph was included in a separate array shown
to Boatner on the same day that Boatner identified
8 SMITH v. CAIN
THOMAS, J., dissenting
Smith—even though Trackling’s picture was next to
Smith’s in the same newspaper article. 5 Record 833, 835.
When weighed against Boatner’s repeated and con-
sistent descriptions and confident out-of-court and in-court
identifications, Boatner’s March 6 statement is also imma-
terial. As an initial matter, Ronquillo’s note of his March
6 conversation with Boatner contains an internal contra-
diction that undercuts its impeachment value. Although
the note states that Boatner “didn’t see anyone,” it also
states that Boatner “glanced at 1st one—saw man—
through door.” 13 id., at 2515. The latter part is con-
sistent with Boatner’s repeated statements that he only
saw the first man through the door. Moreover, the jury
would have evaluated any equivocation in Boatner’s
statement in light of the fact that he made it a mere five
days after a traumatic shooting, when the perpetrators
were still at large. The jury would have considered Boat-
ner’s trial testimony that, following the murders of his
friends, he began having nightmares, had difficulty sleep-
ing, quit his job, and began drinking heavily—so much so
that he checked into a hospital for substance abuse treat-
ment and grief counseling. Tr. 162–163, 170–171, 182
(Dec. 5, 1995). Any impeachment value in the March 6
note would have been further mitigated by the fact that,
as Ronquillo explained, “on the night of the incident
[Boatner] said that he could [identify someone] and he
gave a description that was very close to Mr. Smith’s
description.” Id., at 401 (Jan. 22, 2009). And, following
his March 6 conversation with Ronquillo, Boatner viewed
numerous photograph arrays, described the first perpetra-
tor, and ultimately identified him as Smith.
Of course, had the jury been presented with Ronquillo’s
notes of Boatner’s on-scene and March 6 statements, it
might have believed that Boatner could not identify any of
the perpetrators, but a possibility of a different verdict is
insufficient to establish a Brady violation. See Strickler v.
Cite as: 565 U. S. ____ (2012) 9
THOMAS, J., dissenting
Greene, 527 U. S. 263, 291 (1999); see also Agurs, 427
U. S., at 109–110 (“The mere possibility that an item of
undisclosed information might have helped the defense, or
might have affected the outcome of the trial, does not es-
tablish ‘materiality’ in the constitutional sense.” Rather,
a “petitioner’s burden is to establish a reasonable prob-
ability of a different result.” Strickler, supra, at 291.
Instead of requiring Smith to show a reasonable proba-
bility that Boatner’s undisclosed statements would have
caused the jury to acquit, the Court improperly requires
the State to show that the jury would have given Boatner’s
undisclosed statements no weight. See ante, at 3 (“[T]he
State’s argument offers a reason that the jury could have
disbelieved Boatner’s undisclosed statements, but gives us
no confidence that it would have done so”). But Smith
is not entitled to a new trial simply because the jury
could have accorded some weight to Boatner’s undisclosed
statements. Smith’s burden is to show a reasonable prob-
ability that the jury would have accorded those statements
sufficient weight to alter its verdict. In light of the record
as a whole—which the Court declines to consider—Smith
has not carried that burden.
B
Smith also argues that statements by Shelita Russell
and Dale Mims documented in Ronquillo’s handwritten
notes could have been used to impeach Boatner’s identifi-
cation of Smith because the statements indicate that
the perpetrators were masked. One undated note, which
contains several entries about various aspects of the inves-
tigation, states, “female—face down against cabinets—
conscious.” On the next line, the note continues, “said—in
kitchen saw people barge in—one—black cloth across
face—first one through door—[no further statement].” 13
Record 2556. When cross-examined during the postconvic-
tion hearing about whether this note documented the
10 SMITH v. CAIN
THOMAS, J., dissenting
statement of Russell, Ronquillo confirmed that the note
was in his handwriting, but he testified that he never
talked to Russell, that he did not know when the note was
made, and that someone else could have relayed the in-
formation to him. Tr. 415–418 (Jan. 22, 2009).5 I will
assume arguendo that, had this note been disclosed, it
would have been admissible at Smith’s trial as a dying
declaration of Russell.6 But the note would have had
minimal impeachment value because, contrary to Smith’s
assertions, it is ambiguous in light of the context in which
the statement was made. Officer Narcisse testified that
Russell was conscious and able to talk, but that she was in
“bad condition.” Id., at 20 (Dec. 4, 1995). Similarly, Reg-
inald Harbor testified that, as Russell lay wounded, she
was “whining” and he “didn’t catch nothing [t]hat she
said.” Id., at 205 (Dec. 5, 1995). And, although Smith
contends that the note says “exactly” that the “first person
through the door had a black cloth across his face,” that
is not how the note reads. Reply Brief for Petitioner 11
(emphasis deleted; internal quotation marks omitted)
(hereinafter Reply Brief). The note first states that the
declarant “saw people barge in,” then states “one—black
——————
5 Russell did not make this statement to Officer Narcisse. He testi-
fied that Russell “was not able to give us any information or any details
of what had happened.” Id., at 20.
6 Louisiana law provides that “[a] statement made by a declarant
while believing that his death was imminent, concerning the cause or
circumstances of what he believed to be his impending death[,]” is “not
excluded by the hearsay rule if the declarant is unavailable as a wit-
ness.” La. Code Evid. Ann., Art. 804(B)(2) (West Supp. 2012). Assum-
ing this statement was actually Russell’s, it likely qualifies as a dying
declaration. At trial, Boatner testified that, in the aftermath of the
shooting, Russell told him, “Feel like I’m about to die.” Tr. 161 (Dec. 5,
1995) (internal quotation marks omitted). Espadron also testified that
Russell told her, “I’m gonna die,” and, “Don’t let me die.” Id., at 73–74
(internal quotation marks omitted).
Cite as: 565 U. S. ____ (2012) 11
THOMAS, J., dissenting
cloth across face—first one through door—[no further
statement].” 13 Record 2556 (emphasis added). It is at
least as logical to read this statement as indicating only
that “one” of the “people” had a “black cloth across [his]
face.” Russell, suffering from fatal wounds, said nothing
further after “first one through door,” and it is impossible
to know whether the “first one” was also the “one” with a
“black cloth across [his] face.”
The second statement Smith identifies is that of Dale
Mims, who lived down the street from Espadron’s home
and who heard the shooting. A note by Ronquillo states
that Mims saw four males fleeing Espadron’s home, “all
wearing mask[s].” Id., at 2518. Like Russell’s purported
statement, this statement has minimal impeachment
value in light of the record. Mims’ undisclosed statement
does not address whether some or all of the perpetrators
were masked inside Espadron’s home.7 Moreover, had
Mims been called as a witness at trial, he presumably
would have testified, as he did at the postconviction hear-
ing, that he was “positive” that he only saw three perpe-
trators fleeing, and that, of those three, only two were
masked. Tr. 269, 271–273, 275 (Jan. 13, 2009).
Both Russell’s purported statement and Mims’ testimo-
ny are consistent with Boatner’s testimony that he did not
know whether any of the other perpetrators were masked,
id., at 154 (Dec. 5, 1995), and with Officer Narcisse’s and
Espadron’s testimony that the single perpetrator whom
Espadron observed was wearing some sort of face cover-
——————
7 Smith ridicules the “exceedingly peculiar” notion that the perpetra-
tors would have remained unmasked inside Espadron’s home, only to
mask themselves before leaving the scene. Reply Brief 12–13. But that
notion is eminently reasonable if the perpetrators intended to massacre
the witnesses who were inside the home—as they did—and were
concerned only with disguising themselves from neighbors outside who
might see or hear the burglary.
12 SMITH v. CAIN
THOMAS, J., dissenting
ing, id., at 30–31 (Dec. 4, 1995); id., at 71 (Dec. 5, 1995).
Thus, the totality of the evidence indicates that some, but
not all, of the perpetrators were masked, a conclusion that
in no way undermines Boatner’s consistent assertions that
the only perpetrator he saw was unmasked.
C
Smith also contends that Ronquillo’s undisclosed note
documenting a pretrial statement by firearms examiner
Kenneth Leary is material for purposes of Brady. The
note states that “Leary advised Ronquillo that the 9MM
ammunition confiscated from [the scene of the murders]
was typed to have been fired from a[n] [Intratec], ‘Mac[-]
11’ model type, semi automatic weapon.” 5 Record 831.
According to Smith, this statement conflicts with Leary’s
trial testimony that the 9-millimeter ammunition found
at the scene “was fired by one particular weapon, one 9-
millimeter handgun,” Tr. 132 (Dec. 5, 1995), because an
Intratec or Mac-11 pistol is not a “handgun.” Smith fur-
ther argues that Leary’s pretrial statement could have
been used to exculpate Smith, whose guilt the prosecution
attempted to show by calling a pathologist to testify that
Shelita Russell’s wounds could have been inflicted by a
9-millimeter “handgun,” id., at 39 (Dec. 4, 1995), and by
calling Boatner to testify that the gun Smith held under
his chin was a 9-millimeter silver “hand gun,” id., at 157
(Dec. 5, 1995).
Contrary to Smith’s contentions, Leary’s pretrial state-
ment does not undermine the evidence presented at trial.
Leary’s pretrial statement is consistent with his and
Boatner’s trial testimony because an Intratec or Mac-11
pistol is a 9-millimeter handgun. Smith concedes that
such a weapon uses 9-millimeter cartridges. Brief for
Petitioner 48. Moreover, a “handgun” is simply “[a] fire-
arm that can be used with one hand,” American Heritage
Dictionary 819 (3d ed. 1992), and no one disputes that an
Cite as: 565 U. S. ____ (2012) 13
THOMAS, J., dissenting
Intratec or Mac-11 pistol can be used with one hand.
Smith nonetheless insists that, “as a colloquial matter,
machine pistols of the Intratec or MAC-11 type would be
considered automatic or semiautomatic weapons, rather
than handguns.” Reply Brief 18. But even assuming that
Smith is correct, he fails to explain why Leary, a firearms
expert, would have been expected to use colloquial rather
than technical terminology.8
The record also makes clear that, when Boatner used
the term “handgun,” he did not understand it to exclude
automatic or semiautomatic machine pistols. In the im-
mediate aftermath of the murders, as well as at trial,
Boatner stated that a second perpetrator carried a “Ma[c]
10” or “Tech Nine” “Uzi” type weapon, Tr. 159, 179 (Dec. 5,
1995); 5 Record 809, 813, 866, and Boatner described that
weapon as a “handgun,” id., at 809. Moreover, Boatner’s
pretrial description of the silver or chrome “handgun” that
the first man held was consistent with Leary’s undisclosed
statement that the gun that fired the 9-millimeter ammu-
nition found at the scene was a semiautomatic weapon. In
his station house statement, Boatner described the first
man’s weapon as a “big,” “automatic pistol.” Id., at 813,
866. Because Leary’s pretrial statement is neither im-
peaching nor exculpatory, Leary’s undisclosed statement
cannot form the basis of a Brady violation. See Strickler,
——————
8 Smith argues that Leary himself considered an “[Intratec] or ‘Mac[-]
11’ ” model type to be different from a 9-millimeter handgun. Smith
relies on the fact that Leary’s pretrial statement indicated that the
ammunition recovered from the scene did not come from the handgun
recovered from Donielle Bannister, another suspect in the murders.
Id., at 18. Leary’s pretrial statement did not describe the handgun
recovered from Bannister as a 9-millimeter, contrary to Smith’s repre-
sentation. More importantly, Leary’s statement suggests only that
Bannister’s handgun did not fire the 9-millimeter ammunition found at
the scene, not that Leary did not consider an “[Intratec] or ‘Mac[-]11’ ”
model type to be a handgun.
14 SMITH v. CAIN
THOMAS, J., dissenting
527 U. S., at 281–282 (To make out a Brady viola-
tion, “[t]he evidence at issue must be favorable to the
accused, either because it is exculpatory, or because it is
impeaching”).
D
Smith next points to purportedly exculpatory and ma-
terial undisclosed pretrial statements made by Robert
Trackling, a member of the “Cut Throat Posse” street gang
with which Smith was allegedly associated, and by Eric
Rogers, an inmate who was incarcerated with Trackling.
5 Record 845. Police notes reflect that Eric Rogers gave an
interview to investigators on May 19, 1995, during which
he described a conversation that he had with Trackling
while in prison. During that conversation, Trackling
described the murders at Espadron’s home and stated that
he had committed the crime along with “Fat, Buckle, and
a guy they call uh, Short Dog.” Id., at 841. According to
Rogers, Fat’s real name was “Darnell [Donielle] Banister,”
Buckle’s real name was “Contez [Kintad] Phillips,” and
Short Dog’s real name was “Juan.” Id., at 843–844.
Smith contends that Rogers’ interview was exculpatory
in two respects. First, he points to the following comment
by Rogers later during the interview: “They call Contez
Philip Buckle, they call Darnell Banister Fat, Short Dog
that’s what they call him, they call Robert Home.” Id., at
845. Smith suggests that Rogers’ prior identification of
“Short Dog” as “Juan [Smith]” was equivocal in light of his
later statement that “Short Dog” was a man named “Rob-
ert Home.” Reply Brief 21. Second, Smith asserts that
disclosure of Rogers’ interview would have led the defense
and the jury to learn of Rogers’ allegation—made for the
first time 10 years after Smith’s trial—that the police had
asked him to implicate Juan Smith as “Short Dog,” Tr.
284–285 (Jan. 13, 2009).
Neither argument is persuasive. If the jury had learned
Cite as: 565 U. S. ____ (2012) 15
THOMAS, J., dissenting
of Rogers’ statement, it would have heard information
directly inculpating Smith as “Short Dog,” a perpetrator of
the shootings. Rogers’ physical description of “Short
Dog”—“he[’s] short[,] he[’s] got golds going across his
mouth[,] and . . . he’s like built,” 5 Record 844–also corrob-
orated Boatner’s description of the first man through the
door as having a “mouth full of gold” and a “heavy” build.
Furthermore, Smith ignores other inculpatory information
documented in Ronquillo’s notes of Rogers’ statement.
Those notes reflect Trackling’s own interview with police
on June 1, 1995, in which Trackling identified Phillips,
Bannister, and “Juan Smith” as the perpetrators of the
murders at Espadron’s home. Id., at 832; see also id., at
854–855. Trackling’s statement only strengthens the
inculpatory nature of Rogers’ interview.
Further, the jury assuredly would not have believed
Smith’s suggestion that Rogers identified “Short Dog” as a
man named “Robert Home.” When this statement is taken
in context, it appears that Rogers was describing the
nickname—“Home”9—of Robert Trackling, the “Robert”
whom Rogers had repeatedly referenced throughout his
interview. See id., at 839–850. Indeed, Rogers’ phrase-
ology, “they call Robert Home,” was consistent with his pre-
vious comments that “[t]hey call Contez Philip Buckle,”
and “they call Darnell Banister Fat.” Id., at 845 (emphasis
added). Unsurprisingly, in the thousands of pages of
——————
9 See 2 Dictionary of American Regional English 1064–1065, 1069 (F.
Cassidy & J. Hall eds. 1991) (defining “Home” as “a term of address
used by two black people either from the same Southern state or simply
from the South,” similar to “homey” or “home boy”); 2 Green’s Diction-
ary of Slang 828 (2010) (defining “home,” an abbreviation of homeboy,
as “a friend, often used in direct address”); Concise New Partridge
Dictionary of Slang and Unconventional English (T. Dalzell & T. Victor
eds. 2008) (defining “home” as “a very close male friend,” an abbrevia-
tion of “Homeboy”).
16 SMITH v. CAIN
THOMAS, J., dissenting
record material, I have not found, nor have the parties
cited, a single reference to anyone named “Robert Home.”
If the jury had heard Rogers’ postconviction testimony
that police asked him to implicate Smith and that Track-
ling’s description of the murders did not include Smith, Tr.
284–285 (Jan. 13, 2009), it would have weighed Rogers’
allegation against Trackling’s own statement to the police
that Smith had participated in the murders at Espadron’s
home, 5 Record 832. The prosecution also would have
called Smith’s sister, Trinieze Smith, to testify that she
believed her brother was known as “Short Dog,” as she did
at the postconviction hearing. Tr. 371 (Jan. 14, 2009). On
this record, the undisclosed statements by Rogers and
Trackling actually strengthen rather than weaken confi-
dence in the jury’s guilty verdict.10
E
Finally, Smith argues that an undisclosed handwritten
note by Ronquillo documenting a statement by Phillip
Young—the man found injured at the scene and suspected
of having participated in the crime—is also material evi-
dence warranting a new trial. At trial, Ronquillo testified
that he met with Young while Young was hospitalized as a
result of permanent brain damage suffered in the shoot-
——————
10 Detective Byron Adams, who took Rogers’ statement, did not testify
at the postconviction hearing because he had died in the meantime. He
thus had no opportunity to address Rogers’ recantation or his newly
minted allegation that Detective Adams asked Rogers to implicate
Smith. Smith argues that “there is no reason to believe that . . . Adams
would have contradicted Rogers—much less that the jury would have
believed [him] if [he] did.” Reply Brief 21. But Smith offers no support
for his dubious assertion that Detective Adams would have admitted to
framing Smith, or that, had the detective denied the allegation, the jury
would have believed Rogers—a convicted murderer who never ex-
plained any motive Adams would have had to frame Smith—over the
detective.
Cite as: 565 U. S. ____ (2012) 17
THOMAS, J., dissenting
ings. Id., at 102 (Dec. 5, 1995). According to Ronquillo,
Young “was strapped to a chair. He really couldn’t talk,
[h]e mumbled. He could use his left hand, that was all.
He couldn’t walk or anything. He was fed through a tube
by the people there. He was in really bad shape.” Id., at
102–103. When asked whether Young was able to com-
municate with him “at all,” Ronquillo responded, “No. I
couldn’t understand anything that he was saying.” Id., at
103.
The undisclosed note from Ronquillo’s meeting with
Young reads as follows: “Short Dog/Bucko/Fats—No—
Didn’t shoot me—No—Not with me when went to house—
Yes—one of people in house shot me—No—Not responsi-
ble—‘Posse’—Didn’t drive to house—‘Posse’—Yes—Knows
names of perps—Yes—Drove in car—Yes—girlfriend’s
car.” 13 Record 2568. Smith contends that this note is
exculpatory in that it suggests that he was “not involved”
in the shootings. Brief for Petitioner 43.
Young’s statement is only exculpatory if Smith concedes
(as the statement asserts) that he is, in fact, “Short Dog”
and a member of the “Cut Throat Posse.” Such a conces-
sion would only have strengthened the inculpatory value
of the statements by Rogers and Trackling indicating that
Smith was the “Short Dog” who committed the murders at
Espadron’s home. In any event, the exculpatory value of
the note is minimal for several other reasons. First, it is
unclear whether Ronquillo’s note reflects a statement by
Young that the “Posse” was not responsible for shooting
the victims or a statement that the “Posse” was not re-
sponsible for shooting Young. Further, the statement that
“Short Dog” and others were not with Young when he went
to the house is certainly not a clear statement that “Short
Dog” did not commit the murders, especially in light of
evidence in the record that the assailants used two cars on
18 SMITH v. CAIN
THOMAS, J., dissenting
the night of the murders.11 Second, had the jury learned
of Ronquillo’s note, it would have presumably heard Ron-
quillo testify, as he did at the postconviction hearing, that
he was not even sure whether his note actually reflected
statements by Young, given that Young “couldn’t talk,”
was “jumbled,” could only “kind of move his head,” and
sometimes would just sit and stare when Ronquillo asked
a question.12 Tr. 423–424 (Jan. 22, 2009). Accordingly,
Ronquillo explained, “I never had hide nor hair actually of
what [Young] said.” Id., at 423.
The jury thus would have evaluated Ronquillo’s note, of
unclear exculpatory value on its face, against a backdrop
of doubt as to what, if anything, Young actually communi-
cated. The jury also would have weighed this evidence
against the strongly inculpatory nature of Boatner’s de-
scriptions and identifications and Rogers’ and Trackling’s
statements, which corroborated Boatner’s identification.
When all of the evidence is considered cumulatively, as it
must be, Smith has not shown a reasonable probability
that the jury would have reached a different verdict.
——————
11 In his station house statement, Boatner explained that the loud car
that arrived at Espadron’s home was white. 5 Record 866. In Rogers’
interview with the police, Rogers said that Trackling escaped from
Espadron’s home in a burgundy car. Id., at 842.
12 Smith also contends that the defense could have used the undis-
closed note to impeach Ronquillo’s trial testimony that Young was not
able to communicate with him “at all.” That argument lacks merit.
Ronquillo’s trial testimony, when read in context, does not suggest that
no communication occurred. Rather, Ronquillo made clear that he
simply “couldn’t understand anything that [Young] was saying.” See Tr.
103 (Dec. 5, 1995) (emphasis added). That testimony is consistent with
the garbled nature of the note, and the note thus would have had little,
if any, impeachment value.
Cite as: 565 U. S. ____ (2012) 19
THOMAS, J., dissenting
* * *
The question presented here is not whether a prudent
prosecutor should have disclosed the information that
Smith identifies. Rather, the question is whether the cu-
mulative effect of the disclosed and undisclosed evidence
in Smith’s case “put[s] the whole case in such a different
light as to undermine confidence in the verdict.” Kyles,
514 U. S., at 435. When, as in this case, the Court departs
from its usual practice of declining to review alleged mis-
applications of settled law to particular facts, id., at 456(SCALIA, J., joined by Rehnquist, C. J., and KENNEDY and
THOMAS, JJ., dissenting), the Court should at least consid-
er all of the facts. And, the Court certainly should not
decline to review all of the facts on the assumption that
the remainder of the record would only further support
Smith’s claims, as the Court appears to have done here.
Ante, at 3–4.
Such an assumption is incorrect. Here, much of the
record evidence confirms that, from the night of the mur-
ders through trial, Boatner consistently described—with
one understandable exception—the first perpetrator
through the door, that Boatner’s description matched
Smith, and that Boatner made strong out-of-court and in-
court identifications implicating Smith. Some of the un-
disclosed evidence cited by Smith is not favorable to him
at all, either because it is of no impeachment or exculpa-
tory value or because it actually inculpates him. Because
what remains is evidence of such minimal impeachment
and exculpatory value as to be immaterial in light of the
whole record, I must dissent from the Court’s holding that
the State violated Brady.