Browning v. Trammell

FILED
United States Court of Appeals
Tenth Circuit
May 6, 2013
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
MICHAEL ALLEN BROWNING,
Petitioner - Appellee,
v. No. 11-5102
ANITA TRAMMELL, Warden,
Oklahoma State Penitentiary, *
Respondent - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
(D.C. NO. CV-07-00016-TCK-PJC)
Jennifer L. Crabb, Assistant Attorney General (E. Scott Pruitt, Attorney General
of Oklahoma, with her on the briefs) Office of the Oklahoma Attorney General,
Oklahoma City, Oklahoma, for Respondent-Appellant.
Jack Fisher, Fisher Law Office, Edmond Oklahoma (Paul S. McCausland, Young,
Bogle, McCausland, Wells & Blanchard, P.A., Wichita, Kansas, with him on the
brief) for Petitioner-Appellee.
Before LUCERO, TYMKOVICH, and HOLMES, Circuit Judges.
TYMKOVICH, Circuit Judge.
*
Pursuant to Fed. R. App. 43(c)(2), Randall G. Workman was replaced by
Anita Trammell as Warden of the Oklahoma State Penitentiary on March 1, 2013.
This appeal requires us to consider the conviction by an Oklahoma jury of
Michael Allen Browning for the heinous murder of Harry and Teresa Hye, the
parents of his girlfriend Cenessa Tackett. Browning received a death sentence as
punishment for these crimes. The Oklahoma Court of Criminal Appeals affirmed
this conviction and sentence on direct appeal, Browning v. Workman, 134 P.3d
816 (Okla. Ct. Crim. App. 2006), and denied post-conviction relief.
What the jury did not know—and the defense attorneys also did not
know—was that Tackett, who became the most important witness at trial, had
been diagnosed with a severe mental disorder. According to records from her
psychiatrist that were in the State’s possession, Tackett blurred reality and
fantasy, suffered from memory deficits, tended to project blame onto others, and
had an assaultive, combative, and even potentially homicidal disposition.
In subsequent federal proceedings, the contents of Tackett’s mental health
records came to light, prompting the federal district court to grant a conditional
writ of habeas corpus under 28 U.S.C. § 2254(d). The district court reasoned that
Tackett’s mental health records were favorable to Browning and material to his
defense, especially considering Browning’s trial strategy to paint Tackett herself
as complicit in the murders. The district court therefore ruled that the
Constitution obligated the State to disclose those records to Browning before trial
pursuant to Brady v. Maryland.
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Given the central role Tackett played at trial and the severity of her mental
health diagnosis, we agree with the district court that the psychiatric information
was favorable to Browning and material to his defense, and that the Oklahoma
courts could not have reasonably concluded otherwise. Exercising jurisdiction
pursuant to 28 U.S.C. § 1291, we affirm.
I. Legal Background
This case turns largely on principles the Supreme Court established in
Brady v. Maryland, 373 U.S. 83 (1963). In Brady, the Court held that an
individual’s constitutional right to a fair trial obligates the prosecution in a
criminal case to turn over evidence to the defense in certain circumstances. Id. at
87. Specifically, “[u]nder 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 punishment.” Smith v. Cain, 132 S. Ct. 627, 630 (2012)
(reversing conviction).
Evidence is “favorable to the defense” if it is exculpatory or impeaching.
Banks v. Dretke, 540 U.S. 668, 691 (2004). Evidence is “material” if “there is a
reasonable probability that, had the evidence been disclosed, the result of the
proceeding would have been different.” Smith, 132 S. Ct. at 630 (internal
quotation marks omitted). “A reasonable probability does not mean that the
defendant would more likely than not have received a different verdict with the
evidence, only that the likelihood of a different result is great enough to
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undermine confidence in the outcome of the trial.” Id. (internal quotation marks
omitted; alterations incorporated).
Further, materiality “is not a sufficiency of the evidence test. A defendant
need not demonstrate that after discounting the inculpatory evidence in light of
the undisclosed evidence, there would not have been enough left to convict.”
Kyles v. Whitley, 514 U.S. 419, 434–35 (1995). Instead, the defendant must show
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.
Difficulty arises, however, when the Brady obligation to disclose comes up
against the various legal privileges that protect sensitive information from
disclosure, such as the psychotherapist-patient privilege at issue here. In such a
situation, the Supreme Court has directed lower courts to review such information
in camera to determine whether it meets the Brady standard. Pennsylvania v.
Ritchie, 480 U.S. 39, 57–58 (1987). If so, the court must order the prosecution to
turn over that information to the defense. Id.How these principles played out in Browning’s prosecution is the focal
point of this case. With this context, we therefore turn to the facts.
II. Factual & Procedural History
A. The Crime
In the early morning hours of February 18, 2001, Harry and Teresa Hye,
residents of Glenpool, Oklahoma, were shot to death and their house burned to the
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ground. Their adopted daughter, Cenessa Tackett, was also shot but survived and
managed to escape the burning house. Tackett soon identified two perpetrators:
her former boyfriend, Michael Browning, and another man named Shane Pethel.
As explained in more detail below, Tackett believed that Browning wanted
to kill her because she was pregnant with his baby, and Browning did not want to
pay child support. Browning also needed to kill the Hyes because they knew that
Tackett had identified him as the father. Browning allegedly recruited Pethel to
help carry out his plans. The State arrested Browning and Pethel and charged
them with capital murder.
B. Tackett’s Mental Health Records
Pretrial proceedings in this case took nearly two years. About halfway
through that process, Tackett’s attorney (for unknown reasons) faxed two
psychiatric reports to the prosecution. **
The first report, dated October 29, 2001, summarized a psychiatrist’s
conclusions after five recent visits with Tackett beginning on October 4,
2001—about eight months after the crime. According to the report, Tackett
displayed “magical thinking” and a “blurring of reality and fantasy.”
**
These records are sealed but the parties summarize them extensively and
sometimes quote them in their publicly filed briefs. See Aplt. Br. at 8, 14, 19;
Aple. Br. at 2, 3, 18, 40, 44, 46–48, 51. Having compared the publicly available
material to the sealed records themselves, we find that these summaries and
quotations fairly and accurately reflect the sealed material. In describing the
contents of Tackett’s mental health records, we therefore confine ourselves to the
portions already summarized or quoted by the parties.
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The second report, dated November 26, 2001, contained even more
disturbing information. It described Tackett as manipulative, grandiose,
egocentric, and stated that she typically projected blame onto others. The report
noted memory deficits as well. It described Tackett as a “code type . . . rarely
seen except in inpatient facilities.” Most strikingly, according to the report, “An
assaultive, combative, or even homicidal potential must be carefully considered”
(emphasis in original).
When the prosecution received these reports, it revealed their existence but
not their contents to the defense. Browning moved to compel production. The
prosecution then contacted Tackett’s lawyer, who replied with a letter saying her
office had mistakenly faxed the psychiatric reports to the prosecution and that
Tackett had not authorized release of those medical records to anyone. Tackett’s
lawyer therefore requested that the prosecution seal the reports and return them.
After multiple hearings on the motion to compel, the trial court reached
three conclusions, none of them helpful to Browning. First, it found that
Oklahoma’s psychotherapist-patient privilege protected the psychiatric reports.
Second, it found that the privilege had not been waived through the mistaken
disclosure. Third, following the Brady framework, it concluded that the reports
contained no material exculpatory or impeaching information. It reached this last
conclusion by examining the reports in camera, as directed by the Supreme Court
in Ritchie. Accordingly, the trial court denied Browning’s motion to compel.
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C. The Trial
The trial court severed Browning’s case from that of his co-defendant,
Pethel. Browning’s case went to trial first.
1. The 911 Calls
Before Tackett testified, the State played recordings of her two 911 calls.
R., Trial Tr., Vol. VII at 1218–19. The tape of the second call features a police
officer arriving during the course of the call and having the following exchange
with Tackett:
Q. What’s the suspect’s name? Who shot you?
A. Mike Browning. And—I’m pregnant with his baby
and he didn’t want me to have it.
Q. [indecipherable] suspect [indecipherable]
A. [indecipherable] I remember them [indecipherable]
and I been shot right here.
Q. Okay, who’s they?
A. Mike—and his best friend Shane. But it wasn’t
Shane because I know Shane.
Q. How many people were in the house when you got
shot?
A. Me—[overlapping indecipherable conversation
between officer and dispatcher]—Mike Browning—
[overlapping indecipherable conversation between
officer and dispatcher]—and this other guy. . . .
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R., State’s Trial Ex. 2 at 3:30–4:00 (audio cassette recording). ***
2. Tackett’s Trial Testimony
No direct evidence besides Tackett’s testimony connected Browning to the
crime. The State’s case therefore stood or fell largely on Tackett’s eyewitness
testimony and its credibility. Tackett’s version of events is as follows.
Tackett and Browning became romantically involved in the mid-1990s.
Early in the year 2000, they ended their relationship and both began seeing new
people, but they would still occasionally have sex with each other. One such
encounter took place in August 2000. Tackett soon learned she was pregnant.
Tackett and Browning did not see or speak with each other again until
January 2001, when Tackett and Teresa Hye called Browning to tell him about the
pregnancy. Browning responded angrily and refused to pay future child support,
maintaining he did not believe the baby was his and would insist on a paternity
test.
Tackett and Browning again did not see or speak with each other for
another month. Then, on February 18, 2001, Browning knocked on Tackett’s
door at around 3 a.m. Tackett was awake and watching television. She let
***
The court reporter did not transcribe the tapes into the trial record. This
is our transcription of the relevant portion of the second call. Another
transcription—not materially different from our own—appears in the record as
part of Browning’s motion to the OCCA for an evidentiary hearing. See R.,
Browning v. State, No. D-2003-363 (Okla. Ct. Crim. App.), Appl. for an
Evidentiary Hr’g, Ex. 1B at 6 (filed June 21, 2004).
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Browning into the house along with a stranger, whom she later identified as
Shane Pethel. Tackett specifically remembered that Browning was wearing
“black pants, brown shoes, gray shirt, tan hat, and a camouflage coat.” R., Trial
Tr., Vol. VII at 1349.
Teresa Hye soon woke up and joined Tackett, Browning, and Pethel in the
living room. A few minutes later, Pethel pulled out a gun and forced Tackett and
Teresa Hye to sit quietly while Browning bound and gagged them with duct tape.
The two men then retrieved Harry Hye from the bedroom and tied him up next to
his family. At some point, Browning told Tackett that she “should have kept
[her] legs closed.” R., Trial Tr., Vol. VII at 1365.
While the Hye family sat tied up on the sofa, Pethel and Browning carried
the family’s valuables to a truck in the driveway. **** Browning and Pethel then
carried the three victims into an interior closet. Browning tried but failed to set
the closet carpet on fire. At Pethel’s suggestion, Browning then doused the
hanging clothes with lighter fluid and lit them instead.
Pethel said, “It is time,” and shot Harry Hye in the head. Teresa Hye began
to scream and Pethel shot her as well. Finally, he shot Tackett. R., Trial Tr.,
Vol. VII at 1402.
****
The truck turned out to be Pethel’s, and the property was later
recovered from Pethel and a friend.
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Tackett was not killed—she received only a minor flesh wound to the soft
tissue on the top of her shoulder, and also a grazing wound on her neck that might
have been caused by the same bullet. Tackett nonetheless fell against her mother
and lay still, playing dead. Once the men left, she managed to remove her duct-
taped pants, find a phone, run outside, and call 911. Tackett then reentered the
house, found a blanket, exited the house, soaked the blanket with water from an
outdoor spigot, covered herself, reentered the house, and attempted to rescue
Harry Hye—who was critically injured but still alive. Tackett dragged Harry as
far as the kitchen. Leaving him there, she went back toward the closet hopefully
to get Teresa. At this point, however, the fire had grown too intense, forcing
Tackett to retreat outside. She called 911 again and first responders soon arrived.
Teresa Hye died in the closet. Harry Hye was rescued from the kitchen and
transported to a hospital, but died there shortly afterwards. Tackett was also
transported to a hospital for treatment of her flesh wound. Police questioned her
at the hospital about what had happened. Tackett identified Browning as one of
her assailants. She picked Pethel out of a photo lineup and identified him as the
other assailant.
By Tackett’s own admission, she told one lie to the police during this
questioning. Specifically, she told the police that Browning or Pethel had shot
her dog and set fire to her two birds. Tackett explained at trial that this never
happened, but she said it to the police anyway because she believed the
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accusation “would get [Browning and Pethel] in more trouble.” R., Trial Tr., Vol.
VII at 1416.
3. Tackett’s Cross Examination
The defense’s theory of the crime was that Tackett had a motive to kill her
adoptive parents because she stood to inherit some amount of money or valuable
property. In the defense’s view, Tackett and Pethel were not strangers, but had
met when Tackett attended softball games in which Browning and Pethel
participated. The defense believed Pethel and Tackett conspired to rob and
murder the Hyes and frame Browning. The defense further believed that Tackett
chose to frame Browning in retaliation for his relationship with another woman.
On cross, defense counsel attempted to bring out details supporting this theory.
Counsel was only partially successful. Concerning the supposed motive to
kill her parents, Tackett confirmed that she spoke with the family’s probate
attorney not long after the crimes occurred, that the Hyes “[p]robably” had a will,
and that she expected to receive “a little bit of money out of [a] trust” established
by the Hyes. R., Trial Tr., Vol. IX at 1628. But she did not know when or how
much. Tackett also agreed with defense counsel that her relationship with Harry
Hye (although not Teresa) was sometimes strained and she had twice run away
from home—including once by commandeering a golf cart and driving it down
the highway. Tackett further confirmed that when she dragged Harry Hye to the
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kitchen, she dragged him directly past the front door—which was unobstructed—
instead of dragging him out of the door. *****
Concerning a motive to frame Browning, Tackett agreed with defense
counsel that, after her breakup with Browning, she still cared for him and felt
some jealousy in light of his new relationship. Tackett confirmed that, sometime
after getting pregnant but before telling Browning, she telephoned Browning’s
new girlfriend and had a “pretty ugly” conversation. R., Trial Tr., Vol. VIII at
1447.
As to Tackett’s previous acquaintance with Pethel, she consistently denied
ever having met him before, at softball games or otherwise. Notably, defense
counsel failed to use the second 911 call against Tackett, i.e., the call in which
she identified her assailants as “Mike—and his best friend Shane. But it wasn’t
Shane because I know Shane.” ******
*****
Tackett had elsewhere explained to police (although it apparently did
not come out at trial) that she avoided the front door out of fear that she might be
seen there if Browning and Pethel returned. See Aplt. Br. at 17 n.3. She testified
at trial, however, that she exited the front door at least twice before returning for
Harry—first to call 911, and again to soak the blanket in which she wrapped
herself before reentering. See R., Trial Tr., Vol. VIII at 1600–06.
******
Later in the trial, an investigator who spoke with Tackett at the
hospital testified that Tackett said she had been attacked by Browning and “a guy
named Justin.” R., Trial Tr., Vol. X at 1974; see also Vol. XI at 1993, 2001–02.
Browning’s trial counsel’s failure both to use Tackett’s “I know Shane” words
against her and to point out the inconsistency with the “guy named Justin” story
prompted an ineffective-assistance-of-counsel argument that the district court did
not rule on. R., Vol. 1 at 111–15.
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Finally, in a move intended to cast doubt on Tackett’s credibility generally,
the defense elicited an admission about Tackett’s initial reaction to the knock on
her door at 3 a.m. Tackett confirmed a prior statement to police in which she
reported that she first thought the ghost of a former occupant had made the
knocking sound.
4. Other Relevant Evidence
Despite defense counsel’s attempt to undermine Tackett’s testimony,
certain evidence corroborated at least parts of it. The police, for example, found
Browning about twelve hours after the crime wearing the clothing Tackett
described when she spoke with police shortly after the murders (although
Browning’s clothing did not smell of smoke or have any other signs of being near
a fire). See R., Trial Tr., Vol. IX at 1774; Vol. X at 1952–53; Vol. XI at
2121–24. In addition, three witnesses saw Browning in a bar with Pethel between
1 and 2 a.m. on the day of the murders (shortly before the crimes took place) and
one of those witnesses saw Browning and Pethel together soon after Tackett’s 911
call. ******* R., Trial Tr., Vol. IX at 1671–73, 1689–90; Vol. XII at 2321–22.
*******
Browning gave no explanation for these facts at trial, although in a
post-conviction affidavit he claims he spent the period when the murders were
committed passed out drunk in Pethel’s truck. R., Vol. 1 at 533–34. That,
according to Browning, is where Tackett saw him and learned what he had been
wearing that night. Aple. Br. at 60.
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5. The Quashed Subpoena
Late in the trial, the defense unexpectedly subpoenaed Tackett’s attorney,
who had also been the Hyes’ estate counsel. The defense intended to put the
attorney on the stand to provide evidence of just how much Tackett stood to
inherit. The attorney appeared as directed but argued that the information sought
by defense counsel remained protected by attorney-client privilege because the
inheritance would come through a trust and the terms of that trust had yet to be
made public through probate or similar proceedings. The trial court agreed and
quashed the subpoena.
6. Closing Arguments & Verdict
The prosecution used its closing argument to show the many ways it
believed independent testimony corroborated Tackett’s account, as well as to
argue for the improbability of the idea that Tackett would conspire to kill the
Hyes. Tackett, according to the prosecution, was a hero rather than a villain.
The defense countered that, in its view, various bits of Tackett’s story did
not make sense. Counsel emphasized that Tackett was the only eyewitness, but
her testimony was “not very reliable,” citing her initial belief that a ghost made
the knocking sound she heard at 3 a.m.—which supposedly “shows the mindset of
somebody who might just not be very reliable or perhaps even a little unstable.”
R., Trial Tr., Vol. XIII at 2399. Counsel dwelled on the lack of corroborating
physical evidence, and that one of Pethel’s friends could have been the
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accomplice. Id. at 2413. Emphasizing inconsistent testimony, counsel argued,
So the question now comes up, if Cenessa Tackett lied
not once but twice to law enforcement simply,
quote/unquote, to get Mike into more trouble
supposedly, what else can you believe about her story?
Do we get to pick and choose? . . . The State of
Oklahoma wants you, as the jury in this case, to convict
this young man on [the testimony of] an admitted liar.
Id. at 2418. Finally, counsel touched on Tackett’s testimony that the route she
chose when attempting to drag Harry Hye out of the house took her past the front
door but she did not exit with him there.
The jury deliberated about four hours and convicted on all counts. The
next day, the jury heard the penalty phase evidence and arguments, deliberated,
and returned a sentence of death for the murders of Harry and Teresa Hye.
D. Pethel’s Guilty Plea
Less than a week after the conviction, Browning’s co-defendant, Shane
Pethel, pleaded guilty in exchange for avoiding the death penalty. Contrary to
Tackett’s testimony that Pethel himself had been the shooter, Pethel stated at his
change-of-plea hearing that Browning shot Tackett and the Hyes. But Pethel
otherwise corroborated most of Tackett’s story, including the perceived motive.
Pethel claimed that Browning came to his house four days before the crime and
explained that he wanted to “get [Tackett] out of the picture” because Browning’s
new girlfriend supposedly stated that she would leave Browning if a paternity test
identified him as the father of Tackett’s baby. R., Feb. 11, 2003 Hr’g Tr. at 14.
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Browning also worried that the baby would inherit a disease that runs in Tackett’s
family, thus increasing the likely child support costs. Pethel nowhere explained
his own motive for participating in the murders, although his account implies he
would get to keep the property stolen from the Hyes.
E. Appeals and Collateral Proceedings
1. The Ellis Affidavit
On direct appeal to the Oklahoma Court of Criminal Appeals (OCCA),
Browning moved for an evidentiary hearing under that court’s Rule 3.11. As part
of his motion, Browning attached an affidavit from a man named Steve Ellis who
claimed to have been Tackett’s live-in boyfriend from March to November
2002—after the crimes but before trial. Ellis says that, while living with her,
Tackett would sometimes talk about the death of the Hyes. In so doing, she
would first “get to talking about Michael Browning having a hand in it, then
switch to Shane Pethel. [Tackett] told me she met Shane Pethel through Michael
Browning.” Aple. Br., Attach. 1 at 1. According to Ellis, Tackett also exhibited
“serious mental problems” and “had to take medicine to stay sane.” Id. at 2.
Further, Ellis claimed Tackett told him the details of her inheritance.
Specifically, says Ellis (and contrary to Tackett’s testimony about her inheritance
at trial), Tackett was already receiving monthly disbursements from the Hyes’
trust, including the cost of rent and $500 for living expenses. Tackett and her
brother also inherited 160 acres from the Hyes, which they hoped to sell for $1.6
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million. ********
2. The OCCA’s Decision
Browning raised numerous arguments for reversal. As to the one issue
relevant here—the trial court’s refusal to compel production of Tackett’s mental
health records—the OCCA agreed with the trial court that Tackett’s records were
protected by Oklahoma’s psychotherapist-patient privilege and that Tackett never
waived that privilege. Further, said the court,
[We have] reviewed the sealed material to determine
whether it contained evidence favorable to Browning.
We determine that the documents contain nothing
material either to guilt or punishment. There is no
reasonable probability that, had this evidence been
disclosed, the result of the trial would have been
different. As there was no waiver, and the sealed
material contains nothing favorable to the defendant,
this [argument for reversal] is denied.
Browning, 134 P.3d at 837 (footnotes omitted).
Browning then filed a post-conviction proceeding with the OCCA, raising
arguments not relevant here. The OCCA denied that application.
********
Browning now claims that Tackett and her brother indeed sold that
land, “result[ing] in proceeds of nearly $1,000,000.00 to [Tackett].” Aple. Br. at
8. In support, Browning cites land records showing that Tackett and her brother
inherited and then sold at least some of the Hyes’ land. R., Vol. 1 at 371–85.
Those records do not contain the sale price, so the $1 million figure appears
unsupported. But a post-conviction affidavit from someone claiming to have been
Tackett’s roommate from 2004 to 2006 states that Tackett received “over
$900,000.00” from the Hyes. Id. at 368.
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3. The District Court’s Decision
Having exhausted state post-conviction remedies, Browning filed a
28 U.S.C. § 2254 petition in the Northern District of Oklahoma. Browning raised
several arguments, including that Tackett’s mental health records should have
been disclosed. Reviewing those records in camera, the district court disagreed
with the Oklahoma courts’ conclusion that the records contained nothing
favorable to Browning. It therefore ordered those records disclosed to
Browning’s habeas counsel—the first time any of Browning’s attorneys had seen
them—and called for further briefing on whether the OCCA’s treatment of this
argument was “contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United
States.” 28 U.S.C. § 2254(d)(1).
After further briefing, the district court concluded,
The OCCA’s determination of this issue was an
unreasonable application of clearly established federal
law in two respects. First, the OCCA’s determination
that the sealed material contained nothing favorable to
Browning was an unreasonable application of Supreme
Court law to the facts of this case. There is no
reasonable argument or theory that could support the
OCCA’s conclusion that the sealed material contained
nothing favorable to Browning’s defense. Moreover, no
fairminded jurist could review the sealed material and
conclude the sealed material was not favorable to
Browning. The sealed mental health records reflect that
Tackett, the prosecution’s key witness, suffered from
severe mental illness which could affect her ability to
recount events accurately and she was also prone to
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manipulate and blame others. The sealed mental health
records also contain information that could support
Browning’s theory that Tackett participated in the
crimes with Pethel. This evidence is clearly both
favorable impeachment and exculpatory evidence.
Second, the OCCA’s conclusion that the sealed mental
health records contain nothing material either to guilt or
punishment was an unreasonable application of Supreme
Court law to the facts of this case. Had the trial court
ordered the disclosure of Tackett’s mental health records
prior to his trial, Browning undoubtedly would have
been able to cross-examine her with the content to create
doubt as to her ability to perceive and tell the truth
regarding his involvement in the crimes. In weighing
the materiality of the records, the Court notes that in
Browning’s trial, Tackett was not only the sole
eyewitness but she was also a surviving victim. Her
testimony was the only testimony directly linking
Browning to the crime scene and the crimes. The guilty
verdict in this case depended on Tackett’s testimony
....
R., Vol. 1 at 1133–34 (citation omitted). The district court therefore granted a
conditional writ of habeas corpus, requiring the State to retry Browning within
180 days or release him.
III. Discussion
A. Scope of Federal Review
The Oklahoma courts found that Oklahoma’s psychotherapist-patient
privilege protects Tackett’s psychiatric reports from disclosure—a conclusion
beyond our review given that it is purely a matter of Oklahoma law. The
Oklahoma courts further recognized that Tackett’s psychiatric reports potentially
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comprised Brady evidence. The Oklahoma courts therefore examined Tackett’s
psychiatric reports in camera to determine whether they contain favorable,
material evidence that must be disclosed under Brady—just as Ritchie directs.
The Oklahoma courts saw no such evidence. Because that decision involved an
application of federal law, Browning applied for a writ of habeas corpus, asking
the federal district court to overturn the Oklahoma courts’ decision.
But in the context of criminal proceedings such as these, a federal court’s
authority to overturn a state court’s decision is limited, even though the decision
involved a matter of federal law, to whether the decision “was contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d).
Under the “unreasonable application” standard—on which Browning relies—the
federal district court cannot grant habeas corpus simply because it disagrees with
the state court. Rather, if “fairminded jurists could disagree on the correctness of
the state court’s decision,” then the federal court must defer to the state court.
Harrington v. Richter, 131 S. Ct. 770, 785–86 (2011) (internal quotation marks
omitted).
Browning argues, however, that his Brady claim was not actually
“adjudicated on the merits in State court proceedings,” and therefore we need not
defer to the Oklahoma courts’ decisions. See Cone v. Bell, 556 U.S. 449, 472
(2009) (confirming that a federal court may review a state court’s decision de
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novo if the state court “did not reach the merits of [the prisoner’s] claim”).
Browning derives his argument from the Ritchie decision.
As noted, Ritchie held that courts should examine privileged material in
camera to decide whether it must be disclosed under Brady. ********* But the
defendant in Ritchie wanted more than that. He wanted the right to have his
lawyer “examine all of the confidential information, both relevant and irrelevant,
and present arguments in favor of disclosure.” Ritchie, 480 U.S. at 59. The
Supreme Court acknowledged that “the eye of an advocate may be helpful to a
defendant in ferreting out information,” id., but nonetheless rejected that request.
“We find that [the defendant’s] interest . . . in ensuring a fair trial can be
protected fully by requiring that the [privileged information] be submitted only to
the trial court for in camera review.” Id. at 60.
Given that Ritchie excludes defense counsel from weighing in on what
should be disclosed, Browning contends that “there was no ‘adjudication’ [of his
Brady claim] as defined by American jurisprudence. The determination [that
Tackett’s psychiatric] records were not material resulted from an ex parte
proceeding more akin to an inquisitorial rather than adversarial proceeding.”
*********
Ritchie applies only where the state-law privilege is not absolute.
480 U.S. at 58 & n.14 (expressly disclaiming any opinion about how to treat
absolute privileges). An absolute privilege is one that contains no exceptions,
even for law enforcement or judicial personnel. See id. No party has argued that
Oklahoma’s psychotherapist-patient privilege is absolute, nor did the OCCA’s
decision raise the issue.
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Aple. Br. at 22–23 (footnote omitted; emphasis in original). Browning effectively
argues that Brady claims resolved through Ritchie are never “adjudicated” for
§ 2254 purposes (unless, perhaps, a judge allows defense counsel to inspect the
documents despite Ritchie). Thus, they would always be subject to de novo
review when raised in a § 2254 petition.
Browning has not pointed us to any authority establishing that “adjudicated
on the merits” necessarily requires an adversarial proceeding. He does point to a
recent Supreme Court decision stating that “[a] judgment is normally said to have
been rendered ‘on the merits’ only if it was ‘delivered after the court . . . heard
and evaluated the evidence and the parties’ substantive arguments.’” Johnson v.
Williams, 133 S. Ct. 1088, 1097 (2013) (quoting Black’s Law Dictionary 1199
(9th ed. 2009)) (emphasis and ellipsis in original). We agree that this is what it
“normally” means to adjudicate a claim in the American legal system. But this is
not a normal situation.
As noted, if we were to hold that “adjudicated on the merits” necessarily
means “adjudicated through an adversarial proceeding,” then all Brady-Ritchie
claims would presumptively fall outside the scope of § 2254(d)—as would any
other Brady claim where the trial court resolves a motion to compel by reviewing
the disputed evidence in camera. See 6 Wayne R. LaFave et al., Criminal
Procedure § 24.3(b) nn.71–74 (3d ed., Dec. 2012 update) (discussing in camera
review of potential Brady material in non-Ritchie situations). We see no
-22-
basis—and Browning has given us none—for creating such a categorical
exclusion from the deference Congress plainly intended when enacting § 2254.
See, e.g., Williams v. Taylor, 529 U.S. 420, 436 (2000) (stating that “Congress
intended [§ 2254] to advance” “the principles of comity, finality, and federalism”
and to uphold a history of “careful . . . limit[s] [on] the scope of federal intrusion
into state criminal adjudications”). ********** We therefore hold that a Brady claim
resolved through the process established in Ritchie has been “adjudicated on the
merits” for purposes of § 2254(d).
Given this holding, the district court was required to apply the deference
prescribed in § 2254(d). According to the State, it is not clear if the district court
applied such deference correctly. While initially in its order the district court
cited to and applied the proper standard to its favorability analysis, quoting
Harrington v. Richter, see R., Vol. 1 at 1126, 1133, it later stated with respect to
materiality that “[t]he OCCA’s decision was objectively unreasonable as a fair
minded jurist could determine the withheld favorable evidence put the whole case
in such a different light as to undermine confidence in the verdict,” id. at 1138.
**********
Courts have routinely applied § 2254(d)’s deferential standard to
Brady-Ritchie claims. See, e.g., Hawkins v. Coyle, 547 F.3d 540, 557 (6th Cir.
2008) (applying § 2254(d)’s standard where the evidence was reviewed in camera
and never disclosed); Rizzo v. Smith, 528 F.3d 501, 506 (7th Cir. 2008) (same).
But all of these decisions assume that deference applies without awareness of the
argument Browning raises here. Thus, strictly speaking, they are not on point.
-23-
This sentence suggests that fair disagreement is reason to grant habeas relief,
whereas it is actually a reason to deny it. Richter, 131 S. Ct. at 785–86.
In the end, however, it is irrelevant for our purposes whether the district
court committed a slip of the pen or actually misapplied the “fairminded jurists”
standard. Either way, “we review the district court’s legal analysis of the state
court decision de novo.” Allen v. Mullin, 368 F.3d 1220, 1234 (10th Cir. 2004).
Thus, we ask, like the district court, whether the Oklahoma courts’ decision
regarding Tackett’s psychiatric reports “involved an unreasonable application of[]
clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C.
§ 2254(d)(1). ***********
The State has not argued that the rights recognized in Brady and Ritchie are
anything but clearly established, so our inquiry reduces to the following: Did the
Oklahoma courts reasonably conclude that Tackett’s psychiatric records contained
nothing favorable to Browning or material to his defense? Given that neither the
***********
Browning does not argue that the Oklahoma courts acted “contrary
to . . . clearly established Federal law.” 28 U.S.C. § 2254(d)(1). As for “a
decision that was based on an unreasonable determination of the facts in light of
the evidence presented,” id. § 2254(d)(2), Browning claims that Tackett’s lawyer
was lying when she said that she had “inadvertently” disclosed Tackett’s mental
health records to the prosecution. Browning therefore argues that the OCCA
unreasonably determined otherwise. Browning provides little support for this
allegation beyond conjecture about what the prosecution may have been thinking,
which is not sufficient to overturn the factual finding of the state court. In any
event, it does not undermine the OCCA’s finding that, as a matter of state law,
Tackett’s lawyer had no right to disclose Tackett’s medical records without her
express permission.
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state trial court nor the OCCA gave any reasoned explanation of this conclusion,
we must “determine what arguments or theories . . . could have supported[] the
state court[s’] decision; and then [we] must ask whether it is possible fairminded
jurists could disagree” on the favorability and materiality of the withheld
evidence. Richter, 131 S. Ct. at 786.
B. Scope of Evidence We May Consider
In evaluating favorability and materiality, we must first resolve one more
preliminary question. Specifically, we must decide the universe of evidence we
may consider. The Supreme Court recently held that “review under § 2254(d)(1)
is limited to the record that was before the state court that adjudicated the claim
on the merits.” Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011). But “the
record . . . before the state court” is not self-defining. Does it mean the record
before the jury? Or does it mean the entire record generated by the state trial and
appellate courts before the § 2254 petition was filed?
This is a distinction with a significant difference in this case. If we may
consider everything that came before the OCCA—which included, e.g.,
Browning’s post-trial affidavits relating to Tackett’s mental health, Browning’s
evidence of Tackett’s inheritance, and Pethel’s confession inculpating
Browning—then our analysis may well differ from one limited to the evidence
available at trial.
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Pinholster itself demonstrates that we cannot interpret “the record . . .
before the state court” necessarily to mean the record before the jury. Pinholster
involved an ineffective-assistance-of-counsel claim that the Supreme Court
reviewed on the record as developed in post-conviction proceedings in state court.
See id. at 1403–06. This was so because the state from which the habeas petition
originated, California, requires defendants to develop their ineffective-assistance
claims in post-conviction proceedings rather than on direct appeal. But in any
event, Pinholster shows that in certain types of cases, at least, “the record . . .
before the state court” includes materials not available to the trial court.
In the Brady context, however, it is inappropriate to consider evidence
developed post-verdict. To do otherwise would contradict Supreme Court cases
applying Brady by analyzing how withheld evidence might have affected the jury
in light of all other evidence it heard. See, e.g., Strickler v. Greene, 527 U.S.
263, 290–96 (1999); Kyles, 514 U.S. at 441–53; see also United States v. Agurs,
427 U.S. 97, 103 (1976) (discussing materiality in the context of how Brady
evidence “could have affected the judgment of the jury”).
In addition, the Supreme Court has emphasized that Brady “requires a
prosecutor to disclose material exculpatory evidence to the defendant before
trial.” Dist. Attorney’s Office v. Osborne, 557 U.S. 52, 68 (2009). In Osborne,
the Supreme Court faced a claim that a convicted defendant had a post-conviction
Brady right to access and test DNA evidence in the state’s possession—evidence
-26-
his defense attorney knew about before trial. Id. The Court rejected this
argument, explaining that the defendant’s claim “is not parallel to a trial right, but
rather must be analyzed in light of the fact that he has already been found guilty
at a fair trial, and has only a limited interest in postconviction relief. Brady is the
wrong framework.” Id. at 69.
If (as Osborne made clear) one’s Brady right is a pre-trial right, then our
analysis necessarily looks to what might have changed had the Brady evidence
been disclosed before trial—or at least disclosed soon enough to give the
defendant an opportunity to use it at trial effectively. See 6 LaFave, Criminal
Procedure § 24.3(b) (“lower courts agree that the Brady rule . . . requires only
that disclosure of exculpatory evidence be made in sufficient time to permit [the]
defendant to make effective use of that evidence at trial”). And if our analysis
necessarily looks to what might have changed had the Brady evidence been
disclosed before trial, then it would make no sense to account for evidence that
was not available before trial.
Accordingly, we confine our analysis of favorability and materiality to the
record before the state trial court. We therefore cannot consider Pethel’s
confession and guilty plea, nor can we consider evidence Browning developed in
post-conviction proceedings that he believes favors his theory of the case.
-27-
C. “Favorable”
As noted, evidence is favorable if it is exculpatory or impeaching. Banks,
540 U.S. at 691. At oral argument, counsel for the State conceded that the State
does not contest the favorability of Tackett’s mental health records to Browning’s
case—and indeed it is beyond question that those records contain both
exculpatory and impeaching evidence.
On the exculpatory side, her records describe her as hostile, assaultive,
combative, and even potentially homicidal. Such evidence tends to show that a
person with a motive to kill might even have a disposition to kill.
On the impeaching side, Tackett’s psychiatric evaluations evinced, among
other things, memory deficits, magical thinking, blurring of reality and fantasy,
and projection of blame onto others. This is classic impeachment evidence. “A
witness’s credibility may always be attacked by showing that his or her capacity
to observe, remember, or narrate is impaired. Consequently, the witness’s
capacity at the time of the event, as well as at the time of trial, is significant.” 4
Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence §
607.05[1] (Joseph M. McLaughlin ed., 2d ed. 2009); see also Gonzalez v. Wong,
667 F.3d 965, 983–84 (9th Cir. 2011) (recognizing impeachment value of mental
health evidence); United States v. Robinson, 583 F.3d 1265, 1272 (10th Cir. 2009)
(same); Wilson v. Beard, 589 F.3d 651, 666 (3d Cir. 2009) (same); United States
v. Butt, 955 F.2d 77, 82–83 (1st Cir. 1992) (same).
-28-
Accordingly, we agree with the district court’s disposition of the
favorability question: “There is no reasonable argument or theory that could
support the [Oklahoma courts’] conclusion that the sealed material contained
nothing favorable to Browning’s defense.” R., Vol. 1 at 1133. We therefore turn
to the question of whether Tackett’s mental health records would have been
material to Browning’s case.
D. “Material”
1. Materiality Generally
Evidence is material if “there is a reasonable probability that, had the
evidence been disclosed, the result of the proceeding would have been different.”
Smith, 132 S. Ct. at 630 (internal quotation marks omitted). “A reasonable
probability does not mean that the defendant would more likely than not have
received a different verdict with the evidence, only that the likelihood of a
different result is great enough to undermine confidence in the outcome of the
trial.” Id. (internal quotation marks omitted; alterations incorporated); see also
Kyles, 514 U.S. at 435 (evidence is material for Brady purposes when it “could
reasonably be taken to put the whole case in such a different light as to undermine
confidence in the verdict”). In determining materiality, there is no distinction
between exculpatory evidence and impeachment evidence. United States v.
Bagley, 473 U.S. 667, 676 (1985) (“This Court has rejected any . . . distinction
between impeachment evidence and exculpatory evidence [for Brady purposes].”).
-29-
By rejecting Browning’s materiality argument, the Oklahoma courts
necessarily concluded that Tackett’s mental health records—had they been
available for use at trial—could not have put the trial in a “different light” and
“undermine[d] confidence in the verdict.” Kyles, 514 U.S. at 435. The question
for our review is whether the Oklahoma courts reached that conclusion
unreasonably. We agree with the district court that the Oklahoma courts’
conclusion was unreasonable.
Tackett was the prosecution’s indispensable witness, and all sides knew
that Browning’s fate turned on her credibility. In case that was not obvious to the
jury, the prosecution made it abundantly clear at closing argument:
First of all, ladies and gentlemen, they put Cenessa on
trial. They put Cenessa on trial. Everywhere outside
this courtroom, ladies and gentlemen, that this story is
told, she is a hero. And for someone to get up here, who
has not faced that situation, with a mom and a dad and a
fire, having a baby inside of you, and to criticize them,
that is uncalled for. She is a hero everywhere except
this trial by defense counsel. Everywhere else, but there
she’s the villain. Make no mistake about it, that’s what
the strategy is here, is let’s put her on trial.
R., Trial Tr., Vol. XIII at 2426.
If, as the prosecution told the jury at the time, Browning’s only defense was
to discredit Tackett—and this was really the only possible defense in light of her
powerful eyewitness testimony—then it is difficult to see how the Oklahoma
courts could reasonably conclude there was nothing material about a recent
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diagnosis of a severe mental disorder that made her hostile, assaultive, combative,
and even potentially homicidal, or that Tackett was known to blur reality and
fantasy and project blame onto others.
2. Corroboration
The State argues, however, that other evidence substantially corroborated
Tackett’s story. “[E]vidence impeaching an eyewitness may not be material if the
State’s other evidence is strong enough to sustain confidence in the verdict.”
Smith, 132 S. Ct. at 630. But at least when the eyewitness testimony is “the only
evidence linking [the defendant] to the crime,” and the impeachment evidence
casts substantial doubt upon its reliability, it is material. Id. (emphasis in
original).
In Smith, the eyewitness’s testimony was literally the only evidence linking
the defendant to the crime. Id. at 629. That is not the case here. Specifically,
two items of evidence against Browning did not rely solely on Tackett’s
testimony. First, when police contacted Browning several hours after the
murders, he was wearing the clothing described by Tackett in her initial statement
to police. Second, several witnesses saw Browning and Pethel together shortly
before the crimes and one witness saw Browning and Pethel together at 4:20
a.m.—not long after Tackett’s 911 call.
We agree with the State that this evidence circumstantially corroborates
Tackett’s story. But the existence of some corroborating evidence for Tackett’s
-31-
testimony does not necessarily vitiate the materiality of her mental health records.
Again, the Brady requirement of a “reasonable probability that, had the evidence
been disclosed, the result of the proceeding would have been different . . . does
not mean that the defendant would more likely than not have received a different
verdict.” Smith, 132 S. Ct. at 630 (internal quotation marks omitted). It means
“only that the likelihood of a different result is great enough to undermine
confidence in the outcome of the trial.” Id. (internal quotation marks omitted;
alterations incorporated).
Given the obvious potential force of Tackett’s mental health records, the
Oklahoma courts could not reasonably conclude that the State’s corroborating
evidence was “strong enough to sustain confidence in the verdict.” Id. The thrust
of the psychiatric evidence is that Tackett is a very disturbed, perhaps even
homicidal person, with a tendency to blur reality and fantasy and shift blame to
others. That is the only evidence Browning could muster to place Tackett’s
testimony in a very different light, given the defense theory that she and Pethel
wanted to frame Browning. Indeed, more than any other evidence that actually
came out at trial, the mental health evidence would have given the jury reason to
consider seriously Browning’s theory of the case or at least to question Tackett’s
credibility.
With such consideration, a notably different light shines on the
corroborating evidence. In particular, because Pethel and Browning were
-32-
together not long before the crimes, Tackett could have learned from Pethel what
Browning had been wearing. That is consistent with Browning’s conspiracy
theory.
What is inconsistent—or seemingly so—is how events played out as to
Pethel. Assuming Tackett and Pethel conspired, it is somewhat surprising that
Tackett nonetheless identified Pethel as one of the perpetrators. And it is
particularly surprising that Pethel, having been identified, would not point the
finger back at Tackett. But Pethel was not a witness at Browning’s trial and his
motives therefore remain in the realm of speculation.
In any event, whether the jury necessarily would have reached an alternate
conclusion is not the appropriate inquiry. We only inquire whether the Oklahoma
courts could have reasonably decided that the mental health evidence would not
have mattered. The answer is no. This evidence would have mattered, even in
light of the State’s corroborating evidence.
3. Causation
The State further contends that Tackett’s mental health diagnosis— which
came eight months after the murders—is best explained as a result of this crime,
not a cause. But nothing in the record explains whether Tackett’s symptoms
could have resulted from living through a nightmare like that described here or
from some other earlier cause. Nonetheless, as demonstrated by the Supreme
Court’s recent Smith decision, that theory is not enough to undermine the
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materiality of Tackett’s mental health records.
In Smith, the defendant was convicted of murder based on the eyewitness
testimony of a man named Boatner. Smith, 132 S. Ct. at 629. The defendant
learned after trial that, shortly after the murders, Boatner had informed a police
detective that he (Boatner) “‘could not ID anyone because [he] couldn’t see faces’
and ‘would not know them if [he] saw them.’” Id. at 630 (quoting appellate
record) (alterations in original). In habeas briefing, the prosecution argued that
such statements would not have been material because they could “be explained
by fear of retaliation.” Id. at 630. In granting relief to the defendant, the
Supreme Court rejected this argument, explaining that it “offers a reason . . . the
jury could have disbelieved Boatner’s undisclosed statements, but gives us no
confidence that it would have done so.” Id. (emphasis in original).
Here, the State’s argument similarly gives us a reason only to think that the
jury could discount the significance of Tackett’s mental health, not that it would
discount it. Nevertheless, the State presses forward, arguing that the lack of
evidence showing Tackett suffered from psychiatric problems on the day of the
murders makes the evidence of subsequent psychiatric problems irrelevant. This
is actually an argument against favorability, not materiality. If, as the State
suggests, psychiatric evidence is irrelevant unless it shows impairment on the day
of the events testified to, then Tackett’s mental health records are not even
favorable, rendering the materiality question moot. But the State confirmed at
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oral argument that it does not contest favorability, and it cannot have it both
ways. And in any event, as already explained, impeachment evidence is favorable
evidence, and a witness’s condition both at the time of the events testified to and
the time of the testimony is relevant to impeachment. See Part III.C, supra.
IV. Conclusion
Brady evidence need not prove a defendant’s innocence. Rather, the
evidence need only “put the whole case in such a different light as to undermine
confidence in the verdict.” Kyles, 514 U.S. at 435. That circumstance exists
here, and the Oklahoma courts could not have reasonably concluded otherwise.
Browning’s only chance was to impeach Tackett’s credibility and portray her as a
participant in the crime. As the trial actually played out, there was little reason
for the jury to give Browning’s theory any credence. Indeed, the prosecution
encouraged the jury to take offense that Browning would propose such an idea.
But that dynamic would have been significantly curtailed had Browning been able
to inform the jury that Tackett blurs reality and fantasy, projects blame onto
others, and is perhaps even homicidal. A theory that might otherwise be
offensive suddenly must be taken seriously. That, if anything, is “such a different
light as to undermine confidence in the verdict.” Id.The district court’s grant of a conditional writ of habeas corpus is
AFFIRMED.
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