Love v. Freeman

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
REGINALD JEROME LOVE,
Petitioner-Appellant,
v.
No. 96-6361
FRANKLIN FREEMAN, Secretary of
Corrections; MICHAEL EASLEY,
Attorney General,
Respondents-Appellees.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Malcolm J. Howard, District Judge.
(CA-92-189-5-H)
Argued: June 10, 1999
Decided: August 30, 1999
Before MURNAGHAN, WILKINS, and HAMILTON,
Circuit Judges.
_________________________________________________________________
Reversed and remanded with instructions by unpublished per curiam
opinion.
_________________________________________________________________
COUNSEL
ARGUED: James Phillip Griffin, Jr., NORTH CAROLINA PRIS-
ONER LEGAL SERVICES, INC., Raleigh, North Carolina, for
Appellant. Clarence Joe DelForge, III, Assistant Attorney General,
NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North
Carolina, for Appellees. ON BRIEF: Linda B. Weisel, Marcus Jimi-
son, NORTH CAROLINA PRISONER LEGAL SERVICES, INC.,
Raleigh, North Carolina, for Appellant. Michael F. Easley, Attorney
General, NORTH CAROLINA DEPARTMENT OF JUSTICE,
Raleigh, North Carolina, for Appellees.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Appellant Reginald Jerome Love appeals the district court's rejec-
tion of his petition for a writ of habeas corpus under 28 U.S.C.A.
§ 2254 (West 1994), challenging his conviction for various sexual
offenses under Brady v. Maryland, 373 U.S. 83 (1963). Despite
undisclosed evidence indicating that the victim had a known problem
for lying and living in a "fantasy world," and various evidence of a
potentially exculpatory and impeaching nature, the district court held
that Love had not satisfied the Brady standard of materiality. We
reverse the district court.
I.
The facts of this case are set forth in some detail in a prior opinion
associated with Love's Brady claim. See Love v. Johnson, 57 F.3d
1305, 1307-12 (4th Cir. 1995). We repeat those facts only as relevant
to the case at bar.
Love was convicted following a jury trial of first-degree rape, first-
degree sexual offense, and taking indecent liberties with a minor. He
was sentenced to two concurrent life terms plus five years. On appeal,
the North Carolina Court of Appeals affirmed, State v. Love, 395
S.E.2d 429 (N.C. Ct. App. 1990), and the North Carolina Supreme
2
Court denied discretionary review. State v. Love , 402 S.E.2d 423(N.C. 1991).
The state's case rested chiefly on the evidence described below.1
The alleged victim, then a ten year-old minor, testified that Love,
when he was her mother's live-in boyfriend, had sexually abused her
one night.2 The minor described the alleged incident in some detail.
The minor testified to the fact that sometime soon after the alleged
abuse occurred, the minor wrote a note to her mother indicating in
explicit detail what had occurred.
Kimberly Crews, the Social Worker who first interviewed the
minor, testified to the story that the minor had told her at that inter-
view and certain other matters. Ms. Crews testified that the minor had
initially denied that anything had happened but later described the
details of the alleged incident. Detective C. M. Murray testified, inter
alia, as to the contents of a separate statement the minor had given
describing the alleged incident. The minor's mother testified to what
the minor had told her. The minor's mother admitted that she at first
did not believe the minor, but claimed that she later changed her mind
because of the way that Love acted after the minor made the allega-
tions.
Dr. Denise Everette, the physician who performed the physical
examination of the minor, testified that the examination revealed two
physical indications that the minor had in fact been sexually abused.
First, Dr. Everette testified that the minor's hymenal opening was
unusually large for a girl of her age.3 Second, Dr. Everette reported
_________________________________________________________________
1 In addition, testimony was received from the minor's grandmother,
who was in the apartment with the minor and Love at the time of the
alleged incident but unaware that it had occurred; Dr. Robert Kratz, who
had seen the minor for an injury to, inter alia , her vaginal area a few
months prior to the alleged incident; and Love himself.
2 The couple, along with the minor, two other children, and the minor's
grandmother shared a small apartment in Raleigh, North Carolina at the
time of the alleged abuse.
3 A close reading of the direct and cross of Dr. Everette shows that she
did not in fact rely upon the size of the hymenal opening to come to any
3
that the minor had what appeared to be hymenal lacerations, consis-
tent with penile penetration.
The defense theory at trial was that Love was an innocent man
falsely accused by a minor who was emotionally disturbed. The previ-
ous panel well summarized the defense's efforts:
Love's defense consisted of his own testimonial denial of
the charged incident, and cross-examination of the state's
witnesses designed to impeach the minor's general and spe-
cific credibility and to emphasize the physical implausibility
of her account of the charged incidents having occurred
undetected just down the hall from her grandmother's open-
door room. Defense counsel was able to elicit from the
minor concessions of her animosity, "hate," toward Love
that predated the charged incident; of her advanced sexual
awareness; and of her treatment by prescription drug for
hyperactivity. This supplemented earlier testimony elicited
by the prosecutor on direct examination in which the minor
had conceded attention-seeking episodes of bizarre behavior
on her part -- shaving her eyebrows, setting fires in her resi-
dence -- that were followed by psychiatric counseling. No
records concerning her conceded counseling at Wake Men-
tal Health Center or her custody by the Department of Social
Services (the subject of two of the quashed subpoenas[, see
infra]) were introduced. Testifying in his own behalf, Love
denied any sexual encounter with the minor at any time. He
claimed her account was simply false and attributed it to her
animosity and resentment of his relationship with her
mother.
Love, 57 F.3d at 1311.
_________________________________________________________________
conclusions about whether the minor had been sexually abused (i.e., that
this evidence was irrelevant to that conclusion). It is unclear, then, why
this evidence, which could only have confused the jury without some
explanation of its medical significance, was admitted over Love's objec-
tion.
4
Prior to the trial, defense counsel had subpoenaed various medical,
mental health, and social service records on the victim from the state.
In discovery, the state district attorney's office voluntarily produced
the report of Dr. Everette's physical examination, a summary report
of counselor Crews' interview, and the police report of the alleged
incident. Love was not satisfied with these disclosures and, invoking
Brady, continued to demand additional materials in the state's posses-
sion from the minor's medical health, mental health, and social ser-
vices records.
The ensuing proceedings with regard to Love's various subpoenas
and Brady motions are tortured, indeed. This series of events has been
explained in depth elsewhere. See Love, 57 F.3d at 1307-1311. Suf-
fice it to say that several hearings were had in front of two different
judges and the end result was that the court did not grant an in camera
review of the requested documents. Love was therefore forced to pro-
ceed to trial without them. The prior panel to hear Love's claim inti-
mated that the prosecutor's incorrect representations and confused
presentation at a hearing before a judge who was assigned the case
after it was underway may have contributed to the denial of the in
camera review. See Love, 57 F.3d at 1309, 1310, 1314.
The jury found Love guilty and sentenced him accordingly. After
his appeals in the state courts were exhausted, Love filed a petition
for a writ of habeas corpus under 28 U.S.C.A. § 2254 with the United
States District for the Eastern District of North Carolina claiming that
his rights under Brady and Pennsylvania v. Ritchie, 480 U.S. 39, 56
(1987), had been violated. The district court dismissed that motion.
This Court reversed. We determined that Love made a plausible
showing that the sought after records might contain evidence favor-
able to the defense; the state court's refusal to inspect the identified
records in camera therefore violated Love's constitutional rights. See
Love, 57 F.3d at 1313-16. Accordingly, this Court remanded the case
with instructions that the district court conduct an in camera inspec-
tion of the materials to determine whether with reasonable probability
they would have changed the outcome of Love's trial. See id. at 1315-
16.
Following its in camera review, the district court stated that it
could not determine whether the information contained in the records
5
would have changed the outcome of Love's trial. Consequently, the
court entered an order allowing counsel for both parties to view all
of the documents and materials received by the court, after which the
court would conduct a hearing to determine whether the evidence was
material. Following the hearing, the district court found that none of
the information contained in the suppressed records was material
under the Brady standard and denied Love§ 2254 relief. Love noted
a timely appeal to this Court.
II.
Questions of materiality under Brady v. Maryland , 373 U.S. 83, 87
(1963), are mixed questions of law and fact. E.g., Cornell v. Nix, 976
F.2d 376, 382 (8th Cir. 1992); United States v. Rivalta, 925 F.2d 596,
598 (2d Cir. 1991); Carter v. Rafferty, 826 F.2d 1299, 1306 (3d Cir.
1987); Bowen v. Maynard, 799 F.2d 593, 610 (10th Cir. 1986); Ruiz
v. Cady, 635 F.2d 584, 589 (7th Cir. 1980); Davis v. Heyd, 479 F.2d
446, 451 (5th Cir. 1973). Cf. Savino v. Murray , 82 F.3d 593, 598 (4th
Cir. 1996) (stating that claim of ineffective assistance of counsel,
including prejudice component, is mixed question of law and fact).
Therefore, we review prior determinations of materiality in Brady
claims de novo.4 See, e.g., Savino, 82 F.3d at 598;Ashe v. Styles, 67
F.3d 46, 50 (4th Cir. 1995); Cornell, 976 F.2d at 382.
The state's affirmative obligation as a matter of due process to dis-
close evidence favorable to a criminal defendant is well-established.
See Kyles v. Whitley, 514 U.S. 419 (1995); Pennsylvania v. Ritchie,
480 U.S. 39; United States v. Bagley, 473 U.S. 667 (1985); Brady v.
Maryland, 373 U.S. 83. Brady material includes both evidence that
tends to exculpate the accused and evidence that may be used to
impeach prosecution witnesses. See United States v. Bagley, 473 U.S.
at 682-83. See also United States v. Trevino, 89 F.3d 187, 189 (4th
Cir. 1996); Jean v. Rice, 945 F.2d 82, 87 (4th Cir. 1991); Chavis v.
State of North Carolina, 637 F.2d 213, 224 (4th Cir. 1980); Norris v.
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4 This federal habeas petition was filed prior to the effective date of the
Antiterrorism and Effective Death Penalty Act ("AEDPA") of April 24,
1996, thus the AEDPA amendments to § 2254(d), see 28 U.S.C.A.
§ 2254(d) (West Supp. 1999), do not apply. Lindh v. Murphy, 521 U.S.
320, 322 (1997).
6
Slayton, 540 F.2d 1241, 1244 (4th Cir. 1976)."When the reliability
of a given witness may well be determinative of guilt or innocence,
nondisclosure of evidence affecting credibility falls within" Brady.
Giglio v. United States, 405 U.S. 150, 154 (1972) (internal quotations
omitted).
A reviewing court examines Brady evidence to determine whether
it is "material," i.e., whether there is a"reasonable probability" that
had the evidence been disclosed the result of the proceeding would
have been different. See Kyles, 514 U.S. at 434. The reasonable prob-
ability test "is not a sufficiency of 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." Id. at 434-35. A "reasonable probability" of a different result
is shown if the suppression of the evidence undermines confidence in
the trial's outcome. See id. at 434; Bagley, 473 U.S. at 678. It is less
than a preponderance: "The question is not whether the defendant
would more likely than not have received a different verdict with the
evidence, but whether in its absence he received a fair trial, under-
stood as a trial resulting in a verdict worthy of confidence." Kyles,
514 U.S. at 434. If the defendant fulfills the reasonable probability
analysis, the error cannot be harmless. See id . In performing this rea-
sonable probability analysis, a court should examine the undisclosed
evidence item by item, but then must also consider the cumulative
effect of all the suppressed evidence, see Kyles , 514 U.S. at 436-37;
United States v. Ellis, 121 F.3d 908, 916 (4th Cir. 1997), cert. denied,
___ U.S. ___, 118 S. Ct. 738 (1998), including the effect on the
defendant's preparation or trial presentation, see Bagley, 473 U.S. at
683.
III.
Love first asserts that the district court erred when it improperly
construed the law on "reasonable probability" against him during its
in camera review of the suppressed evidence. Love suggests that
because the district court allowed the parties to review the documents
in camera and then conducted a closed hearing, the court was in "vir-
tual equipoise" as to whether the suppressed records would probably
have changed the outcome of his trial. Therefore, the district court
was obliged to grant Love habeas relief. See O'Neal v. McAninch, 513
7
U.S. 432, 434, 437 (1995) (holding that when the matter is so bal-
anced that the judge feels himself in "virtual equipoise" about the
effect of the error on the verdict, the judge must resolve that doubt
in favor of the habeas petitioner).
Love's argument fails. First, O'Neal dealt with a different and
more relaxed standard of relief. See id.;Kyles, 514 U.S. at 436.5 Sec-
ond, the record reveals that the district court judge did not hold a
hearing because he was in "virtual equipoise," but rather because the
original criminal trial was not conducted in front of him. Thus, to
assist the court in managing the voluminous amount of information
in the case, the district court judge simply utilized the attorneys to
marshal all of the pertinent information in order to make a satisfactory
determination regarding the impact of these materials on Love's crim-
inal trial. Consequently, we reject this claim.
IV.
Love argues that the following evidence, taken alone or cumula-
tively, is sufficient to provide a reasonable probability of a different
outcome.6 We agree. Our decision is based in particular on the undis-
closed evidence about the minor's self-destructive jealousy at times
_________________________________________________________________
5 It is worth noting that because materiality requires less than a prepon-
derance, see Kyles, 514 U.S. at 434, the same rule would appear to hold
in the Brady context.
6 In addition to the evidence detailed below, Love also asserts that the
following suppressed evidence was material: evidence that the victim
was told about "good touch and bad touch;" that the victim tried using
tampons; that the victim was subjected to corporal punishment; that the
victim was having problems with her father contemporaneous with the
allegations; and that a social worker described the minor's mother's
apartment as "too close in there." The claims regarding these pieces of
evidence are meritless. The record shows that at trial, Love's counsel
asked the minor about "good touch and bad touch." (J.A. at 252.)
Regardless of whether the minor had used tampons, one of the prosecu-
tion doctors testified that the use of tampons could not cause the physical
evidence she observed. Love has offered no explanation how the minor's
exposure to corporal punishment, her contemporaneous problems with
her father, or the social worker's statement could be used to exculpate
him or to impeach other witnesses.
8
directed towards Love, the minor's history of lying and living in a
fantasy world, the possibility that the minor was first interviewed
using an inappropriately suggestive technique, and the possible previ-
ous rape of the minor.
A. Failure to Disclose Minor's Various Statements
Love contends that various undisclosed evidence that the minor
denied that she had been abused and that the minor gave inconsistent
stories was material.
1. Minor's Denials that Anything had Happened
The withheld evidence shows that the minor twice denied that she
had been sexually abused (once more than the jury was made aware).
The withheld evidence shows that the minor told her school coun-
selor, McRee, that she had not been sexually abused. Some time later,
the minor did tell McRee that she had been raped.
In and of itself, this evidence would not be material. The jury heard
evidence that the minor initially denied the abuse to Kimberly Crews,
the social worker who first interviewed her about the alleged incident.
The minor subsequently described the rape to Crews in some detail.
Thus, the jury was not unaware that the minor had denied the abuse.
Further, Crews testified that sexually abused children do not always
report the abuse right away. Therefore, it is difficult to believe that
knowledge of one additional denial before the child had ever reported
the crime to authorities would have been material to the jury.7
2. Inconsistencies in Minor's Statements
Love also points out that the suppressed evidence contained vari-
ous accounts of the rape by the minor and asserts that the inconsisten-
cies in these accounts were material.
_________________________________________________________________
7 When coupled with evidence that the victim was a known liar, and
with evidence that Crews used a suggestive interviewing technique with
the victim, this additional denial could take on greater importance.
9
a. Description of Clothing
In one account, the minor alleged that Love pulled her gown up
and pulled down her panties. (J.B. at 65.)8 In another, the minor stated
that Love told her to pull up her nightgown. (J.B. at 79.) In another
account, the minor did not mention a nightgown and alleged that Love
"pulled her pants down." (J.B. at 101 (emphasis added).)
b. Description of Activities After the Alleged Incident
In one account, the minor alleged that after Love left, she locked
the door, washed off, changed clothes, and went to her grandmother's
room. (J.B. at 66.) In another account, she stated she just stayed in her
room. (J.B. at 102.) At trial, she testified that she closed her door and
locked it after Love left. (J.A. at 224.)
c. Whether Love had been Drinking
In her interview with Crews, the minor said that she did not know
if Love had been drinking that night. (J.B. at 67.) In another account
and at trial, the minor stated that Love had been drinking and that she
could smell alcohol on his breath. (J.B. at 101; J.A. at 222.)
d. Whether Love Said Anything
In one account the minor said that Love did not say anything the
whole time and that he did not ask her to do anything. (J.B. at 101;
J.A. at 220.) In another account, the minor stated that Love told her
to pull up her nightgown. (J.B. at 79.) At trial and in another account,
the minor stated (or indicated) that Love told her to "put [her] mouth
on his thing." (J.A. at 220.)
_________________________________________________________________
8 There are two volumes of the record. Volume A was the record before
the court in Love v. Johnson, 57 F.3d 1305. Volume B is generally the
previously undisclosed material. For ease of reference, Volume A is cited
as "J.A. at" and Volume B is cited as "J.B. at."
10
e. Love's Post-Attack Statements
In the first account given by the minor, the most complete ques-
tioning of the minor evident in the record, the minor stated that after
the rape, Love told her not to tell anyone or he would go to prison.
(J.B. at 67.) The minor did not allege that Love threatened to kill her
or her family. She ended this interview by saying,"I've told you
everything." (J.B. at 68.) In another account and at trial, however, the
minor alleged that Love told her not to tell because he would go to
prison and that Love threatened to kill her and her family. (J.B. at
101; J.A. at 223.)
f. Whether the Incident Involved Sodomy
In one account and at trial, the minor asserted that Love had her put
"his thing" in her mouth. (J.B. at 67; J.A. at 220-221.) In another
account, the minor did not mention any sodomy. (J.A. at 101.) Fur-
ther, in one account, the minor asserted that Love"tried to put his face
down there but I pushed him away." (J.B. at 101.) The minor never
included this detail in any other account. (See J.B. at 62-69; J.A. at
201-226.) Also, in one account, and at trial, the minor asserted that
Love put his finger in her. (J.B. at 67; J.A. at 223.) In another account
the minor did not make this assertion. (J.B. at 101.)
g. Conclusion
These inconsistencies are clearly relevant. Skillful defense counsel
would have been able to use them as one piece of evidence that the
minor had manufactured the story. If the inconsistencies were the
only pieces of undisclosed evidence, it would be a close question
whether they were so material as to cast doubt on the outcome of the
trial. As the state points out, the victim's basic account of the attack
remained the same throughout and given the child's age, a jury could
expect some inconsistencies. Further, the jury could well conclude
that some of the inconsistencies, i.e., what Love said after the attack,
and what the minor did after the attack, were not inconsistencies at
all, but merely omissions of collateral details or consistent descrip-
tions based on varying time frames.
11
We think, however, that when viewed in combination with some
of the other suppressed evidence -- i.e., coupled with the evidence
that Crews had coaxed the minor into her story through improperly
suggestive interview techniques and that the child had a problem with
lying -- the evidence of these inconsistencies takes on greater weight.
These inconsistencies would certainly have bolstered a theory that
counselor Crews' suggestive interview technique helped the child for-
mulate her allegations. Several of the details upon which the child
was inconsistent were elicited by leading questions from Crews. For
instance, the first mention of whether Love had been drinking the
night of the alleged incident came in two leading questions posed by
Crews to the minor. (See J.B. at 67.) Similarly, the first mention of
sodomy came from a leading question by Crews. (See J.B. at 67.)
B. Failure to Disclose Evidence of Minor's Emotional Problems
and Problems with Lying
The state's case depended centrally upon two lines of evidence --
most primarily the credibility of the minor, and secondarily the medi-
cal testimony corroborating that she may have been sexually abused.
The improperly withheld evidence contained damaging impeachment
evidence against the minor.
The state asserts, however, that this evidence is not material
because Love could not have obtained admission of most of this evi-
dence, in particular evidence about the minor's emotional problems.
Much of this evidence would be subject to a qualified social worker
privilege, N.C. Gen. Stat. § 8-53.7 (1998), school counselor privilege,
N.C. Gen. Stat. § 8-53.4 (1998), or psychologist privilege, N.C. Gen.
Stat. § 8-53.3, 8-53.8 (1998), in North Carolina. We disagree with the
state. First, the evidence about the minor's perhaps pathological lying
history would clearly be admissible. Second, we think that because
the state opened the door to the minor's emotional problems by hav-
ing the minor testify about some of her emotional problems at trial,
and because of its high level of relevance to the defense theory, a
judge would have allowed at least the most relevant evidence in. Cf.
Chavis, 637 F.2d at 224 (evidence of psychiatric report of key witness
relevant to witness' credibility).
12
1. Lying and Fantasy World
The suppressed records contain the following evidence that the
minor had a problem with lying and distinguishing fantasy from real-
ity: Just one month after the minor made the allegations, the minor's
foster mother reported that the minor "lies with a straight face and
looking you in the eye" and said that she lives in a "fantasy world."
(J.B. at 21.) Just one month after the minor made her allegations, her
social worker was working with the minor about "being honest" and
questioned whether they could do psychological testing about her
"fantasy vs. reality" problems. (J.B. at 23.) The records also contain
numerous notations from various therapists and Department of Social
Services personnel about the minor's lying or exaggeration: "Some of
her comments were exaggerated," (J.B. at 43),"fantasy life, problem
with honesty," (J.B. at 118), "Can be very`sneaky' and will lie at
every opportunity," (J.B. at 122), "exhibits a great deal of lying," (J.B.
at 124), "lying," (J.B. at 119), "lies and tells elaborate stories." (J.B.
at 94.)
This information is obviously highly relevant given the central role
the minor's credibility played. When guilt or innocence may well
depend upon the reliability of a given witness, non-disclosure of evi-
dence affecting that witness's reliability is very likely to be material.
See Giglio, 405 U.S. at 153-54; Ellis , 121 F.3d at 917. We hold that
this evidence, standing alone, was material, and entitles Love to the
requested relief.
2. Self-Destructive and Attention-Seeking Behavior
Love believes the evidence of the minor's troubling behavior
would have been admissible to impeach her credibility and to estab-
lish that she had a motive to lie.
Love cites to the following evidence. There were undisclosed prob-
lems with depression, sleeplessness, suicide threats, and one suicide
attempt. The suppressed evidence also showed that the minor had
engaged in behavior such as head banging that caused holes in the
wall, scraping the soles of her feet with a razor, and wrapping a
clothesline around her neck. Further, the suppressed evidence showed
13
that the minor set fire to her new brother's bed 9 (the son that Love had
fathered) shortly before her accusation against Love because she felt
neglected and resented the new baby. The records contain several
notes regarding the minor's history of problems with jealousy for her
mother's attention. (J.B. at 16, 27, 34, 37, 38, 45, 81.) The evidence
also indicates that the minor hated Love. Finally, there is a statement
from the minor's social worker that she was "concerned about [the
minor's] behavior after the new baby is born in February as she will
have even less attention at that time and the home will be even more
crowded and the stresses will be greater." (J.B. at 116.) Love points
out that the time period over which the social worker was concerned
is precisely the time period when the minor made her accusation
against him.
We do not think that all of this evidence is material. The minor's
generalized emotional problems are not particularly relevant to her
credibility. Also, the fact that the minor hated Love was elicited at
trial directly from the minor. However, some of the other evidence
was highly relevant to Love's defense, in particular, the evidence
indicating that the minor would engage in abnormal behavior in an
effort to get attention, and that the minor felt that Love and his new
baby were stealing attention away from her. Again, if this evidence
was in isolation, it might not be material. In combination with all of
the other undisclosed evidence, however, we hold that Love is entitled
to relief.
3. Conclusion for the Above
The state argues that the above evidence would have been only
cumulative, so was not material. See Ellis, 121 F.3d at 916-17. The
state points out that the jury heard evidence that the minor lied in the
past (from both the victim herself and her mother), that she shaved
her eyebrows, that she once started fires in her room, that she was tak-
ing Ritalin for hyperactivity, that she placed knives under her bed,
that she had viewed a few minutes of one of her mother's adult films,
and that she hated Love because he cut her mother with a knife.
_________________________________________________________________
9 The baby was still in the hospital; he was not in the bed at the time
of this incident.
14
The state is correct that this evidence put the jury on notice that the
minor occasionally lied and suffered some behavioral problems. We
believe, however, that the hidden evidence was of a quantity and
quality which could have significantly altered the jury's perception of
the minor. There is a marked difference between evidence that a
minor has lied occasionally in the past (a fairly typical and benign
scenario), and evidence that social workers, school counselors, and
foster parents believe the child can and does lie through her teeth and
lives in a fantasy world (an unusual and much more sinister scenario).
There is also a marked difference between evidence that a minor has
occasionally done unusual things because she craved attention, and
evidence that the minor has repeatedly engaged in destructive and
self-destructive behavior because of jealousy about her mother's or
father's attention. This is especially so when such evidence is com-
pounded by a social worker's stated fear that the child's socially dys-
functional behavior would increase in severity just at the time that the
minor made the allegations of rape. Therefore, we hold that this evi-
dence is material.
C. Failure to Provide Tape Recording & Transcript of Crews
Interview
Love claims that the state's failure to turn over the tape recording
and transcript of Crews' interview with the minor prevented him from
effectively impeaching Crews and developing the theory that Crews'
improper interviewing techniques tainted the minor's testimony.10
We agree that the undisclosed transcript could have been effec-
tively used by the defense to argue that Crews used an improperly
suggestive interview technique. According to child abuse literature
cited by Love, "great care must be taken to avoid leading questions
and coercive techniques; the child must be allowed to tell his story in
his own words." American Academy of Child & Adolescent Psychia-
try, Guidelines for the Clinical Evaluation of Child and Adolescent
Sexual Abuse (Dec. 1990), reprinted in J.B. at 159-60. Love asserts
_________________________________________________________________
10 Love also notes other potential avenues of impeachment evident
from the transcript of the interview. Most importantly, Crews failed to
appreciate the importance of the fact that the minor knew that her mother
had been abused as a child.
15
that the problems in Crews' questioning of the minor are analogous
to the dangers inherent in hypnotically enhanced testimony that this
court recognized in Jean v. Rice, 945 F.2d 82 (4th Cir. 1991). In Jean,
this court reaffirmed the Supreme Court's analysis of this issue in
Rock v. Arkansas, 483 U.S. 44, 59-60 (1987):
Three general characteristics of hypnosis may lead to the
introduction of inaccurate memories: the subject becomes
"suggestible" and may try to please the hypnotist with
answers the subject thinks will be met with approval; the
subject is likely to "confabulate," that is, to fill in details
from the imagination in order to make an answer more
coherent and complete; and the subject experiences"mem-
ory hardening," which gives him great confidence in both
true and false memories, making effective cross-
examination more difficult.
Jean, 945 F. 2d at 86. In the present case, Love asserts that all three
characteristics are present: 1) Suggestible : Ms. Crews asks questions
in a manner suggesting that she believes the minor was abused and
indicates that she wants the minor to confirm this. 2) Confabulate:
Crews gets the minor to expound on details by introducing the infor-
mation in her leading questions. 3) Memory hardening: In subsequent
statements and at trial the minor was certain of all details and assured
of her testimony, even though prior to that she had given inconsistent
statements.
Although the comparison to hypnotically induced testimony is only
an analogy, the transcript of Crews' interview does show that Crews
used leading questions at various times and supplied the minor with
information in her questions which ultimately became part of the
minor's story:
After the minor denied that anyone had "messed with" her,
Crews stated: when your mama called, she said that you had
told her that her boyfriend had been messing with you. (J.B.
at 63.)
And what else? Did you have on, did you have on panties
or underwear or anything? (J.B. at 65.)
16
Did he have clothes on or did he pull his clothes off or did
he do anything to his clothes? (J.B. at 65.)
Were you wet or anything in your private parts? (J.B. at 66.)
Were your panties dirty or wet or anything? (J.B. at 66.)
What about your gown? Was it dirty or wet or anything?
(J.B. at 66.)
Did he kiss you? (J.B. at 66.)
Did he lick you or suck you anywhere? (J.B. at 66.)
Did he make you do anything to his thing? (J.B. at 67.)
Did he touch you with his hands anywhere? (J.B. at 67.)
You said he put his thing inside of you, did he put anything
else in there? Did he put his hands or his fingers or anything
else inside there? (J.B. at 67.)
[H]ad he been drinking or using drugs . . . .? (J.B. at 67.)
The state argues that the summary of Crews interview, which Love
was given, did not differ materially from the information contained
in the transcript. The summary omitted certain crucial exchanges of
leading questions, however. Specifically, the summary states, "I asked
who had messed with her & she said `nobody.' I explained that I
knew she reported to her mother that someone had `messed' w/her."
(J.B. at 61 (emphasis added).) In fact, Crews had told the minor that
Crews knew that the minor had told her mother that the boyfriend
messed with her. (J.B. at 63.) The summary stated,"I asked [the
minor] if she kissed or sucked him anywhere & she responded . . . `he
made me suck his thing.'" (J.B. at 56.) In fact, Crews never asked the
minor if she kissed or sucked him, rather the quoted answer was elic-
ited by the leading question, "Did he make you do anything to his
thing?" (J.B. at 67.) Finally the summary states,"I asked if he touched
her anywhere & she said he touched her breasts and vagina with his
17
hand . . . . She further said he put his finger inside her private." (J.B.
at 56.) In fact, Crews had asked the leading question, "did he put his
hands or his fingers or anything else inside there?" (J.B. at 67.)
In Jean we recognized that use of a suggestive interview technique
can itself be material. Jean, 945 F.2d at 87 (involving hypnosis). If
this were the only piece of undisclosed evidence, it would be a close
question whether the evidence was material. The minor had alleged
that Love was the perpetrator before she interviewed with Crews, and
her basic story remained the same throughout. A jury would have
thought somewhat harder about whether every detail of the story is
true with this evidence, but it is unclear if there is a reasonable proba-
bility that disclosure would have yielded a different result. When
aggregated with all of the other Brady evidence, however, we find
materiality.
D. Failure to Provide Complete Records of Hymenal Exam
Love contends that the state's failure to disclose the complete med-
ical records of Dr. Denise Everette's examination of the victim pre-
vented him from impeaching Dr. Everette's medical testimony and
from obtaining his own medical expert. Specifically, Love asserts that
the state failed to disclose the colposcopic slides (magnified photo-
graphs) that were taken of the victim's hymen.11
_________________________________________________________________
11 Love makes two other charges relating to Dr. Everette's exam. First,
Love asserts that the state somehow withheld evidence that would have
allowed him to rebut Dr. Everette's implied assertion that the size of the
minor's hymenal opening was consistent with penetration. Second, Love
takes issue with the fact that Dr. Everette's report stated only that there
were "possible" lacerations on the hymen, while at trial she testified
without equivocation that there were, in fact, such lacerations present.
These arguments have no merit. Love was given a copy of Dr. Everette's
report, which contained all the information necessary for Love to rebut
Dr. Everette on these points at trial. See Hoke v. Netherland, 92 F.3d
1350, 1354 (4th Cir. 1996) (no Brady violation when evidence is "rea-
sonably available to the defendant" through other means); United States
v. Wilson, 901 F.2d 378, 381 (4th Cir. 1990) (no Brady violation when
the information was available to the defendant or lies in a source where
a reasonable defendant would have looked).
18
Love asserts that if he had had the colposcopic slides, he could
have obtained his own expert to interpret them. Love is correct that
he was denied access to this crucial opportunity to challenge Dr.
Everette's testimony. This opportunity is even more important
because Dr. Everette's interpretation of the slides was the only physi-
cal evidence offered by the state to corroborate the minor's allega-
tions. Clearly, a favorable second opinion challenging Dr. Everette's
examination technique and opining that there were no lacerations
after all may have severely undermined the state's only corroborating
physical evidence.12 Even though Love already had evidence to chal-
lenge Dr. Everette's conclusions (namely that such lacerations were
only possible, not certain), a jury would have been much more
impressed by testimony from another medical professional analyzing
the same data available to Dr. Everette and challenging her conclu-
sions. There is a marked difference between cross-examining a hostile
witness but being stuck with her confident answers and presenting a
second opinion of another expert witness who can stand up to the
state's cross. In combination with the other suppressed evidence, we
find this evidence to be material.
E. Failure to Provide All Previous Statements by Minor's Mother
Indicating Disbelief of Minor and Indicating That She May
Have Been Coerced into Believing Minor
1. Disbelief of Daughter
The undisclosed records show that the minor's mother made sev-
eral statements indicating that she did not believe her daughter and
that she supported Love. Love admits that he knew that the minor's
_________________________________________________________________
12 The state points out that the expert referred to the existence of the
slides during her cross-examination and, pursuant to N.C. Gen. Stat.
§ 8C-1, Rule 705 (1998), an expert may be required to disclose the
underlying facts or data on cross-examination. Thus, the state argues that
Love's failure to seek the slides on cross-examination constitutes a pro-
cedural bar. It is unlikely, however, that the trial court would have
stopped the trial midstream in order to grant Love an expert. Plus, Love
had an outstanding demand for the slides. He did not have an obligation
to continually renew his request for the records piecemeal in order to pre-
serve his Brady claim. See Ellis, 121 F.3d at 914-15.
19
mother told Crews and Dr. Everette that she did not believe her
daughter, but contends that he should have been provided with the
other statements she made in support of him and her reasons for refus-
ing to believe her daughter.
The records show that the minor's mother gave many reasons for
her disbelief of the minor's allegations and her support of Petitioner's
denial. These include her statements that "[m]y daughter lies" (J.B. at
85); "the child has told stories in the past" (J.B. at 80); she "never saw
a sign that Reggie would do anything like that to[the child]" (J.B. at
73); "I don't think my boyfriend did that to her" (J.B. at 89); "I
believe him to the fullest. He has kept her overnight . . . and nothing
has ever happened. He has babysat" (J.B. at 91); the child is "just
being typical" (J.B. at 89); "she just wanted more attention from me"
(J.B. at 89). None of these statements were provided to Love.
The state argues that Love knew that the minor's mother had told
Social Services that she thought that her daughter was lying. He could
have specifically asked the minor's mother why she did not believe
the minor and what exactly she told Social Services staff members.
Furthermore, at trial the jury heard evidence that the minor had lied
in the past, that she hated Love, and that she had a motive to fabricate
her story, so this evidence is only cumulative.
We think the state misses the point. Even if Love had cross exam-
ined the minor's mother on the content of her statements, he would
not have been able to impeach her if she lied or otherwise altered her
answers. Obviously, the presence of a prior inconsistent statement is
a powerful impeaching tool. Nonetheless, the state's ultimate conclu-
sion is correct. This information was only indirect evidence that the
child had lied. Plus, the jury was made aware that the minor's mother
did not initially believe her daughter and some of the reasons for that
disbelief. In and of itself, this evidence is not material.
2. Why the Minor's Mother Changed Her Mind
Love's next argument is stronger. Love asserts that several undis-
closed statements indicate that the mother was coerced by Social Ser-
vices into supporting her daughter. After the alleged rape, Social
Services took the minor away from her mother. Some undisclosed
20
statements indicate that the minor's mother thought that if she had
only believed her daughter, then Social Services would not have taken
her away. These are supported by the petition to remove the minor
from the home. (See J.B. at 92 (stating as one reason for the removal,
"the juvenile has been the victim of first degree rape . . . . The
response of the mother to the juvenile's statements of the crimes has
been alternately, to believe the juvenile or to declare the juvenile is
lying.").) On direct examination, the minor's mother offered an alter-
native explanation for why she changed her mind: because Love
"with his mixed feelings, made me feel like that he had done some-
thing." (J.A. at 291.)
The state argues that the record shows that Love was aware that
Social Services was putting pressure upon the minor's mother to
believe her daughter.13 He therefore could have asked the minor's
mother about it on cross-examination.
Again, the state seems to forget the usefulness and impact that a
prior inconsistent statement has. The record shows that Love had
enough knowledge even without the undisclosed evidence to ask the
minor's mother, "Isn't it true that you changed your mind because
Social Services was putting pressure upon you and had taken away
your daughter because you did not believe her?" Of course, if the
minor's mother stated, "No, they have not put such pressure upon
me," then Love would have been stuck with that answer and would
have been unable to impeach her with her prior inconsistent state-
ments. Nevertheless, because this evidence would have only been
indirect proof in favor of Love, we do not think that its absence meets
the Brady materiality standard.
F. Failure to Disclose Statement About Prior Sexual Activity
The undisclosed evidence shows that the minor's mother stated that
the summer prior to the alleged rape, two boys had raped her daugh-
ter. Clearly such evidence would have been highly material as an
alternative explanation for the physical evidence of rape.
_________________________________________________________________
13 It is notable that the state never denied that Social Services was put-
ting such pressure upon the minor's mother.
21
The state makes several arguments. First, the state says the record
shows that Love already knew about this allegation. This is false. The
record shows only that Love, to defend himself, had asserted that the
minor "probably" had had sex with another person. No evidence in
the record indicates that Love actually knew that the minor had had
sex with someone else or knew about this specific alleged prior rape.
Second, the state asserts that the story about the prior rape was
merely a fabrication of the minor's mother. This is mere conjecture
by the state. It is up to the jury to decide whether the allegation was
fabricated or not. Further, by advancing this argument, the state has
indicated the importance of this piece of evidence. If Love had been
able to present the evidence, the state would have been in the awk-
ward position of impeaching the credibility of its own witness.
Third, the state says that this evidence would have been inadmissi-
ble. Under N.C. Gen. Stat. § 8C-1, Rule 412 (1998), there are limits
on the admission of such evidence of prior sexual activity. The state
theorizes that at the required evidentiary hearing, the statement would
have been found unreliable and therefore inadmissible. See State v.
Holden, 416 S.E.2d 415, 417 (N.C. Ct. App.), appeal dismissed, 424
S.E.2d 413 (N.C. 1992) (evidence that someone other than defendant
sexually abused the child two and one-half years before the incident
resulting in a rape charge against the defendant was properly excluded
as being irrelevant and confusing to the jury). 14
We do not share the state's confidence that this information would
not have been admissible. Under Rule 412, evidence of prior sexual
acts is admissible to show that the acts charged were not committed
by the defendant -- i.e., to offer an alternative explanation for the
physical evidence. In Holden, the court refused to admit evidence that
the victim may have been sexually abused two and one-half years
prior to the incident before the court because the defendant wanted to
offer the evidence only for the purpose of suggesting that the person
who had committed the prior abuse may have committed the current
abuse. Finding that evidence too remote, the court affirmed that it
_________________________________________________________________
14 The state also cites to State v. Ginyard, 468 S.E.2d 525 (N.C. Ct.
App. 1996). That case is wholly inapposite, dealing with whether there
was evidence of a pattern of prior sexual activity.
22
should not have been allowed. The defendant in Holden had not
alleged, as Love has, that the evidence of the prior assault could be
used to explain the physical evidence offered by the state.
A case that is more on point is State v. Ollis , 348 S.E.2d 777 (N.C.
1986). In Ollis, a doctor testified that the minor's vaginal opening was
larger than it normally would be, consistent with penile penetration.
In order to show another source for this corroborating physical evi-
dence, the defendant wanted to offer evidence that the minor had been
raped by someone else. Id. at 781-82. The court allowed evidence that
another person had sexually abused the minor because"it would have
provided an alternative explanation for the medical evidence pres-
ented by [the state's doctor] . . . ." Id. That is exactly the reason why
Love wants to offer this evidence. The reasoning of Ollis is persua-
sive in the case at bar:
However, we are not able to say that the jury would not
have had a reasonable doubt about the defendant's guilt if
they had known that the only physical evidence corroborat-
ing the victim's testimony of rape was possibly attributable
to the acts of a man other than the defendant.
Id. at 782. Therefore, this evidence was probably admissible and, in
conjunction with the other evidence, we find materiality.
V. Conclusion
Taking the command of Kyles we must view the evidence not only
item-by-item, but also in cumulation. Kyles, 514 U.S. at 421. The evi-
dence kept from Love was in some cases directly exculpatory (child
denied having been abused, possibility child had been raped by
another), and was often very damaging to prosecution witnesses
(child had reputation for lying, living in a fantasy world, child had
acknowledged and severe emotional problems related to need for
attention, initial formal interview with child was perhaps unprofes-
sionally suggestive). This evidence was not merely cumulative. The
evidence was of a quantity and a quality different from that which
was made known to the jury. We have held that some of this withheld
evidence, standing alone, was material. Certainly when all of the
undisclosed evidence is viewed in the aggregate, we have no trouble
23
finding that the state violated Love's due process rights by failing to
turn over the requested Brady material. The undisclosed "favorable
evidence could 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 434. It would have created "a markedly weaker case for the
prosecution and a markedly stronger one for the defense." Id. at 441.
Therefore, we hold that there is a reasonable probability that the jury
would have found that this evidence created a reasonable doubt in
their mind. We remand to the district court with instructions to grant
Love's petition and to order his release unless the state chooses to
reprosecute him within 90 days. The district court is
REVERSED.
24