08-3679 Goudy v. Basinger, Southern District of Indiana, Terre Haute Division, McKinney, J. Bauer, J.

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Habeas Corpus
Nondisclosure of exculpatory evidence; materiality; cumulative effect

Where the government failed to disclose three eyewitness statements that implicated one of its main witnesses, we reverse the district court's denial of his writ of habeas corpus.

"The Supreme Court has clearly established that the standard for determining whether suppressed evidence is material is whether the cumulative effect of the new evidence creates a reasonable probability of a different result at trial. Kyles, 514 U.S. at 434. '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. While the state court initially identified this as the correct legal principle for determining whether suppressed evidence was material, its statements repeatedly dismissing the materiality of evidence on the basis that it 'does not mean that Goudy was not the other shooter,' miss the point. Goudy v. State, No. 48A02-0409-PC-740, at 10 (Ind. Ct. App. Jan. 12, 2006). At least three times, the court rejected the materiality of individual pieces of evidence on the basis that the evidence did not conclusively establish Goudy's innocence. The court first rejected the materiality of the identifications of Harvell as the shooter in the brown clothing, saying it 'does not mean that Goudy could not have been the other shooter' and 'does not mean that Goudy was not the other shooter.' Id. at 7 (emphasis added). The court then explained that the reason Goudy received a fair trial is because he could not show that the evidence, 'even if made available . . . prior to trial, would have led to a different result.' Id. at 12. So while the Indiana court identified the correct legal principle-that Goudy had to demonstrate a reasonable probability that the new evidence would lead to a different result-the statements quoted above would require that Goudy prove the new evidence necessarily 'would have' established his innocence. Placing this burden on Goudy was 'diametrically different,' Taylor, 529 U.S. at 406, than the clearly established principle laid out in Kyles, 514 U.S. at 434, Bagley, 473 U.S. at 682, and Agurs, 427 U.S. at 112-14.

"In addition to holding Goudy to a wrong standard of proof on the materiality element of his Brady claim, the Indiana court dismissed each piece of suppressed evidence in seriatim, rather than assessing its cumulative effect as required by Kyles, 514 U.S. at 440. When a court's opinion repeatedly dismisses 'particular items of evidence as immaterial' it 'suggest[s] that cumulative materiality is not the touchstone.' Id. In its opinion, the Indiana court did not recognize cumulative materiality as the relevant standard. See Goudy v. State, No. 48A02-0409-PC-740, at 2-12 (Ind. Ct. App. Jan. 12, 2006). An example of this seriatim analysis is the state court's dismissal of any impeaching effect the identifications of Harvell might have had on his credibility. According to the Indiana court, the jury knew Harvell 'had a motive to implicate Goudy' because it knew Harvell was 'charged for being involved in the killing[],' and that the jury heard Goudy's counsel accuse Harvell of being one of the gunmen. Id. at 9. The jury heard five witnesses say they saw Goudy firing a gun into McCloud's car, but four of them did not agree on Goudy's height, which side of the car he was on, whether he wore a hat and whether he wore a dark jacket and jeans or a full brown work uniform. Harvell even told the jury that Goudy was the driver's side gunman in the brown uniform. But the jury never heard that three of the four witnesses had previously identified Harvell and said he was the gunman wearing brown clothing on the driver's side of McCloud's car. And the jury heard Nunn say that Goudy was the passenger side gunman and wore a brown jacket. The jury did not hear that four witnesses identified Harvell as the brown-clad gunman and said he was on the driver's side of McCloud's car, or that when he viewed the same lineup, Nunn identified a non-suspect, rather than Harvell. Yet the court 'failed to see how the reports could have been used to impeach Mr. Nunn's testimony.' By not identifying the cumulative materiality standard required by Kyles, 514 U.S. at 440, and analyzing suppressed evidence in isolation, the court deprived Goudy of the full exculpatory value of this evidence and unreasonably applied clearly established law."

Reversed and remanded.

08-3679 Goudy v. Basinger, Southern District of Indiana, Terre Haute Division, McKinney, J. Bauer, J.

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