Unpublished Disposition, 893 F.2d 1338 (9th Cir. 1989)

MEMORANDUM^** 

The issue presented in this habeas corpus appeal is whether the prosecution's failure to provide a witness's arrest record was a violation of the doctrine of Brady v. Maryland, 373 U.S. 83, 87 (1963). We find no Brady violation and affirm.

BACKGROUND

Miller was convicted in Oregon state court of aggravated murder and the conviction was affirmed on appeal. State v. Miller, 63 Or.App. 871, 667 P.2d 583 (1985). Jeffrey Allen testified that he killed Mrs. Miller and that Miller hired him to do so. Brad Nevell testified that Miller had earlier attempted to hire him to kill Mrs. Miller, but he refused. The prosecution also established that Mrs. Miller was intending to leave Miller and that he obtained a policy of insurance on her life two days before her death.

Before trial, Miller asked the state prosecutor to provide the arrest and conviction records on all persons the state intended to call as witnesses. Nevell's arrest record was not disclosed before trial.

Miller now argues that the prosecutor's failure to provide Nevell's arrest record invalidates his murder conviction. He makes two arguments.

First, he argues that had the record been provided, he could have impeached Nevell when he testified that he sold only marijuana. Nevell's arrest record referred to dealing in cocaine and heroin six years earlier.

Second, he argues that the record would lead to evidence establishing Nevell's involvement in the sale and distribution of drugs. This would support Miller's defense theory that it was Nevell who had Mrs. Miller killed in retaliation because he thought Miller stole a large amount of heroin from him.

DISCUSSION

We review de novo the denial of a writ of habeas corpus. Bruni v. Lewis, 847 F.2d 561, 563 (9th Cir. 1988).

Withholding "evidence that is both favorable to the accused and material to either guilt or punishment violates due process." Brady v. Maryland, 373 U.S. 83, 87 (1963). "The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." United States v. Bagley, 473 U.S. 667, 682 (1985). Impeachment evidence falls within the Brady rule because " [s]uch evidence is 'evidence favorable to an accused,' so that, if disclosed and used effectively, it may make the difference between conviction and acquittal." Id. at 676 (citations omitted).

Nevell's arrest record was not Brady material. Evidence of arrests is generally inadmissible and may not be used for impeachment. State v. Mack, 587 P.2d 516. 517-518 (Or.Ct.App.1978).¹  Inadmissible evidence is not Brady material "because it never would have reached the jury and therefore could not have affected the trial outcome." United States v. Kennedy, No. 86-6313, slip op. 13948, 13957 (9th Cir. Nov. 28, 1989) (citations omitted). Only admissible evidence is material under Brady. Id. at 13956. Miller's first argument fails.

II. Would Impeachment of Nevell Have Changed the Result ?

This trial in 1982 took three weeks and 60 witnesses testified. Miller's position is that the evidence of Nevell's prior arrests may have led to exculpatory evidence which could have affected the outcome of his trial. The magistrate and district judge concluded that Miller had not identified any evidence that would have been discovered if he had had knowledge of Nevell's prior arrests on drug related charges.

Nevell was cross-examined about drug dealing and he admitted selling marijuana and using, but not selling cocaine. Miller has failed to prove that the witness had perjured himself. He has also completely failed to demonstrate that the availability of Nevell's arrest record had a reasonable probability of affecting the outcome of the trial. United States v. Endicott, 869 F.2d 452, 455 (9th Cir. 1989). The evidence of guilt was overwhelming.

AFFIRMED.