Trammell vs. McKune, No. 06-3316 (10th Cir. 2007)

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F I L E D United States Court of Appeals Tenth Circuit PUBLISH April 12, 2007 UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker Clerk of Court TENTH CIRCUIT DA VID TR AM M ELL, Plaintiff-Appellant, v. No. 06-3316 DAVID R. M cKUNE, W arden, and PH ILL KLINE, Kansas Attorney General, Defendants-Appellees. A PPE AL FR OM T HE UNITED STATES DISTRICT COURT FOR T HE DISTRICT OF KANSAS (D.C. NO . 05-CV-3354-JW L) Jean K. Gilles Phillips, Lawrence, Kansas, for Plaintiff-Appellant. Jared S. M aag, Deputy Attorney General, for Defendants-Appellees. Before HA RTZ, SE YM OU R, and M cCO NNELL, Circuit Judges. M cCO NNELL, Circuit Judge. David Trammell was accused of stealing a service station tow truck and using it to steal another vehicle. His defense was that another man Scott Cross committed the crime and framed him. The prosecution knew of M r. Trammell s defense, but failed to disclose physical evidence linking M r. Cross to the tow truck theft. W e hold that this failure constituted a violation of M r. Trammell s due process rights under Brady v. M aryland, 373 U.S. 83 (1963), and therefore GRANT M r. Trammell s petition for habeas corpus relief. I. FA C TS A N D PR OC ED URAL POSTURE A. A Robber Steals a Tow Truck and Uses It to Steal a C orvette The criminal charges in this case stem from two related incidents. The first occurred in June 1999, when a tow truck was stolen from an Amoco service station in Overland Park, Kansas. John Loper, then an Amoco employee, saw someone drive the truck from the station and pursued it. W hen the thief noticed Loper, he attempted to back the tow truck into Loper s car; Loper evaded that attempted strike, so the thief made a U-turn and rammed Loper s car head-on before driving away on the passenger s side of Loper s car. Loper testified that he saw the thief s face twice: once for maybe fifteen seconds while the thief was attempting to back into Loper s car, Trial Tr. vol. I, 57, and again for approximately twenty seconds while trying to avoid the head-on collision. Id. at 58 59. The second incident occurred soon after the first. On July 5, 1999, the tow truck thief used his new acquisition to attempt to steal a 1986 Corvette from an apartment building in M erriam, Kansas. The Corvette s owner, John Kase, heard chains rattling outside his w indow and saw the would-be thief hooking his car to -2- the tow truck. Kase confronted the robber, who claimed that he was repossessing the Corvette. W hen Kase protested and said the Corvette was paid for, the robber said, Buddy, I ve got a gun. Go back to your apartment. Id. at 110. Kase refused to comply and inspected his car to see how securely it was attached to the truck until, that is, the thief grabbed a gun from the front seat. Id. at 110 11. At that point, Kase made a beeline back to his apartment, id. at 111, and the robber drove off with the Corvette in tow. By happenstance, Kase was not alone that day. His friend Scott Beckman was visiting from M innesota. M r. Beckman witnessed the confrontation but stayed close to Kase s apartment and therefore did not get as near to the thief as M r. Kase did. During the episode, which he estimated took anywhere from five to eight minutes, id. at 240, M r. Beckman reentered M r. Kase s apartment to search for documents that proved M r. Kase owned the Corvette free from any liens. Shortly after he reemerged, M r. Beckman saw the robber point the gun at M r. K ase and drive away. M essrs. Kase and Beckman jumped into Beckman s car and began following the tow truck. Just as they did, another of M r. Kase s friends, John Eglich, arrived at Kase s apartment on a Kawasaki bullet bike. M r. Eglich knew something was amiss because he saw the tow truck dragging the Corvette, its rear wheels skidding because it w as still in park. Id. at 150 51. At Kase s urging, Eglich stayed on his motorcycle and chased the truck. Id. at 151. He pursued it -3- around the apartment complex for about a half a block until it stopped, whereupon Eglich pulled up next to the driver s side window and, while still seated on his motorcycle, asked the driver w hat he was doing. The driver answered, I m repoing this vehicle. Id. at 156. Eglich told the driver that the car was his friend s, that it was paid for, and that he was not repoing anything. Id. The driver responded by pointing a gun at M r. Eglich and saying, Get away from the truck. Id. Before M r. Eglich could react, the robber drove away. M r. Eglich testified that this conversation lasted thirty to forty-five seconds. Id. at 169. Before the truck left Eglich s view, the Corvette broke loose and was heavily damaged. Eglich renewed his pursuit, but the thief eluded him. Eglich returned to M r. Kase s apartment where, minutes later, the robber reappeared and drove the tow truck toward Eglich as if to run him over. Eglich jumped off his motorcycle just in time to avoid a collision, and the robber left for good. B. In a Separate Investigation, Police Find the Tow Truck On July 10, 1999 five days after the attempted Corvette theft police officers in an unrelated investigation arrested Scott Cross for narcotics activity, theft, forgery, and using computers to facilitate the presentment of fraudulent checks. Cross was arrested in an Overland Park, Kansas, Econo Lodge motel room where he had set up his check forging operation. Police also found the stolen Amoco tow truck in the Econo Lodge parking lot. And they found a -4- cardboard box in Cross s motel room containing paperwork belonging to the Amoco station where the tow truck was stolen. 1 During the interrogation following his arrest, Cross accused David Tramm ell of stealing the tow truck. Armed with this accusation but no physical evidence linking Trammell to the crimes, police prepared two separate photo arrays both of which included Trammell s picture but not Cross s, despite the men s physical resemblance and showed them to Loper, Kase, and Eglich. All three eyewitnesses identified M r. Trammell as the tow truck driver. C. The State Prosecutes Trammell for the Crimes Those three eyewitness identifications led the state to charge M r. Trammell with three counts of aggravated assault, one count of felony theft, and one count of aggravated robbery. At trial, the three eyewitnesses recounted their photo array identifications and identified M r. Trammell as the perpetrator in the jury s presence. 2 1 Officers also found in Cross s motel room a blue nylon bag that belonged to Trammell, and appellant s brief lists that bag as potentially exculpatory Brady evidence. Appellant s Br. 4. During oral argument, however, Trammell s counsel said that while the nylon bag is important because it sort of feeds into some of the rest of the defense, . . . what s really crucial [are] the tow truck receipts. Oral Argument 2:36ff. W e agree and thus focus our inquiry on the receipts. 2 In its brief, the government refers primarily to these three eyewitnesses. A fourth, Rick Krigger, testified that he briefly saw the driver of the tow truck and identified the defendant as being similar in appearance to the driver. Trial Tr. 187-88. He was never shown a photo lineup and never saw Cross, either in (continued...) -5- M r. Trammell s defense proceeded on two fronts. First, his attorney argued that Cross had framed M r. Trammell for the robberies because he was jealous that Tramm ell had been dating his ex-girlfriend, Janelle. The two men knew each other through her; Janelle lived with M r. Cross while she w as seeing M r. Trammell. Second, M r. Trammell s attorney argued that police officers were negligent in their investigation because despite Cross s presence at the Econo Lodge w hen the tow truck w as found and the physical resemblance between Cross and Trammell officers did not include a photo of Cross in the arrays they showed to Loper, K ase, and Eglich. Both theories gained traction when Scott Beckman, M r. Kase s friend from M innesota, testified at trial that police officers did not show him a photo array after the attempted Corvette robbery. Instead, the first array he saw was one that defense counsel prepared by substituting Cross s picture for Trammell s in one of the police-prepared arrays. Beckman picked Cross as the robber, testifying he was 70 percent certain of his pick. Id. at 249 The jury ultimately convicted M r. Trammell, but not before posing these questions to the judge during its deliberations: 1. At what point in the deliberation, do we decide that we are a hung jury? 2. W hat is the outcome of a 2 (...continued) person or in a photo. -6- hung jury? 3. If we can decide on some counts and not on others, is that an acceptable decision? App. to Jury Instr., 40, July 25, 2001. Nearly six weeks after Trammell was convicted, the government realized it failed to disclose that police found the A moco receipts in Cross s motel room. It revealed its error to Trammell s lawyers, and this late-breaking disclosure led to a motion for a new trial based on new ly discovered evidence. The trial court denied M r. Trammell s motion and sentenced him to 102 months imprisonment. The Kansas Court of Appeals affirmed his conviction, State v. Trammell, No. 88,722, 2003 W L 22175781 (Kan. Ct. App. Sept. 19, 2003), and the Kansas Supreme Court granted review and also affirmed, State v. Trammell, 92 P.3d 1101 (Kan. 2004). It held that M r. Trammell was not entitled to a new trial because the evidence is not material in the sense that it would have created a reasonable doubt and affected the outcome of the trial. Id. at 1115. D. Federal H abeas Proceedings M r. Trammell timely filed a habeas corpus petition under 28 U.S.C. § 2254 in the United States District Court for the District of Kansas after the Kansas Supreme Court denied relief. He alleged that the government violated his Brady rights by withholding the Amoco tow truck receipts evidence. He also argued that the Kansas Supreme Court applied the incorrect legal standard when evaluating his Brady claim. -7- The district court agreed with M r. Trammell s second argument and held that the Kansas Supreme Court misapplied the Brady standard. But it also held that, despite the Kansas Supreme Court s error, Trammell was not entitled to a new trial because the A moco receipts were not material under Brady. After denying M r. Trammell s petition, the district court granted his request for a certificate of appealability on the issue whether the petitioner was denied due process by the failure to deliver exculpatory evidence to the defense in a timely manner. R. Vol. I., Doc. 32, at 1 2. Our jurisdiction thus arises under 28 U.S.C. §§ 1291 and 2253. II. D ISC USSIO N A. Standard of Review The A ntiterrorism and Effective D eath Penalty Act (AEDPA) place[d] a new constraint on the power of a federal habeas court to grant a state prisoner s application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court. Williams v. Taylor, 529 U.S. 362, 412 (2000). Under AEDPA, a state prisoner seeking federal habeas relief must show that the state court decision of which he complains was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the U nited States. 28 U.S.C. § 2254(d)(1). This standard requires federal courts to show deference to a state court s legal conclusions, Allen v. M ullin, 368 F.3d 1220, 1233 (10th Cir. 2004), but it does not create a -8- presumption that such determinations are correct. M artinez v. Zavaras, 330 F.3d 1259, 1262 (10th Cir. 2003). AEDPA, however, does create a presumption that a state court s factual determinations are correct, 28 U.S.C. § 2254(e)(1), which a petitioner may rebut by clear and convincing evidence, Zavaras, 330 F.3d at 1262. AEDPA s deferential standard does not apply if the state court employed the wrong legal standard in deciding the merits of the federal issue. Cargle v. M ullin, 317 F.3d 1196, 1202 (10th Cir. 2003). W hen that has occurred, federal courts resolve the claim unconstrained by AEDPA deference, Revilla v. Gibson, 283 F.3d 1203, 1220 n.14 (10th Cir. 2002) that is, we review de novo the state court s legal conclusions and resolution of mixed questions, Romine v. Head, 253 F.3d 1349, 1365 (11th Cir. 2001). The de novo standard also applies to our review of a federal district court s legal conclusions in a § 2254 action, though w e review any factual findings it may have made for clear error. M aynard v. Boone, 468 F.3d 665, 669 (10th Cir. 2006). In this case, M r. Trammell argues and the government concedes that w e should review the Kansas Supreme Court s decision de novo because it applied a standard inconsistent with that which is set forth under United States Supreme Court precedent. Appellee s Br. 19. W e proceed accordingly. B. The Amoco Receipts in C ross s H otel Room Are M aterial Under Brady. -9- In the usual case, a defendant seeking habeas relief for an alleged Brady violation must show that: (1) the prosecution suppressed evidence; (2) the evidence was favorable to the accused; and (3) the evidence was material to the defense. Snow v. Sirmons, 474 F.3d 693, 711 (10th Cir. 2007) (internal quotation marks omitted). This case, however, turns on Brady s third element materiality because the State has conceded the first tw o elements. Appellee s Br. 15. The standard for determining Brady materiality is well established. The touchstone of materiality is a reasonable probability of a different result, which exists when the government s evidentiary suppression undermines confidence in the outcome of the trial. Kyles v. Whitley, 514 U.S. 419, 434 (1995) (quoting United States v. Bagley, 473 U.S. 667, 678 (1985)). This inquiry does not permit piecemeal evaluation of suppressed evidence; instead, courts must review the cumulative impact of the withheld evidence; its utility to the defense as well as its potentially damaging impact on the prosecution s case. Furthermore, . . . [courts should] evaluate the materiality of withheld evidence in light of the entire record in order to determine if the omitted evidence creates a reasonable doubt that did not otherwise exist. W hat might be considered insignificant evidence in a strong case might suffice to disturb an already questionable verdict. Snow, 474 F.3d at 711 (quoting Banks v. Reynolds, 54 F.3d 1508, 1518 (10th Cir. 1995)). -10- The district court held that the A moco receipts were not material because they do[] not cast any doubt on the eyewitness identifications, and the evidence discovered in Cross s motel room is consistent with [M r. Trammell s] testimony that Cross stole items from him. Op. 16. 3 W e think this is too narrow a conception of the role that the suppressed evidence w ould have played. Defense counsel would not have used it solely to impeach the eyewitnesses or buttress his claim that Cross broke into Trammell s house. The receipts directly link Cross to the stolen truck, and defense counsel could have used the evidence to support his theory of the case that Cross is the one who stole the tow truck, which is how the box of tow truck receipts got into his motel room. This evidence could also have been used to cast doubt on police officers decision to focus their attention (including the photo arrays) on Trammell rather than Cross. The potential importance of this evidence is underscored by closing arguments. Almost at the beginning of his rebuttal argument, the prosecutor told the jury: There is virtually no evidence to suggest or to corroborate what M r. Trammell wants you to believe, that Scott Cross set him up. Trial Tr. vol. I, 327. But if the government had disclosed the Amoco receipts, as required under 3 During trial, Trammell testified that someone stole TV s, a VCR, tools, and clothes from him on July 4, 1999; based on anecdotal evidence from his neighbors, he thought Janelle was the thief. Trial Tr. vol. I, 281 82. The inference that those stolen goods were somehow connected to the box containing Amoco receipts, an item of comparably less value and therefore less likely to be stolen, is puzzling particularly when none of the items Trammell mentioned were found in Cross s motel room. -11- Brady, the jury would have known that the physical evidence in the case connected Cross with the crime: the tow truck was found in the parking lot of Cross s motel and receipts from the tow truck were found in a box in Cross s motel room. Only after being confronted with that evidence did Cross finger Trammell. The prosecutor s rebuttal statement appeared accurate only because the government failed to disclose the Amoco receipts. In a trial with all the exculpatory physical evidence in play the government would not be able to pursue the line of argument that there was virtually no evidence corroborating the theory of the defense. In finding that the evidence against M r. Trammell was so strong that the withheld evidence was not material, the district court relied heavily on the fact that three eyewitnesses at trial identified Trammell as the perpetrator. Op. 12 14 (citing Trammell, 92 P.3d at 1106, 1109). But this evidence may be less powerful than it at first appears. There was evidence that Trammell and Cross were similar in appearance. Trial Tr. vol. I, 64. Yet neither in the photo arrays nor in court were the prosecution witnesses enabled to compare the two men. The photo arrays shown to the prosecution witnesses contained Trammell s picture, but not Cross s. And by the time the trial started, two of the eyewitnesses already had read newspaper articles naming M r. Trammell as the suspect. Tr. Hr g M ot. to Suppress Identification, 14 16. The articles may have stated, falsely, that Trammell s fingerprints were found on the tow truck. Id. at 16; Trial Tr. vol. I, -12- 95, 174. At a preliminary hearing, the prosecution witnesses already knew that M r. Trammell was the defendant, and they saw him in an orange jumpsuit; they then identified him as the perpetrator. Tr. Hr g M ot. to Suppress Identification, 5, 39. The witnesses never saw M r. Cross, or even his picture. Trial Tr. vol. I, 63, 140 41. Cross did not testify at the preliminary hearing or at trial. In light of these suggestive circumstances, the reliability of their in-court identification is less than ironclad. M oreover, the only eyewitness who was given a photo array with M r. Cross s picture identified him as the perpetrator. Id. at 246 47. Based on these facts, we do not think that the eyewitness identifications carry as much weight as the district court assigned to them. This is a close case. The eyewitness identifications, though occurring under seemingly questionable circumstances, were nonetheless consistent despite thorough cross-examination. W e are not certain that timely disclosure of the Amoco receipts would have resulted in a different result. But that is not the standard. W e need to be convinced only that the government s evidentiary suppression undermines confidence in the outcome of the trial. Kyles, 514 U.S. at 434 (internal quotation marks omitted). Of this we are persuaded. Exercising de novo review, we hold that the A moco receipts were material under Brady and that the government violated M r. Trammell s due process rights by failing to disclose this evidence before trial. -13- C ON CLU SIO N W e GR A N T M r. Trammell s habeas corpus petition, VAC ATE his convictions, and R EM A N D for a new trial. -14-

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