
    STATE of Louisiana v. Albert SMITH and Ryan Roberts.
    No. 90-KA-0821.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 31, 1993.
    Brod Bagert, Law Offices of Brod Bagert, New Orleans, for appellant Smith.
    Kevin V. Boshea, Regan and Associates, New Orleans, for appellant Roberts.
    Harry F. Connick, Dist. Atty., of Orleans Parish, Mark D. Pethke, Charmagne Padua, Asst. Dist. Attys., of Orleans Parish, New Orleans, for the State.
    Before WARD, ARMSTRONG and PLOTKIN, JJ.
   WARD, Judge.

Albert Smith and Ryan Roberts were convicted of the second degree murder of Melvin Kelly. They appeal their convictions arguing the State’s failure to disclose exculpatory evidence to the defendants violates La. C.Cr.P. art. 718 and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), which requires reversal of the jury verdict. Because we find that there was no exculpatory evidence, and therefore no failure or misconduct on the part of the state, we affirm.

The facts in this case are as follows:

On March 3, 1989, at approximately 2:00 a.m., the victim, Melvin Kelly, was shot four times as he was riding a bicycle in the 3100 block of Pleasure Street in New Orleans, Louisiana. Ms. Gail Kelly, the victim’s mother, and the State’s only eyewitness to testify at trial, identified the defendants as the perpetrators of the crime. Ms. Kelly stated that at the time of the shooting she was taking out the trash. She saw Melvin pass by on the bicycle and noted that he was heading towards Metropolitan Street. As he passed, she saw the defendants emerge from the side of a sweet shop on Pleasure Street. The defendants each fired a gun at Melvin. The victim then turned his bike, and the defendants fired again. The victim fell to the ground. Defendant Smith then began running towards Metropolitan Street. Defendant Roberts approached the victim, and shot him two more times. Afterwards, Roberts also ran towards Metropolitan Street. Ms. Kelly went to her neighbor’s house to use the telephone to call the police. Ms. Kelly then proceeded to the crime scene.

Officer Kevin Williams indicated that he arrived on the scene at approximately 2:00 a.m. The officer was originally responding to a call concerning the discharge of a firearm. The officer stated that while he was en route to the scene, he received the call indicating that a shooting had taken place. Officer Williams stated that he had been on the scene four to five minutes when Ms. Kelly approached him and informed him that the victim was her son. Officer Williams stated that he did not observe any weapons near the victim when he arrived on the scene.

Dr. Paul McGarry, the forensic pathologist who performed the autopsy of the victim, testified at trial that the victim died as a result of four gunshot wounds to the head, neck, abdomen, and back. He noted that the gunshot wound to the head was inflicted at close range, approximately two feet. He stated that the victim had a blood alcohol level of .11 and that he found cocaine in the victim’s blood but the amount was not measured.

Officer John Treadway, a firearms examiner with the New Orleans Police Department Crime Lab, testified in regard to the bullets taken from the victim’s body. After examining the bullets, Officer Treadway determined that the bullets came from two different weapons.

Officer Pete Cuadrado, a technician with the crime lab, testified at trial that he was dispatched to the crime scene to recover various items of evidence. Officer Cuadrado stated that he recovered various spent casings, a pistol casing, a pellet, and a blood sample. The officer did not locate any weapons in the area of the crime scene.

On April 27, 1989, the defendants, Albert Smith and Ryan Roberts, were indicted for the second degree murder of Melvin Kelly. Prior to trial, both defendants filed motions for production of exculpatory evidence. The State responded that there was none in their possession. The trial court inspected the States’s file in camera, and held that the State did not have any exculpatory evidence to which the defendants were entitled.

After trial by jury the defendants were found guilty as charged. Both defendants filed motions for a new trial. Following a hearing on the motions on January 31, 1990, the trial court denied the motions. Both defendants appeal. ,

Both defendants focus their appeal on the alleged failure of the State to produce what they believe was exculpatory evidence, alleging an eyewitness, Gregory Jones, gave a statement to the prosecutors that only one person shot Melvin Kelly, a statement which would be exculpatory to defendant Smith, at least. What Jones told the prosecutor is a matter of dispute, because while he was in jail for narcotics’ charges, Jones gave a statement to Ann Wallis, an assistant district attorney, saying he saw Ryan Roberts fire two shots that killed his cousin, Melvin Kelly. Wallis made notes of the interview on a legal pad, but they were not part of the DA’s file. During separate pre-trial interviews with each defense counsel, Jones gave the defense the same information, and told the defense he had given the same story to the State. The defense now claims that the State failed to produce what might be “Brady” material obtained during Walks’ interview with Jones.

Based on those allegations, the trial court conducted a hearing, and heard testimony from the prosecutors and from Gregory Jones. That testimony is summarized below.

Before trial, Ms. Ann Wallis, the junior assistant district attorney on the case, interviewed Gregory Jones while he was in Parish Prison serving time for possession of narcotics. At that time, Smith and Roberts were also in Parish Prison, awaiting trial on these murder charges. Jones told Wallis he was a witness to the murder of Melvin Kelly, his cousin. He said he witnessed Roberts fire two shots, killing Kelly. Wallis made notes of what Jones said on a legal pad.
Also, before trial, counsel for defendants each interviewed Gregory Jones and obtained the same statement from him. Believing the State had access to the same information, and believing it to be exculpatory, they filed a motion to produce Brady material. When the prosecution denied possessing Brady material, defense counsel assumed Gregory Jones told them something different from what he told the prosecutors.
On the day of trial, at a bench conference, before the jury was brought into court, defense counsel again asked if there was any Brady material. Prosecutors answered there was none. Counsel then inquired as to whether the prosecution had a statement from Gregory Jones. Prosecutors said they did, and told defense counsel the gist of Jones’s statement. Jones, although subpoenaed by the prosecution, was not called to testify. He was in Parish Prison at the time, equally available to the prosecutors and defense counsel.
At the request of counsel, the trial court reviewed the State’s file and ruled there was no Brady material to be disclosed. It is unclear whether Wallis’ notes were in the file at that time, but it is clear that when the motion for a new trial was heard the notes were not in the file.
At the hearing for a new trial Gregory Jones testified that he told Ms. Wallis that both defendants, Ryan Roberts and Albert Smith, killed Melvin Allen. This testimony is contrary to what Jones told both prosecutors and defense counsel before trial. He also said that he was subpoenaed but not called to testify. Ms. Wallis said she did not call him because she did not believe him when he said he only saw one person shoot Melvin Allen.

It is unclear what defense counsel claims is Brady material. If it is Wallis’ notes of Gregory Jones’ statement to her, neither the trial court, nor this Court believes that statement was exculpatory. Ms. Wallis testified:

I don’t think that I found it inconsistent, if I recall Gregory Jones, I don’t know if I recall him seeing the entire incident. He indicated that there could have been two subjects, if I recall correctly and I wish I had my notes to be able to reflect my memory better, but he indicated that he got there, I believe, on the last two shots and the last subject to do the shoots was seen by him. (Tr. pp. 14 and 15, motion for new trial).

Defense counsel contends that Jones gave a statement to the State in which he said only one person did the killing. But, during the motion for a new trial prosecutors testified differently, and, in spite of skillful questioning by defense counsel, they steadfastly maintained that they understood Gregory Jones to say he arrived after Kelly had been first shot, he heard only the last two shots, and “he only named one”. Thus, Defense counsel has not shown that the State possessed exculpatory evidence. If anything, this type of testimony by Jones would have served to further‘corroborate the state’s witness, Kelly’s mother, and it most certainly is not exculpatory Brady material.

The defense makes an issue about the lost notes of Ms. Wallis’ interview with Gregory Jones. The testimony shows that they are lost, not as a result of prosecutorial misconduct, but in spite of the prosecutor’s desire to use them to refresh her memory in the hearing on the motion. Most importantly, we do not believe the notes implied that Gregory Jones had given the prosecutors exculpatory evidence. Instead, this Court believes prosecutors testimony is credible — they chose not to call Gregory Jones to testify, first, because they did not believe him, and second, because he was untrustworthy and in jail with both defendants herein at the time of trial. The defense counsels would later enthusiastically agree with this opinion after they called Jones to testify in the motion hearing, (Tr. p. 55, motion for new trial) because at that hearing Jones testified that both defendants shot Kelly.

If we misinterpret what counsel contends is Brady material, that is, if it was the expected testimony of Jones and not the prosecutor’s notes, we reach the same result. This is so even if we accept the defense contention that Jones would give exculpatory evidence by testifying he saw only one person, Roberts, shoot Kelly. Both defense counselors acknowledge that they had access to the same witness, Gregory Jones. Jones gave a statement to them before trial and told them he had also given a statement to the prosecutors. (Tr. p. 53, motion for new trial). Therefore, Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) does not apply. In State v. Guillory, 544 So.2d 643 (La.App. 3 Cir.1989), the Third Circuit has held “Where the criminal defendant has ready access to the alleged exculpatory evidence but fails to procure that evidence himself, there is no Brady violation.”, citing State v. Arnold, 466 So.2d 520 (La.App. 3 Cir.1985), writ denied, 470 So.2d 124 (La.1985); Matheson v. King, 751 F.2d 1432 (5th Cir.1985), cert. denied, 475 U.S. 1138, 106 S.Ct. 1798, 90 L.Ed.2d 343 (1986). Brady. has even less applicability in this ease where the criminal defendant knew of the alleged Brady material, and could readily have used it. As we noted above, Jones was available to testify either for the State or the defense. If Gregory Jones’s anticipated testimony was exculpatory, then Defense counsel should have called Jones to testify at the trial.

AFFIRMED.

ARMSTRONG, J., concurs with reasons.

PLOTKIN, J., concurs in part and dissents in part.

ARMSTRONG, Judge,

concurs with reasons.

I concur in the majority result. In regard to defendant Roberts, the testimony of Jones clearly was not exculpatory as Jones stated in his pre-trial interviews and at the hearing on the motion for new trial that he saw Roberts shoot the victim. Jones’ testimony, if it had been introduced at trial, was corroborative of Ms. Kelly’s testimony. Therefore, the trial court did not err in denying defendant Roberts’ motion for a new trial.

While Jones allegedly did not implicate defendant Smith in the pre-trial interviews, Jones testified at the motion hearing that he saw both defendants shoot the victim. Further, Jones denied making any statements implicating only Roberts. Ann Wallis, the assistant district attorney who interviewed Jones, and Brod Bagert, Smith’s attorney, testified at the hearing that Jones told them that he saw only Roberts shoot Kelly.

Mr. Bagert, Smith’s attorney, interviewed Jones prior to trial and thus knew the content of Jones’ testimony before trial began. According to Mr. Bagert, Jones informed him that if he was forced to testify at trial, he would testify that he saw both defendants shoot the victim. Thus, even if Jones would have testified at trial, he would have corroborated Ms. Kelly’s testimony. The trial court did not err in denying defendant Smith’s motion for new trial.

PLOTKIN, Judge,

concurs in part and dissents in part:

The gravamen of both defendants’ first assignment of error centers on an independent eyewitness’ account which was allegedly exculpatory to the defendants and which was not disclosed to the defendants prior to trial. Because I am of the opinion that the State should have disclosed the exculpatory material in its possession as to defendant Smith, I dissent from the majority’s opinion on that issue.

The witness in question is one Gregory Jones, the victim’s cousin. During separate pre-trial interviews with the state and defense counsel, Jones allegedly stated that he only saw Ryan Roberts shoot the victim. Additionally, Jones stated that he saw the shooter come from the nearby church rather than the sweet shop as stated by Ms. Kelly. Jones also stated that he was on the street and only a half block away from the shooting. Thus, he had a significantly better view of the shooting than did Ms. Kelly.

Ann Walks, the assistant district attorney who interviewed Jones, stated during the hearing on a motion for new trial, that Jones told her that he only saw one of the defendants, Ryan Roberts, shoot the victim and that Jones told her that he was only a half block from the scene of the crime. The investigator who accompanied Ms. Wallis, Detective Riviere, testified at the same hearing that Jones stated that he saw the assailant come from the church rather than from the sweet shop as stated by Ms. Kelly and that Ms. Wallis took extensive notes during the interview. These witnesses’ testimonies clearly establish that the State had possession of these statements made by Jones prior to trial.

During a separate interview, Jones told defense counsel the same version of the facts and related that he had already spoken to the district attorney’s office. Defense counsel then requested several times, including one oral request specifically relating to Jones’ statement, that the State disclose any material in its possession that may be exculpatory. The State responded that it had none. After several requests, the trial court conducted an in camera inspection of the State’s file and determined that there was no exculpatory material in the State’s possession. However, it is unclear whether the Court examined the prosecutor’s notes of her interview with Jones.

The defendants argue that Jones’ statements constituted exculpatory evidence which the State is required to disclose under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) and La.C.Cr.P. arts. 718 and 729.3. The defendants aver that the fact that they now know the State had this eyewitness’ statement and failed to disclose it constitutes newly discovered evidence which would have produced a different verdict at trial as it would have seriously undermined Ms. Kelly’s credibility during trial and placed exculpatory evidence before the jury.

Clearly, the State has a duty to disclose any exculpatory evidence obtained in compliance with a motion for discovery of such material. La.C.Cr.P. arts. 718, 729.3. Thus, the first inquiry is whether the evidence was exculpatory. The prosecution contends that, for several reasons, Jones statement was not exculpatory as to either defendant.

The "State argues that the statement was unbelievable and could have easily been discredited on cross examination. Additionally, the State argues, and the majority agrees, that Jones’ statement only covers the period after the victim had already been shot and that Jones only saw the last shots fired by one defendant. Thus, this statement does not eliminate the possibility that there was another defendant. Finally, the State argues that at the very least the statements were clearly not exculpatory as to defendant Roberts, in fact the statements were inculpatory. Therefore, defendant Roberts has no claim that Brady material was withheld from him. I concur in the majority’s opinion that the statement was inculpatory as to defendant Roberts; thus he was not entitled to the statement. However, I do not agree that the statement was not exculpatory as to defendant Smith.

The State’s first argument, that it could easily discredit Jones’ statement, therefore it is not exculpatory, is flawed. While Jones’ testimony may have been subject to attack during cross examination it could have also been subject to rehabilitation by the defense. Thus, the State’s argument does not address the fact of whether the statement was exculpatory to one of the defendants.

LOST OR MISPLACED EXCULPATORY EVIDENCE:

The State’s argument that Jones’ statement was not exculpatory, because he stated that he arrived after the first shots, is an argument based upon the prosecutor’s memory of the interview. A review of the prosecutor’s testimony clearly demonstrates that the prosecutor who conducted the interview only had a vague recollection of the interview. For example, in answering one question during the hearing on the motion for new trial, the prosecutor responded “This is three months ago, it is hard for me to remember ...” Additionally, as the majority quotes, the prosecutor stated “I wish I had my notes to be able to reflect my memory better.” With this vague recollection, the majority feels comfortable that the prosecutor’s statement concerning the interview was credible and showed that the State did not possess exculpatory evidence. I do not agree. First, as stated I feel that the prosecutor’s memory was vague at best. However, more importantly, the notes of the interview, which are the objective evidence of what was said during the interview were lost or misplaced.

The loss of crucial evidence, especially evidence which is favorable to the defendants and which should have been disclosed to the defendants, is inexcusable. As in civil cases, when key evidence is not introduced the presumption must be that the evidence would have been harmful to the side that failed to introduce the evidence. Egerb v. Stas sy 237 La. 1070, 112 So.2d 715 (La.1959); Dumas v. Jetson, 462 So.2d 266 (La.App. 1st Cir.1984). This presumption in criminal eases has been adopted in several jurisdictions. See State v. Tezino, 765 S.W.2d 482 (Tx.App. 1st Dist. 1988) (concealment of pertinent evidence by defendant supports an inference of guilty knowledge); People v. Hernandez, 143 A.D.2d 842, 533 N.Y.S.2d 488 (2d Dept.1988); People v. Wedgeworth, 156 A.D.2d 529, 548 N.Y.S.2d 790 (2d Dept.1989) (State’s failure to preserve photographic array used in identification procedures gave rise to inference that array was suggestive). I agree with the statement of the Illinois Appellate Court in Wilkey v. Illinois Racing Board, 65 Ill.App.3d 534, 21 Ill.Dec. 695, 381 N.E.2d 1380 (1st Dist.1978) wherein the court, addressing the presumption that suppressed evidence is harmful to the State’s case, stated the following:

The general wisdom of this rule is widely appreciated (see 29 Am.Jur.2d Evidence §§ 175-189 (1967)), and its application in a case where the party withholding pivotal evidence is the prosecutor is particularly apt, since the prosecutor’s position is one of public trust and he is not merely a partisan but rather an advocate of justice. Because the prosecutor is forbidden to conceal from a defendant in a criminal ease any substantial evidence favoring his defense, (citations omitted), it is especially appropriate to apply against the prosecution an adverse presumption where the prosecutor suppresses evidence potentially favorable to an accused. Likewise, since the prosecutor is forbidden to seek a criminal conviction of a person whose innocence is known to him it is proper that, where the prosecutor could have determined decisively the guilt or innocence of a defendant, yet elects instead to prosecute on the basis of imperfect evidence, his efforts should be checked by an adverse presumption.

21 Ill.Dec. at 700, 381 N.E.2d at 1385.

Because the notes obviously held pertinent material and there is evidence that the material was exculpatory, the fact that the notes are missing should give rise to the presumption that favorable material existed in the notes. I refuse to hold that Jones’ statement was not exculpatory on vague recollections of the prosecutor when that same prosecutor has lost the very evidence which would show whether the statement was exculpatory or not.

DEFENDANT ALREADY IN POSSESSION OF EXCULPATORY EVIDENCE:

The State argues that it, in fact, provided the statement of Jones on the day of trial. However, there is no proof of this on the record; therefore, such a claim is not supportable. The State next argues, and the majority agrees, that it was under no duty to disclose Jones’ statements because the defendant already had the statement. It is uneon-troverted that defense counsel interviewed Jones and received the substance of Jones’ statements to Ms. Wallis prior to trial. Thus, the question is: does the State owe a duty to disclose exculpatory evidence when the defendant already possesses the evidence?

The statutory mandate of La.C.Cr.P. art. 718 does not draw a distinction between evidence possessed by the defendant or not possessed by the defendant and in this case such a distinction is unwarranted. La. C.Cr.P. art. 718 provides in pertinent part as follows:

Subject to the limitation of Article 723, on motion of the defendant, the court shall order the district attorney to permit or authorize the defendant to inspect, copy, examine, ... books, papers, documents, photographs ... which are within the possession, custody, or control of the state and which (1) are favorable to the defendant and which are material and relevant to the issue of guilt or punishment ...

Clearly, this article allows a defendant the right to examine favorable material within the State’s control. The fact that a defendant may have obtained the substance of the material within the State’s control does not terminate that right. Often a defendant, as in this case, may come across evidence which leads him to make a discovery request of the State. Although the defendant may have discovered the substance of the material within the State’s control, he may not possess the entirety of the evidence or be aware of other factors relating to the evidence which may in turn lead to the discovery of more evidence in his favor. Access to the favorable material within the State’s control allows the defendant an opportunity to expand his investigation and complete his defense. A ruling which would terminate the defendant’s ability to fully investigate any exculpatory material within the State’s control would potentially eliminate the defendant’s ability to make out his defense.

The instant case is a shining example of how such a rule would effectively eliminate the defendant’s ability to fully defend himself. Clearly, it is presumed that the notes made by Ms. Wallis contained material favorable to defendant Smith. Had these notes been made available to defendant Smith he may have escaped conviction, first because the statements that he knew the State possessed were clearly exculpatory and, second, the notes may have contained even more information which would have exonerated him. However, because the notes have disappeared there is no way of estimating the potential effect the notes would have had on Smith’s ability to make out his defense.

Even though Smith possessed the substance of a portion of the statements made to the district attorney’s office, he was unable to introduce these statements before the jury because he was unable to corroborate the witness’ statements. With the State’s denial that it possessed any favorable material, Smith had to assume that Jones was lying when he said that he told the same exculpatory version to the prosecutors. However, had Smith been allowed access to the material upon his request he would have been able to corroborate the statements made by Jones and present them before the jury. Additionally, he may have been able to uncover more contradictions relating to Ms. Kelly’s account of the incident. Clearly, the State’s refusal to allow him to inspect the notes limited Smith’s ability to conduct his defense and present exculpatory material to the jury even though he possessed the substance of the statements. Therefore, in the instant case, La.C.Cr.P. art. 718 required the State to disclose Jones’ statements to the defendant notwithstanding the fact that defendant had already acquired the substance of the statements.

POTENTIAL IMPACT OF EXCULPATORY STATEMENT:

In the instant case, the missing notes play an even greater role because they were an objective source of evidence in a case where the evidence is far from overwhelming. Ms. Kelly testified that she was on her front porch when she witnessed the shooting. This was contrary to her statement to the investigating police officer, Officer Williams, when she stated that she was in her bedroom and viewed the shooting through her window. Officer Williams testified that Ms. Kelly told him her version of the facts twice. Additionally, during the hearing on the motion for new trial Jones testified that when he told Ms. Kelly that he had seen her son get shot she replied she had already seen it. Defense counsel then asked Jones where Ms. Kelly said she saw the shooting from and he replied that she said she saw it from her window. It is uneontroverted that Ms. Kelly could not have seen the shooting from inside her house. Thus, it is clear that Ms. Kelly’s claim that she viewed the shooting from her porch is precarious at best. The State argues that the jury had all of the contradictions before it and believed Ms. Kelly’s version of the events. However, the jury did not have before it the statement of another eyewitness whose statement that Ms. Kelly saw the shooting out of the window would have corroborated Ms. Kelly’s own statement to the investigating officer. In fact, the jury did not have any of Jones’ statement before it, the substance of which contradicts Ms. Kelly on key issues.

The State claims that the defendant would have never been able to present Jones’ statements to the jury because Jones was a “loose cannon.” Thus, his statements, no matter how exculpatory, are immaterial. However, had defendant been allowed access to the statements made by Jones to the prosecution, he would have been able to prepare for a change in Jones’ testimony. Even with Jones changing his version of the facts, key' portions of his statements to the prosecution, including statements contradicting Ms. Kelly’s testimony, would have been before the jury. The fact that the defendant Smith did not have an opportunity to introduce this crucial evidence is in itself sufficient grounds to hold that the jury’s verdict would have been affected by the presence of the evidence. Additionally, this court finds that the State’s failure to disclose pivotal, exculpatory evidence and “loss” of that evidence gives rise to an adverse presumption against the State. The exclusion of this evidence undermined the fact finding purpose of the jury because the evidence could have had a significant impact on the jury’s determination of credibility of the State’s eyewitness and her version of the facts. Therefore, Albert Smith’s conviction should be reversed and his case remanded for a new trial.  