Curtis Lee Kyles v. John P. Whitley, Warden, Louisiana State Penitentiary, Etc.

5 F.3d 806, 1993 U.S. App. LEXIS 26710, 1993 WL 409497

Opinions

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Curtis Lee Kyles, an inmate sentenced to capital punishment, appeals the judgment of the district court, denying him the writ of habeas corpus. In 1984, a Louisiana court convicted Kyles of shooting and killing Mrs. Dolores Dye during a daylight armed robbery before many witnesses. As he did before the jury that convicted and condemned him, Kyles asserts innocence and maintains that he was framed by a now-deceased acquaintance. Although phrasing his claims in constitutional terms, Kyles'essentially asks this court to reconsider the defensive theory rejected by the jury nine years ago. We affirm.

Kyles alleged numerous constitutional violations in his petition for writ of habeas corpus. In a thorough, forty-six page opinion and order, the district court rejected all of them.* On appeal, Kyles narrowed his focus by briefing only two claims, under Brady and Strickland.1 As a habeas court, we do not sit to rehear Kyles’ trial. Nonetheless, because both Brady and Strickland analyses inquire into probable effects on trial outcomes, we begin by emphasizing this conclusion: a complete reading of the record ■ demonstrates that Kyles faced overwhelming evidence of guilt. In particular, three eyewitnesses positively identified Kyles among a photographic lineup within 96 hours of the murder. Those three, joined by a fourth eyewitness, testified at trial that Kyles was definitely the gunman, even after comparing him with the man that Kyles contends framed him. None of the evidence offered by Kyles — or that he alleges he was prevented from offering — effectively undermined the powerful weight of this eyewitness testimony.

We also note that the limited focus of a federal habeas court was recently emphasized when the Supreme Court held that “the standard for determining whether habeas relief must be granted is whether the ... error ‘had a substantial and injurious effect or influence in determining the jury’s verdict.’ ” Brecht v. Abrahamson, — U.S. —, ——, 113 S.Ct. 1710, 1714, 123 L.Ed.2d 353 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946)). This standard controls all trial, as distinguished from structural, errors — those whose impact may be quantitatively assessed in the context of. other evidence in order to determine their effect on trial outcomes. See Arizona v. Fulminante, 499 U.S. 279, —, 111 S.Ct. 1246, 1249, 113 L.Ed.2d 302 (1991).

I

On December 7, 1984, a Louisiana jury convicted Curtis Lee Kyles of first degree murder for violation of La.R.S. 14:30 and sentenced Kyles to death.² The conviction and sentence were affirmed on direct appeal by the Supreme Court of Louisiana in a published opinion. State v. Kyles, 513 So.2d 265 (La.1987), cert. denied, 486 U.S. 1027, 108 S.Ct. 2005, 100 L.Ed.2d 236 (1988). The Supreme Court of the United States denied Kyles’ petition for a writ of certiorari on direct appeal. On January 2, 1989, Kyles commenced state habeas corpus proceedings by petitioning the state district court for a stay of execution, post-conviction relief, writ of habeas corpus, and a new trial based on newly-discovered evidence. This petition alleges that Kyles' constitutional rights had been violated in twenty ways. Following an evidentiary hearing ordered by the Louisiana Supreme Court, the state district court denied Kyles’ motions and rendered judgment. In September 1990, the Louisiana Supreme Court denied Kyles’ application for review of the judgment.

Soon after the state court set an execution date, Kyles commenced this habeas corpus proceeding in federal court pursuant to 28 U.S.C. § 2254. The federal district court reviewed the entire record, including the transcripts and pleadings from the trial court, direct appeal, and state collateral proceedings. Concluding that Kyles was given a fundamentally fair trial with able assistance by counsel, the district court denied Kyles’ petition for writ of habeas corpus on March 24, 1992.

Kyles filed a notice of appeal on April 2, 1992. The district court issued a certificate of probable cause. After filing his notice of appeal, Kyles filed a Rule 60(b) motion for post-judgment relief in the district court, claiming newly-discovered evidence. We granted a motion to hold this appeal in abeyance pending the disposition of that motion. The district court denied the Rule 60(b) motion on June 2, 1992. On August 7, 1992, we vacated the district court’s June 2, 1992 order and remanded with instructions to deny Rule 60(b) relief on the ground that a petitioner may not use a Rule 60(b) motion to raise constitutional claims that were not included in the original habeas petition. This appeal then proceeded.

II

At approximately 2:20 p.m. on September 20, 1984, Mrs. Dolores Dye, a sixty-year-old woman, was murdered in the parking lot at the Sehwegmann Brother’s grocery store on Old Gentilly Road in New Orleans. Testimony at trial established that a young black man accosted Mrs. Dye as she placed her groceries in the trunk of her red Ford LTD. One witness testified that the victim threw her purse into the trunk, slammed the lid, and tried to get away. The assailant grabbed her, they began struggling, and he wrestled her to the ground. Finally, the assailant drew a revolver from his waistband and fired it into Mrs. Dye’s left temple, killing her instantly. The gunman then took Mrs. Dye’s keys from her hand, got into the Ford LTD, and drove from the parking lot. After turning onto the street, a traffic light caused the LTD to stop beside a truck driver, Robert Territo, who had seen the shooting and then viewed the gunman’s face at close range. Another witness, Isaac Small-wood, was working at the corner of the parking lot. The LTD drove close by him after it left the parking lot, allowing Smallwood to see the driver’s face. Henry Williams was also working outside at the parking lot. He witnessed the struggle and murder and saw the gunman’s face as the LTD passed slowly by on the street within twelve feet of him.

Police spoke to Smallwood, Williams, and three other eyewitnesses at the scene. Later, Territo and Darlene Cahill called police to report witnessing the murder. All of these witnesses described a young black man, who wore a dark-colored shirt, blue jeans, and his hair in plaits.

The investigation was aided on Saturday night, September 22, when Joseph “Beanie” Wallace informed officers that a man named “Curtis” had sold him a red Ford LTD. Using the address Beanie provided, police found Curtis Kyles’ name and Beanie identified Kyles’ photograph. Beanie stated that on Friday, he paid Kyles $400.00 for the LTD and drove it around New Orleans. Only later did he connect the car with the murder and call police. Detective John Miller testified during post-conviction proceedings that Beanie had spoken to him on previous occasions about various, unrelated shootings, although this case was the first time that Detective Miller could use Beanie’s information because it was a homicide. Around midnight, Beanie led police to the car that Kyles sold him. Police soon established that the LTD in Beanie’s possession belonged to the victim.³

For security purposes, a police officer was wired to record this conversation. During it, Beanie informed officers that Kyles lived at 2313 Desire, the. apartment of Kyles’ common-law wife, Martina “Pinky” Burns.⁴ Beanie claimed that Kyles had removed Schwegmann’s grocery sacks from the LTD before turning it over to Beanie. Acting on this information, Detectives Lambert and Sa-ladino went to Desire Street at 1:00 a.m., Monday morning, September 24. They picked up five identical plastic bags of garbage that had been placed outside Kyles’ residence. Inside one of those garbage bags, police found the victim’s purse, identification, and other personal belongings wrapped in a Schwegmann’s paper grocery sack.

A search warrant for the Burns/Kyles residence had been issued at 6:07 p.m. on September 23. At approximately 10:40 a.m. the following day officers arrested Kyles outside the residence and searched the apartment. Behind the stove, they found a .32 caliber revolver that contained five live rounds and one spent cartridge. Ballistics tests later confirmed that this pistol was used to murder Mrs. Dye. In a ehifforobe in another part of the residence, officers found a homemade shoulder holster that fit the murder weapon. They also discovered two boxes of ammunition in a bedroom dresser drawer. One box contained .32 caliber rounds of the same brand as those found in the pistol.

Back in the kitchen, pet food was found in Schwegmann’s sacks located in a cabinet with pots and pans. No other human or pet food was located in that cabinet. Several cans of eat and dog food were discovered, including Nine Lives brand cat food and Kal-Kan brand dog food. No pets, however, were present in the household. Detective Dillman testified that police found no eat litter nor a litter box, although a photograph of the chif-forobe shows a bottle labelled “Hart Flea.” The victim’s husband, Mr. Robert Dye, testified at trial that his wife usually purchased several brands for their cats and dogs, including Nine Lives and Kal-Kan.

Partial fingerprints were found on the victim’s effects, but none was sufficient for an identification. No fingerprints were found on the murder weapon or in the LTD, but Kyles’ prints were recovered from a Schweg-mann’s cash register receipt found on the floor of the LTD. The receipt’s contents were illegible, making it impossible to read the items purchased or date, because the chemical process used to raise the fingerprints obliterated the ink.⁵

After Kyles became a suspect, Detective John Dillman prepared a photographic lineup. On Monday, September 24, Dillman showed the lineup to five eyewitnesses to the murder. Three of them instantly picked Kyles out from the array of photographs of young black men; another tentatively chose Kyles. These three witnesses, as well as a fourth eyewitness who was not asked to view the photographic lineup, also positively identified Kyles at trial as the gunman.

The defense contended at trial that the initial informant, Beanie, framed Kyles. While Kyles denied any involvement in the murder, his defense implied that Beanie was the murderer. After all, Beanie possessed the LTD when he spoke to police, and the defense theory accused Beanie of planting the victim’s possessions and the murder weapon at Kyles’ residence. Beanie did not testify at the trial for either the prosecution or the defense. Four defense witnesses— Kevin Black, Ronald Gorman,⁶ Johnny Burns, and Kyles himself — testified that they saw Beanie in a red ear similar to the victim’s after the killing on Thursday, Septem ber 20.⁷ Defense witness Donald Powell stated that Beanie tried to sell him the LTD on Friday for $300. Johnny Burns testified that Beanie changed the license plates on the LTD Friday night, demonstrating that Beanie knew the car was stolen.

Central to defense was the theory that Beanie had planted the most incriminating evidence in Kyles’ apartment and garbage. Defense witnesses testified that Beanie attended a gathering at Kyles’ residence on Sunday night, September 23. The testimony of Kyles’ friends and relatives conflicted as to the number of persons present and what dinner was served. Johnny Burns, Pinky’s brother and so Kyles’ brother-in-law, testified that during this evening he saw Beanie stooping near the stove. As noted, the murder weapon was found behind this appliance. Kyles also testified in his own defense. He denied owning the revolver and holster and stated that they must have been planted in the apartment. To explain the presence of .32 caliber rounds, Kyles stated that they were among ammunition he received when Beanie gave him a .22 caliber rifle as security for a loan. As a motive for the alleged effort to frame Kyles, the defense contended that Beanie was romantically interested in Pinky Burns, Kyles’ common-law wife. Defense witnesses Cathy Brown and Carolyn Campbell said that they had witnessed Beanie make sexual advances to Pinky.

Kyles denied any involvement in the shooting of Mrs. Dye. To explain the Schweg-mann’s receipt bearing his fingerprints found in the LTD, Kyles stated that Beanie had picked him up in a red car on Friday and taken him to Schwegmann’s, where Kyles purchased transmission fluid and a pack of cigarettes. He suggested that the receipt might have fallen from the bag when he removed the cigarettes. Kyles also testified that he had purchased the pet food found in his apartment at Schwegmann’s on another occasion. Kyles claimed that he owned a dog, which was sometimes kept in Mississippi at his mother-in-law’s home. He did not know where it was at the time of trial. He also stated that his son kept a cat and that they fed other stray cats. Other defense witnesses gave varying testimony as to whether or not Kyles or his children had a dog or cat. When asked why he had purchased “so much” pet food, Kyles responded that he had “because it was on sale” at Schwegmann’s. On rebuttal, the prosecution called Schwegmann’s director of advertising to testify. Examining the cans of pet food, he denied that these brands had been on sale, explaining that the prices marked on the cans were not marked-down sale prices. During the prosecution’s ease-in-chief, the victim’s husband testified that Mrs. Dye usually purchased the same brands of pet food as those found in Kyles’ residence.

During rebuttal, the prosecution recalled each eyewitness. Beanie was brought into the courtroom, giving each eyewitness a chance to view him and Kyles simultaneously. The jury could also compare Beanie with Kyles. Each of the eyewitnesses attested that Kyles, not Beanie, was the person who committed the murder.

The jury unanimously found Kyles guilty of first degree murder. During the sentencing phase, the prosecution relied upon the evidence adduced during the guilt phase. The defense sought mitigation by presenting evidence of Kyles’ close familiar relations with his relatives and children. Kyles also reasserted his innocence. Finding the aggravating circumstance of a killing during the commission of an armed robbery, the jury unanimously recommended the death penalty.

At the post-conviction evidentiary hearing, Kyles asserted that prosecutors had failed to disclose Brady materials to the defense. A number of documents in the police file were not delivered to the district attorney’s office until after Kyles’ conviction. Kyles received them during post-conviction litigation and maintains that they were favorable and material to his defense.

III

A. Brady

Kyles’ principal claim is that the State withheld purportedly inculpatory material. In particular, he points to the following evidence that was not produced before trial: (1) the transcript of the recording of Beanie’s first conversation with police officers; (2) a written statement signed by Beanie after police interviews; (3) notes taken by prosecuting attorney Cliff Strider during an interview with Beanie; (4) a police memorandum directing officers to pick up the garbage in front of 2313 Desire Street; and (5) a list of license plate numbers from ears parked at Schwegmann’s on Thursday night, September 23.

1. Governing legal standard

Our concern as a habeas.court is confined to reviewing for constitutional violations. “[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment.” Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963). The prosecution must also disclose evidence useful to the defense for impeachment. United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985). A successful Brady claim must show (1) the prosecution’s suppression of evidence, (2) the favorableness of that evidence, and (3) the materiality of that evidence. United States v. Sink, 586 F.2d 1041, 1051 (5th Cir.1978).

The Supreme Court defined materiality in United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). According to Bagley,

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.

Id. at 682, 105 S.Ct. at 3383 (Blackmun, J.); id. at 685, 105 S.Ct. at 3385 (White, J., concurring in part). Writing for the Court, Justice Blaekmun stated that “a constitutional error occurs, and the conviction must be reversed, only if the evidence is material in the sense that its suppression undermines confidence in the outcome of the trial.” Id. at 678, 105 S.Ct. at 3381.

Kyles argues that Bagley’s analysis cannot be used in capital cases. We have previously rejected this general proposition. See James v. Whitley, 926 F.2d 1433, 1437 (5th Cir.1991). Kyles raises a slightly different argument than the one presented in James, by insisting that the alleged Brady violation affected not only the guilt determination, but his sentence as well. Thus, Kyles argues, Eighth Amendment considerations are triggered which require a stricter scrutiny than Bagley’s probable-effect inquiry. Kyles therefore urges this court to use the “no effect” standard found in Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), or the “harmless beyond a reasonable doubt” standard referred to in Satterwhite v. Texas, 486 U.S. 249, 108 S.Ct. 1792, 100 L.Ed.2d 284 (1988). In this case, the only effect the alleged Brady materials could have had on his sentencing would be through residual doubt. Kyles presented no mitigating evidence other than his close relationships with his family. The State relied upon the aggravating factor of murder during an armed robbery, which the jury found proved beyond a reasonable doubt in the guilt phase. We are not persuaded that the Eighth Amendment forecloses using the Bagley standard, when the only effect of Brady material would be to enhance the possibility of residual doubt after a jury finds guilt beyond a reasonable doubt.

2. Review of the evidence

We apply the Bagley standard here by examining whether it is reasonably probable that, had the undisclosed information been available to Kyles, the result would have been different. Rather than reviewing the alleged Brady materials in the abstract, we will examine the evidence'presented at trial and how the extra materials would have fit.

a. Eyewitness testimony

The murder occurred around 2:20 p.m. in the parking lot of Schwegmann Brother’s grocery store. Photographs of the crime scene taken that afternoon show a bright, sunny day. Many witnesses saw the murder, their attention prompted by the victim’s screams, and then saw the gunman’s flight in the victim’s car. Three of the eyewitnesses later identified Kyles in a photographic lineup. At trial eleven weeks after the murder, four witnesses identified Kyles as the gunman. Significantly, during each eyewitness’s rebuttal testimony, Beanie was brought into the courtroom. After viewing Beanie and Kyles simultaneously, each eyewitness once more identified Kyles as the murderer. Also, the members of the jury received four opportunities to view both Beanie and Kyles after hearing the witnesses’ descriptions of the gunman.

Kyles tried to undermine these identifications by pointing to discrepancies between his hairstyle and that in descriptions of the gunman. Territo, for instance, described the gunman’s hair as a “wooly type braid” or “matted braid”. Defense witness Carolyn Campbell stated that Kyles always wore his hair in a “bush” style. Kyles testified that he never wore his hair in plaits or braids. On the other hand, the defense claimed that Beanie fit the descriptions. Kyles’ friends Kevin Black and Ronald Gorman testified that Beanie wore braids in his hair on Thursday, September 20. Donald Powell claimed that Beanie usually wore braids, but a police photograph taken on June 6, 1984, shows that Beanie was wearing a Jherri curl fifteen weeks before the murder. Johnny Burns claimed that Beanie changed his hairstyle to a curl on Friday, September 21, after the murder.

Kyles contends that the first of the alleged Brady materials affects this identity issue. A police wire recorded Beanie’s first conversation with police officers. This was done as a security measure, rather than as a means to preserve evidence. The transcript of this recording was not delivered to the prosecuting attorney before trial and not disclosed to Kyles. According to this transcript, after stating that “Curtis” sold him the LTD on Friday, Beanie said that Kyles wore his hair in a bush “that day.” We do not agree that this statement made the transcript material and so mandated disclosure. The jury otherwise learned of the supposed discrepancy between descriptions of the gunman’s hairstyle and Kyles’ hairstyle. Beanie’s statement adds nothing new and is itself not decisive. Even if Kyles wore a bush “that day” — Friday—he may have worn braids on Thursday. The transcript also . contains Beanie’s statement that Kyles . sometimes wore braids.

Kyles also claims that a second set of undisclosed documents impeded his challenge to the eyewitness identifications. He did not receive written statements signed by Small-wood and Williams. Kyles maintains that the jury’s confidence in the eyewitness identifications would have been undermined if the defense could have impeached these two men with inconsistent statements in the descriptions they gave to police just after the murder. Williams, for example, originally described the gunman as being around 5'5" with a medium build. Kyles is closer to six feet tall and is slender. Yet when shown Kyles picture four days after the murder, Williams immediately recognized him as the killer. Kyles argues more forcefully regarding Smallwood. At trial, Smallwood described witnessing the shooting itself. The original statement he signed, however, states that he turned to look after hearing the gunshot. This discrepancy, Kyles insists, shows that Smallwood embellished his story, perhaps after coaching. Kyles overlooks, however, that Smallwood consistently stated that the gunman then drove the LTD close by him. Smallwood always maintained that he got a good look at the killer then, and like Williams, immediately recognized Kyles in the photographic lineup. Smallwood never made a statement calling his ability to recognize the gunman into question, and we are not persuaded that use of this material by the defense would have undermined the force of his identification, particularly in light of its corroboration by others.

To support the inference of mistake, Kyles cited testimony that he and Beanie resembled one another. Defense witness Ronald Gorman, for instance, stated that Beanie and Kyles resemble each other “a little” in profile. Gorman admitted, however, that the two men’s sizes and builds were not alike. Johnny Burns also testified that the two men look alike from the side and had similar complexions. This testimony is belied, however, by the finding of the state trial court, during post-conviction proceedings, that Beanie “distinctly did not resemble” Kyles. Comparing photographs of Kyles and Beanie, it is evident that the former is taller, thinner, and has a narrower face. More importantly, the eyewitnesses and the jury were allowed to compare Beanie and Kyles. After doing so, Smallwood stated, “they don’t look nothing alike to me.” Each eyewitness repeated them conviction that Kyles was the gunman they saw at Schwegmann’s.

We note that none of the undisclosed documents bear on the credibility of eyewitness Territo’s testimony. Territo observed Kyles and Mrs. Dye struggle, and witnessed the shooting itself. Then, as Kyles drove away in the LTD, he stopped at a red light in the lane next to Territo. As Kyles looked around, Territo got a good look at his face from a short distance away. Territo positively identified Kyles as the gunman in a photographic lineup four days after the murder, and positively identified Kyles at trial twice — the second time after seeing Beanie and Kyles together. There is. no evidence in the record that Territo made inconsistent statements at any time.

The theory that Beanie framed Kyles cannot explain the eyewitnesses’ positive identifications. Kyles must assert that all four of them were mistaken. At trial, Kyles’ counsel elicited from the eyewitnesses that they had previously seen Kyles in the courtroom.⁸ The defense suggested that the in-court identifications resulted from Kyles’ presence at the defendant’s table, reinforced by viewing him there on prior occasions. This implication, however, could not weaken the three out-of-court identifications. Territo, Small-wood, and Williams each selected Kyles from among six similar photographs. There is no evidence that these photographic lineups, four days after the murder, were conducted improperly. Kyles can make no response but the improbable assertion that each witness coincidentally made the same mistake. We must bear this weighty evidence of guilt in mind while assessing the probable effect of other undisclosed information on the jury’s verdict.

b. Tangible evidence

While the eyewitness identifications are convincing, Kyles is also faced with the great deal of incriminating evidence found in the apartment where he usually resided. The defense must also discount much of this evidence as coincidental. The remainder, however, Kyles attributes to Beanie’s alleged effort to frame him.

Kyles maintains that the nondisclosure of the transcript also weakened his ability to establish Beanie’s motives for framing him. The transcript assertedly contains three statements that may do so. First, in describing the trip to retrieve Kyles’ car from the Schwegmann’s parking lot, Beanie referred to the part of the lot where the -murder had taken place. Kyles would infer from this statement Beanie’s knowledge of, and hence involvement in, the murder. Second, Beanie described driving around New Orleans in the stolen LTD and his' concern that he might be arrested because of this possession. These statements, Kyles argues, lead to one motive: that Beanie framed Kyles in order to escape prosecution himself for murder, complicity in murder, or dealing in stolen goods. ' Finally, the transcript reveals that Beanie requested $400 as reimbursement for the • amount he paid Kyles for the stolen LTD. Kyles translates this statement into another motive by arguing that Beanie framed him to get a monetary reward.

At trial, Kyles elicited testimony supporting these two motives, as well as a third: that Beanie framed Kyles so that Beanie could pursue his romantic interest in Pinky Burns. The principal thrust of the defense case was that Beanie committed the murder. During cross-examination, Detective Dillman testified that Beanie possessed Mrs. Dye’s LTD. Defense witnesses testified that Bean ie fit the gunman’s description. The presence of the murder weapon was attributed to Beanie’s visit to Kyles’ apartment. We are not persuaded that Beanie’s reference to the scene of the murder adds significant weight. The transcript also reveals that Beanie followed news accounts of the crime after they alerted him to the connection between the LTD and the murder. As to a pecuniary motive, Detective Dillman told the jury that Beanie received $400 after giving his tip. Beanie’s request for the money on the transcript would have been cumulative, at best.

As further support for the defense theory, Kyles elicited testimony from the police that stolen license plates were on the LTD when it was found. Johnny Burns testified that he saw Beanie change the plates. The defense maintains that this evidence dispels any notion that Beanie was the unwitting bona fide purchaser of a stolen car. Once more, Kyles claims that the jury would have attached more significance to this evidence if the State had disclosed the transcript. It is true that on the transcript Beanie did not deny placing stolen plates on the LTD, even as officers made statements to that effect, but the state never urged and no prosecution witness ever stated that Beanie was an innocent buyer. The State did not call Beanie as a witness, nor inform the jury of the contents of his initial tip to police. Thus, the character or credibility of the informant was not presented to the jury by the prosecution.⁹ Beanie’s tip served only to explain why police showed Kyles’ photograph to the eyewitnesses. The defense established that Beanie had possession of the LTD and that it bore stolen plates. A witness testified that Beanie placed them on the car. Thus; Kyles did lay the foundation for inferring that Beanie was not an unwitting buyer of stolen goods, but rather a knowing possessor who might have been the robber. On the other hand, proof that Beanie changed the plates is not inconsistent with Kyles’ guilt. Ultimately, this evidence is at best cumulative on a factual point not rebutted by the State. The nondisclosure of this much of the transcript was insignificant.

Kyles also complains that the failure to disclose the transcript, and two other documents containing statements by Beanie, impaired his defense by preventing him from showing inconsistencies among those statements. After the recorded conversation shown by the transcript, Beanie went to police headquarters and signed a typewritten statement in the early morning hours of Sunday, September 23. Sometime later, before Kyles’ trial and conviction, prosecuting attorney Cliff Strider interviewed Beanie and wrote several pages of notes regarding Beanie’s statements at that time. Neither Beanie’s written statement nor Strider’s notes were disclosed to the defense before trial. Kyles claims that the defense could have furthered its case by informing the jury of inconsistencies, principally between the first two statements and Strider’s notes.

In the first two statements, Beanie described this sequence of events: on Friday evening, September 21, Kyles sold the LTD to Beanie. Beanie then saw Kyles unload Sehwegmann’s grocery sacks and a purse from the LTD and place them in his apartment at 2313 Desire Street. After 9:00 p.m., Beanie accompanied Kyles and others to the Schwegmann’s parking lot, where they retrieved Kyles’ own cgr. Prosecutor Strider’s notes generally reflect the same events, but the dates, sequence, and some details changed. According to the notes, Beanie and Kyles retrieved Kyles’ car from Schweg-mann’s on Thursday, at 7:45 p.m., rather than Friday after 9:00 p.m. Then, Beanie saw Schwegmann’s sacks and a purse taken, not from the LTD, but from an apartment, whence they were taken to Kyles’ apartment. The notes then state that Beanie purchased the LTD after the events, on Friday morning, rather than Friday evening.

The date of Strider’s interview and notes is not disclosed by the record. Thus, the time span between the first two statements and this interview is unknown and the relative weight of the discrepancies is difficult to gauge. This is but one problem. More importantly, evidence that Beanie lacked credibility would have had little impact on this case. The prosecution did not call Beanie as a witness, nor vouch for the reliability of the tip that he gave police. Instead, the State mentioned this tip in passing, to explain why it focused on Kyles as a suspect and discovered evidence conclusively linking him to the murder.

While the defense portrayed Beanie as framing Kyles, it did not call Beanie as a defense witness. As we will explain in Section III.B., that decision was sound.¹⁰ Calling Beanie as a witness threatened to do Kyles more harm than good, even if the defense could show that details of Beanie’s claims were not consistently stated. Since Beanie did not testify, and there was no constitutional compulsion that he should have been, the failure to possess impeachment evidence material could not, in reasonable probability, have affected the outcome of the trial. Kyles has not shown on this basis that the three statements were material.

Detective Lambert testified during cross-examination that he picked up Kyles’ garbage bags from the curb without apparent detection. Kyles’ residence was not under police surveillance until after sunrise the following morning. The defense counsel used this cross-examination to establish that someone could just as easily have placed bags in that location, or put Mrs. Dye’s purse into bags already there. The defense maintained that Beanie did so. Kyles now asserts that he could have argued this point more powerfully with two pieces of alleged Brady material. One was a police memorandum directing officers to pick up Kyles’ garbage. The memo stated, “[w]e have reason to believe the victim’s personal papers and the Schweg-mann’s bags will be in the trash.” According to Kyles, Beanie was the person who gave the police reason to believe that this evidence would be found. Kyles supports also this assertion with the transcript. In it, a police officer refers to Beanie having stated that if Kyles were smart, he would throw the items from the LTD into his garbage. Kyles argues that these documents would have strengthened his theory that Beanie planted the purse in Kyles’ garbage and directed the police to find it there.¹¹

Even without these documents, Kyles made a credible case that Beanie could have planted this evidence. It was undisputed at trial that anyone could have had access to garbage bags sitting on the curb and that Beanie was attempting to incriminate Kyles. Kyles was able to argue that Beanie had one or more motives and an opportunity to plant this evidence where the police found it. Nonetheless, the jury rejected this argument. These documents might have offered some assistance to Kyles. In light of the entire record, however, we cannot conclude that they would, in reasonable probability, have moved the jury to embrace the theory it otherwise discounted.

To explain the murder weapon and holster, the defense depended upon testimony that Beanie had attended a gathering at Kyles’ apartment on Sunday night, September 28'. Several defense witnesses stated that Beanie was present at 2313 Desire that evening, and had dinner with Kyles and others. Johnny Burns stated that as many as 18 people attended -the gathering, while Cathy Brown remembered six being present. The State questioned the credibility of these witnesses, given inconsistencies among their statements, but presented no testimony that this gathering did not occur. Asserting yet another Brady violation, Kyles points to the notes of prosecutor Cliff Strider’s interview with Beanie. These notes refer to Beanie’s presence at Kyles’ apartment for Sunday dinner. Corroborating Beanie’s presence, however, adds little credibility to an assertion that Beanie smuggled evidence in and hid it about the apartment on that occasion.

Johnny Burns claimed that he came upon Beanie alone in the kitchen, stoopipg next to the stove under which the murder weapon was found. During the state post-conviction hearing, the same trial court judge who presided over Kyles’ trial found that Johnny Burns’ testimony was not credible. “This Court, having had the opportunity to view Mr. Burns on the witness stand and to hear his testimony, has chosen to totally disregard everything that he has said.”¹² This trial court finding of fact is fairly supported by the record and must be presumed to be correct. 28 U.S.C. § 2254(d). Even aside from § 2254, appellate courts must give due regard to the credibility determinations of trial judges, who enjoy the advantage of observing demeanor. See Amadeo v. Zant, 486 U.S. 214, 108 S.Ct. 1771, 100 L.Ed.2d 249 (1988). Given that Johnny Burns’ testimony lacked credibility, it is unlikely that the jury attached much weight to his claims.

Kyles testified that Beanie offered to sell him a pistol with tape wrapped around it that evening. The murder weapon, however, showed no signs of having been wrapped in tape. This testimony added nothing to the theory that Beanie planted the evidence.

If Beanie was present at Kyles’ apartment on Sunday, this opportunity to plant evidence came after Beanie had contacted the police and implicated Kyles. If Beanie had been bent on framing Kyles, it was risky indeed to direct officers to the residence on Desire Street before he planted the evidence. Beanie did not know when the police might move. Indeed, he did not plant the gun until the night of the day following his disclosure to the police. The defense theory attributes cleverness to Beanie in every detail except this one. Once again, we conclude that the undisclosed documents would have been essentially cumulative on a point that the prosecution questioned, but did not rebut. We are not persuaded that these notes were material.

Kyles complains that he did not receive a computer printout containing a list of automobile license plates. This printout listed cars that were in Schwegmann’s parking lot at 9:15 p.m. on the day of the murder, September 20. The list does not include Kyles’ automobile. Beanie’s initial statements to the police indicated that Kyles had retrieved his car from Schwegmann’s on Friday. Using a photograph of the crime scene taken Thursday afternoon, the prosecution argued that Kyles car was visible at a distant edge of the lot. Kyles argues that the undisclosed printout would have rebutted this evidence, showing the jury that his car was not present at the crime scene.

During post-conviction proceedings, Detective John Miller testified that not all vehicles were included in the canvas and license check that produced the printout. Thus, the printout did not disprove that Kyles’ car was present at 9:15 p.m. Moreover, a list of cars found at 9:15 p.m. could not disprove that Kyles’ automobile is the one visible in the photograph taken at the crime scene roughly six hours earlier.¹³ Although the prosecution used the photograph to establish how Kyles arrived at Schwegmann’s, before departing in the stolen LTD, no witness stated that Kyles’ car remained there overnight. Thus, the printout was not inconsistent with the State’s proof of guilt. More importantly, of course, we are not persuaded that it would, in reasonable probability, have induced reasonable doubt where the jury did not find it. The evidence of guilt was otherwise so overwhelming that the rebuttal of the photograph would have made no difference.

Finally, in assessing the probable effect of nondisclosure on Kyles’ trial, we must consider evidence of guilt that is untouched by the alleged Brady violations. First, we consider the ammunition found in his apartment. Kyles claimed that Beanie gave him the two boxes of ammunition along with a .22 caliber rifle as security for a loan. He had loaded .22 caliber rounds into the rifle and left the other assorted ammunition in the boxes. He testified that Beanie often had guns, accounting for the other calibers, including the large number of .32 caliber rounds. While the evidence seized included mixed caliber rounds in one box, another box contained only .32 caliber cartridges. It makes sense that Beanie would have given Kyles a container holding .22 ammunition, along with other rounds, at the same time that he gave Kyles a .22 rifle. It is not clear, however, why someone would also have given Kyles a box containing only .32 caliber rounds if Kyles did not own a .32 caliber firearm. The more likely inference, apparently chosen by the jury, is that Kyles possessed .32 caliber ammunition because he possessed a .32 caliber firearm. As noted, these rounds were the same brand as those found loaded in the murder weapon found in Kyles’ residence.

It must not be forgotten that Kyles had to explain his possession of every piece of the incriminating evidence. Yet, no undisclosed document lessens the impact of the evidence regarding pet food from Schwegmann’s. Kyles tried to account for its presence, but likely did his cause more harm than good. Kyles testified that he purchased at Sehweg-mann’s the pet food found in his apartment. He must dismiss as coincidence the fact that Mrs. Dye usually purchased the same brands that he claimed to have chosen on one occasion because they were “on sale.” In the first place, the weight of his explanation was undermined by his inability to explain what pets he planned to feed. He claimed to have kept a dog in the backyard, although it was sometimes kept in the country. Kyles stated that he had brought it home shortly before the murder. Police, however, found no sign of this pet. A friend of Kyles, Donald Powell, had not seen the dog for six months. When asked to explain why he purchased different brands of cat food, Kyles claimed that one was for his son’s cat, the other for strays. He did not explain any reason, such as a lower price for the latter, for making this distinction.¹⁴ Most importantly, Kyles’ explanation for the choice and quantity suffered a devastating attack from the State when it called Schwegmann’s director of advertising. The brands found in Kyles’ residence were not “on sale” in September 1984.¹⁵ During post-conviction proceedings, the state trial court cited this rebuttal evidence in concluding that Kyles had perjured himself, at trial, and opined that the jury was moved to disregard the defense’s theory when Kyles’ testimony was thus discredited.

As the state trial court found, in post-conviction proceedings:

the Defense was given ample opportunity, and successfully placed before the jury through credible evidence, the basic premise of the Defense’s case, that Joseph [Beanie] Wallace was in fact that killer of Mrs. Dye and that Joseph Wallace “framed” the defendant for this killing_

The jury was more than adequately exposed to the possibility that Joseph Wallace was in fact the killer.

The jury, however, refused to believe this testimony or to infer even reasonable doubt from it. Kyles received a fair trial, one whose outcome is reliable. Kyles failed to undermine the overwhelming evidence of guilt at trial, and we¹ are not persuaded that it is reasonably probable that the jury would have found in Kyles’ favor if exposed to any or all of the undisclosed materials. Often cumulative and generally inconclusive, the facts therein simply do not add enough to his case.¹⁶

Finally, we note that Brady claims are subject to harmless error review. See United States v. Garcia, 917 F.2d 1370, 1375 (5th Cir.1990). Since Kyles has failed to show that it is reasonably probable that the nondisclosure of documents affected the outcome of his trial, we will not address whether he can show the actual prejudice of a substantial and injurious effect on the verdict. See Brecht v. Abrahamson, — U.S. —,—, 113 S.Ct. 1710, 1722, 123 L.Ed.2d 353 (1993).

B. Strickland

Kyles also contends that he received ineffective assistance of counsel at trial. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Kyles points to two principal errors allegedly committed by his trial counsel: failing to interview Beanie and failing to call Beanie as a defense witness. Under Strickland, Kyles must satisfy a two-prong test by showing that: (1) counsel’s performance was so deficient that he was not functioning as the counsel guaranteed by the Sixth Amendment, and (2) counsel’s errors prejudiced the defense by depriving the defendant of a fair trial whose result is reliable. Id. at 687, 104 S.Ct. at 2064. To demonstrate professional deficiency, Kyles must show that counsel’s performance “fell below an objective standard of reasonableness.” Id. at 688, 104 S.Ct. at 2064. Given the difficulty of this evaluation and the distorting effect of hindsight, “a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Id. at 689, 104 S.Ct. at 2065 (internal quotation omitted).

Kyles’ trial counsel was Martin Regan. Kyles maintains that Regan’s failure to call Beanie — coupled with the prosecution’s nondisclosure of the contents of Beanie’s statements — prevented the defense from attaching Beanie’s credibility. The prosecution’s case, however, did not depend upon Beanie’s credibility. The State did not call Beanie to testify against Kyles. Prosecution witnesses did not mention Beanie by name except in response to the cross-examination by Regan. Regan asked eyewitnesses whether they had been shown Beanie and questioned Detective Dillman about him. Then, during redirect testimony, Dillman admitted that the police had np suspect until after Beanie contacted them on Saturday, September 24. During his direct examination, Dillman had only alluded to Beanie’s statements by testifying that officers received information that led them to Mrs. Dye’s car, and that caused them to suspect Kyles. Leaving this testimony unelaborated, the prosecution depended upon the eyewitness identifications and the tangible evidence to link Kyles with the murder.

Of course, the defense did involve Beanie in the case by presenting the theory that Beanie had a motive to frame Kyles and an opportunity to plant evidence on his premises. Regan’s questions laid the foundation supporting this theory. Regan did not, however, call Beanie as a defense witness. As a matter of trial strategy, the choice of witnesses enjoys a presumption of reasonableness. Cf. Rivera v. Collins, 934 F.2d 658, 660 (5th Cir.1991) (rejecting Strickland claim asserting counsel failed to call important witnesses). We are not persuaded that the decision not to call Beanie was an unreasonable one outside the bounds of professional judgment. To the contrary, the dangers of calling Beanie as a defense witness are very evident. As the district court put it, any reasonable attorney would perceive Beanie as a “loose cannon.” According to the defense theory, Beanie was intent on seeing Kyles convicted for the murder of Mrs. Dye. Beanie’s testimony almost certainly would have inculpated Kyles.¹⁷ All of his statements to the police claimed that Kyles had possessed the LTD, sold it, and removed several Schwegmann’s grocery sacks from it — testimony not presented to the jury during the prosecution’s case-in-chief. The only exculpatory effect Beanie could have was an indirect one: Kyles maintains that competent counsel, armed with Beanie’s prior statements, would have thoroughly impeached Beanie’s credibility. At the same time, competent counsel would realize the risk that if Beanie’s credibility were not completely destroyed by his demeanor and prior statements, then his incriminating testimony would have strengthened the prosecution’s case. The cross examination of Beanie had to face the reality that his version was .supported by disinterested eye witnesses. Only hindsight allows one to say that Kyles had nothing to lose and that counsel should have taken that risk. See United States v. Lauga, 762 F.2d 1288, 1291 (6th Cir.1985) (decision not unreasonable just “because 20/20 hindsight and knowledge of the intervening conviction might lead another attorney to opt otherwise”).¹⁸ Beanie was a two-edged sword, and we conclude that Regan did not act unprofessionally in choosing not to draw that weapon at trial.

During post-conviction hearings, Regan stated that the reason he did not call Beanie to testify was his misunderstanding of Louisiana evidence law. He believed that if the defense called Beanie, he would not be able to ask leading questions unless he demonstrated both surprise and hostility. That belief was erroneous,¹⁹ thus Kyles contends that a decision máde on that mistaken basis was a professional deficiency. The Strickland analysis, however, judges the conduct of the defense according to the objective standard of the reasonable attorney. For the above-stated reasons, we conclude that a reasonable, competent attorney would not have erred in failing to call Beanie to testify and therefore the actual cause of trial counsel’s failure to do so is not controlling.

Furthermore, the record demonstrates that Regan seriously considered calling Beanie. The defense placed Beanie under subpoena during the trial. See State v. Kyles, 613 So.2d 265, 273 (La.1987). During the post-conviction hearing, prosecuting attorney Strider testified that Regan discussed calling Beanie as a defense witness with him. The defense, however, had no guarantee about Beanie’s behavior. Strider told Regan that he was not sure Beanie’s attitude would be hostile. Moreover, Strider stated his belief that Regan expected the prosecution to call Beanie to testify during rebuttal, giving Regan a certain opportunity to lead and impeach the witness. Having considered the issue, Regan made a reasonable choice, and an appropriate one even if he correctly understood the applicable evidentiary rule.

Since Beanie did not testify and we are not convinced that he should have been called to testify,. Regan’s failure to interview Beanie had no apparent bearing on the conduct of the trial. It is not evident how interviewing Beanie would have allowed Regan to attack the prosecution’s case more effectively, since that case did not rely upon Beanie’s statements. • An error by counsel does not satisfy the prejudice element of Strickland unless the defendant shows a reasonable probability that, but for the error, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. Regardless of whether the failure to interview Beanie constituted a professional deficiency, the requisite prejudice has not been shown.

Finally, Kyles suggested that Regan’s failure to interview the eyewitnesses prior to trial led to ineffective assistance. One month before the trial, however, defense counsel cross-examined three of those four witnesses during the pretrial suppression hearing. Territo, Smallwood, and Williams testified at the suppression hearing because they made out-of-eourt identifications based upon a photographic lineup. We agree with the district court’s conclusion that this hearing gave counsel an adequate opportunity to explore these witnesses’ stories. Since counsel was not unprepared for the eyewitness testimony at trial, there is no probability that this alleged failure had an impact on the outcome.

IV

In conclusion, we iterate that trial counsel presented Kyles’ theory that Beanie framed him. The defense suggested motives, with claims of Beanie’s sexual interest in Kyles’ common-law wife and by implying Beanie’s own guilt for the murder. Counsel established that Beanie could have had access to Kyles’ garbage bags on Desire Street. Defense witnesses claimed that Beanie came to Kyles’ apartment on the night before the police search, and Johnny Burns testified to seeing Beanie stooping near the stove under which the murder weapon was found. The defense proposed the inference that Beanie framed Kyles. We are not persuaded that either errors by counsel or prosecutorial misconduct hamstrung Kyles’ defense. Rather, the jury rejected his defensive theory and viewed the overwhelming incriminating evidence as proof of Kyles’ guilt. We are not empowered to substitute our own judgment or sense of fairness for the jury’s.

AFFIRMED.

Footnotes

*

See Appendices A and B.

1

. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

2

. A previous trial ended in a mistrial after four hours of deliberation because jurors could not reach an unanimous verdict regarding guilt or innocence.

3

. The police agreed to pay Beanie $400.00 to compensate him for the amount that he had paid to Kyles for the car.

4

. This name sometimes appears in the record spelled "Burnes.” We use the term "common-law wife” loosely. Pinky was the mother of Kyles' four children, and he spent about four nights a week at her apartment on Desire Street.

5

. Before the piece of paper was processed, the police had noted that it was a cash register receipt from Schwegmann’s, but no other information regarding its contents was recorded.

6

. Gorman admitted at trial to a felony conviction for armed robbery.

7

. Black, Gorman, and Burns admitted that they were friends of Kyles. Johnny Burns was his brother-in-law.

8

. Counsel implicitly referred to the first trial and suppression hearing. The jury was not informed of the prior trial,

9

. This factor is discussed further infra, section III.B.

10

. As the dissent maintains, the Brady and Strickland claims are related, at least in part. In Section III.B., we conclude that defense counsel was not deficient in deciding not to call Beanie to testify. Beanie did not testify and impeachment material did not affect the trial. Our Strickland holding thus supports our Brady decision.

11

. Kyles also argues that knowledge of these statements would have led defense counsel to call and cross-examine Beanie regarding the garbage bags. For reasons stated infra, section III. B., we fail to see how Beanie’s testimony would have assisted Kyles.

12

. Between the time of Kyles’ conviction and the post-conviction hearing, the same trial court judge presided over the trial and conviction of Johnny Burns for the 1986 shooting death of Joseph "Beanie” Wallace. See State v. Burnes, 533 So.2d 1029 (La.Ct.App.1988).

13

. As Kyles has seized upon in these proceedings, prosecuting attorney Strider’s notes reflect that Beanie and Kyles retrieved Kyles’ car from the Schwegmann’s parking lot at 7:45 p.m. on Thursday.

14

. In contrast, the victim's husband explained that their finicky cats would not eat the same brands, causing them to purchase a variety.

15

. The effort to recast Kyles’ explanation as meaning "for sale” rather than "on sale" makes no sense in context. All brands of pet food were "for sale,” so that interpretation cannot explain why Kyles choose Kal-Kan and Nine Lives. Nor would it explain why he brought home more ' than a dozen cans at one time for two family pets. The common meaning of "on sale”— marked down — would provide such explanations, but was contradicted by the Schwegmann’s employee.

16

.Judge King attaches significance to the fact that Kyles' first trial resulted in a mistrial. The first jury deadlocked in this capital case in just four hours. We can only speculate as to the reason. . While some jurors may have seen the prosecution's case as weak, it is also possible that a juror's concerns about capital punishment promptly caused the intractable disagreement. We attach little significance to an event whose cause is unknowable, and rely instead upon our review of the record, as informed by the judg ments of the state trial court and district court. Whatever the proof offered in that trial, this transcript contains overwhelming evidence of guilt.

17

. No reasonable attorney, believing that Beanie framed his client for murder, would have expected Beanie to take the stand and — as the district court said — give a "Perry Mason confession.”

18

. "A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time." Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.

19

. In dicta in the direct appeal decision, the Louisiana Supreme Court stated that Beanie "was clearly a witness hostile to the defendant, and defense counsel was entitled to employ leading questions and to impeach the witness through any prior inconsistent statements." State v. Kyles, 513 So.2d 265, 273 (La.1987).

1

. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).