Juane Kennell v. Dave Dormire

873 F.3d 637, 2017 WL 4622312, 2017 U.S. App. LEXIS 20222
CourtCourt of Appeals for the Eighth Circuit
DecidedOctober 17, 2017
Docket16-2887
StatusPublished
Cited by9 cases

This text of 873 F.3d 637 (Juane Kennell v. Dave Dormire) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Juane Kennell v. Dave Dormire, 873 F.3d 637, 2017 WL 4622312, 2017 U.S. App. LEXIS 20222 (8th Cir. 2017).

Opinion

ARNOLD, Circuit Judge.

Some years ago, three men armed with guns stopped near the house of one Freddie Chew where Chew, Jeffrey Shockley, and Robert Stewart were gathered. A shootout erupted, resulting in. Chew’s death. Shockley and Stewart escaped and later identified Juane Kennell and Christopher White -as two of the three attackers. Kennell and White were tried separately in Missouri state court on charges of first-degree murder, first-degree assault, and armed criminal action, and both were convicted, thanks in large part, probably, to testimony from Shockley and Stewart. After the Missouri state courts upheld their convictions on direct and collateral review, Kennell and White separately petitionéd for habeas corpus relief in federal court under 28 U.S.C. § 2254. They each asserted, as relevant here, that the prosecution did not disclose material exculpatory evidence, in violation of Brady v. Maryland, 373 U.S. 83, 83 (S.Ct. 1194, 10 L.Ed.2d 2151963). The district court, 1 following a joint evidentiary hearing, denied both petitions. Kennell now appeals the denial of his § 2254 petition and a motion to reconsider the same, and we affirm.

When reviewing a district court’s denial of a.§ 2254 petition, we review the district court’s findings of fact for clear error and its conclusions of law de novo. White v. Steele, 853 F.3d 486, 489 (8th Cir. 2017). There are three components to a Brady violation:'the evidence at issue must be favorable to the accused, either because it is exculpatory or has impeachment value; the state must have suppressed the evidence, either willfully or inadvertently; and prejudice must have resulted. Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). Prejudice results if the suppressed evidence is material, which for Brady purposes occurs “when there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different,” or in other words, when the evidence “undermines confidence in the outcome of the trial.” Turner v. United States, — U.S. —, 137 S.Ct. 1885, 1893, 198 L.Ed.2d 443 (2017).

Kennell - first argues that the state violated Brady when it withheld evidence of an agreement between the state and Shockley requiring Shockley to - testify against Kennell and White in exchange for leniency on pending drug and weapons charges that Shockley was facing. As evidence of this agreement, Kennell produced an internal public-defender form supposedly drafted by Kennell’s first counsel, who noted that he had, learned that Shockley’s counsel had “negotiated a deal for Jeff Shockley to testify against [Kennell] ... as well as possibly another defendant, Christopher White.” Kennell also relies on notes drafted by Shockley’s counsel regarding a meeting that he had with the prosecutor that stated that ,the prosecutor had hinted at a “nolle,” or dismissal, of charges. He also called the district court’s attention to unsigned plea agreements or offers.

Kennell does not-contend that Shockley and the state entered into a written agreément, and the district court found there was no oral’ agreement, either, tacit or otherwise. The district court credited the testimony of Kennell’s- first counsel and Shockley’s counsel that the notation in the conflict form was simply incorrect, perhaps an erroneous conclusion based on negotiations to reach a deal that was never concluded. Shockley’s counsel also represented to the sentencing court in Shockley’s case that there existed no quid pro quo or secret deal for Shockley’s testimony against Kennell and White; in fact, neither he nor Shockley mentioned any agreement at Shockley’s sentencing. Shockley and the prosecutor in his case, moreover, testified that there was no agreement, and the district court explicitly found them both credible on. that point. Both Shockley’s attorney and the prosecutor also testified that Shockley would have likely received probation in any case as a matter of course in light-of his youth and unremarkable criminal history. In .addition, the state never dismissed .the charges after Shockley testified against Kennell and. White; and the state ultimately recommended that Shockley’s sentence be essentially consistent with the sentence that it had proposed in its first plea offer to Shockley, which did not require his testimony against anyone. Finally, the court credited Shockley’s and his attorney’s testimony that they merely hoped that Shockley’s cooperation would positively influence his sentence. On this abundant record, ye cannot say that the district court clearly erred in finding that there was no agreement that the government could have failed to disclose. Cf. White, 853 F.3d at 491.

Kennell’s second Brady argument is that the state should have disclosed that it had paid Shockley around two thousand dollars to put .him up in a hotel for about a week and then to move him and his mother into a different apartment. The state made these relocation payments because Shockley represented that he felt in danger because of his connection to the crimes at issue. We agree with the district court and the White panel that, assuming this was Brady information that the state should have disclosed, its nondisclosure does not undermine confidence in the verdict. See id. at 491-92. The state made these payments more than a year before Kennell’s trial, and nothing shows that they were made to encourage Shockley to change his testimony. Cf. United States v. Librach, 520 F.2d 550, 554 (8th Cir. 1975). And as the district court pointed out, the jury’s consideration of this information could have harmed Kennell by inviting testimony or speculation that Shockley had been threatened.

Kennell next maintains that the state should have disclosed that Shockley had agreed to testify against his own brother in an unrelated case because it showed Shockley’s willingness to testify against others to advance his personal interests. But as the district court found, on a sufficient record, there is no indication that Shockley was willing to testify against his brother to receive a benefit from the state. We therefore cannot say that the district court clearly erred in finding that no agreement with the state existed, so we discern no Brady violation here.

The next set of circumstances on which Kennell stakes his Brady claim involves the gun that Shockley used during the shootout. Shockley testified at Kennell’s trial that he disposed of the gun on the day of the shootout and never retrieved it. In fact, though, about ten days after the shootout, police found the gun in a car that Shockley, then seventeen, was driving. Shockley and Stewart, who was also in the car, were charged with minor drug offenses as a result, while another passenger was charged with possessing the gun. Ken-nell argues that the state suppressed information relating to the recovery of Shockley’s gun by the police, and, had he known about this information at trial, he could have impeached Shockley with it. He also maintains that the state should have corrected Shockley’s false testimony, and, since it did not, his conviction rested on fabricated evidence.

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Cite This Page — Counsel Stack

Bluebook (online)
873 F.3d 637, 2017 WL 4622312, 2017 U.S. App. LEXIS 20222, Counsel Stack Legal Research, https://law.counselstack.com/opinion/juane-kennell-v-dave-dormire-ca8-2017.