Kyles v. Whitley

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 11, 1993
• Docket: 92-3310
• Status: Published

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 92-3310

CURTIS LEE KYLES, Petitioner-Appellant,

versus

JOHN P. WHITLEY, Warden, LOUISIANA STATE PENITENTIARY, ETC., ET AL., Respondents-Appellees.

Appeal from the United States District Court for the Eastern District of Louisiana

( October 14, 1993 )

Before KING, HIGGINBOTHAM, and JONES, Circuit Judges.

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, 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, 113 S. Ct. 1710, 1714 (1993) (quoting Kotteakos v.

United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 1253 (1946)).

This standard controls all trial, as distinguish from structural,

1 Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963); Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984).

2 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, 111 S. Ct. 1246, 1249

(1991).

I

On December 7, 1984, a Louisiana jury convicted Curtis Lee

Kyles of first degree murder in 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 (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

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 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

Schwegmann 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

4 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 Smallwood, 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

5 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 "Pinkie" 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

Saladino 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

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. Pinkie was the mother of Kyles' four children, and he spent about four nights a week at her apartment on Desire Street.

6 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 chifforobe 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 cat 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 cat litter nor a

litter box, although a photograph of the chifforobe shows a bottle

labelled "Hart Flea." The victim's husband, Mr. Robert Dye,

testified at trial that his wife usually purchased several of

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 Schwegmann'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

7 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 car similar

to the victim's after the killing on Thursday, September 20.7

Defense witness Donald Powell stated that Beanie tried to sell him

the LTD on Friday for $300. Johnny Burns testified that Beanie

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 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, Pinkie'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 Pinkie Burns, Kyles' common-law wife. Defense

witnesses Cathy Brown and Carolyn Campbell said that they had

witnessed Beanie make sexual advances to Pinkie.

Kyles denied any involvement in the shooting of Mrs. Dye. To

explain the Schwegmann'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

9 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 it 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 case-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

10 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 cars 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

11 punishment." Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194,

1196 (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 (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 (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 Blackmun 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

12 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 (1985), or the

"harmless beyond a reasonable doubt" standard referred to in

Satterwhite v. Texas, 486 U.S. 249 (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

13 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

14 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 Smallwood 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.

15 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 their conviction that Kyles was the

gunman they saw at Schwegmann's.

16 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, Smallwood, 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

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

17 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.

18 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 Pinkie 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

Beanie 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

19 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

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

20 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 Schwegmann'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 car. 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

Schwegmann'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,

21 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.

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.

22 The memo stated, "[w]e have reason to believe the victim's personal

papers and the Schwegmann'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'

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.

23 apartment on Sunday night, September 23. 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, stooping 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

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).

24 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 (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

25 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

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.

26 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 Schwegmann'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

27 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.

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.

28 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 we 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

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 judgments of the state trial court and district court. Whatever the proof offered in that trial, this transcript contains overwhelming evidence of guilt.

29 the actual prejudice of a substantial and injurious effect on the

verdict. See Brecht v. Abrahamson, 113 S. Ct. 1710, 1722 (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 (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

30 defense from attacking 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 no 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

31 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 (5th 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

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.

32 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 made 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, 513 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

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).

33 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-court identifications

based upon a photographic lineup. We agree with the district

34 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.

KING, Circuit Judge, dissenting:

With deference to my distinguished and able colleagues in the

majority, I dissent from their affirmance of the district court's

denial of the writ of habeas corpus. For the first time in my

35 fourteen years on this court -- during which I have participated in

the decision of literally dozens of capital habeas cases -- I have

serious reservations about whether the State has sentenced to death

the right man. My reservations are directly relevant to the two

main constitutional claims that Kyles has raised -- an ineffective-

assistance-of-counsel claim20 and a Brady claim.21 Both claims are

governed by a standard that asks whether there is a "reasonable

probability" that, but for the constitutional infirmities at trial,

"the result of the proceeding would have been different." United

States v. Bagley, 473 U.S. 667, 682 (1985) (citing Strickland v.

Washington, 466 U.S. at 694). A "reasonable probability" is one

that is "sufficient to undermine confidence in the outcome." Id.

An exhaustive examination of the entire record in this case

was necessary to properly assess my degree of confidence in the

verdict. After such a review -- of both evidence introduced at

trial and the evidence that should have been presented -- I

conclude that Kyles has shown both that his trial lawyer was

constitutionally ineffective and that the State failed to disclose

material exculpatory and impeachment evidence. Individually, and

particularly when taken together, these two constitutional

violations have undermined my confidence in the jury's verdict.

Unlike the majority, I believe that, when the constitutional

20 See Strickland v. Washington, 466 U.S. 668 (1984). 21 See Brady v. Maryland, 373 U.S. 83 (1963).

36 violations in this case are considered, there is by no means

"overwhelming evidence" of Kyles' guilt.

I.

What follows is a detailed summary of the facts garnered from

the record,22 paying due deference to the Louisiana Supreme Court's

opinion on direct appeal, the state trial court's findings of fact

issued in denying Kyles' petition for state habeas relief, and the

federal district court's findings of fact issued in denying Kyles'

petition for federal habeas relief.23

A. Events leading up to trial

At approximately 2:00 p.m. on Thursday, September 20, 1984,

Dolores Dye, a sixty year-old white female, finished her shopping

at a Schwegmann Bros. grocery store in New Orleans.24 As she walked

to her car in the store's parking lot, she toted a number of bags

of groceries and her purse. According to police statements taken

from eyewitnesses, after Mrs. Dye placed some or all of her

groceries and her purse into the trunk of her red two-door Ford

LTD, a young black man approached her and a struggle ensued,

apparently over the keys to Mrs. Dye's car. The assailant wrestled

her to the ground. When Mrs. Dye screamed and attempted to escape,

the robber grabbed her arm, drew a small dark colored revolver from

22 Except as specifically noted, all of the evidence discussed herein was adduced and thoroughly explored at the state court post-conviction evidentiary hearing. 23 See 28 U.S.C. § 2254(d); FED. R. CIV. P. 52. 24 Schwegmann Bros. is a large chain of grocery stores, many of which are located in New Orleans.

37 his waistband, and fired it into her left temple, killing her

instantly.25 The gunman then took the keys from Mrs. Dye's hand,

ran to her car, and drove away.

There were a number of eyewitnesses to the crime. New Orleans

police took contemporaneous witness statements from at least six

persons, statements which were first provided in connection with

the state court post-conviction evidentiary hearing.26 Almost all

of the witnesses stated that the murderer was a black man with hair

variously described as "platted," "in platts," or "braided," as

distinguished from a combed-out "Afro" hair style. Certain

discrepancies in the various statements are notable.27

New Orleans police had no leads until the following Saturday,

September 22, 1984 -- two days after the murder -- when Joseph

25 The bullet was later determined to have been fired from a .32 caliber pistol. 26 Those statements were taken from Edward Williams, Isaac Smallwood, Lionel Plick, Robert Territo, Willie Jones, and Henry Williams. Of those persons, only Smallwood, Territo, and Henry Williams testified at trial. 27 Isaac Smallwood described Mrs. Dye's assailant as "a black man . . . [about 17 or 18[.] He was dark complexted [sic][.] He had a light moustache, and braided hair. The braids looked like they went down to his shoulders." Lionel Plick described the assailant as being "about in his 20's[.] He was about 5'10' tall, slender build . . . ." Robert Territo similarly described the murderer as "about twenty-eight years old, close to six feet tall, slim build, dark skinned . . . ." Willie Jones described Mrs. Dye's assailant as "a black male, about seventeen or eighteen years old[.] He was about five feet- nine inches tall and weighed about one hundred and forty pounds. He was dark skinned and his hair was platted." Henry Williams described the assailant as "a black male, about 19 or 20 years old, about 5'4" or 5'5", about 140 to 150 lbs., medium build, dark complexion, his hair looks like it was platted, it was short."

38 "Beanie" Wallace28 informed police investigators that he could

supply them with a valuable lead in the Dye murder regarding a man

only identified as "Curtis."29 Detective Ray Miller and his

supervisor, Sergeant James Eaton, met with Wallace at approximately

11:00 p.m. in the same general neighborhood where the murder

occurred. In a lengthy tape-recorded conversation30 that was first

made known to the defense during the state court post-conviction

proceedings, Wallace told Miller and Eaton that he (Wallace) lived

with Curtis' brother-in-law, whom Wallace repeatedly described as

his "partner."31 According to Wallace, on the previous day, Friday,

September 21, 1984, he had purchased a red Ford LTD from Curtis for

$400 at approximately 6:00 p.m. Wallace stated that Curtis had not

confessed to the murder and, in fact, had never even told Wallace

that the car was stolen. However, Wallace stated that his

relatives had informed him that the local newspapers and television

had reported the Dye murder and had also shown pictures of the red

Ford. Hence, Wallace stated, this discovery prompted him to

contact the police.32 In response to police questioning, Wallace

28 In his conversation with the police, Wallace assumed one of his various aliases, "Joseph Banks." 29 "Curtis" was later identified as Curtis Lee Kyles. 30 Wallace was not aware that the conversation was being recorded. 31 That person was later identified as Johnny Burnes, the brother of Curtis Lee Kyles' common-law wife or girlfriend, "Pinkie" Burnes. 32 In their habeas corpus pleadings, the State has claimed that Wallace had previously served as a police informant; however, the tape-recorded conversation reveals that the New

39 described Curtis as a tall, "real skinny" black man, approximately

twenty-five years old, "with a bush" hair style.33

Wallace also claimed that on the same Friday, he, Curtis, and

Curtis' brother-in-law had unloaded numerous bags of Schwegmann

Bros.'s groceries and a woman's brown purse from the stolen red

car's back seat and trunk. According to Wallace, they then placed

the items in the home of Curtis' common-law wife, "Pinkie" Burnes,

where Curtis frequently stayed.34 Wallace claimed that they later

went to Schwegmann Bros.'s parking lot at approximately 9:00 p.m.

on Friday in order to retrieve Kyles' automobile, which Wallace

Orleans police not only were unaware of Wallace's true name but also of his criminal history. In response to police questioning, Wallace claimed that he had been arrested only once, for "fighting." In fact, as was revealed at the state court post- conviction hearing, Wallace had been convicted as an accessory to another robbery/murder in New Orleans in the early 1980s. The habeas record also contains a transcript of a police interview with Wallace that was recorded four days after Curtis Lee Kyles was sentenced to death for the murder of Dolores Dye. In that statement, Wallace confesses that he participated in an unrelated 1984 robbery/murder of an elderly woman in her New Orleans home. Wallace admitted that it was his handgun that was used to kill the other woman, but denied that he was the triggerman. Wallace was never prosecuted for his involvement in that murder. 33 At one point in the conversation, Wallace described Curtis as wearing a "bush" generally; he also specifically described Curtis as wearing a "bush" on the day on which Curtis allegedly sold the car to Wallace. In response to specific police questioning, Wallace also stated that Curtis would sometimes wear his hair in plaits. 34 At trial, numerous witnesses referred to the relationship as a common-law marriage. Kyles is also the father of five of Pinkie Burnes' children. Although he often spent the night at other locations, Kyles spent a substantial portion of his time before his arrest cohabitating with Pinkie Burnes at the apartment which she leased.

40 described as an orange Ford.35 Wallace further stated that "I

betcha I can get in a lot of trouble with this shit, huh," to which

the police officers responded by repeatedly assuring Wallace that

he would not be arrested and that, to the contrary, Wallace had

done "the right thing." Wallace stated that his fear stemmed from

the fact that he had been seen driving Mrs. Dye's car on Friday

night through the French Quarter of New Orleans. Wallace also

admitted that he had changed the license plates on Mrs. Dye's car.36

Later in the conversation, Wallace became more confident, reminding

the police that "I ain't doing all this for nothing, you know."

The police responded by repeatedly promising that Wallace would not

lose the $400 that he claimed he paid for the car as a result of

the police's confiscation.

Also noteworthy in the tape-recorded conversation was

Wallace's eagerness to help the police build a case against Curtis

Lee Kyles. Wallace stated that Kyles regularly carried two

handguns, a .32 and a .38 caliber. Wallace admonished Detective

Miller that "if you can set him up good, you can get the same gun"

35 At trial, there was evidence that Kyles in fact owned a rust-colored Mercury. 36 Although the State, at trial and afterwards, has consistently disputed that Wallace in fact changed the plates, the tape recording makes it clear that Wallace did change the plates. In response to a question from Detective Miller asking "[y]ou changed the plates on it, huh," Wallace sarcastically responded "[y]ou never know." Later in the conversation, Detective Miller repeatedly informed other police officers that "[h]e changed the plate" -- statements in which Wallace fully acquiesced. Furthermore, as discussed, infra, in a subsequent conversation between Wallace and the chief trial prosecutor, Cliff Strider, Wallace again admitted that he had changed the plates.

41 that was used to kill Mrs. Dye. (emphasis added). Wallace also

accompanied the police to Schwegmann Bros., where Wallace showed

police the location where Curtis had supposedly parked his car,

which was not retrieved until the day after the murder, according

to Wallace. Wallace specifically pointed out that the car was

parked "on the same side where the woman was killed at." He also

claimed that Curtis "had a brown pocketbook" or "purse"37 that he

retrieved from the bushes at Schwegmann Bros. Wallace pointed to

bushes where Curtis had allegedly retrieved the purse. Wallace

claimed that "he's [Curtis] got it . . . at home [in a] chifferrobe

[sic]." Wallace informed Sergeant Eaton that Curtis' "garbage goes

out tomorrow" and "if [Curtis] is smart he'll put [the purse] in

[the] garbage."38

37 Wallace originally referred to it as "pocketbook" but, when asked by the police, stated that it was in fact a "purse . . . like a purse." I observe that the record contains a photograph of a single brown leather woman's handbag, which was identified as belonging to Mrs. Dye. 38 On the tape itself, Sergeant Eaton actually makes the statement -- quoting Beanie Wallace -- in response to a question from Detective Miller. Wallace's actual statement is inaudible due to intense static. Eaton's quoting Wallace, however, is apparent from the tape. Moreover, at the state court post- conviction evidentiary hearing, Eaton testified as follows in response to questions from Kyles' state habeas counsel:

Q. Do you have any recollection now as to why you [said] you had reason to believe the victim's [personal effects] would be in the trash?

A. I sure do.

. . .

Q. What it that?

A. . . . The subject Detective Miller had interviewed

42 Wallace was then taken to police headquarters where he was

again interviewed by New Orleans police, this time by Detective

John C. Miller.39 The written statement, which was not disclosed

by the State until the state court post-conviction proceedings,

indicates that the interview began at 12:55 a.m., Sunday, September

23, 1984. The statement repeats the essentials given earlier, but

one portion, which concerns Wallace's version of events on Friday

night, merits full quotation:

Curtis had called his brother-in-law, Claude Burn[e]s, they call him John. I took a ride with Claude over to Curtis' house on Desire Street. We went inside and Calude [sic] went in the back of the house to talk to Curtis' old lady[,] Pinkie [Burnes, Johnny Burnes' sister]. Then he came and we took another ride to Mazant St. That's where Curtis was with the car. . . . [Curtis] was standing next to the car, [and] he asked me if I wanted to buy it and he gave me the keys. See, I was supposed to buy his car, but he said that he wanted to sell me the [red] ford because he was going to give it to his old lady, but he got mad at her and wanted to sell it. I was going to give him the four hundred dollars for his car but I like the ford better so he sold me that

[i.e., Wallace, assuming the alias "Joseph Banks"] see[n] Curtis Kyles with a purse. I had asked him [about] the disposition of the purse, what [did] Curtis do with the purse. . . . He says, "He probably threw it away." . . . He suggested that probably he'd throw it in his garbage . . . .

Q. When you say "he," you mean Beanie?

A. Beanie had suggested that Curtis probably would throw it away in his garbage. I made the statement, to my knowledge, which is transcribed, telling Detective Miller when he asked me what he did say -- Detective Miller had removed himself from the car and was searching the area. He [Miller] asked me what did he [Beanie] say, and I said "He said he'd probably throw it in the garbage . . . ." 39 Detective John C. Miller and Detective Ray Miller are apparently different persons.

43 one. He asked me to help him unload the ford, because he had grocery's in the Schwegmann bags in the trunk and on the back seat. We took the spare tire out and the jack and put it in his car. After we took everything out he took a brown purse out of the ford, from the front seat. He said that it was his old lady's purse. Then I got in the ford and I drove over back to his house on Desire St. [H]e rode with some friends of his to his house and we met on Desire by his house. That's when I helped him unload his car and bring the grocery's inside his house. . . . After that I just left. [sic passim].

Wallace then reiterated his claim that approximately three hours

later, at 9:30 p.m. on the same Friday night, Curtis "called his

brother-in-law" at the residence "where I stay and I went for the

ride. We went to Curtis' house and picked him up and went back to

Schwegmann . . . [to] pick up his car, because he said that it

didn'[t] want to start. . . . It was in the Schwegmann's parking

lot . . . [where] he picked up a pocket book he had by the

building. [I]t was a big brown pocket book."

In a third pre-trial interview -- between the State's chief

trial prosecutor, Cliff Strider, and Wallace -- Wallace's version

of the events of Friday, September 22, 1984, had changed again.40

Like the other two statements, this one was not disclosed to the

defense until Kyles' conviction and death sentence had become

final. Rather than allegedly picking up Curtis Kyles' car from the

Schwegmann Bros.'s parking lot on Friday, Wallace claimed that he,

40 The precise date of this interview is unknown, but apparently it occurred around the time of the two trials in late 1984. It is undisputed that the interview in fact happened. At the state court post-conviction hearing, Kyles' counsel offered into the record the five pages of notes, which were discovered in the New Orleans District Attorney's file and which were identified as having been written by the State's chief trial prosecutor, Cliff Strider.

44 Curtis, Johnny Burnes, and another man (identified as "Black")41

drove to the supermarket parking lot on Thursday, in the early

evening.42 That is, in the third interview, Wallace claimed that

they retrieved Kyles' car during the early evening of the same day

Mrs. Dye was murdered. Strider's notes then recount that at

approximately 7:45 p.m.,43 the group drove to "Black's house" where

Kyles, Black, and Johnny Burnes supposedly left Wallace in the car

and proceeded to go inside. Approximately ten minutes later,

according to Wallace, the others returned carrying groceries and a

brown purse. The group then returned to Pinkie Burnes' apartment,

where the groceries were unloaded once again. After a night of

drinking and smoking marijuana, the group allegedly broke up around

midnight.

The next portion of Strider's notes are subtitled "Friday" and

begin at "11:00," presumably 11:00 a.m. from the context of the

notes. It is then, according to this version of Wallace's

statement, that Curtis allegedly sold the red Ford to Wallace. The

notes state that Wallace spent the remainder of the day and most of

the night driving around New Orleans. Wallace returned to the home

41 At trial, one of the defense witnesses was named Kevin Black, who, the prosecution argued, assisted Kyles, Wallace, and Johnny Burnes in retrieving Kyles' car from Schwegmann Bros. 42 Strider's notes indicate that the group drove to Schwegmann Bros. between 5:00 and 7:30 p.m. 43 Strider's notes do not specify a.m. or p.m., but presumably refer to 7:45 p.m., as is apparent not only from the context of the notes but also from a reference to the term "dark" written next to "7:30-7:45." Furthermore, Mrs. Dye was not murdered until 2:20 p.m. on Thursday.

45 at which he was staying at approximately 4:00 a.m. Saturday

morning.

The next portion of the notes are subtitled "Saturday" and

begin at 10:00 a.m. Wallace recounted that he changed the license

plates on the car that morning. By that afternoon, Strider's notes

state, "B[eanie] put everything together." He then "called Miss

Williams," who was apparently a contact at the New Orleans Police

Department. By approximately 9:00 p.m., Wallace met with Detective

Ray Miller and Sergeant Eaton -- which comports with the contents

of the undisclosed tape (discussed supra). Strider's notes then

refer to the second police interview that ended early Sunday

morning, at approximately 2:30 a.m. (discussed supra).

The next portion of Strider's notes are subtitled "Sunday" and

begin at noon (12:00 p.m.), when the notes refer to a call from

"Miss Williams" to Wallace. Williams "asked about gun -- B[eanie]

said he will find out -- B[eanie] will call back." The notes then

state that Wallace went to Pinkie Burnes' apartment from

approximately 2:00-5:00 p.m. After leaving for approximately two

hours, Wallace returned for a "Sunday dinner" at Pinkie Burnes'

apartment; a number of other persons attended the dinner, including

Curtis Kyles and Kevin Black.44 At approximately 9:30 p.m. on

44 Curiously, the State has consistently disputed whether in fact such a "dinner party" took place. However, Strider's handwritten notes support Kyles' claims about the dinner party. Strider's notes state that Wallace recounted that on Sunday, September 23, 1984, Wallace "[w]ent to Pinky's about 7 [o'clock]." The statement recounts that Wallace and various other people, including Kyles and Pinkie Burnes, ate dinner. "[A]bout 9:00" Beanie left. I observe that at trial, police Detective John Dillman, who was in charge of the New Orleans

46 Sunday night, Wallace departed and met with Detective Miller at

approximately 10:00 p.m. The two drove around "trying to pass time

till [the] garbage [was] put out" at Pinkie Burnes' apartment; they

"circled road till about 3:00 a.m." As will be discussed in

greater detail below, the New Orleans police picked up the garbage

before dawn.

Included in the state habeas record are New Orleans Police

Department memoranda concerning the seizure of the garbage in front

of Pinkie Burnes' apartment in the early morning hours on Monday,

September 24, 1984. These documents were not disclosed to the

defense until the state court post-conviction proceedings. One of

those memoranda, from Sergeant James Eaton to Sergeant Dave

Morales, states that "[w]e have reason to believe that the victims

[sic] personal papers and the Schwegmann's bags will be in the

trash." As discussed supra, during the original conversation

between Wallace and the police, Wallace informed Sergeant Eaton

that, "if [Curtis] is smart, he'll put [Mrs. Dye's purse] in the

garbage." At the state habeas evidentiary hearing, Sergeant Eaton

admitted that the phrase "we have reason to believe" used in the

memo specifically referred to Beanie Wallace's "tip" about the

garbage. After police seized the garbage, a brown handbag

containing various personal effects of Mrs. Dye was discovered in

Police Department's investigation of the Dye murder, testified under oath that he knew nothing of the defense's claim that Beanie Wallace came to Pinkie Burnes' apartment for a Sunday dinner. Assistant DA Strider, who was present during that testimony, said nothing in response to Dillman's answer.

47 the rubbish, along with numerous Schwegmann Bros.'s bags.

Curtis Lee Kyles was arrested outside Pinkie Burnes' apartment

late Monday morning. Police proceeded to execute a search warrant

of the residence. They recovered a .32 caliber revolver, which was

later determined to be the murder weapon, hidden behind the stove

in the kitchen. Police also recovered various types of ammunition,

including sixteen .32 caliber shells that were of the same brand as

the shells in the pistol. Also recovered was what appeared to be

a home-made holster for a pistol in the wardrobe in the bedroom.45

Under the sink, the police discovered eight Schwegmann Bros.'s

brown paper bags. In a kitchen cabinet, police also seized cans of

three popular brands of dog and cat food similar to the brands

normally purchased by Mrs. Dye (according to the trial testimony of

Mrs. Dye's husband). Mrs. Dye's fingerprints were not found on any

of the cans of pet food. Kyles' prints were not found on the .32

caliber revolver, the brown handbag, or in or on Mrs. Dye's red

Ford LTD. However, Kyles' prints were found on a Schwegmann

Bros.'s small receipt found in the red Ford LTD, although in the

process of lifting the fingerprints, chemicals used by the police

destroyed the face of the receipt.46 A second Schwegmann Bros.'s

receipt was also found in the trunk of Mrs. Dye's car, although

Kyles' fingerprints were not found on that receipt.

45 This wardrobe possibly was the "chifforobe" to which Wallace referred in his September 22 statement. 46 The police failed to record the contents of the printed matter on the receipt.

48 B. The trials

In late November of 1984, Curtis Lee Kyles was put on trial

for the capital murder of Dolores Dye. Kyles professed his

innocence and supplied an alibi -- claiming that he was picking up

his children from school -- and offered supporting witnesses. The

entire theory of the defense was that Joseph "Beanie" Wallace had

framed Kyles by planting evidence in Pinkie Burnes' apartment and

garbage. Wallace's alleged motive was three-fold: first, that

Wallace, who admittedly had been seen in possession of the victim's

car, wished to shift the blame to Kyles; second, that Wallace had

romantic aspirations regarding Kyles' common-law wife, "Pinkie"

Burnes; and, third, that Wallace wished for reward money. The

heart of the State's case was positive eyewitness testimony from

four persons who were at the scene of the crime, although the State

also relied on a number of pieces of circumstantial evidence.47

Notably, Joseph "Beanie" Wallace did not testify as a witness for

either the defense or the prosecution. After four hours of

deliberation, Kyles' jury became deadlocked on the question of

guilt, and a mistrial was declared.

In early December, a second trial occurred. Again, the heart

of the State's case was the unshaken testimony of four eyewitnesses

who positively identified Kyles in front of the jury. Again, the

theory of the defense was that the eyewitnesses were mistaken in

47 Police further testified that three of those eyewitnesses had also picked Kyles out of a pre-trial photo line-up.

49 their identification of Kyles. Further, as the Louisiana Supreme

Court recounted in its opinion on direct appeal:

The defense presented several witnesses who saw Wallace in a red car similar to the victim's about an hour after the killing. Other witnesses testified that Wallace had attempted to sell the car shortly after the murder. One witness observed Wallace stooping down near the stove in defendant's home the day before the gun was found behind the stove by the police. There was further testimony that Wallace and defendant resembled each other. Additionally, the defense presented testimony that Wallace was very romantically interested in Martina "Pink[ie]" Burns, defendant's [common-law wife] and the mother of defendant's [five] children.

Finally, defendant took the stand and testified without contradiction that he had no prior convictions. Denying any involvement in the shooting, he explained his fingerprints on the cash register receipt [found in Mrs. Dye's car] by asserting that Wallace had picked him up in a red car [on Friday, September 21, 1984] and had taken him to Schwegmann's, where he purchased transmission fluid for his car and a pack of cigarettes. He suggested that the receipt may have fallen from the bag when he removed the package of cigarettes. . . .[48] [T]here was also testimony that defendant's family kept a dog and cat and often fed stray animals in the neighborhood.

On rebuttal, the prosecutor had Wallace brought into the courtroom. Each of the eyewitnesses, after viewing Wallace standing next to defendant, reaffirmed previous identifications of defendant as the murderer.[49]

48 I have been unable to locate the receipt in the record, although the statement of the facts indicates that it was admitted as a State's exhibit at trial. I observe that, at trial, the judge repeatedly referred to the receipt as "a small piece of paper." Furthermore, at oral argument, Kyles' habeas counsel represented to the court -- without contradiction by the State -- that the receipt was approximately 2" x 2". 49 The state court neglected to mention that the prosecution also offered a blown-up photograph taken at the crime scene soon after the murder. Prosecutors argued that a medium to dark colored automobile in the background of the photograph was Kyles' own car. Prosecutors repeatedly argued during cross-examination of defense witnesses that Kyles had left his own car at Schwegmann Bros. on the day of the murder and had retrieved it later. The prosecution offered no evidence or witnesses to

50 Kyles, 513 So.2d at 266-67.

Once again, Wallace did not testify for either the State or

defense.

C. Evidence that has subsequently come to light

During the state court post-conviction evidentiary hearing,

Kyles' able habeas counsel, who replaced the defense attorney who

had handled the trial and direct appeal, offered a number of items

of new evidence that were discovered in the files of the New

Orleans police and District Attorney's Office. It is undisputed

that this evidence was not made available to the defense at the

time of trial. Such evidence may be summarized as follows:

i) Six contemporaneous eyewitness statements taken by police following the murder (discussed supra);

ii) A tape recording of the lengthy conversation between Wallace and New Orleans police officers that occurred late in the evening on Saturday, September 22, 1984 (discussed supra);

iii) A typed and signed statement given by Wallace to another New Orleans police detective early in the morning of Sunday, September 23, 1984 (discussed supra);

iv) Hand-written notes of an interview of Joseph "Beanie" Wallace conducted by Cliff Strider, the chief trial prosecutor (discussed supra); and

v) A computer print-out of license plate numbers on cars parked in the Schwegmann Bros.'s parking lot recorded by New Orleans police at approximately 9:15 p.m. on September 20, 1984, the night of the murder.50

support this argument besides the blown-up photograph. 50 Another item of somewhat less significance was revealed at the state court post-conviction evidentiary hearing -- a copy of an internal New Orleans police memorandum dated "9-20-84" (i.e., Thursday, the same day as the murder). The memo states

51 In support of Kyles' Brady claim,51 Kyles' state habeas counsel

offered a copy of the lengthy pre-trial motion filed by Kyles'

trial counsel, who requested that the State disclose any

exculpatory or impeachment evidence. Witness statements were among

Kyles' requests. In its response to that motion, the prosecution

based its denial on the claim that there was "[n]o exculpatory

evidence."

II.

On appeal from the district court's denial of the writ of

habeas corpus, Kyles raises two main claims: the aforementioned

Brady claim and a somewhat related ineffective-assistance-of-

counsel claim. I will address these two issues in turn. However,

because the critical issue of "materiality" in this court's Brady

analysis is governed by a standard identical to that governing the

that a New Orleans citizen who had apparently heard about the murder reported that, at approximately 7:00 p.m., a "bright red 1980-1983 Thunderbird" in the French Quarter drove into a parking meter and then swerved away. (Mrs. Dye's car was a bright red 1980 Ford LTD, which strongly resembles a Thunderbird; indeed, as discussed infra, at least one of the eyewitnesses to the murder originally described Mrs. Dye's car as a Thunderbird.) The citizen described the driver as "a negro male, 25 years of age, 5'10" - 5'11" with short hair." The driver stopped and asked the citizen if he wanted a ride, which was declined. The citizen observed a "small bluesteel [i.e., dark metal, as opposed to nickel] revolver on the seat." Notably, in his various statements to police, Beanie Wallace admitted driving Mrs. Dye's car around New Orleans, including the French Quarter, although he claimed on Friday rather than on Thursday night. Wallace also stated that at one point that weekend he "pulled out and hit [a] fence -- scratched on the passenger side." As discussed infra, Wallace's chronology of events between Thursday and Sunday significantly changed in each of his various statements given to police. 51 Brady v. Maryland, 373 U.S. 83 (1963).

52 "prejudice" prong of the two-prong ineffectiveness analysis

required by Strickland v. Washington,52 I will address the Brady

"materiality" and Strickland "prejudice" issues together after

separately analyzing the first prongs of the Strickland and Brady

standards.53

A. Strickland's first prong: Was trial counsel deficient?

Under Strickland v. Washington, in order to prevail in raising

a claim of ineffective assistance of counsel, a criminal defendant

must make two separate showings: first, that counsel was

"deficient," that is, that counsel did not provide "reasonably

effective assistance"; and, second, that trial counsel's deficient

performance "prejudiced" the defendant. See id. 466 U.S. at 687-

98. As noted, I will limit my discussion here to the first prong

of Strickland.

Of all of Kyles' specific allegations of ineffective

assistance on the part of his solo trial counsel, Martin Regan, I

believe that counsel was deficient in only one way, albeit a

particularly important way: Regan not only failed to call Joseph

52 466 U.S. 668 (1984). 53 Compare United States v. Bagley, 473 U.S. 667, 682 (1985) ("The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A `reasonable probability' is a probability sufficient to undermine confidence in the outcome."), with Strickland v. Washington, 466 U.S. at 694 ("The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.").

53 "Beanie" Wallace as a defense witness, but even failed to interview

him. At the state court post-conviction evidentiary hearing, Regan

repeatedly testified that the only reason he failed to call

"Beanie" Wallace to the stand at trial or even interview him was

because Regan mistakenly believed that, under Louisiana evidence

law, he would have had to vouch for Wallace's credibility -- and

thus could not impeach Wallace or ask him leading questions --

unless Regan could show both surprise and hostility on Wallace's

part. With respect to this claim, the state trial judge found

that:

Much has been made of Mr. Regan's opinion that he failed miserably in his defense of Mr. Kyles when he chose not to call Joseph Wallace as a witness. Mr. Regan stated that he incorrectly viewed the law as saying that if Joseph Wallace was called as a [defense] witness he would have had to vouch for his credibility unless he could have shown hostility and surprise on the part of Mr. Wallace at the time that Mr. Wallace testified. This was the law of Louisiana at the time of both Mr. Kyles' trials. . . . The law of Louisiana has subsequently been amended . . . But at the time of Mr. Kyles' trial, under existing law, Defense counsel certainly made an intelligent and strategically correct decision not placing Mr. Wallace on the stand as a defense witness. (emphasis added).

The federal district court agreed that Regan's failure to call

Wallace was a reasonable strategic decision in view of Louisiana

law as it then existed.54 I reject the conclusions of both the

54 The district court disagreed with the state trial court's conclusion that both hostility and surprise were required. However, the district court questioned whether Wallace would have been a "hostile" witness under Louisiana law. The district court based this conclusion on the testimony of Cliff Strider, the chief trial prosecutor, who testified at the state court post- conviction evidentiary hearing that "I told him [Regan] that I didn't think Beanie would get hostile. I didn't think Beanie would be upset." Thus, the district court held, "this court

54 state trial court and federal district court. As I discuss below,

I accept instead the conclusion of the Louisiana Supreme Court.

At the time of trial, the plain language of the applicable

state evidence rule was as follows: "No one can impeach his own

witness, unless he has been taken by surprise by the testimony of

such witness or unless the witness shows hostility toward him, and

even then, the impeachment must be limited to evidence of prior

contradictory statements." LOUISIANA REVISED STATUTES 15:487 (emphasis

added). Thus, as a matter of state law, the state trial court was

mistaken. With respect to the federal district court's additional

conclusion that Regan made a "strategic" choice not to put Beanie

Wallace on the stand on the ground that he likely would not prove

to be "hostile," I would reject this finding as clearly erroneous.

My basis for rejecting the federal district court's finding is

the opinion of the Louisiana Supreme Court in State v. Kyles, 513

So.2d at 273: "Wallace 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. . . . Defendant's argument that he would have been

required to show both hostility and surprise is clearly wrong."55

believes that Regan made a tactical decision that was reasonable and well advised at the time that he decided not to place Beanie on the stand." 55 In making these observations, the state high court was not addressing a claim of ineffective assistance of counsel. Rather, on direct appeal, Regan (who remained Kyles' counsel until his conviction was affirmed) raised an unrelated claim in which he coincidentally displayed his misunderstanding of

55 In reliance on the opinion of the highest expositor of state law in

Louisiana, I believe that Regan was deficient in failing to call

Wallace to the stand because of a "clear" misunderstanding of a

single, basic rule of evidence. Regan's entire strategy at trial

was to argue that Wallace framed Kyles; his failure to call

Wallace, who was present at trial and available to testify, was

anything but "strategic."

The majority, agreeing in part with the district court, holds

that Kyles' trial counsel made a "strategic" choice not to call

Wallace to testify (or even interview him) because Wallace was a

potential "loose cannon" whose testimony would have been a "double-

edged sword" because Wallace "would almost certainly would have

inculpated Kyles." Majority Opinion, slip op., at pp.32-33, ___

F.2d at ___. Thus, the majority reasons, trial counsel was not

deficient under Strickland. I can only response by agreeing with

the majority that I have no doubt that Wallace would have attempted

to inculpate Kyles. But that is of no moment. The entire purpose

of calling Wallace would have been to expose his leading role in

the development of the prosecution's case, to impeach him and, in

the process, to accuse him of framing Kyles and suggesting that

Wallace had some role in the murder. One would hardly expect

Wallace not to have attempted to inculpate Kyles. The majority

simply misses the point.

Louisiana evidence law on the issue of hostile witnesses called by a party. The Louisiana Supreme Court, in rejecting that claim, noted Regan's "clear" misunderstanding of the law. The Louisiana Supreme Court's conclusion applies just as forcefully to the ineffectiveness claim.

56 B. The Brady claim: Suppression and Favorableness?

A Brady violation occurs where: (1) the government suppressed

evidence; (2) the evidence was "favorable" to the defendant; and

(3) the evidence was "material" to issues at trial. See

Pennsylvania v. Ritchie, 480 U.S. 39 (1987); Bagley, supra; United

States v. Agurs, 427 U.S. 97 (1976); Brady, supra. Favorable

evidence includes both exculpatory and impeachment material.

Bagley, 473 U.S. at 676. The Brady doctrine applies equally to

situations where a specific request, general request, or no request

is made by the defense for particular favorable information. Id.

at 682; see also Kirkpatrick v. Whitley, 992 F.2d 491 (5th Cir.

1993). Furthermore, the Brady materiality standard applies equally

to undisclosed evidence relating to the guilt/innocence and

punishment stages of trial, see Brady, 373 U.S. 83 (1963),

including in capital cases, James v. Whitley, 926 F.2d 1433, 1437

(5th Cir. 1991).

After an evidentiary hearing at which the defense offered all

of the above-mentioned items of evidence that were not disclosed at

trial, the state trial court, in its findings of fact and

conclusions of law, rejected Kyles' Brady claim:

The Court finds no merit to [sic] any of the Defense allegations . . . regarding violations of Brady versus Maryland . . . . Assuming, arguendo, that certain background information concerning and statements of Joseph Wallace were withheld by the State[,] this Court finds that this [was] not ultimately prejudicial to the Defense. The Court concludes that none of the evidence would have ultimately assisted the Defense to any significant degree in this case. It is important to note that Joseph Wallace was never called as a witness by the State. As such, there never could be an attempt by the

57 defense to attack the character and credibility of Mr. Wallace. Hence, the State never sought to vouch for the credibility of Mr. Wallace. As such, there would be no basis for the attempted impeachment of Mr. Wallace by the Defense. It should be further noted that the Defendant was given ample opportunity, and successfully placed before the jury through credible evidence, the basic premise of the Defense's case, that Joseph Wallace was in fact the killer of Mrs. Dye and that Joseph Wallace "framed" the defendant for [sic] this killing. The Defense even went so far as to present evidence of possible bias and motive[,] i.e., Wallace's desire to gain the affection of Curtis' Kyles' female acquaintance -- by having Kyles convicted of this crime and thereafter incarcerated. The jury was more than adequately exposed to the possibility that Joseph Wallace was in fact the killer. They were aware that he was in fact in possession of the victim's car shortly after her murder. The jury was likewise given the opportunity to see Mr. Wallace in person as he was brought into open court at the behest of the State. He was made to literally stand before the jury. At the same time the jury was afforded the opportunity to compare his height, his size, his physical characteristics to those of the defendant. . . . This Court finds that the new evidence . . ., even if presented to another jury, would not in any way lead to a different outcome of this case.56

The federal district court likewise rejected Kyles' Brady

claim. The court held that none of the alleged Brady evidence even

met the second prong of the Brady test -- that is, that such

evidence be "favorable" to the defense on the issues of guilt or

punishment. The September 22, 1984 tape-recorded conversation

between Wallace and New Orleans police, according to the district

court, "does not exculpate Kyles." The court also stated that

Kyles' characterization of the contents of the tape "is not a fair

56 The state trial court failed to address many particulars of Kyles' multi-faceted Brady claim, which were raised either in Kyles' state habeas petition or at the extensive state post- conviction evidentiary hearing. See infra. The Louisiana Supreme Court, by a vote of five to two, affirmed the trial court's denial of habeas relief.

58 rendition of the material contained in the tape itself."57

With respect to the police's computer print-out of the license

numbers in Schwegmann's parking lot on the night of the murder, the

district court held that because a New Orleans police officer had

testified at the state court evidentiary hearing that the list was

incomplete, the list "would have carried little if any exculpatory

weight and bears so little on materiality that it fails to fit the

57 In reaching this conclusion, the court noted, "Kyles alleges that had he had the tape recording he would have learned that:

1) Beanie knew in what area of Schwegmann's parking lot the murder was committed; 2) Beanie had said that Kyles wore a `bush' hairstyle in contrast to testimony that the killer had `plaits'; 3) Beanie asked for $400 for the purchase price of the victim's car and was assured by police that he would be paid; 4) Beanie suggested to police that Kyles might put incriminating evidence in his garbage; and 5) Beanie feared apprehension because he had been seen driving the Dye automobile."

I reject the district court's conclusion that Kyles' "characterization" of the contents of the tape "is not a fair rendition of the material contained in the tape itself." I have repeatedly listened to the tape, have compared it to the transcript of the recording offered by Kyles' counsel, and agree with Kyles' characterization regarding each of the above five points. The characterization of whether certain undisclosed evidence is "favorable" to the defense (a prerequisite to a finding of "materiality" under Brady) is a mixed question of fact and law, which is reviewed de novo on appeal, rather than a pure factual finding. See United States v. Rogers, 960 F.2d 1501, 1510 (10th Cir. 1992) (citing cases); United States v. Phillip, 948 F.2d 241, 250 (6th Cir. 1991); United States v. Rivalta, 925 F.2d 596, 598 (2d Cir. 1991). Thus, the district court's legal conclusion is owed no deference and is reviewed de novo on appeal. Even assuming that the district court's conclusion regarding Kyles' "characterization" of the contents of the tape recording were a "pure" finding of fact, I would reject that finding as clearly erroneous. Finally, I observe that the majority does not appear to dispute Kyles' characterization of the contents of the tape recording.

59 Brady mold." With respect to the police memoranda regarding the

garbage collection, the court stated that even if Beanie were the

source of the tip about the garbage, "the bags that were picked up

were identical, which renders improbable, if not impossible, the

defense's argument that Beanie planted a bag of garbage."

Regarding Smallwood's inconsistent witness statement, the district

court conceded that Smallwood's trial testimony appeared

"embellished," but summarily held that there was no "prejudicial

error." After stating that "[a] complete reading of the record

convinces this court of Kyles' guilt and that he received a fair

trial," the district court rejected Kyles' Brady arguments.

On appeal, Kyles once again advances his Brady claim. Kyles

points to: i) Beanie's various undisclosed contradictory

statements; ii) Isaac Smallwood's contemporaneous witness statement

that conflicted with his trial testimony; iii) the computer print-

out of license plate numbers; and iv) the police internal memoranda

regarding the seizure of garbage.

As an initial matter, I address the contention that has been

made by the state trial court judge and the State pertaining to the

fact that the trial prosecutors -- as opposed to the New Orleans

police -- may not have been aware of some of this evidence at the

time of trial. If this were indeed true,58 it would nevertheless

58 I find the State's claim that the various items in the police file were not even made available to the prosecution until long after trial to be highly implausible; indeed, the State's claim here suggests that the State is not being candid with the court. The State has claimed that the various statements of the eyewitnesses, the three statements of Beanie Wallace, and the police memoranda were not available -- to the prosecution or

60 be irrelevant. The Brady doctrine is not limited to prosecutors;

rather, it includes all members of the "prosecution team," which

includes all law enforcement officers who have worked on the case

and thereby contributed to the prosecutorial effort. See Schneider

v. Estelle, 552 F.2d 593, 595 (5th Cir. 1977) ("The petitioner . .

. allege[s] that Nicholson was a state law enforcement officer. As

such, he was a member of the prosecution team."); see also United

States v. Buchanan, 891 F.2d 1436, 1442-43 (10th Cir. 1989) (citing

cases); United States v. Endicott, 869 F.2d 452, 455 (9th Cir.

1989) (citing cases); United States ex rel. Smith v. Fairman, 769

F.2d 386, 391 (7th Cir. 1985). In a similar vein, the good faith

or bad faith of the prosecution has no bearing on the due process

required by Brady. Brady, 373 U.S. at 87. Accordingly, "whether

the nondisclosure was a result of negligence or design, it is the

responsibility of the prosecutor." Giglio v. United States, 405

U.S. 150, 154 (1972).

defense -- until long after trial because of "slow typing" by police typists. See State's Brief, at p. 29. The claim was repeated at oral argument. However, the very documents that supposedly were typed long after the fact entirely belie the State's claim. All of the contemporaneous eyewitness statements, which were typed, were signed and dated by the various eyewitnesses in the immediate wake of the murder. Likewise, Beanie Wallace's second statement, which was typed, was signed and dated by Wallace on September 23, 1984 -- three days after the murder. I simply cannot accept the proposition these various typed documents were back-dated and signed after trial. Furthermore, Beanie Wallace's third statement, which was memorialized in Assistant DA Strider's notes, obviously was available before trial. And, finally, the original tape-recorded statement, which was never reduced to a hard copy until it was disclosed to the defense during the post-conviction proceedings, clearly was available, as it was on tape. The State's claim that the tape was never listened to by the prosecution, while irrelevant, is likewise implausible.

61 That said, I agree with Kyles that all of these items of

undisclosed evidence, particularly when considered cumulatively,

would have been "favorable" to the defense at trial within the

meaning of Brady. The state trial court, whose opinion was

affirmed by the Louisiana Supreme Court, and the federal district

court concluded that the evidence was not favorable because of the

supposedly overwhelming evidence of Kyles' guilt. I disagree.

Much of the Brady evidence in this case substantially detracts from

the State's evidence and theories at trial. The undisclosed

evidence, as Kyles correctly argues, "fits hand in glove" with his

theory of the defense advanced at trial. Moreover, two of the

undisclosed items -- contemporaneous witness statements by Isaac

Smallwood and Henry Williams -- go to the reliability of the

critical eyewitness testimony at trial. Rather than further

addressing here how each item of undisclosed evidence would have

been "favorable," I necessarily will address that question in Part

II.C., infra, in discussing the larger issue of materiality.59

C. Brady "Materiality" and Strickland "Prejudice"

i) Why the two claims must be evaluated in conjunction

Having determined both that Kyles' trial counsel was deficient

by failing to call Beanie Wallace as a defense witness and that a

59 The majority opinion, unlike the district court and states courts, agrees that at least Beanie Wallace's tip to police about the garbage, discussed infra, was favorable. However, the majority holds that the totality of the Brady evidence, including Wallace's garbage tip, was not "material." As I discuss infra, I disagree with the majority on the question of Brady materiality.

62 considerable amount of evidence was both suppressed by the State

and favorable to the defense, I next jointly determine: i) whether

the evidence was "material" under Bagley; and ii) whether trial

counsel's deficiency "prejudiced" Kyles under Strickland. I

believe that the only appropriate way to analyze Kyles' case is to

consider his ineffectiveness and Brady claims in conjunction.

After all, the "materiality" prong of his Brady claim in a

significant way directly relates to the "prejudice" prong of his

ineffectiveness claim, and vice versa. Furthermore, as noted

supra, the inquiry for both claims is identical: assuming, counter-

factually, that Wallace had in fact been called as a defense

witness and that trial counsel had been privy to all of the

aforementioned Brady evidence, it must be asked whether there is a

"reasonable probability" that the result of the guilt/innocence

phase or punishment phase would have been different. A "reasonable

probability" is one that "undermines confidence in the outcome."

Bagley, 473 U.S. at 682; Strickland, 466 U.S. at 694.60 The

majority believes that there is no need even to engage in this

joint Bagley/Strickland analysis because the majority holds that

Kyles' trial counsel was not deficient for failing to call Wallace

60 I note here that the majority opinion repeatedly speaks of applying the "harmless error" rule to Kyles' Brady claims. The majority seems unaware that Brady's progeny, in particular Bagley, have their own built-in test of "materiality" to determine whether any Brady violation was "harmful" to the defendant -- namely, whether the undisclosed evidence undermines confidence in the verdict. I thus see no need to respond to the majority's rather curious claim that any Brady violation was harmless under Brecht v. Abrahamson, 113 S. Ct. 1710 (1993).

63 to the stand. See Majority Opinion, slip op., at p.22 n.10, ___

F.2d at ___ n.10.

ii) Why my confidence in Kyles' guilty verdict and death sentence is undermined

Under Strickland and Bagley, this court must determine whether

there is a "reasonable probability" that, but for the two

constitutional errors working in conjunction, Kyles' jury,

considering all of the relevant evidence, would not have

unanimously found either that there was sufficient evidence to

prove beyond a reasonable doubt that Kyles was guilty or that Kyles

should receive a death sentence. 61 The heart of the inquiry here

is whether the constitutional infirmities rendered the proceeding

61 Under Louisiana law, a single holdout juror during the punishment phase would have automatically resulted in a life sentence for Kyles. See State v. Loyd, 459 So.2d 498, 503 (La. 1984) (as long as a single juror held out and voted for a life sentence, automatic life sentence under Louisiana law); see also LA. CODE CRIM. PRO. 905.8. Although residual doubt is not a species of constitutionally relevant mitigating evidence, see Franklin v. Lynaugh, 487 U.S. 164 (1988), there is no question that residual doubt plays a significant role in leading a jury to impose a life sentence, see Lockhart v. McCree, 476 U.S. 162, 181 (1986) ("[A]s several courts have observed, jurors who decide both guilt and penalty are likely to form residual doubts or `whimsical doubts' . . . about the evidence so as to decide against the death penalty. Such residual doubt has been recognized as an extremely effective argument against the death penalty.") (citations and internal quotations omitted) (emphasis added). Kyles' trial counsel accordingly argued that Kyles' sentencing jury should consider their residual doubt in assessing punishment. In this regard, it is noteworthy that Kyles did not have any other aggravating factors supporting the imposition of a death verdict besides the fact that the murder for which he was convicted was committed in the course of a robbery. And, finally, I note that Kyles lacked a significant prior criminal history, which is important mitigating evidence. See Kyles v. State, 513 So.2d at 276. The majority incorrectly states that Kyles had no mitigating evidence "other than his close relationships with his family." Majority Opinion, slip op., at p. 13, ___ F.2d at ___.

64 unreliable. See Lockhart v. Fretwell, 113 S. Ct. 838, 842-43

(1993).62 Looking at the totality of evidence in this case -- both

that admitted at trial and that which should have been introduced

-- my confidence in the jury's guilty verdict and death sentence is

undermined. Bagley, 473 U.S. at 682; Strickland, 466 U.S. at 694.

In this section, I focus on five main factors that undermine

my confidence in Kyles' guilty verdict and death sentence. They

may be summarized as follows:

(i) Kyles' first jury, hearing evidence essentially identical to that offered at the second trial, was deadlocked on the question of guilt;

(ii) Beanie Wallace's various statements not only reveal numerous material inconsistencies that suggest that the State's informant was not credible, but also are directly exculpatory in numerous ways;

(iii) the undisclosed contemporaneous witness statements not only undermine the eyewitness testimony at trial, but also contain information that suggests that Kyles was not the killer;

(iv) the remainder of the Brady evidence is significant; and

(v) the remainder of the State's case not only fails to support the prosecution's theory, but in fact bolsters the defense's theory.

My focus on these factors, particularly (ii)-(iv), chiefly

concerns how a reasonably effective trial counsel would have used

the Brady evidence had it been properly disclosed by the State. My

analysis assumes that trial counsel would have utilized such

62 Although Lockhart was an ineffectiveness case, its emphasis on reliability is equally applicable to Brady claims in view of Bagley's wholesale adoption of Strickland's "prejudice" requirement.

65 evidence to support the theory of the defense at Kyles' actual

trial: namely, that Curtis Lee Kyles had nothing to do with Mrs.

Dye's murder and that the eyewitnesses were mistaken or being

untruthful; that Beanie Wallace "framed" Kyles not only by falsely

informing police that Kyles had sold Mrs. Dye's car to Beanie and

that Kyles had retrieved his own car from the Schwegmann Bros.'s

parking lot after the murder, but also by planting various pieces

of incriminating evidence at Pinkie Burnes' apartment; and,

finally, that Wallace himself possibly had some role in the Dye

murder.

As an initial matter, unlike the majority I assume here that,

had Wallace been interviewed by Kyles' trial counsel, counsel would

have called Wallace as a defense witness at trial and attempted to

have Wallace explain his various statements given to the State

before trial. This scenario assumes that Wallace would have agreed

to testify and would not have invoked his Fifth Amendment right to

avoid self-incrimination. The State has never suggested that

Wallace would have done so, perhaps because there is a serious

question about whether Wallace could have effectively made a

"blanket" invocation of the Fifth. See State v. Smith, 573 So.2d

1233, 1236 (La. App. 1991); State v. Boyd, 548 So.2d 1265, 1268-69

(La. App. 1989).63 Assuming that Wallace had invoked the Fifth in

63 Although obviously Wallace could have invoked the Fifth regarding certain questions (e.g., how Wallace knew the location of the murder in the Schwegmann Bros.'s parking lot), other lines of defense questioning would have been proper and not potentially incriminating (e.g., asking Wallace to explain the various inconsistencies in his statements). I also observe that the trial judge would have had discretion to permit the defense to

66 whole or in part, Wallace's invocation would have presented Kyles

with valuable ammunition supporting the theory of the defense.

Why, Kyles' trial counsel could have argued to the jury, did the

State's informant invoke the Fifth in a case in which he was

supposedly only a "good citizen"?

Furthermore, assuming that Wallace had invoked the Fifth in

whole or in part, Kyles' trial counsel would nevertheless have been

able to utilize the various Brady evidence regarding Wallace.64

Much, if not all, of Wallace's various inconsistent statements

would have likely been admissible in other ways. For instance, by

calling the various New Orleans police who worked with Wallace (or

possibly even prosecutor Cliff Strider) as hostile defense

witnesses and questioning them about their meetings with Wallace

and about the information available to them during the

investigation -- rather than whether such information was in fact

true -- a great deal of Wallace's statements could have been

introduced as non-hearsay under Louisiana evidence law in operation

at the time of Kyles' trial. Finally, simply by proffering

Wallace's various inconsistencies -- rather than arguing that any

of them were in fact true -- the defense could have offered the

statements as non-hearsay under Louisiana evidence law. See State

v. Hennigan, 404 So.2d 222, 228-29 (La. 1981) ("[E]vidence is not

ask Wallace potentially incriminating questions in front of the jury. See State v. Edwards, 419 So.2d 881 (La. 1982). 64 The remainder of the Brady evidence -- such as the police memoranda -- would have been admissible and highly relevant standing own its own, irrespective of whether Wallace had been called as a witness.

67 hearsay when offered to prove only that it occurred . . . or that

a conversation took place.").65

I also observe that all of the Brady evidence would have

directly supported the actual evidence and testimony presented by

the defense at Kyles' trial -- a theory of the defense that

provoked a hung jury on its own without the Brady evidence. As I

discuss below, information gleaned from Wallace's various

statements -- such as his admissions that he indeed possessed Mrs.

Dye's car shortly after the murder, that he changed its license

plates, and that he was actually present at the "Sunday dinner" at

Pinkie Burnes' apartment on the Sunday after the murder -- would

have bolstered the credibility of key defense witnesses.

a) The deadlocked jury at Kyles' first trial

The majority, echoing the district court, states that Kyles

"faces overwhelming evidence of guilt," a conclusion which dictates

the majority and district court's rejection of Kyles'

ineffectiveness and Brady claims. That is, the majority reasons

that Kyles could not have been prejudiced because the result of the

proceeding would have been the same whether or not the

constitutional errors occurred. If indeed that were true, then why

did Kyles' first jury trial, which occurred immediately before the

65 A competent trial counsel could have laid the proper evidentiary foundation for introducing Wallace's various statements by first questioning police officers such as Detective Dillman about the New Orleans Police Department's basis for suspecting that Kyles was the murderer and why the police believed that incriminating evidence would be inside Pinkie Burnes' apartment and in her garbage.

68 second trial and which involved essentially the same evidence and

prosecution and defense theories, end in a mistrial because of a

deadlock on the question of guilt? The theory of the defense --

even without all of the critical evidence withheld and without

Wallace's testimony -- was obviously not as weak as has been

claimed. See Stano v. Dugger, 901 F.2d 898, 903 (11th Cir. 1990)

(en banc) (in finding a Brady violation, the court pointed out that

a deadlocked jury had caused mistrial at defendant's prior trial).

As the Supreme Court has repeatedly observed, appellate judges

are presented with only a "cold record" from which to evaluate the

proceedings that transpired below. See, e.g., Patton v. Yount, 467

U.S. 1025, 1039-40 (1984). In most cases, we cannot accurately

assess the credibility of witnesses and the plausibility of

counsel's arguments based on the evidence merely from reading the

statement of the facts. We are not aware of such important

subtleties as a witnesses' demeanor or trial counsel's apparent

sincerity (or lack thereof). In this regard, the fact that one or

more jurors at Kyles' first trial were not convinced beyond a

reasonable doubt of his guilt is significant in assessing the force

of Kyles' case or, alternatively, the weaknesses in the State's

case.

b) "Beanie" Wallace's various undisclosed statements

Of all of the Brady evidence, I consider Beanie Wallace's

undisclosed statements to be the most significant. First, the

69 statements reveal that the State's informant, who was crucial to

the State's ability to finger Kyles in the first place, was an

incessant liar and schemer who appeared anxious to see Curtis Lee

Kyles arrested for the murder of Delores Dye. Second, the

statements contain significant exculpatory evidence. I first note

the significant contradictions in his various statements.

1) Contradictions

Wallace's September 22, 1984 (Saturday) oral statement66 to New

Orleans police consisted of the following chronology: on the prior

Friday, at approximately 6:00 p.m., Kyles sold Mrs. Dye's red Ford

to Wallace; at 9:00 p.m., Wallace, Kyles' brother-in-law, and Kyles

drove to Schwegmann Bros.'s parking lot to retrieve Kyles' car;

while at the supermarket, Kyles also retrieved a large brown

woman's purse from nearby bushes. Wallace's September 23, 1984

(Sunday) written statement to police consisted of the following

chronology: on the prior Friday, at approximately 6:00 p.m., Kyles

sold the red Ford to Wallace at some location on Mazant Street in

New Orleans; after the purchase, Wallace, Kyles, and Kyles'

brother-in-law unloaded bags of Schwegmann Bros.'s groceries and a

brown purse from the red Ford's trunk and back seat and placed them

in Kyles' car; the three then drove to Pinkie Burnes' apartment,

where the groceries were unloaded; at approximately 9:00 p.m.,

Wallace, Kyles, and Kyles' brother-in-law drove to Schwegmann Bros.

66 It is noteworthy that in making this first statement Wallace assumed the alias "Joseph Banks" and was not forthcoming about his criminal record, namely a conviction of being an accessory to a murder, and instead claimed that he had been convicted only for "fighting."

70 to retrieve Kyles' car; at Schwegmann Bros., Kyles also retrieved

a "big brown pocketbook he had by the building."

In Wallace's final oral statement, memorialized in the

handwritten notes of the chief trial prosecutor, Cliff Strider,

Wallace recounted the following chronology: on Thursday, September

20, 1984, in the early evening, sometime after 5:00 p.m., Wallace,

Kyles, Kyles' brother-in-law, and Kevin Black drove from Pinkie

Burnes' apartment in the brother-in-law's car to Schwegmann Bros.,

where they retrieved Kyles' car; the four thereafter returned to

Pinkie Burnes' apartment; at approximately 7:30-7:45 p.m., the four

then drove to Black's residence, where they retrieved bags of

Schwegmann Bros.'s groceries and a brown purse; the four then

returned to Pinkie Burnes' apartment, where the Schwegmann Bros.'s

bagged groceries and the brown purse were taken into the apartment;

the next day, Friday, in the early afternoon, Kyles drove Wallace

to Black's house where Wallace purchased Mrs. Dye's stolen red

Ford; Wallace drove the red Ford around New Orleans with a friend,

Ronald Gorman,67 until early Saturday morning; on Saturday

afternoon, Wallace changed the license plates on the car and then

67 Gorman was a defense witness at trial, who testified that Wallace, wearing his hair in braids, possessed the red Ford on the day of the murder and attempted to sell it to Gorman. I further note that included in the habeas record is an undisclosed transcript of a conversation between New Orleans Police Detective Pascal Saladino, who worked on the Dye case, and Gorman. The transcript is dated November 28, 1984, which was in the interim between Kyles' first and second trial. Towards the end of the statement, Gorman told Saladino that Beanie Wallace had threatened to kill Gorman if he testified on behalf of Kyles (and, thus, against Wallace) at the second trial. The transcript was first introduced into the record at the state habeas evidentiary hearing.

71 discovered that the car had been stolen from Mrs. Dye; thereafter,

Wallace contacted police on Saturday night.

Unlike the majority, I believe that it is obvious that these

three statements contain significant inconsistencies that would

have been extremely valuable to the defense. In particular, the

various inconsistencies would have permitted jurors to see that

Wallace was an opportunist and liar. The changes in the dates and

times of when he was sold the car, when the groceries were

retrieved, and when Kyles' car was allegedly retrieved from the

Schwegmann Bros.' parking lot -- statements given within a day or

two after the alleged events -- would have painted a compelling

picture of someone who was lying to police or at least one who knew

much more than he was telling the police. A jury could reasonably

conclude that Wallace was spinning an elaborate web of lies, thus

discrediting a significant portion of the prosecution's theory of

the case.68

The majority greatly discounts the significance of evidence of

Wallace's scheming to have Kyles arrested for Mrs. Dye's murder.

The majority argues that because the theory of the defense at trial

68 Especially noteworthy is Wallace's claim in his September 23, 1984 statement to police that, at approximately 6:00 p.m. on Friday, September 21, Kyles, Kyles' brother-in-law, and Wallace moved the groceries from the stolen red Ford to Kyles' own car. Then, Wallace claimed, three hours later, Kyles requested that Wallace and Kyles' brother-in-law drive Kyles to Schwegmann Bros. in order to retrieve Kyles' own car. This asks one to believe that on the day after the murder Kyles returned to the murder scene and left his car that had not been parked there previously. Furthermore, these claims take on particular relevance in view of the State's attempt to prove at trial -- using a blurry, blown-up police photograph -- that Kyles' car was parked at the murder scene on Thursday afternoon immediately following the murder.

72 was that Beanie framed Kyles, the "new" evidence would have only

been "cumulative." See Majority Opinion, slip op., pp.20-24,

___F.2d at ___-___. The majority's reasoning here assumes that the

jury would have had no more reason to believe the defense's theory

if the various undisclosed evidence had been introduced. As the

majority correctly observes, the first line of defense at both of

Kyles' trials was that Beanie Wallace framed Kyles and possibly

that Wallace was in fact somehow involved in the murder. That

defense was supported by relatively weak evidence at trial --

testimony of Kyles' friends and family. The undisclosed evidence,

in particular Wallace's own words, would have greatly bolstered the

theory of the defense. The Brady evidence in this case would have

afforded the defense the opportunity to argue forcefully that

Wallace framed Kyles and that perhaps Wallace himself had some role

in the murder.69

2) Potentially exculpatory material

Wallace's statements are also significant in that they contain

direct or indirect exculpatory material. There are numerous

statements made in the September 21, 1984 (Saturday) tape-recorded

69 I note that at trial there was no direct evidence of just how Kyles became the New Orleans Police Department's leading suspect in the Dye murder. The State never called Wallace as a witness and no policemen were called to testify about Wallace's involvement in the investigation. Rather, it was apparently assumed in the respective theories of the prosecution and defense during the trial that Wallace had some role in the murder investigation. Thus, the jury likely was not aware of the significance of Wallace's role and could only infer that Wallace must have had some role in the police effort based on the defense claims that Wallace was in possession of Mrs. Dye's car.

73 conversation that are notable in this regard. First, Wallace twice

made a significant admission: he changed the license plates on the

stolen red Ford. As Kyles argues, this action casts into doubt the

State's claim that Wallace was simply an unwitting bona fide

purchaser of a stolen automobile.70 It also would have corroborated

trial testimony of Johnny Burnes, Wallace's self-styled "partner,"

who testified (under attack from the prosecution) that he witnessed

Wallace changing the plates on a red car on the day of the murder.71

70 I observe that at trial Detective John Dillman, who headed the New Orleans Police Department's investigation into Mrs. Dyes' murder, was squarely asked by Kyles' trial counsel, "[a]re you aware that Beanie changed the license plate on this red vehicle belonging to Mrs. Dye?" Detective Dillman responded under oath that, "I have no knowledge of that, sir." 71 At trial, Johnny Burnes obviously attempted to boost his credibility by stating that he and Wallace were "best friends" at the time of Kyles' arrest; this claim would have been supported by Wallace's repeated references to Burnes as his "partner." The majority states that the state trial court found that Johnny Burnes was not a credible witness. The majority holds that this finding is entitled to deference under 28 U.S.C. § 2254(d). See Majority Opinion, slip op., at p.24, ___ F.2d at ___. The majority errs here, at least if it is holding that we are bound by a state court fact-finding that Johnny Burnes was not credible as-a-matter-of-law at trial, which the majority appears to hold. The state trial court found that Burnes was not credible at a post-conviction hearing where Burnes testified, not in Burnes' testimony at trial. I further note that the majority's apparent reliance on § 2254(d) regarding Burnes' credibility at trial is inappropriate here because Johnny Burnes' credibility at trial could have been significantly boosted by this evidence that the State failed to disclose. The finding by the state trial court thus cannot bind us regarding Burnes' trial testimony. Even if the majority's characterization of the state court's finding was correct -- which it is not -- a state habeas court's view of the weight of evidence or testimony actually offered at a jury trial could be "found" by a state trial judge to be, in effect, incredible as-a-matter-of-law. Such a credibility finding -- a factual finding -- wrongly enters into the province of the jury; that is, the credibility of a witness' trial testimony would be a quintessential question for a jury, not a trial judge.

74 Burnes also provided other testimony important to the theory of the

defense, namely that on Sunday, September 23, 1984, Burnes

witnessed Wallace stooping down at the stove in Pinkie Burnes'

apartment where police ultimately recovered the murder weapon.

Second, Wallace's "tips" to police that they "would be smart"

to look in the garbage outside Pinkie Burnes' residence and that

they could "set up" Kyles and find the murder weapon inside the

apartment suggest that Wallace was in control of critical evidence.

A jury could rationally infer based on Wallace's apparent control

over the evidence that he was somehow involved in the murder.72

Also significant in this regard are Wallace's various confusing

claims about how Mrs. Dye's purse was retrieved at the scene of the

murder. In particular, Wallace made the odd claim that Kyles

retrieved Mrs. Dye's purse from bushes next to the Schwegmann

Bros.' parking lot. This simply makes no sense. Eyewitnesses to

the murder testified that Mrs. Dye's brown purse was placed in the

trunk before she was confronted by her attacker. No one testified

that the assailant took her purse and placed it in nearby bushes

72 In claiming that the undisclosed tape recording and various internal police memoranda regarding the garbage were not "material" under Bagley, the majority argues that even without the undisclosed evidence regarding the garbage tip, "Kyles made a credible case that Beanie could have planted this evidence. It was undisputed at trial that anyone could have had access to the garbage bags sitting on the curb and that Beanie was attempting to incriminate Kyles." Majority Opinion, slip op. at p.23, ___ F.2d at ___. The majority makes the erroneous assumption that Wallace's mere opportunity to plant the incriminating items and concrete evidence that Wallace actually suggested to police that they should look into the garbage would have been equivalent in jurors' eyes. I simply cannot believe that a jury would not have given tremendous weight to Wallace's tip to police as highly probative evidence that he framed Kyles.

75 before driving her car away. Even assuming that the purse did not

somehow make its way into Mrs. Dye's car, which her assailant

immediately drove away, this hardly explains how the purse could

have ended up in nearby bushes. Wallace's bizarre claims about

retrieving the purse from the bushes suggest that he was lying in

order to dispel suspicion from himself about having possession of

the purse. A jury could reasonably infer that Wallace's

unsolicited communication to the police, when combined with his

statements about such key evidence, indicated that he indeed

"framed" Curtis Lee Kyles.73

Wallace made another incriminating admission during the first

recorded conversation: he evinced an apparent awareness of the

specific part of the parking lot where Mrs. Dye was killed.

Although a jury possibly could rationally conclude, as the State

and the majority contend, that Wallace gleaned this particular

information from the media, a jury also certainly could reasonably

conclude otherwise. This is potentially critical information to

73 I note that Detective Dillman explicitly testified at the state habeas evidentiary hearing that he was not given the tip that evidence might be found in the garbage outside Pinky Burnes' apartment from Wallace. Similarly, one of Sergeant Eaton's underlings, Officer Pascal Saladino, who actually seized the garbage, testified at trial that the police did not act on a tip in seizing the garbage. The State argues in its appellate brief that "[i]t is not clear that Beanie made this suggestion, but assuming he did, so what? In the context of the facts of this case, it is a suggestion that would not be unexpected and a conclusion that the police would be expected to reach." I observe that, at the state court post-conviction evidentiary hearing, Kyles' chief trial prosecutor testified that he did not remember a single instance before Mrs. Dye's murder where New Orleans police had searched and seized garbage on the street in front of a residence.

76 the theory of the defense in view of the fact that Wallace

consistently denied that Kyles, Kyles' brother-in-law, or any of

Kyles' other compatriots told Wallace that Kyles had murdered Mrs.

Dye.

Another bit of potentially valuable information that Wallace

disclosed in the September 22 statement that bolsters the theory of

the defense concerns his repeated statements that Kyles not only

generally wore a "bush" hairstyle, but also wore one on the day

that Wallace purchased the car. Although Wallace at one point

claimed that he bought the car on Friday, in at least one statement

he also claimed that he was in the presence of Kyles on Thursday,

within three hours of the murder. When combined with the numerous

eyewitness statements describing the murderer as wearing his hair

in braids or plaited, a rational jury could find this statement

significant.

Finally, Wallace's admission to Assistant DA Cliff Strider

that Wallace was in fact present during the "Sunday dinner" at

Pinkie Burnes' apartment is evidence from which a jury could infer

that Wallace had an opportunity to plant the various incriminating

items. Furthermore, in this regard, Wallace's statement

specifically comports with Johnny Burnes' trial testimony that he

witnessed Wallace reaching down and placing something behind the

stove that Sunday night.

c) The undisclosed eyewitness statements

77 As the district court correctly observed "the essence of the

[S]tate's case . . . was founded on the positive identification by

four eye-witnesses who saw Curtis Lee Kyles at varying stages of

the incident calmly placing a gun to the head of an unarmed woman,

and blowing her brains out (for absolutely no other reason than to

rob her), and then driving away in her car." Despite specific

requests from the defense during pre-trial discovery, the State did

not disclose the contemporaneous witness statements taken by New

Orleans police from three of those four witnesses who testified at

trial.74

74 Those four witnesses were Robert Territo, Isaac Smallwood, Henry Williams, and Darlene Cahill. Contemporaneous statements were only taken from Territo, Smallwood, and Williams. Three other eyewitnesses -- Lionel Plick, Edward Williams, and Willie Jones, none of whom ever positively identified Kyles -- did not testify at trial. According to the testimony of Officer John Dillman, three of the eyewitnesses, Smallwood, Henry Williams, and Territo, were able to positively identify Kyles from a pre-trial photographic line-up conducted a few days after the murder. That line-up consisted of pictures -- both a frontal view and profile -- of six young black males from the waist up. Kyles was #6 in the spread. Wallace was not a part of the spread. I observe that, in pictures with equivalent hair styles, Wallace and Kyles' facial features resemble each other. See also Kyles v. State, 513 So.2d at 268 ("There was . . . testimony that Wallace and [Kyles] resembled each other."). Indeed, as Kyles points out, one of the eyewitnesses who identified Kyles out of the pre-trial photo-line up, Isaac Smallwood, positively identified Wallace rather than Kyles when presented with a post- trial photo line-up in which Kyles and Wallace had identical hair styles. I also observe that the police officer who conducted the photo line-up and who testified about it at trial, John Dillman, made numerous statements under oath in the state court proceedings that cast serious doubt on his credibility. See supra. Such statements included testimony about the contemporaneous witness statements given by the eyewitnesses who testified at trial. As discussed supra, those witness statements were not turned over to the defense at trial, despite a specific request, because the State claimed that they contained nothing exculpatory. Dillman nonetheless testified about them at trial,

78 Kyles points to Isaac Smallwood's statement, in which

Smallwood described what he saw as follows: "I was standing near

the old gas pumps, with my back facing the Chef Hwy. and facing old

Gentilly Rd. I heard a loud pop. When I looked around I saw a lady

laying on the ground, and there was a red car coming toward me."

(emphasis added). According to this statement, Smallwood's

identification of the assailant came when he drove the car, which

Smallwood described as a "red thunder bird," past him. When a

police investigator specifically asked him, "[w]hen you first heard

the shot, and looked at the lady on the ground, was the black male

standing near her?," Smallwood responded "[n]o. He was already in

the car and coming toward me." (emphasis added).

without producing copies of them. Kyles' trial counsel, on cross-examination of Dillman, asked him "[d]id these physical descriptions differ in any single point?" Dillman responded that "[p]ossibly the only discrepancy would have been in height. . . . The discrepancy would have been anywhere from a description of five feet eight to a description of possibly six feet tall, which is a difference of three or four inches." (emphasis added). This response, of course, was simply untrue. Henry Williams' witness statement estimated that the killer was as short as 5'4", which would make the discrepancy eight inches. Similarly, when asked about age discrepancies, Dillman stated that the eyewitnesses all described the killer as being in his twenties when in fact three different eyewitness described the killer as ranging from seventeen to nineteen years old. As noted, Kyles was twenty-five at the time of the crime, and the photographs of Kyles in the record depict a man in his mid-twenties. Dillman also claimed that there was "no discrepancy in facial hair or features at all," when in fact Isaac Smallwood described the killer as having a moustache, a feature described by none of the other eyewitnesses, many of whom claimed to have seen the killer up-close. (In photos of Kyles both before and after the killing, he possesses a light moustache.) Finally, Dillman neglected to mention that Smallwood described the killer as having shoulder-length braided hair, while Henry Williams described the killer as having "short" hair.

79 Both at the pretrial suppression hearing and at trial,

however, Smallwood gave a significantly different eyewitness

account. He testified that he actually saw the black assailant,

whom he positively identified as Kyles, struggling with Mrs. Dye.

He further testified that he specifically saw Kyles raise the

pistol -- which Smallwood described as a "small black . . .32" --

and shoot Mrs. Dye in the head.75 Smallwood also described Mrs.

Dye's car as a red "LTD." Thus, by the time of trial, Smallwood

had not only changed his story by claiming that he actually

witnessed the struggle and shooting, but also described it in vivid

detail. He described the murder weapon as a small black .32

caliber pistol -- which, of course, was the type of murder weapon

used -- and changed his description of the victim's car from a

"thunderbird" to a "LTD."76 Jurors were also not told that, shortly

after the crime, Smallwood described the assailant has having

shoulder-length hair and a moustache -- descriptions given by none

of the other eyewitnesses.

75 When asked to describe what he witnessed, Smallwood informed jurors that "[w]ell, me and my partner was standing by the gas pump in Schweggman's parking lot. My partner seen this guy wrestling with this lady. We thought they was just playing with one another, thought they knew one another. So the guy, he snatched her hand. When he snatched her hand, she wouldn't release the keys from her hand, so he just went up in his pocket and shot her in the head . . . [with] like a small .32, a small black gun that he took out of his right pocket." When specifically asked by prosecutor Strider, "[a]nd did you see him actually shoot her?," Smallwood stated "Yeah." 76 Smallwood's correction of such minutiae between the time of making the contemporaneous witness statement and the time of trial raises serious questions in my mind. In particular, the embellishment suggests that Smallwood was coached.

80 A second of the four eyewitnesses who testified at trial,

Henry Williams, told police shortly after the murder that the

assailant was "a black male, about 19 or 20 years old, about 5'4"

or 5'5", 140 to 150 lbs., medium build, dark complexion, his hair

looked like it was platted, it was short." I observe that the

record makes numerous references to Curtis Kyles as being

approximately six feet tall and slender; photographs in the record

confirm these descriptions. Conversely, Joseph "Beanie" Wallace

was described as being shorter than Kyles, perhaps as much as by a

half a foot. Photographs of Wallace also depict a man possessing

a medium build.

Both of these witness statements, neither of which were

disclosed despite a specific pre-trial request by the defense,

would have been valuable to the defense at trial. A reasonable

juror could not have reached any other conclusion except that

Smallwood dramatically changed his story by the time of trial,

thereby undermining the credibility of his identification.77

Williams, too, would have had a difficult time explaining how he

could have described a 6' skinny man as being 5'4" or 5'5" and

possessing a "medium" build.

77 The majority concludes that because "Smallwood consistently stated that the gunman . . . drove [Mrs. Dye's car] close by him [Smallwood]," Smallwood's identification of Kyles at trial was reliable. See Majority Opinion, slip op., at p. 16. The majority here ignores the important fact that a jury would probably have disbelieved anything that Smallwood said after it was revealed that he had fundamentally changed his account of the murder by the time of trial.

81 The district court and the majority make much ado about the

fact that all four eyewitnesses who testified at the second trial

positively identified Kyles as the killer after the State brought

in Wallace and had him and Kyles stand side by side for comparison.

I do not believe that fact to be nearly as significant as the

majority does. First, the same witnesses had, on numerous

occasions,78 previously identified Kyles in court as the killer, in

identifications in which Kyles sat at the defense table and was not

compared to Wallace. Three of the four had also seen Kyles -- but

not Wallace -- in photo spreads. Human nature as it is, the four

had a psychological incentive, subconscious or otherwise, not to

recant their positive identifications of Kyles.

Second, I believe that the in-court identifications by

Williams and particularly Smallwood are of little probative value.

While it is true that in-court identifications are generally

considered significant prosecutorial evidence, see generally Manson

v. Brathwaite, 432 U.S. 98 (1977), such evidence loses a great deal

of its probative force when the defense establishes that a witness

gave a significantly different account at the time of the original

identification, cf. Neil v. Biggers, 409 U.S. 188, 199 (1972)

(noting that a key factor in deciding whether impermissibly

suggestive line-up procedure followed by in-court identification

caused harm to defendant is "the accuracy of the witness' prior

78 At both trials, the witnesses identified Kyles both in pre-trial suppression hearings and during the prosecution's case- in-chief. The comparative identifications, in which Wallace was made to stand besides Kyles, occurred at the second trial during the prosecution's rebuttal.

82 description of the criminal"). Moreover, as the Supreme Court has

observed, the effective impeachment of one eyewitness may have

consequences that extend to another, unshaken eyewitness. See

United States v. Agurs, 427 U.S. 97,

112-13 n.21 (1976) (citing Comment, Brady v. Maryland and The

Prosecutor's Duty to Disclose, 40 U. CHI. L. REV. 112, 125 (1972)).

In Kyles' case, the remaining unimpeached eyewitness testimony

would thus have been considerably less forceful had the two witness

statements been disclosed.

Finally, it should also be generally noted that eyewitness

testimony, contrary to popular belief, has repeatedly been proven

notoriously unreliable. See United States v. Wade, 388 U.S. 218,

228 (1967); Loftus & Ketcham, Witness for the Defense: The Accused,

the Eyewitness, and the Expert Who Puts Memory on Trial (1991);

Sanders, Helping the Jury Evaluate Eyewitness Testimony: The Need

for Additional Safeguards, 12 AMER. J. CRIM. L. 189 (1984). As the

United States Supreme Court observed in Wade, "[t]he vagaries of

eyewitness identification are well-known; the annals of criminal

law are rife with instances of mistaken identification." 388 U.S.

at 228.79

79 In a Rule 60(b) motion filed in the district court following the denial of the habeas writ, Kyles for the first time offered an affidavit from one of the eyewitnesses who testified at trial -- Darlene Cahill (now Darlene Kersh) -- in which she swears under oath that she perjured herself at Kyles' two trials. The affidavit claims that she never in fact saw the murderer's face and that her trial testimony, in which she unequivocally identified Kyles as the killer, was entirely false. She further claims that she informed the prosecution of her inability to identify Kyles, but that prosecutors asked her to commit perjury. The district court held that the claim based on Cahill's

83 d) The remaining Brady evidence

1) The computer print-out of license plate numbers

Another item of Brady evidence that was wrongly withheld,

according to Kyles, was a New Orleans Police Department computer

print-out and attached cover memorandum dated "9-20-84" from

testimony was an abuse of the writ. The court further held that, even if it were not abused, "such evidence would not have affected the jury verdict in this case. [Kersh's] testimony was cumulative and in the context of the entire trial transcript, rather inconsequential. . . . Ms. Kersh's testimony was of little consequence in relation to the other eye-witnesses and the evidence found in Kyles' girlfriend's apartment." In a prior appeal in this case, this court held that Kyles' claim was not appropriately raised for the first time in a Rule 60(b) motion and that further the claim had never been exhausted in the state courts. See Kyles v. Whitley, Nos. 92-3310, 92- 3542 (5th Cir. August 7, 1992). We held that "a habeas petitioner may not use Rule 60(b) to raise constitutional claims that were not included in his original habeas petition." We further held that "[t]he district court should not, however, have said anymore" in its order denying relief. I believe that this claim should be returned to state court so that all of Kyles' specific claims may be reevaluated in view of this extremely serious allegation of prosecutorial misconduct and perjury -- which, if proven true, would further demonstrate the pervasiveness of official misconduct in this case. I note that Kyles' this new claim should not be held to be an abuse of the writ, assuming that this case makes its way back to federal court. As a general rule, I would of course agree that any constitutional claims raised for the first time after the district court denies an original habeas petition are abused. See McClesky v. Zant, 111 S. Ct. 1454 (1991). However, because Kyles' new claim adds further fuel to the fire in terms of my concerns about whether Kyles was wrongly convicted, I would hold that the claim is not abused under the exception that permits claims to be raised for the first time in a successive habeas petition if a petitioner makes a "colorable showing of factual innocence." See id. at 1471. I further observe that the "materiality" standard regarding intentionally perjured testimony is "considerably less onerous" than the Brady "materiality" standard set forth in United States v. Bagley. See Kirkpatrick v. Whitley, 992 F.2d 491, 497 (5th Cir. 1993). In cases where the prosecution intentionally procured or countenanced perjured testimony, a court must order a new trial if there was "any reasonable likelihood that the false testimony could have affected the jury's verdict." Id.

84 Detective Patrick Jones to Detective John Dillman. The memo

states, "[a]ttached you will find a print out of vehicles which

were parked in the parking lots around Schweggmans [sic] on 9-20-84

at 9:15 p.m." Kyles argues that this print out, which was not

disclosed to defense counsel at trial, would have been valuable

exculpatory evidence because it tends to prove that Kyles' car was

not in the parking lot on the night of the murder.

At trial, the State introduced a photograph made by police at

the crime scene immediately following the murder. The blurry,

blown-up photograph, according to the State, depicts a portion of

the top of Curtis Kyles' car, which allegedly was still parked in

the Schwegmann Bros.'s parking lot within an hour or two after the

murder. As I discuss infra, the State's photographic evidence here

is anything but conclusive. Had Beanie Wallace taken the stand at

trial and repeated his claim made twice to police that he, Kyles,

and Kyles' brother-in-law drove to Schwegmann Bros.'s parking lot

on the evening of Friday, September 21, 1984, to retrieve Kyles'

car, the computer print-out would have been valuable impeachment

material, thus supporting the theory of the defense.80

The district court stated that the print-out "fails to fit the

Brady mold" because at the state post-conviction evidentiary

hearing "the defense learned that the list was not a complete list

of the cars in the lot at the time; therefore, it is evidence that

80 Even if Beanie Wallace had claimed that the car was retrieved on Thursday early in the evening -- before the license numbers were recorded by police -- Wallace's two inconsistent statements given to police would have been available to impeach Wallace's credibility on this point.

85 would carry little if any exculpatory weight . . . ." The

testimony to which the district court referred was given by

Detective John Miller, who testified that the print-out was

incomplete and likely did not include the parking lot that was

supposedly depicted in the blown-up police photograph offered into

evidence at trial.

I believe that the district court erred by accepting Miller's

testimony as conclusive. Assuming the print-out was available to

the defense at the time of trial, defense counsel would have been

free to argue that the list was a complete one. Indeed, I observe

that the list contains seventeen different license numbers, and the

memorandum attached to it states "attached you will find a print

out of vehicles which were parked in the parking lots around

Schweggmans [sic] on 9-20-84 at 9:15 p.m." (emphasis added). The

memorandum does not state that it is a "partial" list or that it

was a list of vehicles in a portion of the Schwegmann Bros.'s

parking lot. This memorandum, by not qualifying the scope of the

police's search of automobiles in the Schwegmann Bros.'s parking

lots in any manner, belies Detective Miller's claim. Finally,

Miller's name does not appear among the five police officers' names

listed on the memorandum. The issue of whether the list was or was

not complete would have been a quintessential jury question.

2) The police garbage memorandum

As discussed, supra, with respect to Beanie Wallace's

September 21, 1984 suggestion to police regarding the garbage, the

86 State also failed to disclose police memoranda relating to the

search and seizure of the garbage in front of Pinkie Burnes'

apartment on September 24, 1984. In particular, Kyles points to a

memorandum dated "9-23-84" from Sergeant James Eaton to Sergeant

Dave Morales that states "[w]e have reason to believe" Mrs. Dye's

personal effects and Schwegmann's bags would be in the garbage

scheduled to be picked up by sanitation workers on Monday morning.

Like Wallace's recorded statement to police in which he makes the

garbage tip, I believe that this would have been valuable evidence

that would have bolstered the theory of the defense that Wallace

"framed" Curtis Lee Kyles.

e) The remainder of the State's case

Once the effect of all of the Brady evidence is considered,

what is left of the State's case is tenuous at best. The majority

points to the fact that the murder weapon, a homemade holster,

bullets, and pet food supposedly purchased by Mrs. Dye at

Schwegmann Bros. were found in Pinkie Burnes' apartment as strong

circumstantial evidence of Kyles' guilt. I disagree. Kyles took

the stand and claimed that the weapon and holster did not belong to

him and must have been planted. While ordinarily such a self-

serving claim indeed would have little weight, the majority ignores

the strong circumstantial evidence that Beanie Wallace in fact

planted evidence -- namely, his tips to police that they "would be

smart" to look in the garbage and they could "set up" Kyles and

find the murder weapon. The majority also ignores the evidence

87 that Wallace had a ready opportunity to plant the evidence during

the "Sunday dinner" at Pinkie Burnes' residence.

With respect to the pet food found in Pinkie Burnes'

apartment, Kyles testified that he had purchased the cans at the

Schwegmann Bros. -- which was located "very near" Pinkie Burnes'

apartment, according to trial testimony -- during the previous week

or so. While Kyles claimed that he remembered the items being "on

sale," the State introduced evidence that the particular brands of

pet food were not sale-priced but instead were regularly priced.

The majority contends that this testimony undermines Kyles'

explanation for the presence of the pet food. However, a closer

reading of Kyles' testimony undercuts this supposedly damning bit

of impeachment evidence about what was actually a collateral

matter.81 Furthermore, I read Kyles testimony to actually bolster

81 The alleged existence of a sale price was gratuitously offered by Kyles during his testimony. It was not as if the pet food allegedly purchased by Kyles and that supposedly purchased by Mrs. Dye were distinguishable by the fact that one was on sale and the other was not. Indeed, the State's own evidence established the contrary. Furthermore, I believe that the State and the majority put entirely too much stock in the import of Kyles' testimony. The following colloquy occurred between the prosecutor and Kyles:

Q. [prosecutor:] How do you know it was on sale?

A. [Kyles:] Because they had a little sign that said three for such and such, two for such and such at a cheaper price. It wasn't even over a dollar.

Q. There was a sign where?

A. In the Schwegmann's Supermarket. . . . It wasn't big. It was a little bitty piece of slip like they had on the shelf. As I was looking at the cat food, I was looking at these many for so much. [sic].

88 his credibility in one significant respect. Before being shown the

cans by the prosecutor -- cans that were seized and in the

possession of the State at trial -- Kyles stated that the pet food

cans were priced "two" or "three for such and such . . . . It

wasn't even over a dollar." During cross-examination, the cans

were first introduced by the prosecutor after Kyles had testified

about them being "on sale." The prices were revealed as in fact

being "two for 77 cents" and "three for 89 cents." The actual

prices of the cans fully and precisely comport with Kyles'

description. I simply do not believe that this is mere

coincidence. Also with respect to Kyles' claim that he purchased

the pet food for his children's own pets, the state habeas courts

and the federal district court ignored the important fact that one

of the State's own photographs offered into evidence at trial

depicts the inside of a closet in the apartment in which a half-

empty bottle of pet shampoo is clearly visible.

The State also has argued that the Schwegmann's sales receipt

bearing Kyles' fingerprints that was found in Mrs. Dye's car is

Q. They had two different signs [for the two brands purchased]?

A. They have a sign by every item in there.

Kyles, whose intelligence is limited, see Kyles v. State, 513 So.2d at 274 (noting Kyles' IQ is 83), appears to me to have been inartfully explaining that he believed that the cans of pet food were "on sale" simply because they were marked two or three for a particular price. His reference to a sale "sign" actually appears to be referring to stock labels that are commonly used in grocery stores and regularly appear on the shelf (as he stated, "a little bitty piece of slip like they had on the shelf . . . . They have a sign by every item in there.").

89 strong circumstantial evidence against Kyles. Kyles testified that

he indeed did ride in the car, which Wallace at that point

possessed, on the Friday, September 21, 1984 -- one day after the

murder. Kyles stated that Wallace came by Pinkie Burnes' residence

and the two drove to Schwegmann Bros., where Kyles purchased a can

of transmission fluid and a package of cigarettes.82 At trial,

Kyles theorized that the receipt must have fallen out of the bag

into the car when he removed the items. As noted in supra Part I.,

the receipt was the only physical evidence offered by the State

that bore Kyles' fingerprints. Not the murder weapon. Not the

purse or any other of Mrs. Dye's belongings. And not Mrs. Dye's

car.

Under scrutiny, the sales receipt, like the rest of the

State's evidence, not only fails to incriminate Kyles but actually

supports the theory of the defense. To begin with, the receipt was

only approximately two inches long. Yet Mr. Dye testified that he

believed that his wife was shopping for an entire week's groceries

not only for Mr. and Mrs. Dye, but also for houseguests. Mr. Dye

testified that his wife usually brought home six or eight bags of

groceries whenever she went shopping at Schwegmann Bros.83 The

82 As discussed in supra Part I., Wallace's various statements indicate he was in fact in possession of the car, as Kyles claimed, at least by Friday. To corroborate his claim that he bought transmission fluid for his car, Kyles also offered into evidence a color photograph of his car apparently leaking some type of oily fluid. 83 Perhaps the only consistent point in all of Wallace's statements to police was that there were numerous bags of Schwegmann Bros.'s groceries in Mrs. Dye's car.

90 State never explained the obvious variance between the length of

the receipt with Kyles' fingerprints on it and the length of the

receipt that would have resulted from a week's grocery-shopping.

Also notable is the fact that a State's witness who testified

about the receipt stated that the receipt was recovered from "the

right front floorboard," i.e., the passenger's compartment. Kyles

testified that Wallace drove him to Schwegmann Bros. and, thus,

his claim is consistent not only with the length of the receipt but

also the placement of it in the passenger's compartment. Because

the police destroyed writing on the receipt in removing Kyles'

fingerprints from it, there is no way to know with certainty

whether the receipt in fact memorialized a purchase on the day of

the murder or on the next day, as Kyles claimed. However, the

circumstantial evidence supports Kyles' version of events.

The last significant piece of evidence offered by the State at

trial was a blurry, blown-up photograph of what the State claimed

is Kyles' rust-colored Mercury parked in the Schwegmann Bros.'

parking lot shortly after the murder. The blow-up is actually part

of a crime-scene photograph taken immediately after the murder.

Apparently, the police discovered what they believed was Kyles' car

well after the time of the crime. The photograph shows only a

small fraction of the right side of a tan, orange, or perhaps rust

colored American-made car, which appears to be a two-door model and

which has a vinyl top. It is impossible to discern the make or

model of the car. The State also offered two pictures of Kyles'

rust-colored Mercury, which also has a vinyl top, although the

91 pictures only depict the car from the front and back; the

photograph of the back of Kyles' car is of limited value since the

trunk is open, which blocks the vast majority of the backside.

There is no way to identify whether the vehicle in the crime-scene

photograph is Kyles' car. Thus, the State's photographic evidence

here is of extremely limited -- if any -- probative value.84

Finally, it seems that at least some weight should be given to

the many witnesses who testified in Kyles' defense. Numerous

witnesses testified that Beanie Wallace was not only in possession

of a bright red automobile resembling Mr. Dye's car immediately

after the time of the murder, but also that Wallace was anxious to

sell the car. Those witnesses also testified that Wallace's hair

was braided. Although those witnesses were either friends or

family of Kyles, at least two of them -- Ronald Gorman and Johnny

Burnes -- were also friends of Wallace.85 Another of those

witnesses, Kevin Black, was employed as a security guard for the

84 I am curious as to why the State did not offer a photograph of Kyles' car from the same angle as the car depicted in the crime-scene photograph -- which would have greatly facilitated a comparison. The crime-scene photo reveals the angle of the vinyl top on the car and also shows a large metal strip of molding that runs along the edge of the vinyl top. The State's photographs of Kyles' car reveal neither the angle of his vinyl top nor whether there is metal molding comparable to that on the car in the crime-scene photograph. The small portion of the vinyl top of Kyles' car appears not to have metal molding running along the edge, although I cannot be certain from the State's photographs. 85 In Wallace's first recorded statement, he repeatedly refers to Johnny Burnes as his "partner" and housemate. In a subsequent statement, Wallace stated that he drove around the French Quarter with Gorman on the night after the murder.

92 municipal airport in New Orleans -- a position of some trust, which

reflects positively on his credibility. Two defense witnesses also

testified that Beanie Wallace had romantic aspirations for Pinkie

Burnes, thus providing an additional motive for Wallace to frame

Kyles.86

III.

In conclusion, after a painstaking review of the entire

record, I am convinced that Curtis Lee Kyles should receive a new

trial. As a result of both a series of Brady violations and a

related ineffective-assistance-of-counsel violation, Kyles' jury

was not permitted to consider much of the relevant evidence.

Because my confidence in both the jury's guilty verdict and death

sentence are undermined, I would grant the writ of habeas corpus.

Judge Learned Hand once wrote that "[o]ur procedure has always

been haunted by the ghost of an innocent man convicted. It is an

unreal dream." United States v. Garrson, 291 F. 646, 649 (S.D.N.Y.

86 As discussed in connection with Wallace's first recorded statement, it was also obvious that Wallace hoped to receive remuneration for assisting the police. As he told police during the September 22 conversation, "I ain't doin' this for nothing, you know." An additional motive is evident from statements that Wallace made during the first recorded conversation with New Orleans police. Among other things, Wallace stated:

i) "I betcha . . . I can get in a lot of trouble with the shit?" -- making reference to the fact that he was in possession of Mrs. Dye's car;

ii) "Am I going to jail?"; and

iii) Wallace stated that he feared that "I would be charged" with Mrs. Dye's murder because "a [black] male . . . in his twenties" committed the murder.

93 1923). I fear that in this instance it is not simply a dream. I

therefore dissent.

APPENDIX A

Curtis Lee KYLES

John WHITLEY, Warden Louisiana State Penitentiary,

Angola, Louisiana.

Civ. A. No. 90-4031.

United States District Court, E.D. Louisiana.

March 24, 1992.

ARCENEAUX, District Judge.

ORDER AND REASONS

Petitioner Curtis Lee Kyles seeks a writ of habeas corpus

testing his conviction of capital murder and his sentence of death.

His execution was stayed by order of this court on November 2,

1990.

Procedural Background

On December 7, 1984, Curtis Lee Kyles ("Kyles") was convicted

of first degree murder under La.Rev.Stat. 14:30 and was sentenced

94 to death. His conviction and death sentence were affirmed by the

Louisiana Supreme Court in State v. Curtis Lee Kyles, No.

86-KA-0800,87 which was rendered on September 9, 1987; rehearing was

denied on October 17, 1987. Petitioner then applied to the Supreme

Court of the United States for a Writ of Certiorari which was

denied without evidentiary hearing on May 23, 1988; rehearing was

denied on August 17, 1988.

On January 2, 1989, Kyles petitioned the Criminal District

Court for the Parish of Orleans, State of Louisiana, for a Stay of

Execution, Post-Conviction Relief, Writ of Habeas Corpus,

Evidentiary Hearing, and Motion for New Trial on the basis of newly

discovered evidence. Kyles alleged in this petition that his

constitutional rights had been violated in twenty ways. Kyles was

not granted an evidentiary hearing, and his application was denied

on January 6, 1989. This decision was appealed to the Louisiana

Supreme Court by Application for Supervisory Writ. The Louisiana

Supreme Court granted the application for the writ and ordered an

evidentiary hearing in the criminal district court.

An evidentiary hearing was conducted intermittently from

February 20, 1989, to June 1, 1989. Judge Dennis Waldron of the

Criminal District Court for the Parish of Orleans denied

petitioner's motions and rendered a judgment.88

87 513 So.2d 265 (La. 1987), cert. denied, 486 U.S. 1027, reh'g denied, 487 U.S. 1246 (1988). 88 Judge Waldron has presided over all of the proceedings in this matter in criminal district court.

95 On April 2, 1990, petitioner filed an Amended and

Supplementary Application for Supervisory Writs to Review Final

Judgment of the Criminal District Court for the Parish of Orleans,

Section "F", denying State Order and Post Conviction Relief. On

September 14, 1990, the Louisiana Supreme Court in a 5 to 2

opinion, denied the application without reasons.

On September 28, 1990, the Louisiana Supreme Court denied a

motion for a stay order and suggested that Kyles apply to the

federal court system.

On October 2, 1990, Judge Waldron issued a Warrant of

Execution ordering Kyles to be executed on November 8, 1990. Kyles

then petitioned the United States Supreme Court to stay the

execution. The Supreme Court denied that motion on October 26

Kyles then filed the instant petition requesting a stay of

execution under 28 U.S.C. s 2254. After having filed the petition,

Kyles supplemented it by adding a claim that the electric chair,

then in use in Louisiana, violated his constitutional rights. This

claim had not been exhausted in the state court system; therefore,

this court allowed Kyles to withdraw the supplemental petition to

pursue those claims in the Louisiana court system.

The criminal district trial court denied defendant's

electrocution-based writ application. Kyles then applied for writs

to the Louisiana Supreme Court which were denied on May 24, 1991.

On June 5, 1991, the court received notification of the Louisiana

Supreme Court's decision and a request that it take up this issue

96 as well as those held in abeyance at that time. Kyles objected to

this course of action because he intended to raise the

electrocution issue by writ to the United States Supreme Court.

On June 25, 1991, Louisiana changed its method of execution

from electrocution to lethal injection. The law became effective

on September 25, 1991, thereby mooting this issue.

This court ordered additional briefing concerning any

developments in the law since the time that the petition was

originally filed which briefing was received in early September of

1991.

The Court has reviewed in detail, inter alia, the transcripts

of the hearing held on Kyles' motion to suppress identification and

on his motion to suppress evidence; the trial transcript and

evidence adduced in that proceeding; and the post-trial proceedings

transcripts and the evidence adduced there; the copious pleadings,

briefings, exhibits, and statements filed in conjunction thereto,

and the applicable law. The Court firmly believes that Kyles was

given a fundamentally fair trial with able assistance by counsel.

For the reasons that follow, the Court rejects Kyles' petition for

habeas corpus relief.

Facts of the Case

At approximately 2:20 p.m. on September 20, 1984, Mrs. Dolores

Dye, a 58-year old white female was murdered in the parking lot at

Schwegmann's Giant Supermarket at 5300 Old Gentilly Road, New

97 Orleans, Louisiana.89 Four people who witnessed the incident

testified at the trial.

The testimony established that a black man accosted the victim

as she placed her groceries in the trunk of a 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 chased her

and wrestled her to the ground. When she attempted to escape

again, the robber grabbed her arm, drew a revolver from his

waistband, and fired it into her left temple, killing her

instantly. The gunman then took her keys from her hand, got into

her car, and drove slowly from the parking lot.

The police were aided in their investigation when on Saturday

night at about 10:00 p.m. Joseph "Beanie" Wallace informed police

investigators he had purchased a red Ford LTD the previous day from

defendant.90 The police determined that the car was registered in

the victim's name.

After having ascertained Kyles' name and address from Beanie,

who specifically pointed out Kyles' apartment to the authorities,

89 The facts of this case are set out in great detail in State v. Kyles, 513 So.2d 265 (La. 1987). It should also be noted at the outset that the first trial of Kyles for this murder ended in a mistrial after four hours of deliberation by a jury. This conviction arises from a second trial. 90 At the post-conviction hearing, Detective John Miller testified that he had spoken to Beanie on no more than half a dozen occasions concerning various, unrelated shootings. This instance was the first that Detective Miller could use Beanie's information because it was a homicide. (Transcript of Post- Conviction Relief Hearing, Detective Miller, February 24, 1989, at 3.) The court notes this fact because of petitioner's allegations that Beanie was an unreliable source.

98 the police picked up five identical sacks of garbage outside of his

home at approximately 1:00 a.m. on September 24, 1984. Inside one

of these garbage bags, the victim's purse and personal belongings

were found. At 6:07 p.m. on September 23, 1984, a search warrant

for Kyles' house was issued.

At approximately, 10:00 a.m. on the 24th of September, 1984,

Kyles was arrested outside his home. Police recovered a .32

revolver, which was later determined to be the murder weapon, from

behind the stove in his kitchen, as well as a hand-made holster,

which fit the murder weapon and which was found in a chifferobe in

the hall, various boxes of ammunition containing bullets which

could be used in the murder weapon, and a rifle. In a kitchen

cabinet, the police found groceries in Schwegmann's bags, including

brands of dog and cat food normally purchased by the victim.

Partial fingerprints were found on the victim's effects, but

none was sufficient for a positive identification. No fingerprints

were found on the .32 revolver or in the LTD, although defendant's

prints were recovered from a Schwegmann's cash register receipt

found on the floor of the car. However, the chemical process used

to raise the fingerprints on the register receipt destroyed the

inked printing on the paper, thus making it impossible to determine

what the receipt was for or when the purchase was made.

Three of the eye-witnesses to the murder picked defendant out

of photographic line-ups conducted on September 24, 1984. These

witnesses, as well as a fourth who had not been asked to make a

99 photographic identification, also positively identified defendant

at trial as the murderer.

The defense contended at trial that the informant, "Beanie"

had actually committed the murder and had framed Kyles. The

defense presented several witnesses who saw Beanie in a red car

similar to the victim's about an hour after the killing.91 Other

witnesses testified that Beanie had attempted to sell the car

shortly after the murder.

The linchpin of the defense, however, was the defense's theory

that Beanie had planted all of the incriminating evidence on Kyles.

Evidently, a Sunday dinner was served at Kyles' "home"92 on

September 23, 1984. Testimony conflicted greatly as to the number

of adults present at the meal and what was served. The defense

maintains that it was then that Beanie framed Kyles.

To that end, Johnny Burnes, Kyles' common-law-brother-in-law,

testified that he saw Beanie stoop down behind the stove where the

gun was found. (Trial Transcript, Burnes' Testimony, pp. 259-89,

at 263.) Kyles testified that the holster was not his and must

have been planted in the chifferobe. The same explanation was

given with respect to all of the ammunition. Kyles further

testified that the rifle found belonged to Beanie. He explained

91 All of these witnesses were either close friends of the defendant or related to the defendant's girlfriend and mother of his children, "Pinky" Burnes. 92 The cour uses the term "home" loosely. The apartment in question was the apartment of Kyles' girlfriend where she resided along with her four children by Kyles and where he evidently stayed with some frequency.

100 that because Kyles had lent Beanie $20.00, Beanie had given him the

rifle as collateral. (Trial Transcript, Kyles' Testimony, pp.

318-374, at 319). The motive for this "frame job" was Beanie's

alleged romantic interest in Martina "Pinky" Burnes, Kyles'

common-law wife and mother at that time of four of his children, as

previously noted.

Kyles denied any involvement in the shooting, explaining his

fingerprints on the cash register receipt by asserting that Wallace

had picked him up in a red car the day after the murder and had

taken him to Schwegmann's where he purchased transmission fluid for

his car and a pack of cigarettes. He suggested that the receipt

might have fallen from the bag when he removed the cigarettes. As

to an explanation concerning the presence of dog and cat food,

there was varying and conflicting testimony from all of the defense

witnesses as to whether or not Kyles or his children had a dog or

cat.

On rebuttal, Beanie was brought into the courtroom. Each of

the four eye-witnesses attested that Kyles, not Beanie, was the

person that each saw commit the crime. The jury and the court were

given the opportunity to see any possible resemblance between the

two.

After being charged and deliberating, the jury unanimously

found defendant guilty of first degree murder.

In the sentencing phase, the prosecutors relied on the

evidence adduced during the guilt phase of the trial. The defense

called two of the defendant's sisters and two of his brothers who

101 testified that defendant had a close relationship with his children

and loved and supported them. Defendant also took the stand and

continued to assert his innocence.

The jury unanimously recommended the death penalty, finding as

the sole statutory aggravating circumstance that the killing

occurred during the commission of an armed robbery.

At the post-conviction hearing ordered by the Louisiana

Supreme Court, the trial court received testimony concerning twenty

issues, among other things, alleged Brady materials which had not

been turned over to defendant, ineffectiveness of counsel, and

approximately 18 other violations. After the hearing which was

conducted on intermittent days, Judge Waldron issued a judgment

denying Kyles' motion for a new trial and the relief sought in his

Writ of Habeas Corpus.

As previously stated, petitioner then filed an Amended and

Supplementary Application for Supervisory Writs to Review Final

Judgment of the Criminal District Court for the Parish of Orleans

on April 2, 1990. After the Supreme Court of Louisiana denied

writs without written reasons, the same issues were raised by

counsel for Kyles in the instant s 2254 petition which the Court

will now address.

Issues Presented

I. Denial of Motion for Stay of Execution, Evidentiary Hearing

and Motion for a New Trial

Kyles claims a violation of his due process rights under the

Sixth, Eighth and Fourteenth Amendments to the United States

102 Constitution because Judge Waldron denied his Motion for Stay of

Execution, Evidentiary Hearing and Motion for New Trial without a

hearing on January 6, 1989. Petitioner states, "Based upon the

true allegations set forth in the Application for Supervisory and

Remedial Writs, Curtis Kyles should have prevailed."

First, it appears from the recitation of the procedural

history of this case as supplied by Kyles that the Supreme Court

ordered an evidentiary hearing in Criminal District Court on the

motion for new trial and the writ of habeas corpus contained in

defendant's January 2, 1989, pleadings, which hearings were

conducted over a period of months from February 20, 1989 to June 1,

1989, and which served as the basis for Judge Waldron's judgment

dated November 9, 1989. Thus, it seems illogical to argue that

Kyles' rights were violated when the Supreme Court of Louisiana,

acting upon Kyles' applications for relief, ordered a hearing for

that precise purpose and the criminal district court obeyed that

order.

Furthermore, as previously noted, filed in conjunction with

the motion for new trial and motion for an evidentiary hearing, was

Kyles' application for a writ of habeas corpus. As such, the state

court proceedings of which Kyles complains were collateral in

nature and not direct challenges to the validity of his conviction.

The state court's alleged error in the conduct of its habeas

proceedings presents no constitutional violation. See Byrne v.

Butler, 845 F.2d 501, 509-10 n. 8 (5th Cir.), cert. denied, 487

U.S. 1242, 108 S.Ct. 2918 (1988); Millard v. Lynaugh, 810 F.2d

103 1403, 1410 (5th Cir.), cert. denied, 484 U.S. 838, 108 S.Ct. 122

(1987). This claim is without merit.

II. Brady Violations

Kyles maintains that the state failed to meet its obligations

to provide to defendant exculpatory materials under Brady v.

Maryland, 373 U.S. 83 (1963), and its progeny. The materials

claimed to have been wrongfully withheld are:

A. a recorded statement obtained when the officers, following

up on Beanie's phone call concerning Mrs. Dye's vehicle, met

Beanie;

B. a computer print out which listed license plate numbers of

the cars in Schwegmann's parking lot on the evening of the

murder;

C. an inter-office memorandum directing Kyles' garbage to be

picked up with the implication that evidence was to be found

therein.

The suppression by a prosecutor of evidence favorable to and

requested by an accused violates due process when the evidence is

material either to guilt or to punishment, irrespective of the

prosecutor's good or bad faith under Brady. Id. However, the

non-disclosed evidence must be material. The suppression of

evidence violates due process "only if it deprives the defendant of

a fair trial." United States v. Bagley, 473 U.S. 667, 678, 105

S.Ct. 3375, 3381 (1985). "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.

104 A 'reasonable probability' is a probability sufficient to undermine

confidence in the outcome." Id., 473 U.S. at 682, 105 S.Ct. at

3383.

Petitioner has urged this court to adopt a heightened standard

in this instance in relation to the "harmful effect of withheld

exculpatory evidence in capital sentencing." (Memorandum of Facts

and Law filed in conjunction with Petition at 40). Kyles urges

instead to use the "no effect" standard found in Caldwell v.

Mississippi, 472 U.S. 320 (1985), or the "harmless beyond a

reasonable doubt" standard referred to in Satterwhite v. Texas, 486

U.S. 249 (1988). While this court declines petitioner's invitation

to use these different standards in its analysis, it notes that

even if it did, it would find that the evidence withheld did not

have any adverse-due process effect, no matter which of the three

standards were applied.

A. The Recorded Statement

The recorded statement at issue was made by the police simply

as a precaution for the officer who was wearing the "wire." The

police file was not turned over the district attorney until after

the trial. Thus, the prosecution did not have the information to

turn over in a timely fashion.

Kyles alleges that had he had the tape recording he would have

learned that:

1) Beanie knew in what area of Schwegmann's parking lot the

murder was committed;

105 2) Beanie had said that Kyles wore a "bush" hairstyle in

contrast to testimony that the killer had "plaits";

3) Beanie asked for $400 for the purchase price of the

victim's car and was assured by the police that he would be

paid;

4) Beanie suggested to the police officers that Kyles might

put incriminating evidence in his garbage; and

5) Beanie feared apprehension because he had been seen driving

the Dye automobile.

First, the characterization of these "facts" being established

by this tape as argued in Kyles' petition is not a fair rendition

of the material contained in the tape itself. Secondly, the

material does not exculpate Kyles. Finally, as to fitting "hand in

glove" with the defense's position that Beanie framed Kyles, the

fact is that after reviewing all of the testimony presented, the

defense's theory has no viable or credible evidence to support it.

In this court's judgment, the jury's verdict would not have been

different had this information been available to the defense.

B. The Computer Print-Out

With respect to the computer print-out, at the evidentiary

hearing, the defense learned that the list was not a complete list

of the cars in the lot at that time; therefore, it is evidence

which would carry little if any exculpatory weight and bears so

little materiality that it fails to fit the Brady mold. (Post-

Conviction Hearing, Detective John Miller, February 24, 1989, at

11).

106 C. The Inter-Office Memo

The court rejects the Brady argument with regard to the

interoffice memo concerning the statement that "[w]e have reason to

believe the victim's personal papers and the Schwegmann's bags will

be in the trash." First the only "garbage" statement contained in

the transcript of the tape is Sergeant Eaton's recital that Beanie

said, "his garbage goes out tomorrow said if he's smart he'll put

it in garbage. He said but he ain't that smart."(sic)93 Sergeant

Eaton did order the garbage to be picked up, but the bags that were

picked up were identical, which renders improbable, if not

impossible, the defense's argument that Beanie planted a bag of

garbage.

To that end, the defense asks this court to rely on the

hearsay statement of Martina "Pinky" Burnes, who defense counsel

Martin Regan said that he could not rely upon in preparing Kyles'

defense. Pinky stated that Steve Turner, who lived with the

Burneses (as did "Beanie"), told her that he saw Beanie take a

garbage bag and fill it with garbage from the neighbors' trash on

North Dorgenois Street in the evening hours of Sunday, September

23, 1984, "apparently to drop off the garbage bag in which he had

placed Mrs. Dyes' purse in front of Curtis' residence."

(Post-Conviction Hearing, Testimony of Martina Burnes, April 7,

1989, at 21-22). In order to give any credence to this story,

93 Eaton also testified that the transcript of the tape was incorrect in that Eaton is the one who made the comment that "[Kyles] was not that smart," because Eaton "did not want Beanie to have any knowledge of what [Eaton] may do later." (Post- Conviction Hearing, Sergeant Eaton, March 3, 1989, at 65).

107 Beanie would have to have known and used the same type garbage bags

that Kyles used since they all resemble one another. This court

finds Martina's testimony incredible considering that she had the

opportunity to raise these points before Kyles' trial and did not.

A complete reading of the record convinces this court of

Kyles' guilt and that he received a fair trial. The positive

identification by four witnesses of Kyles as the perpetrator when

each witness was given the opportunity to view Kyles and Beanie

together, combined with the jury's opportunity to compare these two

individuals to decide whether they had a reasonable doubt that

Beanie could be mistaken for Kyles, combined with the varying and

inconclusive testimony of Kyles' friends, leads this court to the

ineluctable conclusion that the Brady materials were not material,

that they would have made no difference in the outcome of this

trial, and that there is no probability (much less a reasonable

probability) that disclosure of any of the so-called "Brady

materials" would have changed the result of the proceedings.

III. Ineffective Assistance of Counsel

Kyles has alleged nine errors of counsel prior to trial, nine

errors of counsel during trial, and two errors after trial, which

Kyles claims resulted in his having been denied effective

assistance of counsel in contravention of his Fourth, Fifth, Sixth,

Eighth and Fourteenth Amendment rights. Defendant asserts that had

he received effective assistance of counsel "there is a reasonable

probability, if not a certainty, that the outcome of both the guilt

108 phase and the sentence phase of his trial would have been

different. Strickland v. Washington, 466 U.S. 668 (1984)."

Under Strickland, Kyles is required to satisfy a two part test

to merit relief on claims of ineffective assistance of counsel:

First, the defendant must show that counsel's performance

was deficient ... that counsel was not functioning as the

"counsel" guaranteed ... by the Sixth amendment. Second,

the defendant must show that the deficient performance

prejudiced his defense. This requires showing that

counsel's errors were so serious as to deprive the

defendant of a fair trial, a trial whose result is

reliable.

Id., 466 U.S. at 687, 104 S.Ct. at 2064. Only if petitioner proves

both elements, is he entitled to relief.

"The proper measure of attorney performance remains simply

reasonableness under prevailing professional norms." Strickland,

466 U.S. at 690, 104 S.Ct. at 2065. However, this means that the

court must not employ hindsight in making its fair assessment of

defendant's claims. The court "must judge the reasonableness of

counsel's challenged conduct on the facts of the particular case,

viewed as of the time of counsel's conduct. Id. 466 U.S. 690, 204

S.Ct. at 2066; Earvin v. Lynaugh, 860 F.2d 623, 625 (5th Cir.1988),

cert. denied, 489 U.S. 1091, 109 S.Ct. 1558 (1989).

Second, Kyles must demonstrate that there is a reasonable

probability that but for counsel's conduct, the result of the

109 proceeding would have been different. Strickland, 466 U.S. at 697,

104 S.Ct. at 2069. As stated by the Strickland court:

The governing legal standard plays a critical role

in defining the question to be asked in assessing the

prejudice from counsel's errors. When a defendant

challenges a conviction, the question is whether there is

a reasonable probability that, absent the errors, the

fact finder would have had a reasonable doubt respecting

guilt. When a defendant challenges a death sentence such

as the one at issue in this case, the question is whether

there is a reasonable probability that absent the errors,

the sentencer--including an appellate court, to the

extent it independently weighs the evidence--would have

concluded that the balance of aggravating and mitigating

circumstances did not warrant death.

In making this determination, a court hearing an

ineffectiveness claim must consider the totality of the

evidence before the judge or jury. Some of the factual

findings will have been unaffected by the errors, and

factual findings that were affected will have been

affected in different ways. Some errors will have had a

pervasive effect on the inferences to be drawn from the

evidence, altering the entire evidentiary picture, and

some will have had an isolated, trivial effect.

Moreover, a verdict or conclusion only weakly supported

by the record is more likely to have been affected by

110 errors than one with overwhelming record support. Taking

the unaffected findings as given, and taking due account

of the effect of the errors on the remaining findings, a

court making the prejudice inquiry must ask if the

defendant has met the burden of showing that the decision

reached would reasonably likely have been different

absent the errors.

Id. 466 U.S. at 697-98, 104 S.Ct. at 2068-69.

Finally, this circuit has held that if a state court record is

clearly adequate to fairly dispose of the claims of inadequate

representation, further inquiry is unnecessary. De Luna v.

Lynaugh, 873 F.2d 757 (5th Cir.1989), cert. denied, 493 U.S. 900,

110 S.Ct. 259 (1989). In this instance, the court finds that the

state court record meets this standard, and thus, this court will

not entertain another evidentiary hearing.94

Within this framework the following issues were raised by

petitioner:

A. Ineffective Assistance Prior to Trial95

94 It is important to also note that a state court's findings of fact are entitled to a presumption of correctness under § 2254(d) unless one of the eight exceptions is present. 28 U.S.C. § 2254(d). The presumption of correctness extends to implicit fact findings. Thompson v. Linn, 583 F.2d 739, 741-42 (5th Cir. 1978). 95 Petitioner had Attorney Samuel Dalton testify at the post-conviction evidentiary hearing. Mr. Dalton was presented as an "expert" in defense of death penalty cases. As a hired expert, it is not surprising that he opined that with all of the "errors" committed by counsel Martin Regan, an entirely different trial would have ensued. However, this court cannot approach this question as though it has no experience in trial advocacy and the rigors of criminal cases.

111 1. Kyles alleges that counsel was ineffective with respect to

the motion to suppress evidence recovered from the garbage, because

he did not call as a witness Detective Miller, another policeman

involved in the investigation who, defendant maintains, would have

testified that the garbage was picked up because of Beanie's tip.

This claim is without merit for various reasons. To begin

with, defendant has no constitutional right of privacy in his

garbage. California v. Greenwood, 486 U.S. 35, 108 S.Ct. 1625,

1628-30 (1988); United States v. Vahalik, 606 F.2d 99, 100-01 (5th

Cir.1979); Louisiana v. Kyles, 513 So.2d 265, 269 (La.1987).

Therefore, it is irrelevant how the police decided to pick up those

five bags. Next, this assertion is based on information obtained

after trial which this court is not allowed to consider as

discussed above. Thus, this assertion does not state a valid

ineffective assistance claim.

2. Kyles asserts that it was ineffective assistance for Regan

not to have moved for a continuance to ascertain from residents

around 2313 Desire St. (Pinky's residence) how many bags of garbage

they put out on the day in question and whether they saw anyone

else place a garbage bag in front of the house. This argument,

again, is based on defendant's post-trial hindsight which the court

In the instant matter, Mr. Regan was retained counsel for Kyles. Mr. Regan has appeared before this court under similar circumstances, albeit never in a capital case, on numerous occasions. The court notes for the record that Mr. Regan has consistently conducted himself as an extremely careful and zealous defense lawyer. It is impossible for this court to place much credence in this "expert's" opinion.

112 will not consider as providing evidence of allegedly deficient

trial conduct. Furthermore, from the evidence, it is apparent that

all of the bags were the same and were "lined up" when picked up

indicating that they probably came from Kyles' apartment.

3. Petitioner argues that counsel erred in his failure to

interview Steven Turner, who allegedly told Martina ("Pinky")

Burnes that he saw Beanie fill a garbage bag and leave his house on

North Dorgenois. (See discussion, supra). Again this claim goes

back to the alleged "tip" from Beanie about the garbage of which

counsel had no knowledge when his alleged failure to interview

Turner would have had any relevance. In addition, it would appear

that counsel was unaware of Turner's alleged discussion with Pinky.

As such, the allegation is based on hindsight which the court will

not consider. Furthermore, the picture in evidence of the five

garbage bags belies this story in its entirety.

4. Regan was also allegedly ineffective because he failed to

investigate and interview Marrian Burnes who allegedly saw the

murder weapon in Beanie's possession one or two weeks prior to the

murder. This information is so inconsequential in relation to the

rest of the evidence that it cannot be said that the result of the

proceeding would have been different had Regan known; therefore, no

prejudice is demonstrated.

5. Regan's failure to interview the eye-witnesses of the

shooting was erroneous and prejudiced Kyles, the defendant claims.

The Court finds no merit in this argument. Regan had more than

adequKMRGCMND():!A]jtunily ho cross-examine three of the

113 eye-witnesses at the motion to suppress--when all were under oath.96

His election not to further interview them or obtain statements was

not unreasonable and appears to have been in the nature of a

reasonable, tactical decision on the part of defense counsel that

the court will not second guess. In addition, Kyles has not

presented how such witness interviews would have resulted in a

different trial outcome. The trial in question was fundamentally

fair.

6. Kyles claims that counsel should have demanded an in camera

review of the homicide file. This entire claim is based on

hindsight and as such is not subject to review by the Court.

Furthermore, considering that the Court has previously ruled that

the failure to turn over this Brady material did not result in

Kyles receiving an unfair trial, this claim is without merit.

7. Kyles argues that counsel was "patently ineffective in

allowing the state to hide such significant evidence" as the taped

conversation. As this court has stated, this "taped conversation"

looked at in the light of all of the other evidence adduced at

96 Regan cross-examined Isaac Smallwood, Henry Williams and Robert Territo at a motion to suppress held on November 6, 1984, all of whom testified at trial. Only Darlene Cahill, the fourth trial eye-witness was not questioned and that is because she had not participated in the photographic line-up at issue therein. The Court notes that the identifications made by each of these persons was absolute. Much has been made over Smallwood having embellished his recounting of what he saw on the day of the shooting at trial. However, comparing his statement, his testimony at the hearing on the motion to suppress, and the testimony at trial, this court believes that at a minimum this individual was able to see the perpetrator's face and that the identification is valid. Smallwood's embellishment is not prejudicial error.

114 trial and at the post-conviction hearing, is not the "smoking gun,"

as defense counsel insists on characterizing it. In addition, this

is yet another "hindsight" call which the court will not consider.

8. Counsel was ineffective because he did not advise two of

the defense witnesses to go to the police or the district attorney

with "information ... that Beanie was the murderer of Dolores Dye"

which information counsel learned "at least two weeks after Curtis'

arrest." This assertion by Kyles overstates at best, or misstates

at worst, what this court can glean from the record.

The citations provided by counsel to support this claim do not

deal with these two persons having informed Regan two weeks after

Kyles' arrest that Beanie was the murderer of Dolores Dye. The

Regan testimony of February 20, 1989, at the Post-Conviction

Hearing beginning at page 17 deals with Beanie's allegedly having

murdered two other people. Kevin Black's entire testimony consists

of his having seen Beanie in the Dye car immediately after the

shooting. Johnny Burnes most incriminating statement at trial

about Beanie was that he saw Beanie placing something behind the

stove at the now infamous Sunday night dinner.

To begin the analysis, the criminal trial court found that

Johnny Burnes testimony is totally without merit or worthy of

consideration because of his demeanor in court and because he had

been convicted of the murder of Beanie. This court concurs in this

finding. Both Burnes' trial testimony and post-conviction hearing

testimony are incredible. It was not until this post-conviction

hearing (which occurred after Beanie's demise) that Burnes thought

115 about retrieving from his memory the "fact" that Beanie told him

that Beanie had killed Mrs. Dye. Indeed, Sergeant Raymond Miller,

who took Burnes' statement about Beanie's involvement with another

(the Leidenheimer) murder, believed from Burnes' statement that

Burnes himself was involved in that murder. (Post Conviction

Hearings, Raymond Miller, March 3, 1989, at 46-47).97

As to Black's testimony, again the court cannot find that his

being "discredited" by the fact that he did not go to the police

had an effect on the fairness of the trial in light of the totality

of the evidence adduced. Petitioner has not proven any prejudice

resulted from the alleged error of counsel.

9. In petitioner's memorandum of facts and law, not in the

petition itself, Kyles finally argues that Regan's failure to

interview Beanie himself was error. However, this decision was one

which was rationally made by a competent defense lawyer. Beanie

was considered by Regan to be the proverbial "loose cannon."

Considering that Regan's entire defense hinged on pinning the

murder on Beanie, it is difficult to comprehend how interviewing

Beanie would have made any appreciable difference. Surely, Kyles

97 Miller testified concerning why he held this belief as follows: It was the information that, ah, he [Johnny Burnes] knew the caliber of the weapon. He knew the location of the wound, and most importantly, he knew the fact that a television had been moved from one location to another inside the downstairs's living room of the residence. That particular information in particular was never released to anyone, because I failed to put it in the initial daily by an oversight. So that particular information was not known to any one other than someone who would have been there that night.

116 could not have expected a Perry Mason confession from Beanie had

Regan interviewed him. This "error" was not prejudicial.

B. Ineffective Assistance During Trial

1. A major issue raised in petitioner's post-conviction

motions heard before Judge Waldron, repeated here, is that it was

ineffective of counsel not to call Beanie to the stand. Regan has

opined that he did not do so because he misunderstood Louisiana law

on that issue at the time; he believed he would have to prove both

hostility and surprise in order to lead Beanie if he called him.

(Post-Conviction Hearing, Regan Testimony, February 20, 1989, at

23-24).

Louisiana Revised Statute 15:277 provided at the time of

Kyles' trial:

A leading question is one which suggests to the witness

the answer he is to deliver, and though framed in the

alternative, is inadmissible when propounded to one's own

witness, unless such witness be unwilling or hostile.

Louisiana Revised Statute 15:487 also provided at that time:

No one can impeach his own witness, unless he has been

taken by surprise by the testimony of such witness or

unless the witness shows hostility toward him, and, even

then, the impeachment must be limited to evidence of

prior contradictory statements.

It was only after the Louisiana Supreme Court, in dicta, stated

that "Wallace [Beanie] was clearly a witness hostile to defendant,

and defense counsel was entitled to employ leading question and to

117 impeach the witness through any prior inconsistent statements.

La.R.S. 15:277; 15:487" that Regan's decision was called into

serious question.

The Louisiana court's statement does not mean that the

statutory requirements would not have to have been met by Regan.

Had Regan put Beanie on the stand, he would not have been able to

impeach him until Regan was either surprised by the testimony or

Beanie demonstrated hostility. State v. Nuccio, 454 So.2d 93

(La.1984); State v. Rogers, 324 So.2d 404 (La.1975). At the time

Regan was called upon to make the decision as to whether or not to

call Beanie, Regan had no guarantees as to Beanie's demeanor or

testimony. He made a logical decision which this court feels was

justified at the time.

The possibility of the defense calling Beanie was actually

considered by Regan and discussed with the prosecution. At the

post-conviction hearing, prosecutor Cliff Strider in responding to

the question whether Regan indicated to him whether Strider thought

he would or would not call Beanie as a witness testified:

He was debating that point. I remember that there was a

discussion. I told him that I would love to get Beanie

under cross-examination, and he made a remark about how

that he would be able to do that, and so we'd both have

him under cross-examination. There was a

discussion--.... He made a remark about that Beanie

would be hostile because he was going to be accusing him

of the murder, and that he would be able to--I told him

118 that I didn't think Beanie would get hostile. I didn't

think that Beanie would get upset.

(Post-Conviction Hearing, Testimony of Strider, February 20, 1989,

at 117.[)]

Considering the possible damage that Beanie's testimony could

have wrought and considering that much of the "evidence" of

Beanie's character and activities presented was based on

questionable hearsay, this court believes that Regan made a

tactical decision that was reasonable and well advised at the time

that he decided not to place Beanie on the stand. This 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."

Strickland, 466 U.S. at 690, 104 S.Ct. at 2065.

In addition, the essence of the state's case did not rely at

all on Beanie; it was founded on the positive identification by

four eye-witnesses who saw Curtis Lee Kyles at varying stages of

the incident calmly placing a gun to the head of an unarmed woman,

blowing her brains out (for absolutely no other reason than to rob

her), and then driving away in her car. The court cannot find that

the decision reached would reasonably likely have been different

had Regan cross-examined Beanie.

2. Kyles alleges that counsel was ineffective because he

failed to obtain the services of an eye-witness expert to prove

119 that the identifications were suspect. At page 94 of Regan's

February 20, 1989, post-conviction hearing testimony, he states

that he did not know of any case in the year 1984 in which an

expert in eye-witness identification was used in the Criminal

District Court for Orleans Parish. In light of that testimony, it

borders on frivolous to raise such a claim under the dictates of

Strickland. Because it was not the practice of the legal community

in 1984 to use these experts, and their use was, therefore, without

precedent at that time, Regan cannot be found to have been

ineffective by not doing that which had never before been done.

3. Likewise, Kyles' argument that Regan should have impeached

Smallwood, the eye-witness who embellished his story on the stand,

with his prior statement is without merit. Regan did not know of

it; therefore, an ineffective assistance of counsel claim in this

regard is without merit. Furthermore, since the "Brady " evidence

was found not to be material, its non-use could not present an

ineffective assistance of counsel claim.

4. Kyles makes the broad-brush allegation that counsel's

failure to interview all of the eye-witnesses constituted

ineffective assistance. This claim fails to detail with

particularity what prejudicial impact that failure produced, and

therefore Kyles does not raise a cognizable claim.

5. Kyles claims as ineffective assistance Regan's failure to

call Detective John Miller, the detective who met with Beanie, to

the stand. During the post-conviction hearing, Detective Miller

was called to testify. There was no testimony elicited from him

120 that would have in any way diminished the state's case against

Curtis Lee Kyles. Accordingly, no prejudice has been demonstrated

by Kyles; this claim also fails.

6. The next claim is based upon counsel's alleged failure to

properly argue the State's objection to Ronald Gorman's testimony

as hearsay. At the trial Gorman testified that Beanie had

attempted to sell Mrs. Dyes' car to Gorman. Gorman also had been

convicted "on a marijuana charge" and "armed robbery that they

broke it down to purse snatching." Trial Transcript at 238-39.

Indeed, Gorman testified how different Beanie and Kyles appear.

Trial Transcript at 244.98

Kyles does not specifically outline exactly what testimony

Gorman would have given. He notes that "[h]owever, had trial

counsel noted that a statement against penal interest is an

exception to the hearsay rule, the statements made by Beanie to

Ronald Gorman would have been admissible." Petitioner gives no

specifics, and on that basis the court rejects this contention.

In addition, in reviewing the trial testimony and the

post-conviction testimony with respect to Gorman, Gorman was a

convicted felon whose testimony was and continues to be suspect.

Therefore, the court cannot find that Kyles was prejudiced by

Regan's "failure" in this regard.

98 Gorman was one of the individuals who went to the police after the first trial and gave a statement concerning Beanie and the Leidenheimer murder. In the statement, Gorman admitted that he had known of the Leidenheimer information for a number of months but had decided to tell the police only then because Beanie supposedly threatened to murder him if Gorman testified at trial.

121 7. Kyles raises a similar objection with regard to Johnny

Burnes testimony and counsel's failure to raise an exception to the

hearsay rule. The trial court stated after the post-conviction

hearing:

This Court, having had the opportunity to view Mr. Burnes

on the witness stand and to hear his testimony, has

chosen to totally disregard everything that he has said.

Purely by coincidence, this Court has presided over the

trial of Mr. Burnes, wherein he was convicted of the

killing of Joseph Wallace [Beanie].

Judgment dated November 9, 1989, at 4.

The trial court's finding of fact in this regard cannot be set

aside unless it is clearly erroneous. The court must give due

regard to the opportunity of the trial court to judge the

credibility of the witnesses. Amedeo v. Zant, 486 U.S. 214, 223,

108 S.Ct. 1771, 1777 (1986). Having reviewed the entire record,

this court without hesitation concurs with the trial court's

determination concerning the credibility of Johnny Brown.

Burnes still denies that he killed Beanie, and testified at

Kyles' post-conviction hearing that the prosecutor, Mr. Strider,

whispered to Burnes outside the courtroom, "He told me whatever

they had to do to get me, they was going to get me, too."

(Post-Conviction Hearing, Burnes' Testimony, March 1, 1989, at 54).

Even at the trial, before Beanie's murder, Burnes' testimony is

uneven and unbelievable.

122 Based on these findings, there can be no prejudice with regard

to any testimony that Burnes was precluded from giving.

8. Kyles opines that counsel failed in providing assistance

when Regan did not object to the introduction of a picture and its

blow-up which purportedly shows Kyles' car in the Schwegmann's

parking lot at the time of the murder. It is simply yet another ex

post facto claim which has no merit as the basis for an ineffective

assistance claim. The gravamen of petitioner's argument is that

the police record of the license plates supposedly demonstrates

that Kyles' car was not in the parking lot at 9:15 p.m., the night

of the murder.

As noted earlier, at the post-conviction evidentiary hearing

it was established that the list did not contain the license plate

numbers of every car in the lot. Furthermore, even if this list

were conclusive, Regan did not even know of the list at the

relevant time.

9. Petitioner continues to claim ineffective assistance by

arguing that counsel's failure to object to Detective Dillman

talking about two other witnesses "probably persuaded the jury that

there were more witnesses who could identify the defendant."

(Trial testimony at 88). This claim is totally unsupported by the

record. The two other witnesses are Willie Jones and Edward

Williams. These two persons participated in the photographic

line-up, but were unable to make a positive identification, only a

tentative one, as specifically stated by Dillman at trial. He also

testified that they did not make a negative identification, that is

123 identify someone else. Furthermore, this "failure" could not be

deemed to have resulted in Kyles' receiving a fundamentally unfair

trial when four eye-witnesses testified unequivocally that Kyles

was the perpetrator of the crime.

10. Kyles argues that Regan was ineffectual when he failed to

object during the sentencing phase to a comparison of Kyles' life

while incarcerated to the Dye's family life subsequent to the

murder of Mrs. Dye. This "failure" does not constitute

constitutional grounds to vacate the sentence. Under the Supreme

Court's ruling in Payne v. Tennessee, --- U.S. ----, 111 S.Ct.

2597, 2606-08 (1991), it is not unconstitutional to introduce at

the sentencing stage information concerning the impact on the

victim's family because of the victim's death. "We are now of the

view that a State may properly conclude that for the jury to assess

meaningfully the defendant's moral culpability and blameworthiness,

it should have before it at the sentencing phase evidence of the

specific harm cause by the defendant." Id.

11. Kyles' last contention is that counsel was ineffective for

his "failure to investigate the possibility that Kyles' has organic

brain damage or mental illness." First, counsel has not presented

evidence that Kyles' suffering from:

considerable inter- and intra-test scatter. Deficiencies

appear in areas of perceiving and mobilizing information

in the environment, academic knowledge, abstract

reasoning and short-term memory

124 (Petition at 47) would affect his capacity to stand trial or to be

sentenced as he was. Second, there is no evidence of any facts or

triggering events which would have alerted Regan to the

desirability of ordering such tests. Counsel testified that Kyles

was lucid and perfectly capable of understanding everything that

went on at trial and assisting counsel at that time. "He was

certainly sane and capable of assisting me." (Post-Conviction

Hearing, Testimony of Regan, February 20, 1989, at 61). Regan was

privately retained counsel, working within a budget. Id. at 62.

Taking all of this into consideration, counsel's not ordering those

kinds of tests was reasonable under prevailing professional norms

at the time.

C. Ineffective Assistance Following Trial

1. Kyles alleges that had Regan "kept in contact with Curtis'

family during the appeal of the conviction and death sentence, he

would have learned that Beanie admitted to Martina Burnes and

Johnny Burnes that Beanie killed Dolores Dye." The court has

already expressed its findings with respect to Johnny Burnes'

testimony. The court finds Martina ("Pinky") Burnes' "new"

information equally incredible. She testified at the

post-conviction hearing, responding specifically to the court's

question,99 that Beanie told her before Curtis was convicted that

Beanie had shot Mrs. Dye. (Post Conviction Hearing, Martina

99 As stated previously, Regan did not call her at trial because he was uncomfortable with her testimony and attitude even though the defense's version hinged on the theory that Beanie framed Kyles in order to get Pinky.

125 Burnes' Testimony, April 7, 1989, at 17-18). Certainly, it belies

belief that had Pinky had this information at the time of trial

that she would not have been forth-coming with it. Inherent in

this claim also is the idea that defense counsel should continue

"post-trial working" of evidence, a concept which, at the very

least is novel, if not absurd. Surely, the burden of producing

favorable or changed post-trial circumstances should rest with the

defendant's family, not with his lawyers. They are advocates, not

companions or sitters. This claim is without merit and warrants no

more discussion.

2. Kyles final assignment of error in relation to the

ineffectiveness of counsel is that he "could have also called

Detective Ray Miller to the stand during a hearing on a motion for

new trial on the basis of newly discovered evidence"--that being

Beanie's confession about being present at the scene of the

Leidenheimer murder. What this evidence has to do concerning new

evidence in relation to Kyles' murdering Mrs. Dye is beyond this

court's independent comprehension and is neither explained nor

amplified by counsel. Beanie never took the stand. Beanie's

testimony and good character were not an issue. Beanie supplied a

name. That is virtually all he did.

In summary, with respect to all of the ineffective assistance

of counsel claims, Kyles has not demonstrated that he was

prejudiced by any of these alleged "errors," nor did Regan's

defense fall below the standard required. Kyles received a fair

trial; a jury found him guilty beyond a reasonable doubt, did so

126 on the basis of facts properly presented to it, and had ample

evidence presented to it to do so.

IV. Other Errors in Trial Court

In addition to the foregoing, petitioner raised seventeen

other "errors" which the trial court allegedly committed.

A. Kyles claims that the trial court erred when it did not

appoint, without being asked, another attorney for the sentencing

phase of the trial. To begin, Regan was not appointed counsel, so

it is unclear why the trial court should interject itself into the

business of retained counsel in that manner. Furthermore, as

support for this proposition, Kyles asks the Court to look to State

v. Williams, 480 So.2d 721, 728 n. 14 (La.1985), a case decided

after this trial in which the court noted the possibility of a

court appointing separate counsel for the sentencing phase of the

trial. Neither statutory law nor the Louisiana Supreme Court

mandate it. Furthermore, petitioner simply states in a conclusory

way that this non-appointment violated Kyles' Sixth, Eighth and

Fourteenth Amendment rights but does not specify how. Without

specificity, the Court cannot address this allegation.

B. Kyles claims his Sixth, Eighth and Fourteenth Amendment

rights were violated when his garbage was seized as the result of

information given by an unreliable source. The petitioner was

given a full and fair hearing based on a motion to suppress. As

discussed earlier, petitioner had no reasonable expectation of

privacy in the garbage; therefore, no constitutional error was

127 committed when its contents, those being the victim's purse and

belongings, were introduced at trial. Furthermore,

where the State has provided an opportunity for full and

fair litigation of a Fourth Amendment claim, the

Constitution does not require that a state prisoner be

granted federal habeas corpus relief on the ground that

evidence obtained in an unconstitutional search or

seizure was introduced at his trial.

Stone v. Powell, 428 U.S. 465, 482, 96 S.Ct. 3037, 3046 (1976).

This claim is without merit.

C. Kyles complains that the trial court clearly erred in

precluding answers from Detective Miller regarding his knowledge

about Beanie's offering the victim's car for sale and stating

whether he had changed the license plate. Counsel at trial did not

object to the trial court's evidentiary ruling, nor did counsel

offer the justification that the testimony was admissible not for

the truth of the statement, but for the proposition that the

statement had been made.

This court must remember its role in reviewing the evidentiary

rulings of state convicting courts. An evidentiary error in state

criminal trial justifies habeas corpus relief only if the error is

such that it rendered the petitioner's trial fundamentally unfair.

Bailey v. Procunier, 744 F.2d 1166, 1168 (5th Cir.1984). An unfair

trial is one that has been largely robbed of the dignity due a

rational process. Menzies v. Procunier, 743 F.2d 281, 288 (5th

128 Cir.1984). A state defendant has no constitutional right to an

errorless trial. Bailey, 744 F.2d at 1168.

In Kyles' case in chief, the allegation that Beanie offered

the car for sale after the murder was raised by Ronald Gorman

(Trial Transcript at 234), and the allegation that Beanie changed

the license plates was elicited on direct examination of Johnny

Burnes. (Trial Transcript at 260). Thus, the jury was presented

with these theories. Looking at the totality of the evidence

presented and the manner it was introduced, the evidentiary rulings

did not result in a fundamentally unfair trial.

D. Kyles opines that the failure of the trial court to voir

dire the prospective jurors individually and privately tainted the

venire when prospective jurors Gros and Miller stated that they

believed the defendant was guilty. First, petitioner does not

indicate that counsel ever made such a request, nor can this court

locate such a request in the approximately 200-page voir dire

transcript. Second, the citation of pages 92 and 93 in relation to

"Gros'" testimony is not correct since the testimony of neither a

Mr. nor Ms. Gros appears at those pages. Third, a review of the

voir dire of Mr. Miller provides the clear view that Mr. Miller

agreed that Kyles was innocent until proven guilty. Finally, there

is no constitutional guarantee of individual voir dire. See Wingo

v. Blackburn, 783 F.2d 1046, 1051-52 (5th Cir.1986); Salemme v.

Ristaino, 587 F.2d 81, 88 (1st Cir.1978).

E. Kyles claims that his right to a fair trial and sentence

were violated "by making reference to Kyles' alleged infidelity to

129 his common law wife." Petitioner gives no specific reference where

the "cheap shot" occurred; however, Kyles himself testified that he

had another girlfriend. This court finds it impossible to say that

Kyles was denied a fundamentally fair trial because of any such

reference when it was a fact testified to by the petitioner

himself. (Trial Transcript at 331).

F. Petitioner claims he did not receive a fair trial when the

prosecutor argued that none of the jurors would feel safe shopping

at Schwegmann's. Trial counsel made an objection and it was

sustained; however counsel failed to ask that the jury be

admonished to disregard the statement.

The trial court instructed the jury at the end of the guilt

phase that:

the opening statement of the District Attorney, as well

as the opening statement of the defense attorney, as well

as all of their closing arguments, as well as all of the

questions that they have asked during this trial, as well

as all of their comments during this trial, are not in

any way to be considered by you as evidence in this case.

Such a prophylactic instruction cures the alleged violation.

Furthermore, the failure to admonish given the circumstances of the

trial still would not result in a fundamentally unfair trial.

G. Kyles next raises the identical type of objection but in

regard to the sentencing phase concerning a reference to Kyles'

being able to watch cable television if sentenced to life at

Angola. This court has not been able to find in the record that a

130 similar prophylactic instruction was given; however, the Louisiana

Supreme Court observed that a review of the closing argument in its

entirety led it to conclude that the prosecutor's improper remarks

did not render the jury's sentencing recommendation unreliable.

State v. Kyles, 513 So.2d 265, 275 (La.1987). This court concurs

with the Louisiana high court's findings and will not disturb them.

H. Kyles claims that because the "sentencing paragraph of the

relevant article states that the jury's decision is a

'recommendation' when in fact it is a mandatory sentence," the

statute is unconstitutional, and the jury was mislead concerning

the finality of their decision. This argument belies the

instructions which Judge Waldron gave. In the case at bar, it is

clear that the jury was apprised of the fact that its finding that

Kyles should be sentenced to death would result in the imposition

of that penalty. One of the statements made to that end (and the

instructions are replete with similar statements) is as follows:

Only if you find beyond a reasonable doubt that the

aggravating circumstance outweighs any one or more

mitigating circumstances and you are convinced beyond a

reasonable doubt that the sentence of death is

appropriate, may you impose that sentence. (emphasis

added).

Nowhere in the instructions, is the jury given the impression that

their verdict would simply be a "recommendation." Therefore, no

constitutional right was violated.

131 I. In the sentencing phase, a juror asked the trial court

whether a life sentence without benefit of parole, probation or

suspension of sentence was "exactly carried out." Kyles argues

that because the judge simply reiterated what the standard of proof

for the finding of a sentence of death rather than directly

answering the question "was misleading and deprived Curtis of fair

sentencing hearing, violating his rights...."

Under Louisiana jurisprudence, the trial court responded in a

proper manner. State v. Copeland, 530 So.2d 526, 538 (La.1988),

citing State v. Lindsey, 404 So.2d 466, 487 (La.1981), after

remand, 428 So.2d 420 (La.1983). "A discussion of future remedial

measures increases the potential for arbitrary decision making by

the jury and is irrelevant to the jury's duty. Thus, there is

almost a blanket prohibition of these matters."

The trial court's response was not prejudicial and did not

result in a fundamentally unfair trial. Indeed, if the trial court

had done otherwise, it could well have committed error. The trial

court adequately informed the jury of its option to sentence the

petitioner to either life imprisonment or death. Evans v. Thigpen,

809 F.2d 239, 243 (5th Cir.1987). As such, the court's response

was not prejudicial. This claim is devoid of substance.

J. Kyles claims his constitutional rights were violated

because the first degree murder statutory scheme does not allow for

a separate jury to be chosen for each phase of the trial based on

his contention that such a scheme "would allow jurors who are

opposed to the death penalty to serve during the guilt/innocence

132 phase, if otherwise qualified." The court finds neither statutory

sanction nor constitutional justification for such a proceeding.

In addition, other than offering an unsupported, if not

interesting, theory of his perceptions of enhanced jurisprudential

practice, petitioner does not demonstrate how the absence of such

a "two jury" trial prejudiced him. The jury selection was

fundamentally fair and the fact that those who do not believe in

the death penalty were excluded from the guilt phase of the trial

raises an issue that is wholly speculative in its nature and does

not meet constitutional proportions. Furthermore, this issue was

not raised in a petitioner's initial appeal and is arguably waived.

K. Kyles claims that he was deprived of a fair sentencing

hearing because the prosecutor appealed in numerous ways to the

passions of the jury. The Louisiana Supreme Court examined the

record of the sentencing phase to determine if it was

constitutionally excessive.

In making this determination, the court considers whether

the sentence was imposed under the influence of passion,

prejudice or any other arbitrary factor; whether the

evidence supports at least one statutory aggravating

circumstance; and whether the sentence is

disproportionate to the penalty imposed in similar cases,

considering both the offender and the offense.

Kyles, 513 So.2d at 273. While the state supreme court recognized

that the closing was surely undesirable, if not improper, in a

number of ways, the court was unable to conclude that the

133 prosecutor's improper remarks rendered the jury's sentencing

recommendation unreliable. Kyles, 513 So.2d at 275.

This court having reviewed the record concurs with the

Louisiana Supreme Court. Some of the objectionable comments refer

to what have become known as "victim impact statements." In Payne

v. Tennessee, --- U.S. ----, 111 S.Ct. 2597, 2609 (1991), the

United States Supreme Court held that the Eighth Amendment does not

establish a per se bar to the introduction of victim impact

evidence where the State chose to permit the admission of victim

impact evidence and prosecutorial argument. This court believes

that the statements made taken in the context of the whole did not

render the verdict unreliable.

The jury found an aggravating circumstance which is sufficient

under the Louisiana scheme to sentence Kyles to death. Based on

the record in its entirety, the evidence was overwhelming of Kyles'

guilt. There was little cause for doubt based on the four

eyewitnesses' testimony that this defendant needlessly and with

total disregard for the victim literally blew her brains out.

There was little, if any, mitigating evidence. Even if the

argument was inappropriate, it did not make the sentencing hearing

unfair. See Kirkpatrick v. Blackburn, 777 F.2d 272, 283-84 (5th

Cir.1985).

L. Kyles contends that the prosecution argued that the

alternative to the death sentence was only "life imprisonment" not

mentioning that it would be without benefit of parole, probation or

suspension of sentence. This claim disregards the very explicit

134 instructions of the trial judge at the sentencing stage, disregards

the very nature of closing arguments, and would cast the

prosecution in the role of an apologist, which is neither his duty

nor his purpose. The claim has no merit.

M. The petitioner argues that the death penalty was

arbitrarily and capriciously imposed on him because the mitigating

factor of "no significant prior criminal record" was present and

because "no aggravating circumstances existed other than that

required to be proved in order to convict the petitioner of the a

(sic) murder." Surely, the state proved that which the law

required it to prove; that the jury elected to forego Kyles' wish

for more merciful consideration raises no federal constitutional

issue. In Wingo v. Blackburn, 783 F.2d 1046, 1051 (5th Cir.1986),

the United States Court of Appeals for the Fifth Circuit stated:

We fail to see why aggravating circumstances narrow the

sentencing discretion any less by being made a

constituent element of the crime. The State of Louisiana

is entitled to authorize capital punishment for persons

guilty of these aggravated acts where the jury does not

find that mitigating circumstances justify less than the

death penalty.

See Lowenfield v. Phelps, 817 F.2d 285, 289 (5th Cir.1987), aff'd,

484 U.S. 231, 108 S.Ct. 546 (1988). Petitioner raises yet another

baseless claim.

N. Kyles claims that his constitutional rights were violated

when two defense witnesses, Kevin Black and Johnny Burnes, were

135 threatened by the prosecutor with being charged with accessory

after the fact to first degree murder. Kyles contends that after

the trial court informed them of this problem and instructed them

on their Fifth Amendment right against self-incrimination, the

demeanor of the two witness changed radically and their

effectiveness was diminished.

This court rejects this argument as did the Louisiana Supreme

Court in Kyles, 513 So.2d at 271. As stated before, Johnny Burnes'

testimony is simply not credible under any circumstances, without

any reference to his demeanor. Kevin Black testified that he saw

Beanie in the Dye car between 3:15 and 3:30 p.m. on the day of the

murder and that Beanie had his hair fixed in braids or plaits at

the time. (Trial Testimony at 208-09). In relation to all of the

other evidence and testimony adduced, these witnesses' demeanor

would not have caused the outcome of this trial to be suspect. In

addition the Louisiana Supreme Court found that if Beanie had

provided the prosecutor "information ... indicating that Burns and

Black facilitated defendant's attempts to avoid apprehension and

destroy evidence, the prosecutor had a legitimate basis for

considering prosecution under the accessory statute, La.R.S. 14:25

or the obstruction of justice statute, La.R.S. 14:130.1." Kyles,

513 So.2d at 272 n. 6.

At the post-conviction hearing, Prosecutor Strider outlined

the state's theory of the case as follows:

Because what happened was that Curtis Kyles shot that

lady, he took her car to ... Kevin Black's apartment, and

136 there is a place where you can park an automobile that

you can't see it--behind Mr. Black's apartment, you can't

see it unless you're standing right there. He then got,

I believe Mr. Black, to drive him over to his house.

They goofed off there for a little bit. Then they got

Johnny Burnes to take Black, Burnes, Kyles and Beanie

back to the parking lot where the car was, and Burnes

went in and picked up the car, Kyles' car. And Black and

Kyles and Beanie waited ... in the other parking lot

while Johnny went over and picked up the car and drove it

to Black's apartment complex, where they swapped the

groceries from one car to the other car.

(Post-Conviction Hearings, Strider's Testimony, February 20, 1989,

at 128-29). There was reason for Strider to ask for the court's

intervention. This court cannot find constitutional error in the

actions of the trial court.

O. Kyles claims that his rights were violated because the pro

bono attorney appointed by the Louisiana Supreme Court has no

previous experience in death penalty post-conviction relief cases.

The claim is without merit considering that Gerard A. Rault, Jr.,

who is a professor of criminal law at Loyola Law School in New

Orleans, Louisiana, is listed as "of counsel" on the pleadings and

participated in the post-conviction hearings. Kyles has been well

represented; he received a fair trial for the tragic murder of Mrs.

Dye. He asserts his innocence in the face of overwhelming

137 evidence. No attorney, no matter such attorney's brilliance and

experience, can change the facts of a case.

P. Kyles claims that his sentence of death is "invidiously

discriminatory" because of Louisiana's prosecuting authorities,

court, juries and governors' pattern and practice of discriminating

on the basis of race, gender and poverty in the administration of

capital punishment. Kyles has offered no proof that a

constitutionally significant element of racial or economic bias

infects the Louisiana scheme. McCleskey v. Kemp, 481 U.S. 279,

313, 107 S.Ct. 1756, 1778, reh'g denied, 482 U.S. 920, 107 S.Ct.

3199 (1987). However, even assuming that such bias is present,

Kyles has offered no proof that the Louisiana legislature

maintained a death penalty because of an anticipated racially or

economically discriminatory effect. Id., 481 U.S. at 297-98, 107

S.Ct. at 1769; Brogdon v. Blackburn, 790 F.2d 1164, 1170 (5th

Cir.), reh'g denied, 793 F.2d 1287 (5th Cir.1986), cert. denied,

481 U.S. 1042, 107 S.Ct. 1985 (1987). Accordingly, this claim is

devoid of substance.

R. Kyles claims that the cumulative effect of all these

alleged "errors" resulted in the end effect "which is clearly

harmful and which jointly and cumulatively deprives Curtis of his

constitutional rights...." First, this court has found that none

of petitioner's claims has merit; therefore, there is no error to

accumulate. "Zero times twenty is still zero." Mullen v.

Blackburn, 808 F.2d 1143, 1147 (5th Cir.1987).

138 However, the Fifth Circuit has recognized cumulative error

analysis in a habeas case. Derden v. McNeel, 938 F.2d 605, 609

(5th Cir.1991). The circuit has instructed:

The sole dilemma for the reviewing court is whether the

trial taken as a whole is fundamentally unfair. When a

trial is fundamentally unfair, "there is a reasonable

probability the verdict might have been different had the

trial been properly conducted."

Id. (citations omitted).

This court is convinced that even if one considered all of the

"errors" cumulatively, the jury's verdict would have been the same.

For the sake of argument, consider that Isaac Smallwood's

eyewitness testimony had been impeached, there remain three

disinterested eye-witnesses who identified Kyles--regardless of

hair-style--as the man they saw kill Mrs. Dye or drive away in her

car. These witnesses were given the opportunity (as was the jury

and the trial court) to physically compare Curtis Kyles and Beanie.

If there had been a reasonable doubt as to whether Beanie and Kyles

could have been confused with one another, the verdict undoubtedly

would have been different. As noted before, even Kyles' own

witness stated that the two individuals' builds are so different

that one could not confuse the two.

The court examined all of the pictures used in the

photographic line-up and compared Kyles' and Beanie's pictures; it

finds that they did not resemble one another. Furthermore, the

argument concerning whether the attacker had plaits, braids, a

139 Jheri curl, or a bush is ludicrous. The photographic

identifications were made using a picture of Kyles with a bush

haircut. It was his face these witnesses recognized; these

witnesses had been close enough to see and remember his face.

The allegedly cumulative effect of the claimed "non-errors"

cannot change the clearly untainted evidence that was introduced.

That evidence alone leads clearly and inevitably to the conclusion

that Kyles killed Mrs. Dye in cold blood, in the course of an armed

robbery. No amount of irrelevant technicalities can change that

result.

Kyles got a fair trial--not simply a fundamentally fair trial,

but a clearly fair trial.

V. Error in the Supreme Court

Petitioner argues that the Louisiana Supreme Court erroneously

concluded that Beanie testified at trial which he did not.

Petitioner has not demonstrated that the court's error prejudiced

him, and on review of the entire trial record and post-conviction

hearing, the court finds that Kyles has received treatment

throughout his trial and post-conviction relief that passes

constitutional muster.100

VI. Error in the Evidentiary Hearing

100 The court would note, in passing, that it understands how such an error could occur. The record in this case is confusing, at best, and possibly misleading, at worst, even with careful study. While briefing was generally voluminous, it often afforded little help in unraveling, and was often the source of obfuscation, as to the procedural and factual background of Kyles' trial.

140 Kyles' final argument is that his right to a complete

evidentiary hearing was "undermined when the trial court refused to

permit Curtis, who was found to be impecunious, funds with which to

hire experts and investigate by means of civil discovery." Kyles

presents neither statutory authority nor constitutional mandate for

such hiring of experts. But of equal importance, he offers no

reason why in this instance the trial court should have provided

such funds: Kyles presents no indication of what kind of experts

he believed would have been helpful; the kind or nature of the

evidence such experts would have produced; or what effect that

"expert" evidence would have.101 Furthermore, there was expert

testimony by Mr. Dalton concerning the effectiveness of counsel

claims. Ms. Hillary Murphy, who technically may not be an

"expert," nevertheless presented evidence in regard to the

identification of Kyles and Beanie. The fact of the matter is that

the evidence was overwhelming; the court does not believe that any

"expert" testimony could dissuade the court of its belief in the

fairness of this trial or the propriety of the results reached by

the jury.

Conclusion

Curtis Lee Kyles stands convicted of a senseless and brutal

murder of an elderly woman committed during an armed robbery. He

101 If indeed Kyles is again raising the argument that an eye-witness expert should have been hired, the court reiterates that such practices were not the norm at the time of Kyles' trial and the failure to fund the hiring of an expert does not rise to the level of a constitutional deprivation of Kyles' rights in this instance.

141 has been sentenced to death after due deliberation by a fair and

impartial jury. This court in reviewing the entire record believes

that he received a fundamentally fair trial and that the verdicts

rendered at both the guilt phase and the sentencing phase of this

trial are not suspect. Kyles has been afforded justice concomitant

with that which is required under the United State Constitution,

and is therefore not entitled to the relief of the Great Writ.

Accordingly,

IT IS ORDERED Curtis Lee Kyles' Petition for Writ of Habeas

Corpus is DENIED.

The stay of execution will be lifted by separate order.

APPENDIX B

Civ. A. No. 90-4301.

June 1, 1992.

142 ARCENEAUX, District Judge.

A motion and memorandum in support of petitioner's relief from

judgment pursuant to Fed.R.Civ.P. 60(b)(2) and (6) has been filed

by petitioner Curtis Lee Kyles. Having reviewed the memorandum and

affidavit of Darlene Kersh (who was known at the time of Kyles'

trial as Darlene Cahill), the court finds that petitioner's motion

to be meritless.

Ms. Kersh was one of four eye-witnesses who made a positive

identification of Kyles at trial and was the only witness who had

not identified Kyles in a photographic line-up. Ms. Kersh now

avers that she never actually saw Kyles' face and testified

untruthfully at the behest of the police and the district

attorney's office. Petitioner claims that this information

"undermines the entire premise of this Honorable court's conclusion

that Mr. Kyles received a fair trial based upon eyewitness

testimony."

This court entered judgment on petitioner's motion on March

30, 1992, and petitioner filed his notice of appeal on April 2,

1992. He now moves the court for relief based on the affidavit of

Darlene Kersh.

Standard of Review

Rule 60(b)(2) and (6) provide:

On motion and upon such terms as are just, the court may relieve a party ... from a judgment, order, or proceeding for the following reasons: (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b)[; . . .]

143 and (6) any other reason justifying relief from the operation of the judgment.

In this instance, with the appeal pending, this court does

have jurisdiction to consider the motion and deny it on the merits

without obtaining leave of the court of appeals. The United States

Court of Appeals for the Fifth Circuit has held that:

When a Rule 60(b) motion is filed while an appeal is pending, this circuit, along with other circuits and the commentators, has expressly recognized the power of the district court to consider on the merits and deny a 60(b) motion filed after a notice of appeals, because the district court's action is in furtherance of the appeal.

Willie v. Continental Oil Co., 746 F.2d 1041, 1046 (5th Cir. 1984),

citing Lairsey v. Advance Abrasive Co., 542 F.2d 928 (5th Cir.

1955).

The court finds that this new claim constitutes an abuse of

writ which precludes the court from reviewing this claim.

Petitioner has failed to provide the court with an adequate

demonstration that he exercised due diligence to discover the

evidence which he presents to this court as "new." While the

affiant Kersh may not have had a telephone number listed as Darlene

Cahill, there are other avenues using public records by which

petitioner could have located this witness prior to his filing his

first habeas petition. The petitioner has failed to show that he

was impeded by some objective factor external to the defense such

as governmental interference or the reasonable unavailability of

the factual basis for the claim which prevented him from raising

this claim. McClesky v. Zant, 111 S.Ct. 1454, 1473 (1991).

144 Furthermore, even if the Kersh affidavit were true, such

evidence would not have affected the jury verdict in this case.

Her testimony was cumulative and in the context of the entire trial

transcript, rather inconsequential. Given the totality of the

evidence and the remaining three eye-witnesses who chose Kyles out

of a photographic line-up and who were cross-examined by Kyles'

counsel during a motion to suppress, the court is not persuaded

that Kyles did not receive a fundamentally fair trial. While Ms.

Kersh's affidavit is disconcerting in that perjured testimony given

at the urging of the government in such a prosecution must not be

countenanced, Ms. Kersh's testimony was of little consequence in

relation to the other eye-witnesses and the evidence found in

Kyles' girlfriend's apartment.

Finally, under section 2254(b), a prisoner must first exhaust

his state remedies prior to raising that claim in federal court.

Rose v. Lundy, 102 S.Ct. 1198 (1982). This new "evidence" really

is a new and independent basis for relief which has never been

presented to the state court. As such, this court cannot grant the

relief requested. Accordingly,

IT IS ORDERED that plaintiff's Rule 60 motion is DENIED.