UNITED STATES COURT OF APPEALS

for the Fifth Circuit

___________________________

No. 96-11227

___________________________

WAYNE EAST,

Petitioner-Appellant,

VERSUS

GARY JOHNSON, DIRECTOR,

TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

INSTITUTIONAL DIVISION,

Respondent-Appellee.

___________________________________________________

Appeal from the United States District Court

for the Northern District of Texas

___________________________________________________

September 15, 1997

Before POLITZ, Chief Judge, and KING and DAVIS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Wayne East, a Texas d eath row inmate, appeals the district

cour t’s denial of his petition for writ of habeas corpus. As

grounds for relief, East alleges that the district court erred in

its conclusion that certain undisclosed evidence was not material

and therefore did not violate Brady v. Maryland

, 373 U.S. 83

(1963). We find merit in his contention and vacate his sentence of

death.

I.

In August of 1982, East was convicted of capital murder and

sentenced to the death penalty in connection with the November 23,

1981, killing of Mary Eula Sears. In 1992, after exhausting his1 East’s B rady claim alleged that the prosecution failed to

disclose the criminal record of Barbara Hardaway, one of the

state’s sentencing-phase witnesses, and that production of

Hardaway’s criminal record would have led East to discover her

mental history and allow East to impeach her testimony.

East’s due process claim was based on the involvement of a private prosecutor in East’s trial.

2 The alleged exculpatory evidence consisted of the

undisclosed statements of Richard Miller and Earlie Payne. These

statements, according to East, substantially contradicted evidence

put on by the state regarding the whereabouts of Troy Robinson, who

was originally charged in connection with the murder.

2 claims in state court, East filed a federal habeas petition

alleging 23 grounds for reversing his conviction and death

sentence. The district court dismissed East’s petition. East

appealed to this Court and we granted him limited relief. E ast v.

Scott , 55 F.3d 996 (5th Cir. 1995). Specifically, we vacated the

district court’s dismissal of both East’s due process claim and

East’s Brady claim and remanded thos e portions of East’s habeas

petition to the district court for proceedings consistent with our

opinion. E ast

, 55 F.3d at 999-1005. 1 We affirmed the district

court’s dismissal of all of East’s other claims.

On remand, the district court permitted East to engage in

discovery on the due process and Brady claims. During this

discovery, East, by unopposed motion, amended his habeas petition

to include a new Brady claim. East’s new B rady claim alleged that

the prosecution had failed to disclose exculpator y evidence that

contradicted a former suspect’s alibi witnesses. 2 A magistrate

judge conducted an evidentiary hearing on all of East’s claims.

The magistrate judge recommended that East’s habeas petition

be denied, concluding that there was no evidence to indicate that3 The Supreme Court in L indh v. Murphy

, No. 96-6298 (June 23,

1997), held that the Antiterrorism and Effective Death Penalty Act

(“AEDPA”), signed into law on April 24, 1996, does not apply

retroactively. East petitioned for a certificate of probable cause

or in the alternative a certificate of appealability prior to April

24, 1996. Therefore, we treat our ruling as a grant of a

certificate of probable cause. S ee Rector v. Johnson

, --- F.3d

--- , No. 96-50443, 1997 WL 469447 (5th Cir. Aug. 18, 1997).

3 the private prosecutor was in charge of the prosecution and that

despi te the B rady violations, there was not a reasonable

probability that if the evidence had been disclosed to East, the

result of the proceeding would have been different. The district

court ado pted the magistrate judge’s report and dismissed East’s

habeas petition.

East applied for a certificate of probable cause, or in the

alternative a certificate of ap pealability, which the district

court denied. East then filed a timely notice of appeal and this

Court issued a certificate of appealability. E ast v. Johnson

, No.

96-11227 (5th Cir. Feb. 25, 1997). 3

II.

A. Issues and Standard of Review

In our grant of a c ertificate of appealability, we limited

East’s appeal to the issues of whether the district court correctly

concluded that the prosecution’s failure to disclose the statements

of Richard Miller and Earlie Payne and the criminal history of

Barbara Hardaway did not violate Brady v. Maryland

, 373 U.S. 83

(1963).

We review the district court’s Brady determinations de novo

.

United States v. Green

, 46 F.3d 461 (5th Cir. 1995). To establish4 The prosecution off ered this testimony to support an

affirmative answer on the second special sentencing issue for

c apital cases: whether the defendant would likely commit fu ture

criminal acts of violence that would constitute a continuing threat

to society. See Tex. Crim. P. Code Ann. art. 37.071.

4 a Brad y claim, a petitioner must demonstrate that (1) the

prosecution suppressed or wit hheld evidence (2) favorable to the

defense and (3) material to guilt or punishment. W estley v.

Johnson

, 83 F.3d 714, 725 (5th Cir. 1996). Undisclosed evidence is

material "if there is a reasonable probability that, had the

evidence been disclosed to the defense, the result of the

proceeding would have been different." U nited States v. Bagley

,

473 U.S. 667, 682 (1985). A reasonable probability is established

when the suppression of evidence "’undermines c onfidence in the

outcome of the trial.’" K yles v. Whitley

, 51 4 U.S. 419 (1995)

(quoting Bagley , 473 U.S. at 678).

B. Hardaway’s Criminal History

We turn first to East’s claim that the district court erred in

concluding th at Barbara Hardaway’s testimony was immaterial and,

therefore, that the nondisclosure of impeachment evidence could not

support a Brady violation. The state called Hardaway as a witness

in the sentencing phase of the trial to support its argument that

East posed a future danger to the public. 4 Hardaway testified in

graphic detail that East robbed and raped her three months before

Ms. Sears’ murder. Hardaway testified that on the morning of

August 15, 1981, she accepted a ride in an automobile that East was

driving. East then drove to a remote area and demanded sex from

Hardaway. Hardaway stated that she attempted to flee but was5 The law enforcement officials based their opinions on

East’s general reputation and their knowledge of East’s prior

incidents with police. This sort of testimony was given by at

least eight of the nineteen witnesses called at the sentencing

phase.

5 forcibly restrained by East, who then proceeded to brandish a gun

and point it at Hardaway. Then, according to Hardaway, East

disrobed her and raped her in the back seat of the car. Hardaway

testified that after the rape, East threatened her by stating that

he was “g oing to blow [her] brains out” and told her that he had

murdered seve ral other women. East also allegedly stole

approximately 120 dollars from Hardaway’s purse before driving

Hardaway home.

Hardaway was a key witness for the prosecution on the future

dangerousness issue and was the only witness who provided the jury

with evidence of other murders East allegedly c ommitted. The

balance of the state’s evidence at the sentencing phase was bland

when compared with Hardaway’s testimony. The bulk of the state’s

evidence was almost perfunctory testimony by a succession of law

enforcement official s stating that East would probably commit

criminal acts of violence in the future. 5 Other testimony at the

sentencing phase included al leged spousal abuse by East, East’s

involvement in the unauthorized use of a motor vehicle, East’s

involvement in the theft of railroad ties, East’s involvement in an

attempted burglary, and an altercation between East a nd prison

guards while awaiting sentencing. The state also presented the

testi mony of a teenage boy who said that when East was sixteen

years old, he had committed an act of sodomy on the witness, who6

was five years old at the time.

The state obviously considered Hardaway’s testimony important.

In its closing arguments during the sentencing phase, the

prosecution referred to Hardaway’s testimony at least eight times.

The prosecution recounted East’s threats to Hardaway and the other

details surrounding the alleged rape.

In his earlier appeal, East argued that he could have

impeached Hardaway’s testimony with evidence of her mental illness.

H e pointed to a mental status report on Hardaway that was in

existence at the time of East’s trial. The report, prepared as

part of a competency hearing in a state court criminal trial,

concluded that Hardaway experienced bizarre sexual hallucinations

and believed that unidentified individuals were attempting to kill

her. The report found that Hardaway was incapable of

distinguishing between reality and the fantasies caused by her

hallucinations. S ee East

, 55 F.3d at 1003. According to the

report, Hardaway was mentally incompe tent to stand trial on a

pending burglary charge. In reviewing East’s prior appeal,

this Court stated:

Given the importance of Hardaway’s testimony to the

prosecution’s case during sentencing, her mental records

are likely material as impeac hment evidence . . . .

Under these circumstances, we disagree with the state’s

assertion that East’s ability to effectively impeach

Hardaway is immaterial because it would not undermine the

remainder of the state’s case at sentencing.

East

, 55 F.3d at 1003. We remanded for reasonable discovery on

whether Hardaway’s criminal record would have led East to discover

her mental history.7

On remand, the magistrate judge found that if the prosecution

had disclosed Hardaway’s rap sheet, “her mental history, which was

available in a Bexar County proceeding involving a question of her

competency, would have become availab le to East.” However, both

the magistrate judge and the district court ultimately found that

even if Hardaway’s testimony had been successfully impeached, the

details of the Sears murder and other evidence the state produced

sufficiently supported the jury’s affirmative answer to the future

dangerousness question. Therefore, the district court concluded

that the undisclosed evidence did not undermine confidence in the

verdict.

The government argues that t he magistrate judge and the

district court properly concluded that the potential impeachment of

Hardaway was immaterial to East’s sentence. It contends (1) that

much of Hardaway’s testimony was corroborated by an investigating

police officer; and ( 2) that the revelation of Hardaway’s mental

status does not undermine confidence in the jury’s sentencing

verdict. We address these contentions in turn.

1. Corroborating Evidence

The assertion that Hardaway’s testimony was adequately

corroborated is not supported by the record. The officer in

question, Elmer Graham, testified that Hardaway reported that she

had been raped on August 15, 1981. He said Hardaway was examined

but that no injuries were discovered. Graham questioned East in

connection with the alleged rape, and East denied any involvement

according to Graham.8

Officer Graham stated that he then asked East whether East had

purchased any beer from a convenience store in the area where the

alleged rape had occurred. Graham testified that East denied ever

visiting a convenience store near the scene of the alleged crime.

Graham responded to East’s denial by telling Ea st that the

convenience store employee had reported seeing East on the day of

the alleged rape. According to Graham, East then changed his

story, saying that he had indeed stopped at the convenience store

to purchase beer. Graham further testified that East initially

denied knowing Hardaway, but later said he might have met Hardaway

at a party and that she may have been in his car on the day of the

alleged rape.

At most, this testimony corroborates Hardaway’s testimony that

she met East and was in the car with him. However, and more

importantly, it does not corroborate her tale of rape, assault, and

unreported murders.

2. Confidence in the Sentencing Verdict

The government also poi nts to evidence of other acts of

violence committed by East, including the testimony of the teenage

boy who said he was sexually assaulted at the age of five by East.

It argues that this testimony, along with the evidence of Ms.

Sears’ murder and other evidence of violent acts, independently

d emonstrated East’s propensity for violence. Therefore, it

contends that Hardaway’s testimony was not so important to the

state’s case that impeachment of Hardaway would undermine

confidence in the jury’s sentencing recommendation.9

Rather than consider whether impeachment of Hardaway’s

t e stimony would undermine confidence in the jury’s sentencing

recommendation, the district court apparently considered whether

the evidence was sufficient to support the recommendation without

Hardaway’s testimony. The Supreme Court has warned that the B rady

materiality analysis

is not a sufficiency of evidence test. A defendant need

not demonstrate that after discounting the inculpatory

evidence in light of the un disclosed evidence, there

w ould not have been enough left to convict. The

possibility of an acquittal on a criminal charge does not

imply an insufficient evidentiary basis to convict. One

does not show a Brady violation by demon strating that

some of the inculp atory evidence should have been

excluded, but b y showing that the favorable evidence

could reasonably be taken to put the whole case in such

a different light as to undermine confidence in the

verdict.

Kyles v. Whitley , 115 S. Ct. 1555, 1566 (1995). In applying this

s tandard to undisclosed impeachment evidence, we have recognize d

that when the testimony of a witness who might have been impeached

by undisclose d evidence is strongly corroborated by additional

evidence, the u ndisclosed evidence generally is not found to be

material. Wilson v. Whitley

, 28 F.3d 433, 439 (5th Cir. 1994),

cert. denied

, 513 U.S. 1091 (1995). In contrast, when “`the

withheld evidence would seriously undermine the testimony of a key

witness on an essential issue or there is no strong corroboration,

the withheld evidence has been found to be material.’” I d

.

(citation omitted).

While Ms. Sears’ murder and other testimony provided evidence

of East’s violent nature, Hardaway was a key witness for the state

in demonstrating East’s propensity toward violence and his future10

dangerousness. The state produced no corroborating evidence for

Hardaway’s most damaging statements regarding her alleged rape and

assault and East’s alleged confession to other murders. In its

closing, the state placed more reliance on Hardaway ’s testimony

than any other item of evidence to establish Ea st’s future

dangerousness. We are satisfied that Hardaway’s testimony was a

critical part of the state’s case that East would likely commit

future criminal acts of violence that would pose a c ontinuing

threat to society. We therefore conclude that t he prosecution’s

Brady violation was material and necessitates that we vacate East’s

sentence.

C. Robinson and the Alibi Witnesses

On remand , after conducting discovery, East added another

Brady claim a lleging that the prosecution failed to disclose

exculpatory evidence that contradicted the alibi witnesses of

another suspect in the murder, Troy Robinson. Circumstantial

evidence link ed Robinson to Ms. Sears’ murder. For example,

Robinson’s car was parked in the victim’s driveway and the knife

t hat was the murder weapon belonged to him. In addition, a pawn

shop dealer testified that Robinson sold him some of the victim’s

jewelry. Law enforcement officials initially focused their

investigation on Robinson, which led to his arrest and indictment

for the murder of Ms. Sears.

The state eventually concluded that East rather than Robinson

committed the murder. This change occurred when an accomplice to

the murder, Dee Dee Martin, provided eyewitness testimony that East6 These witnesses were Robert Lee White, Danny J. Rogers,

Linda Blanton, and Bonnie Covington.

11 had committed the murder. At the trial, the state presented the

testimony of four witnesses to establish that Robinson was not

present when the murder was committed. 6 On remand after his first

appeal, East discovered two sworn statements in prosecution files

that, according to East, materially undermined the testimony of the

state’s “Robinson alibi” witnesses. According to the state’s four

trial witnesses, East borrowed Robinson’s car, leaving Robinson at

his girlfriend’s home in the Wildcat Apartment Comple x, where he

remained from about 3 a.m. until 9:30 a.m. on the day Ms. Sears was

m urdered. The Wildcat Apartments are located several miles from

the murder scene. The evidence established that Robinson’s car

remained in Ms. Sears’ driveway until at least 8:45 a.m. and that

the murder occurred sometime before that.

The two newly discovered affidavits East relies on were

executed by Richard E. Miller and Earlie Lee “Bubba” Payne. In his

affidavit, Miller stated that he saw Robinson walking down the

street in the vicinity of the Wildcat Apartments before daylight on

the morning of November 23. Miller stated that he gave Robinson a

ride to the hom e of Danny J. Rogers. Earlie Lee “Bubba” Payne

stated, by affidavit, that he was liv ing with Danny J. Rogers on

the day of the murder and that Robinson visited Rogers’ home that

morning around “8:00 or 9:00 in the morning.” Trial witnesses

Danny J. Rogers and Linda B lanton testified that East visited

Rogers’ apartment sometime between 8:00 and 10:00 the morning of12

the murder.

East argues that the affidavits of Miller and Payne would have

undermined the prosecution’s theory of t he case at the guiltinnocence stage of his trial and called into question the manner in

which the police constructed its case against East. The district

court, analyzing the same claim, concluded that altho ugh the

prosecution improperly failed to disclose the affidavits to East,

the affidavits were not material to East’s guilt. Assuming

arguendo that the nondisclosure by the state was improper, we agree

with the district court.

While the affidavits may call into question Robinson’s precise

whereabouts around the time of the murder, particularly the exact

time he left Covington’s and arrived at R ogers’ home, they in no

way place himat the scene of the crime. Also, the affidavit of

Miller actually strengthens a key point in the prosecution’s case,

that East had borrowed Robinson’s car. Nor do the Miller and Payne

affidavits contradict the evidence supporting East’s conviction,

including the eyewitness testimony of Dee Dee Martin. Martin was

the most crucial witness in the state’s case against East. Miller

and Payne’s affidavits do not undermine that testimony.

As the district court reasoned, “whether Troy Robinson

actually participated in the crime or not does no t materially

affect the evidence inculpating East as guilty of a capital murder

committed during the course of a burglary.” The affidavits provide

no evidence that East was not involved in the murder and do not

“put the whole case in such a different light as to undermine13

confidence in the verdict.” K yles

, 115 S. Ct. at 1566. In sum,

the Miller and Payne affidavits do not undermine our confidence in

East’s guilt.

III.

For the reasons stated above, we VACATE East’s death sentence

because the prosecution failed to disclose material Brady evidence

to East at the sentencing phase. We therefore REMAND this case to

the district court with instructions to issue the writ of habeas

corpus unless the State of Texas takes steps within a reasonable

time to conduct a new sentencing hearing. We AFFIRM the judgment

of the district court in all other respects.

AFFIRMED in part.

VACATED and REMANDED in part.