On May 12, 1997, this court granted the State's motion to dismiss Madsen' s 1 cross-appeal. United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 96-1320

___________ Michael E. Madsen, * * Appellee, * * v. * Appeal from the United States District * Court for the Western District of David R. Dormire; Jeremiah (Jay) W. * Missouri. Nixon, * * Appellants. *

___________ Submitted: September 12, 1997 Filed: February 26, 1998

___________ Before McMILLIAN, ROSS and HANSEN, Circuit Judges.

___________ ROSS, Circuit Judge.

The State o f Missouri appeals from a judgment of the district court grantin g Mic hael E. Madsen's petition for a writ of habeas corpus under 28 U.S.C. § 2254. 1 We reverse.-2-

In 1987, Madsen was convicted of forcible rape and sodomy, in violation of Mo. Rev. Stat. §§ 566.030, .060. His conviction was affirmed on appeal

. State v. Madsen , 772 S.W.2d 656 (Mo. 1989) (en banc), cert. denied , 493 U.S. 1046 (1990).

At trial, the victim testified that as she was walking by the side of a road , Madsen sto pped his car and offered her a ride. She refused, but Madsen forced he r inside the car and put a knife to her throat. In an unsuccessful attempt to grab the knife, she cut her finger. Madsen then bound her wrists with a rope and took her to a bedroom in his house, where he cut the rope and raped and sodomized her. After the acts, the vi ctim, realizing that her finger was bleeding from the cut, went into a ba throom and wiped the blood on a towel. Although Madsen threatened to kill th e victim if she called the police, he drove her to a friend's home. The victim then told her friend what had happened and c alled the police. After officers took her statement, they brought her to a hospital for an examination.

The State presented evidence to corroborate the victim's testimony. Th e examining doctor testified that he saw a cut on the victim's finger , which was consistent with a cut fr om a sharp object, and also saw bruising on both her wrists, which wa s consistent with binding by a rope. Police o fficers identified items seized from Madsen and his h ouse, including a knife found in his pocket, a rope found in the bedroom , blo od-staineditems found in the bedroom, and a blood-stained towel found in th e bathroom.

The State, however, did not present the testimony of Patsy Miller, the forensic che mist who performed serology tests on the seized items, or her serology report. In-3-

her report, which was provided to Madsen before trial, Miller concluded that the blood type on the items was different than the victim's blood type. At the start of trial, th e State told the court tha

t although it had endorsed Miller as a witness, it would not call her because she was "unreliable."

Afte r the State rested, Madsen's counsel attempted to introduce the serolog y report in order to impeach the victim's testimony. The State objected on th e ground that Miller w as incompetent to perform blood typing. Out of the presence of the jury , among other things, the State introduced evidence that Miller had twice faile d proficiency tests in blood typing. The court excluded the report.

In his defense, Madsen testified that the victim consented to the sexual acts. On
cr oss-examination, Madsen acknowledged that he had previous convictions fo r aggravated battery and sodomy.

On direct appeal, Madsen argued that the State's failure to disclose that Miller
was incompetent to testify before trial violated Brady v. Maryland , 373 U.S. 83, 8 7 (1963), in which the Supreme Court held that the government's suppression of material, excul patory evidence violated due process. Madsen also argued that the trial cour t erred in excluding the serology report. The state supreme c ourt rejected his arguments. Madsen , 772 S.W.2d at 662.

In his habeas corpus petition, Madsen renewed his Brady argument. Although the district court conceded that Miller's incompetency was not exculpatory evidence, the court held that the State nonetheless violated Brady . The court relied on United-4-

Sta tes v. Bagley , 473 U.S. 667, 676 (1985), in which the Supreme Court held tha t "[i]mpeachme nt evidence, . . . as well as exculpatory evidence, falls within the Brady rule." The district court reasoned that the State's failure to disclose Miller' s incompe tency before trial "in effect eliminated valuable impeachment evidence " because it "prevented [Madsen] from having the opportun ity to procure an independent expert to test the sample s." As to whether disclosure of the information was material, the court concluded that had Madsen presented his "best defense" the results of the trial would have been affected.
On appeal, the State argues that the district court erred in holding that the State's failure to discl ose Miller's incompetency before trial violated Brady . We agree. This case is similar to Wood v. Bartholomew , 516 U.S. 1 (1995) (per curiam). In that case, the Nint h Circuit held that the State's failure to disclose polygraph results of a government witness constituted a Bradyviol ation, reasoning that "the information, had itbeen disclosed to the defense, might have led [defendant's] counsel to conduc t additional discovery that might have led to some additional evidence that could have be en utilized." Id. at 6. The Supreme Court reversed, holding that because th e p o lygraph results were inadmissable at trial, "[t]he information at issue . . . [wa]s not 'evidence' at all." Id. The Court also criticized the Ninth Circuit's attempt "[t]o ge t around this problem," noting that the appellate court's reasoning r egarding the effect the nondisclos ure had on discovery was "based on mere speculation, in violation of th e standards we have established." Id. Citing Kyles v. Whitley , 514 U.S. 419, 433-34 (1995), the Court stated that "evidence is material under Brady

. . . only where there exists a 'reas onable probability' that had the evidence been disclosed the result at trial would have been different." Wood , 516 U.S. at 5.-5-

Likew ise, in this case, the information about Miller's incompetency is no t "’evidence’ at all." Id. at 6. The information could n ot be used to impeach the victim's testimony or the officer's testimony concerning the blood-stained items.

In addition, the di strict court 's attempt "[t]o get around this problem" is "based

on mere speculation." Id. There is nothing in this record which supports the court's apparent assumption underlying its materiality finding that had the seized items been tested by a competent chemist, the resul ts would have been the same as Miller's -- that is, the blood on the items would n ot be the same type as that of the victim's blood. To the c ontrary, the State's expert serology witness testified that based on his review o f Miller's deposition testimony concerning the testing of the seized items, Miller's results were "contrary to what th e results should have been." Among other things, the expert noted that Miller had used inappropriate tests and an insufficient number of sample s and failed to follow proper pro cedures. Given that the examining doctor corroborated the victim's te stimony that her finger was cut by a knife, it is more likely that had a competent chemist performed blood tests on the seized items, the results would have shown that the blood on the items matched that of the victim's. Thus, even assuming tha t information about Miller's incompetency could be considered evidence, th e information would not be material because "[t]here simply was no showing to indicate

areasonable probability that disclosure of [the information] would have changed the outcome of the trial." United States v. Hayes , 120 F.3d 739, 743 (8th Cir. 1997).

We also do not agree with the district court that the State's failure to disclos e Mille r's incompetency before trial "prevented" Madsen from seeking independen t serology testing. Alt

hough the State's conduct may have "lulled [Madsen] into a false-6-

sense of security," it did not deprive him of the opportunity to have the seized item s tested by an independent

chemist. Weatherford v. Bursey , 429 U.S. 545, 559 (1977). Madsen's "counsel was aware of the [items] and had the opportunity to test [them]; the [State] never interfered with his ability to do so." Grisby v. Blodgett , 130 F.3d 365, 371 (9th Cir. 1997).

Even if the information about Miller's incompetency could be considere d fav orable evidence, there is yet another reason why the State's conduct would no t violate Brady . This court has held "there is no due process violation under Brady 'as long as ultimate disclosure is made before it is too late for the defendant to make use of a ny benefits of the evidence.' " United States v. Jones , 101 F.3d 1263, 1272 (8t h Cir. 1996) (quoting Nassa

r v. Sissel , 792 F.2d 119, 121 (8th Cir. 1986)), cert. denied , 117 S. Ct. 1566 (1997). This is so because "[t]here is no general constitutional right to discovery in a criminal case, and Brady did not create one." Weatherford , 429 U.S. at 559. Indeed, we have held that "[w]here the prosecution delays disclosure o f evidence, but the evidence is nonetheless disclosed during trial, Brady is not violated." Unit ed States v. Gonzales , 90 F.3d 1363, 1368 (8th Cir. 1996). In this case, whe n Madsen learned of Miller's incompetency at trial, he did not request a continuance in order to have the items tested, even though the serology expert believed that th e "chances [were] excellent" that at that time a chemist could have determined the type of blood on the seized items. See Weatherford , 429 U.S. at 561.

Alt hough we hold that the State's belated disclosure of Miller's incompetenc y did n ot violate Brady , we want to make clear that we do not condone the State' s conduct in this case. We share the district court's concern that "[a] criminal trialB ecause of our disposition of the Brady issue, we do not address the State' s 2 contention that the district court improperly combined two grounds raised in Madsen's habeas petition into one claim in order to find a Brady violation. -7- [should be] a quest for truth." However, " Brady was not intended as a constitutional cure-all." Go nzales , 90 F.3d at 1369 n.3. In the circumstances of this case, ther e simply is no basis shown for habeas relief based on a Brady violation. 2
Accordingly, we reverse the judgment of the district court.
A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT