FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #006

FROM: CLERK OF SUPREME COURT OF LOUISIANA

The Opinions handed down on the 26th day of January, 2024 are as follows:

BY Weimer, C.J.:

2021-KP-00812 STATE EX REL. DARRELL J. ROBINSON VS. DARREL VANNOY, WARDEN, LOUISIANA STATE PENITENTIARY, ANGOLA, LOUISIANA (Parish of Rapides)

CONVICTION AND SENTENCE VACATED; REMANDED FOR NEW TRIAL. SEE OPINION.

Crichton, J., concurs in part and dissents in part, and assigns reasons. Crain, J., dissents and assigns reasons. McCallum, J., dissents for the reasons assigned by Justice Crain and assigns additional reasons.

SUPREME COURT OF LOUISIANA

No. 2021-KP-00812

STATE EX REL. DARRELL J. ROBINSON vs. DARRELL VANNOY, WARDEN, LOUISIANA STATE PENITENTIARY, ANGOLA, LOUISIANA

On Supervisory Writ to the 9th Judicial District Court, Parish ofRapides

WEIMER, Chief Justice Certiorari was granted in this "'" to con,ide, the claim of defffidant, Dorrell J. Robinson, that the district court erred in denying his petition for post-conviction relief. Finding merit to the claim that the State suppressed material impeachment and exculpatory evidence and presented false and misleading testimony and argument to the jury, we conclude that the suppression violated defendant's due process rights and requires reversal of his conviction under the rule of Brady v. Maryland, 3 73 U.S. 83 (1963), and Napue v. People of the State of Illinois, 360 U.S. 264 (1959). Accordingly, defendant's conviction is reversed, his sentence is vacated, and this matter is remanded for a new trial. FACTS AND PROCEDURAL HISTORY In order to place defendant's post-conviction claims in the proper context, it is necessary to begin the discussion with a recitation of the evidence adduced and presented at defendant's 2001 capital trial for the first degree murders of Billy Lambert, Carol Hooper, Maureen Kelly, and Nicholas Kelly. At that trial, it was revealed that defendant and victim Billy Lambert were introduced to each other at the Veteran's Administration (VA) Medical Centerwhere they were both receiving inpatient treatment for alcoholism. While the two were still in treatment, Lambert invited defendant to live with him in exchange for performing chores on his fartn. Defendant moved into Lambert's spare bedroom approximately eight days prior to the murders, but began drinking again within days. According to Lambert's cousin, David Peart, the night before the homicides, Lambert told Peart that he intended to kick defendant out of the house the next day, and send him back to the VA, because of his drinking. At approximately 8:30 on the morning of May 28, 1996, the day of the mrirders, defendant purchased a bottle of vodka at the nearby Town and Country store. Laterthatmorning,aroundll:30a.m.,defendantwasseenparkingLambert's truck at another grocery store. Doris Foster, Lambert's cousin, arrived at Lambert's home on Guy Peart Road in Poland, Louisiana, at approximately 12:10 p.m. on the 28Ih, having made plans to have lunch with Lambert, his sister Carol Hooper, Carol's daughter Maureen Kelly, and Maureen's infant son, Nicholas Kelly. Lambert's brown Ford truck and Carol Hooper's car were parked in front of the house, but the front door was unexpectedly locked. Foster used her key to enter the house, where she discovered the bodies of her four relatives on the living room floor, all shot in the head. Lambert had been shot twice, and the other victims had each been shot once. Foster heard a noise coming from the rear of the house, so she quickly exited and drove to the nearby Town & Country store, where the clerk called 911 for her. When Foster returned to the house with first responders, she noticed that Lambert's brown Ford truck was missing. Gary Normand was trtrnmxng trees near the Lambert house when he observed a light brown Ford truck spinning its wheels as

it turned off Guy Peart Road at approximately 12:15 p.m. that afternoon. Similarly,

Farrell Scallan, who was eating lunch at a restaurant in the area, saw a light brown

Ford truck being driven erratically on Guy Peart Road by a young man with dark hair around the same tune.

Shortly thereafter, and about 11 miles away, Michael Poole encountered the

brown truck when it swerved into his lane, knocking the driver's side mirror off

Poole's vehicle. Poole reported that when the driver of the truck, who he identified

as defendant, did not stop, he pursued him, soliciting the assistance of his friend and

neighbor, Steve Halbert, when the two vehicles passed Halbert on the road.

Eventuallythe truck stalled at a traffic light. Poole approached the vehicle, and

he and defendant engaged in a heated argument. Defendant tried repeatedly to restart the truck, and when he finally succeeded, he fled the scene.

At approximately 12:44 p.m., Poole called 911 to report the hit and run, while

Halbert continued to pursue defendant, who was driving erratically, forcing other

vehicles off the road. The chase continued into Evangeline Parish, where defendant

turned down a gravel driveway, drove through a fence, and parked behind a house.

Defendant then exited the truck and ran into the nearby woods, where police found

him at approximately 2:30 p.m., crouched behind a mound of dirt. As officers

approached with guns drawn, defendant reportedly blurted out: "I'm not armed. I don'thaveagun. Whilebeinghandcuffed,defendantadditionallyvolunteered:"I'm on medication for violent tendencies.

According to the arresting officers, defendant was, in fact, unarmed. He was

wearing a pair of shorts under blue )eans, and his clothes were stained with a combination of dirt, paint, and blood.l Small spots of blood were discovered on the

bottom of defendant's left shoe and the end of the left shoe lace. Later testing

determined the blood spots on defendant's shoe were consistentwith victimNicholas

Kelly's DNA.

Among the contents of defendant's pockets, officers found a yellow pocket

knife belonging to Lambert and a pack of Marlboro Lights cigarettes (which Lambert

was known to smoke). Defendant also had $71 cash in his wallet. Despite an

extensive search of Lambert's house, his truck, the route defendant drove, and the

woods where he was arrested, no murder weapon was ever located.

Atthe crime scene, investigators found adamp, bloodstainedtowel onthe floor

of Lambert's bedroom. Testing revealed that blood, too, was consistent with victim

NicholasKelly'sDNA. Amongtheitemsontopofadresserindefendant'sbedroom, investigators found a wallet with Lambert's identification and credit cards in it; no

cash was found in the wallet. A bloodstained red jacket was found hanging on a

doorknob near the victims. DNA testing of the jacket showed the bloodstains were

human, but the victims and defendant were all excluded as the source. Although the

victims had a total of five gunshot wounds between them, only four of the bullets were ever located.

Alfred J. Schwoeble, an expert in gunshot residue, examined defendant's clothesinl998. Schwoeblelatertestifiedthathedidnotfindsignificantparticleson

defendant's t-shiit or shoes. He did find two particles unique to gunshot residue, one

particle characteristic of gunshot residue, and three lead-rich particles on the inside waistbandofdefendant'sjeans. Becausetheparticleswereinsidethewaistband,they

could not have come from the discharge of a gun, but rather had to have transferred

DNA testing revealed the blood stains on his clothes were exclusively tliose of defendant.

from another source, such as a gun tucked into the waistband or contaminated hands.

Schwoeble found six particles characteristic of gunshot residue and 40 lead-rich

particles on the right leg of defendant's leans. On the left leg, he found two

characteristic particles and five lead-rich particles. In response to prosecutor's

questions at trial, Schwoeble agreed the residue patterns on defendant's jeans were consistent with the right-handed defendant firing a gun downward.

Following the initial investigation, defendant was charged with four counts of

capital murder. While awaiting trial in Rapides Parish, defendant shared a cell with

Leroy Goodspeed. Goodspeed reported to Steve Wilmore, the lead investigator for

the Rapides Parish Sheriff"s Office, that on November 11, 1997, defendant told him

that he "did those people, a man, two women and a small child, and threw the gun off of a bridge."

Defendant's jury was selected in St. Landry Parish and transported to Rapides

Parisli for trial. See, La. C.Cr.P. art. 623.1. In addition to the evidence outlined

above, the Staterelied on circumstantial evidence to theorize that defendantkilledthe

victims using Lambert's missing .38 caliber revolver. According to the State's

theory, the victims had a total of five gunshot wounds, which meant the murder

weapon had been loaded with five bullets. No guns were found in Lambert's house,

but Doris Foster testified that Lambert routinely kept a gun next to his bed. She

explained that she had Lambert's guns at her house for safekeeping while Lambert

was in the VA Hospital. Because she was afraid of guns, and the revolver was

loaded, she brought the revolver to Lambert at the VA and had him remove the

bullets. Roughly a week before the murders, Foster returned the unloaded gun and

the bullets to Lambert, but she forgot one of the bullets at home, so she only returned five bullets.

Defendant attempted to counter the State5s case by arguing that he was not the

pet-petrator. Rather, counsel argued that defendant discovered the murders when he

returned home from the store, and fled in shock and fear, much like Doris Foster. In

his panic, he sideswiped Poole's car. When Poole and Halbert chased him, his panic

escalated, ultimately leading him flee into the woods to escape them. As to the

"bloodstain" evidence, defendant's experts established that the blood on the red

jacket found at the scene was not consistent with either defendant or the victims,

indicating the possibility that another person was involved. No blood spatter was

detected on defendant, as would be expected after shooting several people at close

range. In fact, the only blood on defendant was a minute transfer bloodstain on the

bottom of his shoe and the end of that shoe's lace, which the defense attributed to

stepping on a drop of Nicholas Kelly's blood when defendant stumbled upon the

scene. With respect to the "gunshot residue" evidence, the defense argued that the

gunshot residue on defendant's jeans was either cross-contamination from the pat-

down search of defendant or transfer residue from the improper storage of his

clothing. The defense pointed out that defendant's hands were not tested for gunshot

residue at the time of his arrest, although the Assistant District Attorney involved in

the investigation had asked officers to do so. Moreover, the arresting officers

reportedly admitted to the defense investigator that they unzipped defendant's pants themselves during the pat-down.

The defense proposed that Mark Moras was the actual perpetrator of the murders. EvidenceestablishedthatMorashadbrieflylivedwithLamberttwomonths

prior to the murders. Lambert discovered that Moras was forging checks in his name

and confronted him. The two fought, and Lambert shot at Moras while chasing him

out of the house. Lambert contacted the police about the checks, and Moras was arrestedandchargedinbothRapidesandAvoyellesParishes. Lambertwasmurdered before the charges were resolved.

Finally, the defense challenged the credibility of jailhouse snitch Leroy

Goodspeed, cross-examining him about his drug addiction, his extensive criminal

history, his mental health diagnoses and medications, and his instances of lying.

However, tn response to direct questioning by defense counsel as to whether he had

received any beneficial treatment from the State, Goodspeed denied that he was

offered a deal in exchange for his testimony. The State then called attori"iey w.'r.

Aimitage, who had recently represented Goodspeed in a very favorable guilty plea

in Rapides Parish, to counterthe defendant's insinuations that Goodspeed's testimony

factored into the lenient sentence Goodspeed received.2 Arrnitage testified that no

mention was made of Goodspeed's involvement as awitness in defendant's trial when entering his guilty plea on the Rapides Parish charges.

Following deliberations, the jury found defendant guilty of four counts of first

degree murder.3 In accordance with the jury's unanimous recornrnendation, the

district court imposed a sentence of death on all four counts. On direct appeal, this

court affirmed, finding, in pertinent part, that the evidence was sufficient to prove

defendant's identity as the perpetrator beyond a reasonable doubt under the standard

enunciated in Jackson v. Virginia, 443 U.S. 307 (1979), and that the circumstantial

evidence presented was sufficient to exclude every reasonable hypothesis of

2 Although facing a possible 33 year sentence for the charges filed against him in Rapides Parish, Goodspeed entered a guilty plea and was sentenced to three years imprisonment at hard labor, with one year suspended. He was released after serving 11 months. 3 As an aggravating circumstance on each of the four counts, the jury found defendant laiowingly created a risk of death or great bodily harm to more than one person. La. C.Cr.P. art. 905.4(A)(4). As to count four (involving victim Nicholas Kelly), the jury found an additional aggravating circumstance: the victim was under 12 years old. La. C.Cr.P. art. 905.4(A)(10).

innocence. State v. Robinson, 02-1869 (La. 4/14/04), 874 So.2d 66. The U.S.

Supreme Court denied certiorari. Robinson v. Louisiana, 543 U.S. 1023 (2004).

In 2005, defendant initiated post-conviction proceedings by filing a Pro Se

Application for Post-Conviction Relief and Request for Counsel in district couit. A

series of supplemental and amended petitions followed, accompanied by a series of

procedural objections filed on behalf of the State. The procedural objections were

denied by the district court following a hearing. Subsequently, on April 2, 2014, the

district court granted an evidentiary hearing on all of defendant's claims. Those

claims, in anutshell, consist of allegations thatthe State failedto disclose exculpatory

evidence inviolation ofBradyv. Maryland, 373 U.S. 83 (1963); thatthe State failed

to correct false or misleading testimony at trial in violation ofNapue v. People of the

State of Illinois, 360 U.S. 264 (1959) and Giglio v. United States, 405 U.S. 150

(1972); thatthe defendant is actuallyinnocent; andthat defendantreceived ineffective

assistance of counsel in both the guilt and penalty phases of his capital trial."

Priorto the evidentiaryhearing, the parties begannegotiating ajoint stipulation

regarding the undisclosed evidence forming the basis of defendant's Brady claim.

At a hearing on May 9, 2016, the parties signed and submitted a nine page Joint

Stipulation of Fact listing the evidence the defense had not received. The district

court accepted the stipulation and associated exhibits into evidence. The defendant

also submitted a Motion to Vacate Conviction and Sentence on the basis of the Joint

Stipulation.

4 Defendant additionally raised claims regarding the alleged discriminatory selection of the grand juiy foreperson, alleged juror misconduct, and the cumulative effect of the errors identified, among others. Because of our ultimate resolution of this matter, it is not necessary to address these claims in any further detail.

Three days later, the defendant submitted a withdrawal of stipulated fact,

seeking to withdraw a portion of the stipulation that addressed undisclosed serology

notes.5 The State responded by filing its own notice of withdrawal in which, without

explanation, it withdrew its consent to the use of the vast majority of previously stipulated facts.6

On May 14, 2018, the matter finally proceeded to an evidentiary hearing,

conducted over a period of 10 days, with additional days of depositions. Numerous

witnesses, both lay and expert, testified, and volumes of documentary evidence were introduced. Givenourultimateresolutionofthismatter,itisnotnecessarytorecount

all of the evidence in detail. For purposes of the present inquiry, we focus on the

evidence adduced with regard to defendant's Brady claims and the development of

Mark Moras as an alternative suspect.

With respect to defendant's claim that the State withheld exculpatory material

in the form of an undisclosed deal with jailhouse informant Goodspeed, defendant

presented the following evidence, which was discovered post-conviction.

On January 28, 1998, Goodspeed's wife, Becky Goodspeed provided a

statement to police. That statement contained marginal notes which had been

scribbled over in an attempt to obscure them. The notes appear to state, in part, "try

5 The relevant portion of the stipulation indicated that defense counsel would testify that 54 pages of bench notes and diagrams related to the North Louisiana Crime Lab's 1996 serology repoit were not provided to defense counsel and were absent from both the defense file and the district attomey's file. The withdrawal pleading explained that after additional review, it was discovered that the district attorney's file did, in fact, contain the undisclosed notes. 6 The State's notice of withdrawal followed the replacement of the ASSiStant District Attorney who negotiated the Joint Stipulation of Facts with a Special Assistant District Attorney retained for the puipose of handling the post-conviction proceedings. When the State later submitted an Amended Notice of Withdrawal in which it "re-admitted" three of the stipulated facts it had withdrawn, it alleged that any disclosure of the State's rationale for witlidrawing the stipulated facts was protected under La. C.E. arts. 506 and 509.

and reconcile...said this may help you to get out Det[ention]. When the statement

was turned over to trial counsel, a black marker completely obscured the notes.

OnDecember 18, 2000, Goodspeed'sprobationofficer, ScottyMelancon, sent

a letter to Judge Ross Foote in Rapides Parish advising the Judge that on December

14, 2000, Goodspeed, who was on probation in connection with a 1997 guilty plea,

had been arrested on charges of principal to first degree robbery in Lafayette Parish.

Melancon recornrnended that no action be taken against Goodspeed at that time. The

Rapides Parish District Attorney's Office was copied on the letter, and the copy was

found in the District Attorney's files. It was not provided to defense counsel.

ASSiStant District Attorney Greg Wampler, who was originally assigned to

handle defendant's post-convictionpetition forthe Rapides ParishDistrictAttortaiey's

Office and who negotiated the stipulations with defense counsel that were later

presented to the district court, testified that he spoke with Melancon about the letter

and Melancon told him he would not have written the letter to Judge Forte unless someone had asked him to do SO."

OnFebruary 26, 2001, Goodspeedwas charged in Lafayette Parish with issuing

worthless checks, and on Februaryl5, he was formally charged by bill of infonnation

as a principal to first degree robbery. As a fourth felony offender, Goodspeed faced

a mandatory sentence of imprisonment for life without parole for these offenses. The

Louisiana Department of Corrections CAJUN database shows that Goodspeed's

Rapides Parish convictions were pardoned on January 29, 1999 and on Februai' 2,

7 For liis part, Melancon explained via deposition that he does not recall the details surrounding the issuance of the letter. but that it was not unusual to not recommend revocation when there is a pending charge, and "apparently I chose not to recommend revocation, between my supervisor and 2001, although as a habitual offender he was not eligible for pardons without first going before the Pardon Board.

Goodspeed testified against defendant on March 7, 2001. In response to

questioning, he stated that he did not receive anything in return for his testimony, nor

was there any promise of future benefit. His Rapides Parish defense attorney, w.'r. Armitage, was called by the State and verified that Goodspeed's testimony was not a factor in his lenient sentence on the Rapides Parish charges. The records of the Lafayette Parish District Attorney's Office reflect that on May 17, 22, and 31, 2001, Prosecutor Mike Sharu'ion left messages for the Lafayette Parish ADA prosecuting Goodspeed on the first degree robbery charge, Luke Edwards. Edwards sent a five page fax to Sharu'ion on June 7, with the message: "Per yourrequestLeroyGoodspeed." WhilethetransmittalsheetwasfoundintheDistrict Attorney's file, the 4 pages forming the substance of the fax were not located. On June 19, 2001, Edwards requested, and was granted, a continuance in Goodspeed's first degree robbery case. The same day, Goodspeed wrote a note to the supervising officer at the Lafayette Parish Correctional Center stattng: "Dear Sir Would you please check and see if I have any hold's [sic] or warrents [sic] on me. I went to court and the DA is going to give me time served on 8-13-01. I should go home that day. "Just making sure nothing stop's [sic] me at that time."' In keeping with that note, the State dismissed Goodspeed's principal to first degree robbery charge in Lafayette Parish on August 13, 2001. Then, on October 25, 2001, "BL" left a note for Lafayette Parish ADA Thomas Frederick. The note stated:"Tommy, Luke Edwards is requesting that you dismiss the check charge. Luke states Mr. Goodspeed was an essential witness in a murder trial." In keeping with that note, the issuing worthless checks charge was dismissed by ADA Frederick on November 6, 2001.

Neither the post-trial communications between Edwards and Shannon, nor the

note requesting disinisSal of Goodspeed's issuing worthless checks charge were

provided to defendant's trial counsel, although defendant's conviction was pending on direct appeal at that time.

Susan Herrero, defendant's post-conviction mitigation specialist, testified that

she spoke with Leroy Goodspeed on March 20 and 22, 2012. In their initial

conversation, Goodspeed relayed that he had been given a deal by Prosecutor

Shannon in exchange for his testimony against defendant. In their second

conversation, Goodspeed suggestedthat Ms. Herrero look for a letterthatthe Rapides

Parish prosecutor wrote to the Lafayette Parish prosecutor asking to have

Goodspeed's charges dropped. He reiterated that he got a deal in exchange for his

testimony, but he also stated he did not want to come back to Louisiana because he did not want to get into trouble.8

Finally, KevinNicholstestifiedthathe sharedacellwithLeroyGoodspeedand was present when Goodspeed returned from testifying at defendant's trial. He

reported that Goodspeed was very angry when he returned because, as Goodspeed

explained, he felt he had been badly "incriminated" by defense counsel on cross- examination and that, as a result, his deal might not go through.

For his part, Mike Shannon, the lead prosecutor at defendant's trial, explained

that, as regards the statement from Becky Goodspeed, when he reviewed witness

statements, it was his practice to write notes in the margins. If those notes did not

contain exculpatory information, he would instruct his secretaryto blackoutthe notes

before turning the statement over to defense counsel. Shannon further testified that

he does notknowwho Scotty Melancon is, and never spoke with Melancon regarding

8 Mr. Goodspeed died on June 11, 2016, prior to the hearing date.

Leroy Goodspeed. He stated that from their first meeting, he informed Goodspeed

that he only wanted the truth, and that he was not going to offer Goodspeed anything in exchange for his testimony.

When asked whether he had ever spoken with anyone in Lafayette about

Goodspeed, Shannon replied: "Never with Melancon I did after trial have

communication with the ADA in Lafayette."9 According to Shannon, after

defendant's trial, his nephew asked him "to put in a good word for [Goodspeed]"

because they had been in a halfway house together. He further explained: "I want to

say it was in May of 2000, two months after trial, and LeRoy Goodspeed also called

me about that same period of time and said, can you just put in a good word for me.

Before he would agree to do so, Shannon testified, he contacted the Lafayette Parish

District Attorney's office to obtain the police reports, and he could "just about bet my

last dollar" that the missing pages from the fax were the police report. Because he

felt the circumstances of the robbery "were not a real serious thing" and because he

felt sorry for Goodspeed because of the grueling cross-examination he had endured

at defendant's trial, he called Edwards and asked himto "find a wayto assiSt him...He

was a material witness in a murder case. According to Shannon: "[T]hat's all I told

LeRoy I would do after trial. I said, look, it's out of my jurisdiction, LeRoy. I have

110 authority. All I can do is call and ask."

In addition to evidence regarding the undisclosed deal witli Goodspeed,

defendantpresented evidence ofothermaterials discoveredpost-convictionthatwere

allegedly not disclosed, despite specific and detailed discovery requests. According

to defendant, first among the materials are approximately 51 pages of serology bench

9 Shannon did acknowledge that he Renew about the pending Lafayette Parish charges prior to trial and that he had visited Goodspeed in the Lafayette jail a couple of times.

notes as well as diagrams of physical evidence prepared in connection with a

November 7, 1996, Serology Report issued by the North Louisiana Criminalistics

Laboratory. These bench notes and diagrams demonstrate the presence and

classification of blood evidence, contain information about serological and DNA

testing,andprovideanoutlineoftheforensicinvestigationandtesting. Ofparticular

relevance, and a focus of the evidentiary hearing, was testing performed on the red

jacket found hanging on a doorknob in the hallway of the Lambert residence with the

left sleeve turned inside out. The bench notes indicate the presence of high and

medium velocity impact blood spatter on the front, back and sleeves ofthe red jacket,

as well as transfer blood stains on the back of the jacket. The transfer stains do not

match the DNA profile of either defendant or any of the victims. Photographs taken

at tlie crime scene and found in the possession of the crime lab include close-up

imagesoftheredjacketandofablooddripontheneighboringwall. Alettersentvia

facsimile transmission fromDistrict Attorney's Office Investigator Ray De!comyn to

David Exline of RJ Lee Group (the group that performed the gunshot residue testing

for the State) explains the "significance of this jacket." As set forth in the letter,

which was found in the District Attorney's files but which was not disclosed to

defense counsel: "The crime lab has reported finding high velocity blood spatters on thesleeveareasofthisjacket. Thebloodcontainedinthesehighvelocityspatterwas

insufficient for an identification. However, two other spots of blood were noted on

the jacket, and this blood does not match the defendant or any of the victims.

At trial, David Peart was called by the State to offer a possible explanation for

the presence of the foreign blood stains on the jacket. He testified that Lambert wore

the jacket when they were working together on the farm and that he, Lambert, and his

workers cut themselves on barbed wire used for their cattle business and then rcde together in Peart's truck. Lead defense attorney Michael Small testified that had he

been providedwiththe serologyevidence-the blood drip onthe wall andthe presence of high and medium velocity impact blood spatter on the jacket-he would have used that evidence to impeach Peart's testimony about how the foreign DNA got on the red jacket.'o Defendant also produced testimony and evidence with regard to ballistics bench notes and photographs in the possession of the crime lab that showed ricochet marks and diagrams ofthe crime scene, whichnotes andphotographs defense counsel did not find in any of his files. Attorney Small testified that had he been provided with these materials, he would have used them to develop evidence as to bullet tra)ectories and to possibly impeach the State's theory of how the crimes unfolded." In response to defendant's allegations regarding the failure to disclose the specified materials from the crime lab, the State presented the testimony of Thomas Willson, the ASSiStant District Attorney who assisted Shannon in prosecuting defendant and who handled most of the forensic evidence. Willson testified that he learned from Shannon that the defense had specifically requested notes from the crime lab, so he instructed Investigator Delcomyn to obtain them and deliver them to the defense. '2 'o Stuart James, an expert in bloodstain pattern analysis, testified at the post-conviction hearing that the blood stains on the red jacket and the passive drip stain on the wall were most likely pait of the same bloodshed event. " JohnNixon,anexpertinfireaiins,ammunition,andgunshotresidue,testifiedthatgunsliotresidue analysis has "fallen out of favor because of the lack of probative value," and that under current testing protocols, defendant's clothing would not have tested positive for gunshot residue. He further opined that, based on photos of the crime scene and ricochet and divot marks, at least six or more shots were fired and the probability of more than one shooter is more than fifty percent. '2 For his pait, Delcomyn testified via deposition that in early March 1999, he took it upon himself to autlior a letter to T.J. Shuflin, the director of the Crime Lab in Alexandria, under Shannon's signature, requesting any and all laboratory notes, and then sent a separate letter to tlie Shreveport ]ab requesting the same. Delcomyn testified that he delivered a large packet of materials tl'iat he received to Atton'iey Small's office, but did not examine the contents of the package.

Prosecutor Shannon testified that initially he did not agree to open file

discovery, but during a recess in a hearing in February of 2000, he made an

agreement with the defense "to open the doors of the crime lab. According to

Shannon, after the recess, the defense stated for the record that the parties had

"reached an agreement to tour the lab, which meant the defense could "look at

everything" related to defendant's case.'3 Later, he testified: "As you know, I've been

accused of hiding those lab notes and as I recall andunderstand Mr. Delcomyn asked

for them at my request sometime into the case. When the lab notes came in Ray

brought them to me. I did not open the envelope. I did not look at them. I told Ray,

Mr.WillsonishandlingDNA,bringthemtoMr.Willson." Shannonfurthertestified

that the Jab notes were brought to trial, and that Willson questioned expert Curtis

Knox on the lab notes, and Attomey Small cross-examined Knox referencing the

notes. On cross-examination, he testified, "Listen, I never saw the serology notes until it was attached to y'all's post-conviction."

Finally, defendant presented evidence regarding his allegations that the State

failed to disclose exculpatory information from eyewitnesses developed during its

investigation of the crimes. Specifically, defense counsel Small testified tliat he did

not receive a four page transcription of the statement of GaryNormand, who testified

at trial. That statement, taken on June 5, 1996, contains a handwritten note at the top

'3 A transcript of the February 2, 2000 hearing shows that the defense had filed a motion for open file discovery, which tlie State opposed. After argument from both parties, the couit denied open file discovery on the grounds that "I don't think there is anything else tliat can possibly pop up that hasn't already popped up in this trial." The court added that as of that date, no new evidence would be admitted at trial. The court then addressed a defense subpoena for records related to crime lab protocols, policies, and procedures. The court briefly recessed to allow the defense to confer with the state crime lab's director, TJ. Shuflin. When court resumed, defense counsel Danalynn Recer annouriced that "I talked with Mr. Shuflin and he's agreed to allow us and our expeits to tour the Jabs both here in Alexandria and at their Shreveport facility. We've reached that agreement." Defense counsel Small added: "And that satisfies the subpoena, Judge."

ofthe first page that states: "Says he may have seen another auto-leaving going south

(rt.beforelunch)-couldhavebeenlO:00-checkwithWayneNormand." Inaddition,

while Small did receive a transcription of the June 4, 1996, interview of Andrew

Dunn, thattranscript didnot containhandwrittennotes that appearon the secondpage

of the interview that read: "Kirby Brown-saw someone-drop Robinson off-that mo[rn]ing." Post-convictioninvestigatorslocatedandinterviewedMr.Brown,whose

signed statement, introduced at the hearing, declares that on the day of the murders

he observed defendant being dropped off across the road from Billy Lambert's place

around noon or later, which places defendant outside the time frame in which the

State postulated the murders were committed."'

In addition to his Brady claims, and in support of his claim of actual

innocence, defendant presented evidence that he alleges points to Mark Moras as the perpetratorofthemurders. Specifically,defendantofferedevidenceestablishingthat

the transfer bloodstain on the outside of the red jacket found at the crime scene

matches a DNA sample obtained from Moras. A previously untested bloodstain on

the lining of the jacket was also matched to Moras's DNA. In addition, counsel

obtained a statement fromWayne Guillot, Moras's neighbor, that contradicts Moras's

statement to Investigator Delcomyn that he spoke to Guillot on the mornxng of the

mrirders and learned of the murders from Guillot. Guillot, a volunteer fireman who

was called to the crime scene to help direct traffic, denied speaking with Moras that day or telling him anything about the murders.

'4 In furtherance of his claim of numerous Brady defendant also presented violations by the State, evidence that the State failed to disclose records from the Rapides Parish Coroner's office showing victim Carol Hooper had a life insurance policy, and that Detective Steve Wilmore of the Rapides Parish Sheriff's Office consulted a psychic during the course of his investigation into the murders.

Post-conviction investigator Gary Eldredge interviewed Louella Rollins,

Moras's girlfriend at the time of the murders. He testified that Louella told him she

worked as a housekeeper for Billy Lambert and was supposed to clean his house on

the day of the murders, but Lambert called and cancelled the appointmerit. When

Moras appeared at her home that morntng, he was "loaded" and hostile. Rollins's

father had to pull Moras off of her. After her father intervened, Moras was still

worked up and said he needed more drugs, that Lambert owed him money, and that

he was going to Lambert's to get his money. Moras took the keys to her truck and

left. She did not see him again until late that afternoon when he returned her truck and reported that he had gotten money from Lambert.

Finally, Linda Lachney, whose father was friends with Lambert, testified that

on the morning of the murders, Lambert called her father at around 7:00 or 7:30 in the

moriiing and asked him to stop by. She and her father brought her mother to work,

then went to Lambert's house. As they approached the house, she saw defendant

running from the property going toward the railroad track, looking scared. She saw

a truck and a car parked at the house. They parked and walked up to the door, but got

no answer when they knocked. Lachney testified that she looked in the window and

saw the bodies of the victims on the floor. They left and returned to her father's

liouse, where she placed an anonymous call to 911. She and her father then drove to

tlieTown&Countrystoreandwatchedaspoliceandambulancesarrived. According

to Lachney, Moras was a drunk and a "drug head" who would run liis mouth. She

testified that she overheard himtalking to his brother Abe (who she had dated) about

stealing money from Lambert and where the two had buried it. Although she

disputed large parts of an affidavit she hadpreviouslysigned, she verifiedthat aspects

of the affidavit were true. Specifically, she testified that she heard Moras talking about having stolen a lot of money from Lambert by forging Lambert's checks, that

he was being prosecuted for the forgeries, and that he wanted to get Lambert, but

Lambert was killed before he could get to him.

Finally, post-conviction investigation uncovered a check that Lambert had

written to defendant 011 May 24, 1996, four days before the murders. The check was in the amount of $75.00, and the word "labor" was written on the memo line, providing an alternate explanation for the $71.00 in cash found on defendant at the time of his arrest. Following the conclusion of the hearing, after supplemental filings and extensive briefing, the district court issued a judgment denying all claims for post- conviction relief on the finding that defendant "has failed to carg his burden of proof." In written reasons, the court rejected defendant's arguments that the State suppressed material exculpatory evidence in violation of Brady, and that defendant received ineffective assistance of counsel, writing: "Certainly, post-conviction counsels have raised concerns as to certain items or veracity of certain witnesses, however that information alone does not convince this Court that evidence was withheld which violated Brady or that trial counsel was ineffective. The defendant was provided a fair trial. The district court did not address defendant's factual innocenceclaim.'5 0ndefendant'sapplication,thiscourtgrantedasupervisorywrit '5 hi brief, defendant contends that tlie district court erred in failing to address his factual innocence claim. He noted that since the district couit's ruling in this case, the legislature enacted La. C.Cr.P. art. 926.2, whicli provides forpost-conviction factual innocence claims based on "new, reliable, and noncumulative evidence that would be legally admissible at trial and that was not known or discoverable at or prior to trial," and that is "scientific, forensic, physical, or nontestimonial documentary evidence," or "testimonial evidence that is corroborated" by such evidence. La. C.Cr.P. ait. 926.2(B)(1)(a). A defendant is entitled to relief under this article upon presenting clear and convincing evidence, considered "in ligl'it of all the relevant evidence" tliat "liad the new evidence been presented at trial, no rational juror would have found the petitioner guilty beyond a reasonable doubt of either the offense of conviction or of any felony offense that was aresponsive verdict to the offense of conviction." La. C.Cr.P. art. 926.2(B)(1)(b). The legislation expressly makes the article applicable to defendant, whose claim forpost-convictionreliefwas filed before December3 1, 2022.

to assess the correctness of the district court's ruling. State ex rel. Robinson v.

Vannoy, 21-00812 (La. 6/26/23), 363 So.3d 1230.

LAW AND ANALYSIS

In Brady v. Maryland, 373 U.S. 83, 87 (1963), the United States Supreme

Court held that suppression by the prosecution of evidence favorable to the accused

after receiving a request for the evidence violates a defendant's due process rights

where the evidence is material either to guilt or punishment, without regard to the

good or bad faith of the prosecution. For purposes of the State's due process duty to

disclose, no difference exists between exculpatory evidence and impeachment

evidence. State v. Kemp, 00-2228, p.7 (La. 10/15/02), 828 So.2d 540, 545. The

Brady rule encompasses evidence which impeaches the testimony of a witness when

the reliability or credibility of that witness may determine guilt or innocence, and

applies whether a general, specific or even no request at all is made for the evidence.

United States v. Bagley, 473 U.S. 667, 676, 682 (1985); State v. Knapper, 579

So.2d 956, 959 (La. 1991).

It is important to note that Brady and its progeny do not establish a general

nile of discoverability, and not every case in which it is discovered post-trial that

favorable evidence was withheld by the State will result in a reversal of the

conviction. A prosecutor does not breach any constitutional duty to disclose

favorable evidence unless the "omission is of sufficient significance to result in the

denial of the defendant's right to a fair trial. United States v. Agurs, 427 U.S. 97,

La. C.Cr.P. art. 926.2(A). Because the district court did not make a finding regarding defendant's factual innocence claim under the criteria enacted in this recent article (or under the previous jurisprudential standard eitlier for that matter), this court would ordinarily be inclined to remand this matter to the district couit for consideration of defendant's factual innocence claim under the new provisions of La. C.Cr.P. art. 926.2. However, because of this couit's decision to grant defendant a new trial, it is unnecessaiy to do so.

108(1976). ForpurposesofBrady'sdueprocessrule,areviewingcourtdetermining materiality must ascertain "not whether the defendant would more likely than not

have received a different verdict with the evidence, but whether in its absence, he

received a fair trial, understood as a trial resulting in a verdict worthy of confidence.

Kylesv.Whitley,514U.S.419,434(1995). Thus,thereviewingcourtdoesnotput

the withheld evidence to an outcome-determinative test in which it weighs the

probabilities that the petitioner would have obtained an acquittal at trial or might do

so at a second trial. Instead, a Brady violation occurs when the "evidentiary

suppression aunden'nines confidence in the outcome of the trial. Kyles, 514 U.S.

at 434 (quoting Bagley, 473 U.S. at 678). And, most importantly, this is assessed by

evaluatingthecumulativeeffectoftheundisclosedevidence. Kyles,514U.S.at436.

As we have explained: "It is not enough for reviewing courts to consider the impact

of each item of exculpatory evidence standing alone; the cumulative effect of the

suppressed evidence must be considered." State v. Marshall, 94-0461, p. 15 (La.

9/5/95), 660 So.2d 819, 826. In other words, a Brady violation is shown when

undisclosed favorable evidence, considered cumulatively and not item by item, could

reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict. Kyles, 514 U.S. at 435-36.

While the foregoing rules apply broadly in the assessment of Brady claims,

there is a singular category of undisclosed evidence that is subject to a slightly lower

standard of materiality under Brady, and that consists of previously undisclosed

evidence revealing that the prosecution introduced trial testimony that it knew or

shouldhaveknownwasfalse. Agurs,427U.S.atl03-104. Rudimentaryprinciples

of justice are offended, and due process is violated, when a prosecutor deceives a

court and jurors with the presentation of known false evidence. Giglio, 405 U.S. at 153. The same holds true when the prosecution, although not soliciting false

evidence, allows it to go uncorrected when it appears. Napue, 360 U.S. at 269. In

such instances, a new trial is required if "the false testimony could ... in any

reasonable likelihood have affected the judgment of the jury."' Giglio, 405 U.S. at

154 (quoting Napue, 360 U.S. at 271).

With the foregoing principles in mind, we turn to defendant's contention that

the district court erred in rejecting his claim that the State failed to disclose material

exculpatory evidence in violation of Brady, and that the State knowingly failed to correct misleading evidence at trial, in violation of Giglio and Napue.

To prevail on his Brady claim, defendant was required to demonstrate that (1)

the State suppressed evidence, (2) the evidence was favorable to the defense, and (3)

the evidence was material. LaCaze v. Warden Louisiana Correctional Institute

for Women, 645 F.3d 728, 735 (5'h Cir. 2011). Because they are inter-related, we

will discuss the first two prongs of defendant's required Brady showing together, before proceeding to analyze the materiality requirement.

Suppression of Evidence Favorable to the Defense

In its written reasons, the district court identified the evidence forming the

crux of defendant's Brady claim as allegations that (1) Goodspeed, jailhouse

informant, received an undisclosed deal; (2) serologyreport andnotes were withheld;

(3) other forensic evidence [was] withheld; i.e., investigator's letter to R. J. Lee

Group and photographs, ballistics bench notes, sketches and diagrams; and (4) eyewitness information inconsistent with trial testimony [wasl not provided.'6 We will address each of these items of evidence separately.

Jailhouse Informant Goodspeed

As to jailhouse informant, Goodspeed, the district court foundthatthe evidence

establishes that the State failed to disclose that Goodspeed in fact testified in

exchange for beneficial treatment. Specifically, the district court found:

During the post-conviction hearing, more detailed evidence came forth that appears to indicate Goodspeed may have been allowed special treatment. The records submitted show that the State twice entered pardons into the state's offender tracking system, when that is typically not an option for offenders. Robinson's team provided affidavits from other witnesses who reported that Goodspeed after testifying made coininents to an inmate, Kevin Nichols about receiving a deal. Documentation existed wherein cornrnunications between the Rapides Assistant District Attorney and Lafayette Assistant District Attorney exchanged phone messages and shortly after the Robinson trial, the Lafayette charges were dismissed. The record is full of instances, circumstantial, that further supports the flawed character of Goodspeed and his desire to have a deal.

Review of the record convinces this court that the district court's factual

conclusion that Goodspeed both desired to have a deal and received special treatment

in exchange forhis testimony is amply supported bythe evidence adduced atthepost-

conviction hearing and is not an abuse of discretion. See, State v. Thompson, 11-

0915, pp.l3-14 (La. 5/8/12), 93 So.3d 553, 563 (quoting State v. Wells, 08-2262, p.

4 (La. 7/6/10), 45 So.3d 577, 580) ("[W]hen a trial court makes findings of fact based

on the weight of the testimony and the credibility of the witnesses, a reviewing court

owes those findings great deference, andmaynot overturn those findings unless there

'6 There are two additional items of evidence that defendant alleged were not disclosed, the life insurance policy of victim Carol Hooper, and the fact that one of the lead investigators, Det. Wiln'iore, consulted with a psycliic. The district court found that the State did not have knowledge of the existence of the life insurance policy and that the consultation with the psychic was a false lead, that the State had no general duty to disclose, citing State v. Broadway, 17-0825, p. 8 (La. 9/21/18), 252 So.3d 878, 885. We find no error in these findings, and no reason to disturb the district court's ruling as to these items of evidence.

is no evidence to support those findings.") The fact that this evidence was not

disclosed is not disputed. Nonetheless, the State challenges the district court's fact findings, arguing that defendant failed to produce direct evidence of the existence of an undisclosed deal prtor to defendant's trial, and that the evidence, at most, proves that prosecutor ShannondecidedtorewardGoodspeedaftertrial. ContrarytotheState'ssuggestion, however, a Brady violation has never been limited to cases where the facts demonstrate that the state and the witness have reached a bona fide, enforceable deal. LaCaze, 645 F.3d at 735. The key question, insofar as Brady is concerned, "is not whether the prosecutor and the witness entered into an effective agreement, but whether the witness "might have believed that [the state] was in a position to implement... any promise of consideration."' Id. (quoting Napue, 360 U.S. at 270). As this court has explained: [T]o the extent exposure of a witness's motivation is a proper and important function of the constitutionally protected right of cross- examination, a witness's "hope or knowledge that he will receive leniency from the state is highly relevant to establish his bias or interest." State v. Brady, 381 So.2d 819, 822 (La. 1980) (collecting cases); see also State v. Nash, 475 So.2d 752, 755-56 (La. 1985). A witness's bias or interest may arise from arrests or pending criminal charges, or the prospect of prosecution, even when he has made no agreements with the state regarding his conduct. Id. State v. Vale, 95-1230, p. 4 (La. 1/26/96), 666 So.2d 1070, 1072. Here, the testimony demonstrates that Goodspeed had charges pending in both Rapides and Lafayette Parishes. While the State went to great lengths to dispel any notion that Goodspeed had received beneficial treatment in connection with his Rapides Parish charges, going so far as to call Goodspeed's Rapides Parish defense attorney at defendant's trial to verify that Goodspeed's testimony was not a factor in his lenient sentence in Rapides Parish, Goodspeed told post-conviction investigator Herrero that he had been given a deal by prosecutor Shannon in exchange for his

testimony, and that evidence of the deal could be found in the Lafayette Parish

prosecutor's files. The undisclosed cornrnunications between the Rapides and

Lafayette Parish DA's offices that followed on the heels of Goodspeed's testimony

at defendant's trial, andthe subsequent dismissal of Goodspeed's first degree robbery

cliarge and his issuing worthless check charge because "Mr. Goodspeed was an

essential witness in a murder trial," corroborate Goodspeed's statement to Ms.

Herrero."' Moreover, Kevin Nichols, a cell mate of Goodspeed at the time of

defendant's trial, testified at the post-conviction hearing that Goodspeed was upset

when he returned fromtestifying because he felt he had been "incriminated" on cross-

examination, and, as a result, his deal might not go through, providing further

evidence of Goodspeed's belief that he would be receiving favorable treatment in

exchange for his testimony. While the State insists that the testimony of Ms. Herrero

and Mr. Nichols is not credible, the district court found otherwise, and that credibility

determination is particularly within the province of the trier of fact, here the district

corirt. SeeStatev.Higgins,03-1980,p. 17(La.4/1/05),898So.2dl219, 1232("The

trier of fact makes credibility determinations and may, within the bounds of rationality, accept or reject the testimony of any witness.").

Finally, despite the State's insistence that the defendant failed to present

evidence ofhaving receivedundisclosed specialtreatmentpriorto his trial testimony, as the district court noted, "[tlhe records submitted show that the State twice entered

pardons into the state's offender tracking system, when that is typically not an option

for offenders. This occurred on January 29 and February 2, 1999, after Goodspeed

'7 This court has noted that a prosecutor's duty to disclose material exculpatory evidence does not end with a jury's verdict. State v. Pierre, 13-0873, p. 11 (La. 10/15/13), 125 So.3d 403, 410.

had come forward and before he testified at defendant's trial. Further, found in the

District Attorney's files was a letter from Goodspeed's probation officer, Scotty

Melancon, dated December 18, 2000, advising that Goodspeed had been anested on

charges of principal to first degree robbery in Lafayette Parish and recommending

that no action be taken with regard to revoking his probation at that tune. This

evidence, while circumstantial, demonstrates special treatment that could have been

used as impeachment evidence at trial to counter Goodspeed's claim that he received

no special favors from the State. The prosecution had a duty to disclose it.'8

Serology Report and hTotes

As to bench notes as well as diagrams of physical evidence prepared in

connection with a Serology Report issued by the North Louisiana Criminalistics

Laboratory, the district court found that the post-conviction evidence demonstrated

that the prosecution had obtained 51 pages of serology documents from the crime Jab,

but failed to disclose at least some portion of the notes to the defense. ("What

remains uncertain to this court is whether the entire 51-page section was provided.")

The court noted that the State offered contradictory testimony about its efforts to turn

over all records to defense counsel, but ultimately concluded that the defense likely

had the notes because defense counsel Michael Small did not object at trial when the

State's DNA expert, Curtis Knox, referred to lab analyst Dawn Tingle's notes on two

occasions during his testimony. The court found that although it appeared some

portion of the 51 pages of serology notes was not disclosed, other portions were not

only exchanged and shared but used during trial. The court speculated that "[w]hat

' The same analysis holds true with respect to the statement of Goodspeed's wife, Becky, in wl'iich marginal notes stating "try and reconcile... said this may lielp you to get out Det," were completely obscured by a black marker before being tut-ned over to defense coonsel. These notes cast doubt on Goodspeed's claim at trial that his decision to come fonvard was entirely an act of conscience uninfluenced by any selfish motive, and as such, constitute impeachment evidence that should liave been disclosed.

perhaps has been discovered these many years later are the records not used during trial.

The benchnotes and diagrams referenced, and which defendantmaintains were

not disclosed, demonstrate, among other things, the presence of high and medium

velocity impact blood spatter on the front, back, and sleeves of the red jacket found

hanging on a doorknob in the hallway of the Lambert residence, as well as transfer

blood stains on the back of the jacket, which do not match the DNA profile of the

defendant or any of the victims.'9 In addition, photographs taken at the crime scene

and found in the possession of the crime lab include close-up images of the red jacket

and of a blood drip all the adjacent wall. Defendant maintains this evidence was

exculpatory to the extent it connects the jacket to the homicides and supports the

narrative that someone other than defendant was in Lambert's home, bleeding, at the

time ofthe homicides. The State counters the blood stain evidence is not exculpatory

because there is no evidence the perpetrator was injured during the murders, nor is

there evidence as to when the blood stains on the back of the jacket identified as

matching the DNA profile of Mark Moras were deposited on the jacket. Because

Moras had lived in the Lambert home and workedwith Lambert on his farm, the State

argues there is an alternative explanation for the presence of his blood on tne jacket.

The State's argument misconstrues its duty under Brady. Evidence need not be

definitive to be exculpatory. Kyles, 514 U.S. at 450-451 ("Such argument, however,

confuses the weight of the evidence with its favorable tendency[.]"). Here, the

eviaence is exculpatory in that it supports defendant's theory of the case, i.e., that an

'9 The transfer blood stains on the back of the jacket were ultimately linked to alternative suspect, Mark Moras, through post-conviction DNA testing.

unidentifiedperson who was neitherdefendantnor one ofthe victims was present and involved in the murders.

Despite the State's failure to disclose at least some portion of this exculpatory

evidence, the district court foundno Brady violation, noting that the defense retained

its own serology experts, and hadphysical possession of the red jacket fortesting and

xnspectton. Further, the court pointed out that the State had offered to allow the

defense "to explore the lab and secure any and all records the trial counsel could

want. Thus, the district court reasoned, citing State v. Harper, 10-0356 (La.

11/30/10), 53 So.3d 1263, there was no Brady violation because the State is not

obligated to provide a defendant with information he already has or can obtain with reasonable diligence.

Before this court, defendant contests the district court's factual findings in two

respects. First, defendant argues the district couit ened in finding that some portion

of the crime lab's serology notes were "exchanged and shared [and] also used during thetrial. Second,defendantdisputesthedistrictcourt'sconclusionthatthedefense

had access to the lab notes because the defense and its experts were permitted "to

explore the lab and secure any and all records trial counsel could want." Both of these findings are, in fact, contradicted by the trial record.

In concluding that notes from the crime lab were brought to the attention of

trial counsel and "appear[] to have been used during the trial by all attorneys, the

district court cited to two excerpts from the trial transcript. Ill the first, defense

corinsel Michael Small asked the State's expert witness, Curtis Knox, about blood

stains circled on Exhibit S-31, the bloodstained towel found in Lambert's room.

KIIOX replied that he saw four stains that were marked as positive for blood but not tested for DNA, and added: "Looking at Ms. Tingle's notes, there is another area that

she has designators in the area that she tested, but it is not circled on that item."

Inthesecondexcerptcitedbythedistrictcourt, SmallaskedKnox: "Letmeask

you this. Would your notes easily or readily reflect the date of Ms. Tingle's

screening?" Knox replied: "Well, it would be her notes. But, I have a copy of them."

Contrary to the district court's finding, these excerpts merely demonstrate that

Knox had the lab notes. They do not indicate defense counsel had access to them,

that he ever saw them, or that he was aware of them before Knox mentioned them

during his testimony. In fact, the trial transcript shows that defense counsel Small

expressly told the witness that "all the [reports] in this case to which I have been

made privy are certified reports." The serology bench notes are not certified repoits.

A review of the trial transcript demonstrates that the parties only questioned

I(nox about the certified reports and the trial exhibits. While some of Knox's

responses indicated that he was referring to or consulting notes, nothing in the

transcript indicates the defense had access to those notes, orthat the notes were "used during the trial by all attorneys.

Ill the same vein, a review of the contemporaneous trial transcript reveals that

the district court incorrectly reported the agreement that was reached between the

prosecution and defense with respect to the offer to tour the crime Jab. The record

reveals that, in satisfaction of a defense subpoena for documentation of the crime

lab's procedures, policies, and protocols, the parties agreed to allow the defense and

its experts to tour the lab facilities in Alexandria and Shreveport. The agreement did not address the serology notes or the lab's records, and contrary to the district couit's

statement, did not encompass "any and all records the trial counsel could want."2o

Defense attorney Small affirmed in his post-conviction testimony that the

serology notes were neverproduced to him, and that he did not refer to any such notes

during his cross-examination of Knox. And, while the State withdrew its riegotiated

stipulation that the serology notes were not provided to defense counsel and argued

instead that the serology notes were turned over to the defense, as the district court's

reasons acknowledge, the testimony from the State's witnesses on this point was

conflicting. ("At the post-conviction hearing, there was a dispute between the

witnesses about the efforts to turn over all records to trial counsel."). Moreover,

while insisting that the offer to tour the crime lab gave defense counsel free reign to

access any and all materials, prosecutor Sharu'ion acknowledged on cross-examination

tliat he did not in fact agree to open file discovery. The district court's conclusion

that the serology notes were available to and used by all counsel at trial, and that the

State's offer to tour the crime lab facilities afforded counsel any and all records

counsel could want are not supported by the trial record, and are an abuse of discretion.

In addition to challenging the district court's factual conclusions regarding the

disclosure of the serology notes, the defendant questions the district court's

deterinination that the State had no duty to disclose the crime lab's conclusions about

the blood-spattered red jacket because the defense had access to the evidence and the

opportunity to conduct its own testing and consult its own experts.

2o In fact, when the paities announced an agreement had been reached for defense counsel and its experts to tour the State's crime lab, Attorney Small was quite clear in adding that the agreement "satisfies the subpoena" for records related to the crime lab protocols, policies and procedures; no more expansive agreement than this was memorialized.

For the general proposition that the prosecution has no obligation to provide

a defendant with information he already has or can obtain with reasonable diligence,

the district court cites Harper, supra. However, under the particular facts of this

case, reliance on the broad proposition of law announced therein is misplaced.2' The

applicable procedure article is La. C.Cr.P. art. 719, under which the prosecution is

obligated to disclose, upon written request of the defendant, "any results or reports,

or copies thereof, ...of scientific tests or experiments, made in connection with or

material to the particular case, that are in the possession, custody, control, or

knowledge of the district attorney and intended for use at trial. La. C.Cr.P. art.

719(A). Here, defense counsel not only filed a detailed Motion for Discovery and

Inspectionrequestingdocuments,photographs, andtangibleobjects inthepossession

of the State, which are favorable to defendant and material and relevant te ISSUES of

guilt or punishment, as well as any results or reports of scientific tests or experiments

intended foruse at trial, but also a Motion for Expanded Discovery in a Death Penalty

Trial, specifically requesting scientific and forensic evidence, expert notes, records

andexpertreportsandallrawdatarelatedthereto. ThattheStaterecognizedtheneed

to disclose the requested information is not seriously disputed. In its original Answer

to Motion for Discovery, the State assured defendant that while scientific testing had

not yet been reduced to writing, "upon receipt of crime Jab documentation same will

be immediately provided to the defendant." While in a Second Supplemental and

Amending Answer to Motion for Discovery and Inspection the State attached a

number of forensic reports and notes, the serology notes were not among them,

2' The frequently cited notion that the prosecution has no obligation to provide a defendant with infoimationhe alreadyhas orcan obtainwithreasona-ble diligence contemplates informationrelating tothedefendant'sownhealth,actions,orhistory,i.e.,Statev.Hobley,98-2460(La. 12/15/99),752 So.2d771,785-86,orinfoi-mationcontainedinpubliccaserecords,i.e., UnitedStatesv.Newman, 849 F.2d 156, 161 (5"' Cir. 1988).

despite assurance in the answer that copies of all scientific tests and/or experiments and physical examinations had been provided.

Thus, there was a specific written request for the reports and notes from the Crime Lab in accordance with La. C.Cr.P. art. 719(A) that the State was obligated to

satisfy. The provisions of La. C.Cr.P. art. 719(B), which state that, upon motion, the defendant shall be allowed to conduct his own DNA testing of samples the court ordered him to provide, do not relieve the State of its obligation to disclose exculpatory information in its possession. The testing authorized under La. C.Cr.P. art. 719(B) is "[i]n addition" and not alternative to the disclosure obligation under

C.Cr.P. art. 719(A). 22 That independent testing does not extend so far as to permit

suppression of documentation and test results that could exculpate a defendant or undermine the State's theory of the case at trial on grounds that the defense experts had the ability to form the same conclusions.23

Based on the foregoing, therefore, it appears the district court abused its discretion in determining that the defense had access to and used the serology notes at trial and that the State's obligation of disclosure ceased when the defense was

given access to the red jacket and the opportunity to conduct its own testing and consult its own experts. The serology notes were exculpatory evidence the State was obligated to, but did not, disclose.

22 The case o f State v. Franklin, 03-3072 (La. 4/23/04), 872 So.2d 1051, cited by the State, is inapposite. The case does not address the State's obligation to disclose substantive or exculpatory testing evidence, which is the Brady issue presented here. Rather, Franklin clarified the scope of discovery obligations in light of the 1997 amendments to La. C.Cr.P. art. 719. Specifically, Franklin found the district court did not err by denying a defense request for "not only computer software programs and proprietary macros used in the [DNA] testing but also information with regard to laboratory personnel, outside audits, and proficiency testing programs," because amendments to C.Cr.P. art. 719 provided the defense with the opportunity to conduct independent testing. The Franklin per curiam expressly notes that the State had provided the defense with the lab's report and test results.

23 In fact, defendant's DNA expert retained at trial did not detect high velocity impact blood spatter on the jacket.

Other Forensic Evidence

The next category of evidence forming the basis of defendant's Brady claim

consists of crime scene photographs, ballistics bench notes, sketches and diagrams

of the crime scene in addition to a letter from DA Investigator Ray Delcomyn to

David Exline of RJ Lee Group (the group that performed the gunshot residue testing

for the State) explaining the "significance" of the red jacket in the State's case. With

respect to the photographs, ballistics bench notes, sketches and diagrams, the district

couit found that the State did provide a significant number of photographs and other

materials that the State believed supported its "five bullet theory" of the case.

However, the court noted, "[w]hether the State, the detectives and law enforcement,

who contributed to the investigative record following the event, lacked the

wherewithal to recogruze the need to share all materials with trial counsel is what appears could be the issue.

In addressing some of defendant's specific complaints about the lack of

information concerning ricochetmarks andphotographs thatmight have documented

those marks, the district court ultimately concluded that the trial record does support

that photographs were taken and that ricochet marks were noted, especially in

connection with testimony regarding the shooting event between Billy Lambert and

Mark Moras.24 However, the district court does not make a finding that all of the

materials, especially those inconsistent with the State's "five bullet theory," were

turned over; the court simply notes that photographs documenting ricochet marks

were discussed at trial. Trial counsel for defendant, Attorney Small, testified that the

24 The trial excerpts cited by the district court in this regard are not supportive of the propositioxi that the crime scene photos, ballistics reports, sketches and diagrams in question were actually produced pre-trial and/or available to defense counsel at trial. The excerpts merely establish that there was discussion at trial of shots having previously been fired in the Lambert home and that at least one photo of potential impact marks from a bullet was taken.

materials, and inparticularthe BulletWorksheet,25 werenot in his files andnotturned overtohimindiscovery. TheStateinbriefdoesnotdisputethiscontention;itargues simply that the materials are not exculpatory.

To the extent that the district court attributed omissions in production to mere

negligence or lack of training of law enforcement officials, such unintentional

negligence does not relieve the State of its Brady obligations. Brady holds that

suppression of material exculpatory evidence violates due process "irrespective of

thegoodfaithorbadfaithoftheprosecution. Brady,373.U.S.at87. Totheextent

that the district court relieved the State of its Brady obligations because the defense

had retained its own ballistics expert, the district court erred for the same reasons

discussed above in connection with the undisclosed serology notes: the availability

of an expert witness does not permit suppression of documentation and test results

that could exculpate a defendant or undermine the State's theory of the case.

Here, the ballistics evidence was exculpatory, as explained by John Nixon, an

expert in firearms, arnrnunition, and gunshot residue who testified at the post-

conviction hearing, to the extent the undisclosed crime scene photos, ricochet and

divot marks support a conclusion that at least six or more shots were fired

(undermining the State's "five bullet theory" of tl"ie crime) and that more than one

shooter was involved. Again, contrary to the State's position that the evidence is not

exculpatory because it does not take into account Mark Moras's earlier encounter

with Lambert wherein shots were fired, evidence need not be definitive to be exculpatory. Kyles, 514 U.S. at 450-51.

25 The Bullet Worksheet indicates that three different kinds of projectiles or bullets were recovered at the scene, supporting post-conviction expert John Nixon's hypothesis that more than one firearm was used.

A similar analysis holds true with respect to the letter from investigator

Delcomyn to the RJ Lee Group. The district court determined that the letter, wliich

explains the "significance" of the high velocity blood spatter detected an the red

jacket,26was not disclosed to the defense. The court also determined that the State

had no obligation to disclose the letter or the prosecutor's concerns about the

"significance" of the evidence to its case because the defense had the opportunity to

have the jacket examined by its own expert who could have drawn his own

conclusions. As discussed above, however, the State's obligation of disclosure under

Brady did not cease wlien the defense was given access to tlie red jacket and the

opportunity to conduct its own testing and consult its own experts. The district court abused its discretion in determining to the contrary.

Eliewitness Information Inconsistent with Trial Testimony

The final category ofmaterials the defendant maintains were suppressed bythe

State in violation of its Brady obligations consists of statements obtained from

eyewitnessesonthedayofthemurders. Specifically,thepartiesstipulatedthatafour

page transcription of the statement of Gary Normand, who testified at trial, was not

provided to the defense. The statement, taken on June 5, 1996, contains a

handwritten notation at the top of the first page that states: "Says he may }iave seen

ariother auto-leaving going south (rt. before lunch)-could have been 10:00-check

with Wayne Normand." In addition, while the defense was provided with a

transcription of the June 4, 1996, interview of Andrew Dunn, that transcript did not

contain handwritten notes that appear on the top of the second page that read: "2

Brown-sawsomeone-dropRobinsonoff-thatmo[rn]ing. Thedefendantmaintains

26 The letter explains that tlie crime Jab had reported finding high velocity blood spatter on tlie sleeves of the jacket in an insufficient quantity to be tested for identification, but other blood spots on tlie jacket were tested and did not match the DNA of the defendant or any of the victims.

that these handwritten notations are exculpatory, and should have been disclosed,

because they (l) identify another car fleeing the crime scene around noon, and (2)

place defendant outside the Lambert residence at the time the crimes were

cotnrnitted.27 We agree.28 The statements and notes should have been disclosed.

Materialitv

Having concluded that the State failed to disclose at least some of the

exculpatory evidence presented by the defense, the district court nonetheless denied

defendant's Brady claim on its analysis of the third prong of the required Brady

showing: materiality. And, in doing so, the court engaged in two legal errors, both

affecting its analysis. First, the district court applied an incorrect standard in assessingmateriality. Initswrittenreasonsforjudgment,thecourtrecitedthecorrect

test for materiality as reflected in this court's decision in State v. Bright, 02-2793

(La. 5/25/04), 875 So.2d 37:

For purposes of Brady's due process rule, a reviewing court determining materiality must ascertain:

not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. [Emphasis supplied.]

Bright, 02-2793 at 6, 875 So.2d at 42 (quoting Kyles, 514 U.S. at 434). However,

in the very next sentence, the district court found: "This Court does not view that the

evidence that may not have been provided, (for reasons cited above), would have

27AdeclarationobtainedfromMr.Browninconnectionwiththepost-convictionproceedingsattests that on the day of the murders Brown observed defendant being dropped off across the road from the Lambert residence around noon or later, undermining the State's timeline of the morning's events.

2" The State argues that this evidence is not exculpatory because defendant has failed to produce evidence linking the other vehicle to alternative suspect Mark Moras, and because the declaration of Mr. Brown is "worthless" since he did not testify at the post conviction hearing. Again, the evidence is exculpatoiy in tl'iat it intetnipts the State's timeline of events and is consistent with defendant's position that he simply stumbled upon the crime scene and fled.

resulted in a reversal of [defendant's] conviction." This standard is the very standard

counseled against in Bright: "[T]he reviewing court does not put the withheld

evidence to an outcome-determinative test in which it weighs the probabilities that

the petttioner would have obtained an acquittal at trial or might do so at a second

trial. Id. Rather, materiality for Brady purposes "is not a sufficiency of evidence

test. A defendant need not demonstrate that after discounting the inculpatory

evidence in light of the undisclosed evidence, there would not have been eriough left

to convict." Kyles, 514 U.S. at 434-35. To prevail on a Brady claim (and it bears

reiteration), a defendant must demonstrate only that "the favorable evidence could

reasonably be taken to put the whole case in such a different light as to undeimine

confidence in the verdict." Id. at 435. Here, the district court applied the wrong standard in conducting its materiality analysis.

The second error committed by the district court in its materiality analysis was

its decision to analyze the potential prejudice from each category of undisclosed

evidence separately. Pursuant to controlling Supreme Court precedent, for purposes

of materiality, reviewing courts are directed to evaluate the cumulative effect of the

undisclosed evidence. Id. at 436 ("suppressed evidence [is] considered collectively,

not item by item"); see also, Wearry v Cain, 577 U.S. 385, 394 (2016)(finding the

"state postconviction court improperly evaluated the materiality of each piece of

evidence in isolation rather than cumulatively" as required by Kyles). This

evaluation is accomplished at the end of the inquiry. Kyles, 514 U.S. at 437, n.lO

("We evaluate the tendency and force ofthe undisclosed evidence item by item; there

is no other way. We evaluate its cumulative effect for purposes of materiality

separately and at the end of the discussion."). The rule applies with equal force in

Louisiana courts, as this court has previously explained. See, State v. Louviere, 00- 2085, pp.l6-17 (La. 9/4/02), 833 So.2d 885, 898 (evaluating the entirety of a defendant's Brady claims so "the evidence [couldl be considered collectively,"

according to Kyles); Marshall, 94-0461 at 16, 660 So.2d at 826 ("It is not enough

for reviewing courts to consider the impact of each item of exculpatory evidence

standing alone; the cumulative effect of the suppressed evidence must be

considered."). Thus, as the district court did here, it was error to evaluate the

materiality of the suppressed evidence item by item and in isolation, rather that"i collectively.

Whether evidence is material for purposes of a Brady violation is a mixed

question of law and fact. See, Mahler v. Kaylo, 537 F.3d 494, 500 (5'h Cir. 2008).

Under Louisiana law, mixed questions of law and fact are generally entitled to

deference on review. O'Hern v. Department of Police, 13-1416, p. 7 (La. 11/8/13),

131 So.3d 29, 33. However, where, as here, legal error (in the fornn of applying

incorrect legal standards in making the materiality determination) interdicts the

findings of the district court, de novo review is appropriate. See, Jones v. State, 22-

1455, p. 5 (La. 5/5/23), 362 So.3d 341, 345. Accordingly, this court will proceed to

a de novo assessment of whether defendant demonstrated that the undisclosed

evidence, considered in the aggregate, was material such that disclosure of the

suppressed evidence could reasonably be taken to liave put the whole case in such a

different light as to undermine confidence in the verdict. Kyles, 514 U.S. at 435-36.

Thus, an evaluation of each category of evidence the defense was deprived of in light

of the evidence that each side presented at trial, concludes with the cumulative

assessment of the impact of the suppression. LaCaze, 645 F.3d at 736 ("The

materiality of Brady material depends almost entirely on the value of the evidence relative to the other evidence mustered by the state."), quoting Rocha v. Tbaler, 619

F.3d 387, 396 (5'h Cir. 2010).

Jailhouse informant Goodspeed's Undisclosed Deal

In concluding that the defendant was not prejudiced by the State's failure to

disclose that it provided Goodspeed with "special treatment" in exchange for his

testimony at trial and, thus, the suppression was not material, the district court

reasoned that (1) the value of Goodspeed's testimony was very low compared to the

other evidence at trial; and (2) given that the jury heard evidence of Goodspeed's

three year sentence on his charges in Rapides Parish, when he faced a possible 33

year sentence, "it is unlikely that [the undisclosed] information would have seriously

underx'nined Goodspeed's testimony any more than the evidence heard by the jury at trial.

In brief, the State adopts and expands upon this reasoning, arguing that "[i]t is

difficult to consider a witness subjected to more scourging cross examination than

Leroy Goodspeed was in this case. It quotes this court's opinion on direct appeal wherein the court noted:

At trial, defense counsel reminded the jury that Goodspeed had been arrested 24 times, amassed six felony convictions, is mentally ill, takes Haldol for auditory hallucinations, and has admitted that he will say or do anything to get out of prison, where he has spent most of his adult life. Thus, the defense ensured that the jury heard every possible reason to reject Goodspeed's testimony....

Robinson, 02-1869 at 17-18, 874 So.2d at 79.

The flaw in the State's argument in this regard is that it is not factually

accurate. As the evidence adduced post-conviction demonstrates, the jtQ did not

hear "every possible reason" to reject Goodspeed's testimony: it did not hear, for

example, of the two pardons that were entered in the CAJ[TN system before he testified at defendant's trial; it did not see the letter from probation officer Scotty

Melancon recoinmending to Judge Foote that no action be taken to revoke

Goodspeed's probation despite his arrest in Lafayette Parish on charges of principal

to first degree robbery; it was not alerted to the marginal notes on Becky Goodspeed's

transcribed statement "...said this may help you get out of Det;" and it did not hear of

Goodspeed's expectation that he would receive beneficial treatment in connection

with his pending charges in Lafayette Parish in exchange for his testimony. Despite

defense counsel's efforts, Goodspeed repeatedly denied any promises were made or

special treatment received during both direct and cross-examination.29

While it is certainly true, as the State maintains, that defense counsel

challenged Goodspeed's credibility on several fronts, his testimony that he had not

received favorable treatment and did not expect to receive favorable treatrrient in the

future in exchange for his testimony against defendant went unchallenged. Not only

did this testimony go unchallenged, it was bolstered by the State's solicitation of the

testimony of the attorney representing Goodspeed on the Rapides Parish charges,

w.'r. Annitage, who testified that Goodspeed's status as a potential witness against

defendant was not discussed in the pretrial conference in which his Rapides Parish

29 Goodspeed variously testified on direct examination that he came forward because he and his wife, Becky, "talked about it and we both agreed...You know, the right thing to do and I felt it was the right thing to do, too;" that when he gave his statement to detectives, "they did not offer me anytliing," and lie did not ask for anything; and that he was happy to be a witness because "I mean it's tlie right thing." Finally, on direct, the following exchange occurred: Have you received or have you been offered anything for your testimony? No, sir. I haven't. And I assume that you[r] attorney, W.T. Armitage, would know whether that's true or not, too? A: I, yes, sir. On cross-examination, in response to defense counsel's question "[wlith all of these things that are cuirently pending against you, what plans do you have to try and help yourself get out of this," Goodspeed replied: 'Tm just going to take my lick."

plea deal was worked out, nor was the judge made aware of it.3o It was also

capitalized upon by the prosecutor in both opening-" and closing arguments, wherein the prosecutor told the jury:

Goodspeed toldyou, "I didn't ask for anything, and nothing was offered to me." Goodspeed's own attorney took this stand. He looked at you andsaid,"Itwasn'tdiscussed. Inthepleabargainnegotiation,itwasn't discussed. I didn't know about it, I - and the judge didn't know about it."

Goodspeed was not given anything. He was not offered anything. He did not ask for anything.

The materiality of evidence "is best understood by taking the word of the

prosecutor." Kyles, 514 U.S. at 444. Here, the prosecutor went to great lengths to

bolster Goodspeed's credibility, eliciting testimony that he did not testify pursuant

to a plea deal on the Rapides Parish charges, but failing to disclose subsequent

documents requesting dismissal of Goodspeed's pending charges in Lafayette Parish

because he has served as an "essential witness" at a murder trial. This conduct implicates Giglio and Napue.

3o Ai-mitage testified as follows in response to the prosecutor's questions: Q: ... At that pretrial conference did you make the judge aware of was anything discussed tliat Leroy Goodspeed was a possible witness against Danell Robinson? No. Was it even discussed? No. As far as you know, was the judge ever even aware of it? Not as far as I know. " In his opening, the prosecutor told the jury: We will offer evidence from an inmate, Rapides Parish Detention Center, Leroy Goodspeed. Leroy Goodspeed will tell you in November of 1997, he had a conversation with Darrell Robinson in which Darrell Robinson said I did that man, two ladies and a young child. And I got rid of the gun. Threw it off a bridge-among other things. No doubt the defense will use every ploy possible to discredit Leroy Goodspeed. Now, Leroy Goodspeed has a felony record. He has some felony convictions. Tliey are mostly drug related. He had a drug addiction. But, you will see from the testimony he did not gain anything for his testimony. And he has absolutely no reason to lie.

In Giglio, the petitioner discovered after his conviction that the Government

had told a testifying witness that the witness "would definitely be prosecuted if he did

not testify, and that if he did testi'fy he would be obliged to rely on the 'good

judgmentandconscienceoftheGovernment' astowhetherhewouldbeprosecuted.

Giglio, 405 U.S. at 153. However, the witness did not disclose this at trial, and the

Government argued to tlie jury that the witness "received no promises that he would

not be indicted. Id. at 152 The Supreme Court found a Fourteenth Amendment violation and grantea the petitioner a new trial. Id. at 155.

In Napue, the State's principal witness in a murder trial, then serving a 199

year sentence for the same murder, testified in response to a question by the

prosecutor that he had received no promise of consideration in return for his

testimony. In fact, he had been promised consideration, but the prosecuter took no

action to correct the witness's false testimony, although the jury was apprised that a

public defender had promised to do what he could for the witness. Napue, 360 U.S.

at 265. The Supreme Court found a Fourteenth Amendment violation and granted the

petitioner a new trial, holding that a conviction obtained through the use of false

evidence, known to be such by representatives ofthe State, is a denial of due process,

and that there is also a denial of due process when the State, though not soliciting

false evidence, ailows it to go uncorrected when it appears. Id. at 269. Moreover, the

Court added, this principle applies even if the false testimony goes only to the

credibility ofthe witness; and it applies even ifthe jurywas apprised of other grorinds

for believing that the witness may have had an interest in testifying against the petitioner. Id. at 269-'i O.

Giglio and Napue stand for the proposition that where a key witness has

received consideration or potential favors in exchange for testimony and lies about those favors, the trial is not fair. Tassin v. Cain, 517 F.3d 770, 778 (5fh Cir. 2008).

Further, as Tassin explains:

Although Giglio and Napue use the term "promise" in referring to covered-up deals, they establish that the crux of a Fourteenth Amendment violation is deception. A promise is unnecessary. Where, as here, the witness's credibility "was... an important issue in the case

... evidence of any understanding or agreement as to a future prosecution would be relevant to his credibility and the jurywas entitled to know of it."

Id. (quoting Giglio, 405 u.s. at 154-55 (emphasis added)).

Here, defendant presented evidence of an understanding between Goodspeed

and the State with regard to his pending charges in Lafayette Parish, and the State

failed to correct Goodspeed's testimony that no such understanding or agreement

existed, or that Goodspeed had received favorable treatment even prior to his

testimony. The district court outlined just some of the evidence presented: (1) the

State twice entered pardons into the State's offendertracking systemwhen that is not

typically an option for offenders; (2) Goodspeed after testifying made comments to

an inmate, Kevin Nichols, about receiving a deal; and (3) phone messages between

the Rapides Parish Assistant District Attorney and the Lafayette Parish Assistant

DistrictAttorneywere exchanged and shortlyafterthe defendant's trial, the Lafayette

Parish charges were dismissed. Yet at trial, Goodspeed testified that he had not

received or been offered anything in exchange for his testimony, and that, with

respect to his pending charges, 'Tm just going to take my lick." More importantly,

the State bolstered Goodspeed's testimony that no favorable treatment had been

offered or received by calling his attorney on the Rapides Parish charges, W. T.

Annitage, to testify that Goodspeed's testimony was not a foactor in his favorable plea

in Rapides Parish. The State not only allowed this deceptive testimony to go

uncorrected, it capitalized on the testimony to argue to the jury that Goodspeed did not gatn anything for his testimony, and "he has absolutely no reason to lie. This,

in and of itself, demonstrates the materiality of the undisclosed evidence. See,

Lacaze, 645 F.3d at 737, n.l ("The State's argument that an unrevealed deal is

imr'naterial after going to such lengths to emphasize [the witness's] credibility and

lack of any motives for lying at trial simply lacks force.").

The district court, and the State in turn, attempt to downplay the significance

of Goodspeed's testimony, taking the position that the value of his testimony "was

very low compared to the other evidence at trial," and that it is unlikely the

suppressed information would have undermined Goodspeed's testimony any more

than the evidence heard by the jury. However, the case against defendant was based

largely on a chain of inferences from circumstantial evidence.32 The only physical

evidence connecting defendant to the murders was the minute transfer bloodstain on

the bottom of his left shoe and the end of that shoe's lace, and this evidence (which

is consistent with defendant stepping on a small drop of blood when he entered the

house) proves only that defendant was present at the Lambert residence, which he

admits. OnlyGoodspeed'stestimonyprovidesanyindicationthatdefendantwasthe perpetrator of the murders.

Here, evidence ofanyunderstandingoragreementbetweenGoodspeedandthe State was central to determining Goodspeed's credibility. The fact that other

32 In its written reasons, the district court outlined the evidence presented at trial as evidence that: (1 ) defendant had been living at the Lambeit residence following his release from the VA hospital; (2) defendanthad no employment outside ofhis work at Lambert's faiu'i; (3) defendant had resumed drinking; (3) defendant fled the scene; (4) Lambert's empty wallet was found in defendant's bedroom; (5) defendant, wlien apprehended, hadLambert's knife, apackofcigarettes the same brand as Lambert smoked, and $71.00 in cash; (6) gunshotresidue was detected on defendant's waistband; (7) atowel with Nicholas Kelly's blood was found on the floor of Lambeit's bedroom; (8) two drops of Nicholas Kelly's blood were found on the bottom of defendant's shoe and a shoe lace; and (9) testimony from jailhouse infornnant.

impeaching evidence was presented to the jury does not undermine the materiality of the undisclosed evidence.

The materiality inquiry does not turn on which of two competing sources of bias a court, in hindsight, determines the jury would have considered more important. Rather, the inquiry is whether an undisclosed source of bias-even if it is not the only source or even the main source"-could reasonably be taken to put the whole case in a different light.

Id. at 736 (citing Kyles, 514 U.S. at 434-35).

The State's suppression prevented the defense from impeaching Goodspeed's

claim that he received no inducements for his testimony, so the 3ury heard

uncontradicted testimony that defendant admitted to the murders. Under these

circumstances, there is at least a "reasonable likelihood" the disclosure to the jury of

Goodspeed's motive for testifying against defendant might have affected the jury's

judgment and put the whole case in a different light. As a result, the nondisclosure, in and of itself, was material under Brady, Napue, and Giglio.

Undisclosed Forensic Evidence

In addition to the undisclosed deal with jailhouse informant Goodspeed, the

State failed to disclose exculpatory forensic evidence in the fortn of the Serology

Report andnotes, the letterfromInvestigatorDelcomyn explaining the "significance"

of the red jacket in the State's case, and crime scene photographs, ballistics bench

notes, sketches and diagrams of the crime scene. Defendant maintains, and we agree,

that the disclosure of this evidence would have resulted in a weaker case for the State

and a stronger case for the defense, as the defense could have used the evidence to

attack the probative value of the physical evidence and the State's theory of the case.

As discussed at length, supra, the undisclosed serology notes document high-

velocity impact blood spatter on the front, back and sleeves of the red jacket, as well as transfer blood stains on the back of the jacket. Undisclosed photographs taken at

the crime scene include close-up images of the red jacket and of a blood drip on the

neighboring wall. According to post-conviction defense expert, Stuart James, these

undisclosed materials demonstrate that the unknown blood spatter resulted from a

violent incident, and that the blood stains on the red jacket and the passive drip stain on the wall were most likely part of the same bloodshed event.

The Staterecognizedthe importance ofthis evidenceto its case, memorializing

the "significance" of the high velocity impact blood spatter in conjunctioxi with the

unidentified third party transfer stains on the back of the jacket in Delcomyn's

undisclosed letter to the State's gunshot residue expert. And, it elicited trial

testimony from David Peart, Lambert's cousin and neighbor, to preempt any

argument by trial counsel that the red jacket was connected to the crime (and an

unidentifiedpersonwasinvolvedinthehomicides). Peart'stestimonysuggestedthe

bloodstains resulted from minor work-related injuries on Lambert's cattle farm,

misleadingly implying the blood stains on the jacket were innocuous and unrelated

to the homicides, despite the fact that the State knew this explanation was inconsistent with the undisclosed serology notes.

Post-conviction testing revealed the transfer stains on the jacket matched the

DNA profile of alternative suspect, Mark Moras. Had defense counsel known of the

State's forensics expert's conclusionregardingthehigh-velocity impact blood spatter,

he could have, as he testified, used that information to impeach David Peart's

testimony and to advance his alternative theory that another person was present and hadcomrnittedthecrimes. Indeed,ifdefensecounselhadbeenprovidedtheserology

notes, the prosecutor could not have argued, as he did in closing: "Finally, if not

[defendant], who?" Defense counsel could have used the undisclosed evidence to undermine the State's theory of the case and bolster his defense that another person, i.e., Mark Moras, committed the crimes.

A similar analysis holds true with respect to the undisclosed ballistic notes and

crime scene photographs. At trial, the State theorized that one assailant had fired five

bullets from the gun Doris Foster claimed to have returned to Lambert approximately

a week before the murders.33 The undisclosed materials contradict this theory. Upon

reviewing the undisclosed evidence, post-conviction expert John Nixon opined that

it is likely more than one firearm was used at the scene, at least six gunsliots were

fired, and the shots likely came from more than one shooter. This eviderice could

have been used by the defense to undermine the State's theory as to what happened

the day of the murders and to provide a plausible alternative narrative of the crime.

As evidence that could have been used to attack the investigation and lessen the

credibility of the State's case, it was material. See, Kyles, 514 U.S. at 445

(undisclosed evidence is material ifit couldhave beenusedto attackthe investigation and lessen the credibility of the State's case).

Undisclosed Witness Statements

The final category of undisclosed exculpatory evidence left for us to consider

consists of the suppressed statement of Gary Normand and the interview of Andrew

DunnfromwhichanotationregardingKirbyBrownwasredacted. Handwrittennotes

on the Normand statement indicate that Normand and his brother Wayne "may have

seen another auto" leaving around the time of the murders. Notes handwritten on the

transcribed Dunn interview indicate that Kirby Brown may have seen someone drop defendant off at Lambert's home that morning.

33 In fact, a murder weapon was never recovered; the State's theory was just that: a theory.

TheundisclosedinformationfromGaryNormand's statement-thatanothercar

was seen leaving the area-could have been used to support defendant's argument that

another person committed the murders and to impeach law enforcement officers for

failing to adequately investigate altemative suspects. The information regarding

Kirby Brown could have been more devastating to the State's case. Had defense

counsel been alerted to this information, counsel could have located and interviewed

Mr. Brown, who revealed in his post-conviction declaration that he had observed

defendant being dropped offacross theroad fromthe Lambertresidence aroundnoon,

or later, the day of the murders. Such testimony would have directly contradicted the

State'stimelineofthatday'sevents. Inhisclosing,theprosecutorarguedtothejury

thatdefendantarrivedattheLamberthousebetween 11:15-11:45 am,shotthevictims betweenll:45-11:50am,andthenhaduntil 12:lOpm(whenDorisFostercameupon

the scene) to gather money, cigarettes and Billy's pocketknife and flee. Brown's

statement, in contrast, has defendant being dropped off at the Lambert residence after

noon, making it impossible for him to have coinmitted the murders according to the

State's timeline. However, defense counsel was unable to challenge this timeline

because the notation identifying Kirby Brown as a potential witness was suppressed.

The undisclosed informationregarding Mr. Brownwas clearlymaterial underBrady.

See, Juniper v. Zook, 876 F.3d 551, 570 (4Ih Cir. 2017) ("Corirts have found

withheld evidence material when the evidence undermined the government's theory as to when a petitioner coinrnitted a crime.").

Cumulative Effect of Undisclosed Evidence

In assessing the significance of the evidence withheld, it is important to

reiterate thatthe case against defendantwas based largely on circumstantial evidence.

The only physical evidence presented by the State consisted of two particles "unique

to" and one particle "characteristic of" gunshot residue detected in the waistband of defendant's jeans,34 and the minute amount (two drops) of victim Nicholas Kelly's blood found on the bottom of defendant's left shoe and the end of that shoe's lace. The only evidence that identified defendant as the perpetrator was the testimony of jailhouse informant, Goodspeed. Throughthispost-convictionproceeding, defendantdemonstratedthatthe State failed to disclose (1) evidence showing Goodspeed's beneficial treatment, (2) serology evidence potentially implicating an alternate suspect, (3) crime scene documentation and notes with the potential to contradict the State's "five bullet" theory of the case, and (4) witness statements potentially placing defendant outside the State's timeline of events. Considered separately, each item underi'nines the strength of the State's case,, considered cumulatively they convince us that we can have no confidence that the jury's verdict would not have been affected had the suppressed evidence come to light. Nevertheless, in brief, the State takes the pesition that none of the suppressed evidence was material and its suppression was inconsequential because the presence of Nicholas Kelly's blood on the bottom of defendant's shoe and the end of his shoe lace conclusively establishes defendant's guilt. The State rests its argument on the 34 Post-conviction expeit John Nixon explained that gunsliot residue evidence has low probative value due to the number of possible sources (beyond discharge of a gun) for the particles commonly identified with gunshot residue and the ease oftransfer of such particles from one surface to another. Because the particles identified with gunshotresidue can come from other sources, Nixon explained that tlie definitions have evolved over the years and particles once considered "unique to" gunshot residue are now described as merely "characteristic of' gunshot residue.

lack of any bloody footprints at the scene and the testimony of defendayit's post-

conviction expert in bloodstain patteiw analysis, Stuart James. However, a review of

Mr. James's testimonyreveals thatthe State's theorythat the lack of bloodyfootprints

at the scene proves defendant acquired the blood on his shoe while the victim was

actively bleeding, and not later (as defendant maintains) upon stumbling upon the

scene, was just that: a theory or hypothesis proposed to tlie expeit, who in response

to State's question, responded: "That could be possible.... Yeah. Based on that

hypothesis, yes. On re-direct, Mr. James testified that it also possible that someone

could have stepped into a roam""' and come in contact with a pool of blood withoiat

leaving a bloody footprint. Far from being conciusive, the evidence regarding the

small amount of blood on defendant's shoe is equivocal, and the State's reliance on

this single item of evidence-far from proving the strength of its case, and the

immaterialityofthe suppressed evidence-underscores ourconclusionthatthe largely

circumstantial case upon wliich defendant's conviction rests would have been rntxch

weaker than the one heard by the jury had the undisclosed evidence been presemed.

The State went to great lengths in this case to refute any contention that

jailhouse informant Goodspeed testified pursuant to any inducements (even going so

far as to call his attorney to bolster this claim). The undisclosed evidence regarding

the favorable treatment Goodspeed did receive would have a11owed defense counsel

to impeach this claim, and undertnine the credibility of the only witness to identify

defendant as the perpetrator of the homicides. When considered together with the

undisclosed serology notes and other crime scene evidence that couldhave 'oeen used

by defendant to support his claim that another person may have been involved and to

rebut the testimony ofDavid Peart elicited bythe State to conceal tlie relevance of the

35 Nicholas Kelly was the victim closest to the front door.

undisclosed serologyevidence,wefindourselvesleftwithasingularconclusion: the defendant did not receive a fair trial, or a verdict worthy of confidence. He is entitled to a new trial under Brady, Giglio, and Napue.

CONCLUSION

For the foregoing reasons, defendant's conviction is reversed, his sentence is vacated, and this case is remanded to the district ccurt for a new trial.

CONVICTION AND SENTENCE VACATED; REMANDED FOR NEW

TRIAL.

SUPREME COURT OF LOIDSIANA

No. 2021-KP-00812

STATE EX REL. DARRELL J. ROBINSON vs. DARREL VANNOY, WARDEN, LOIDSIANA STATE PENITENTIARY, ANGOLA, LOIDSIANA

On Supervisory Writ to the 9th Judicial District Court, Parish of Rapides

Crichton, J., concurs in part and dissents in part, and assigns reasons.

I agree with the majority that the state did not disclose favorable evidence to

the defendant, but I dissent in part because, in my view, the cumulative effect of the withheld evidence did not deprive defendant the right to a fair trial as to his gu ilt.

See United States v. Agurs, 427 U.S. 97, 108, 96 S.Ct. 2392, 2399, 49 L.Ed.2d 342

(1976). As to the penalty, though, I believe that in the absence of the suppressed evidence, the death sentences imposed in this case are not "worthy of confidence,"

and must be overturned. Kyles v. Whitley, 514 U.S. 419,434, 115 S.Ct. 1555, 1566, 131 L.Ed.2d 490 (1995). For that reason, I would affirm the ruling of the trial court denying defendant's post-conviction Brady claims as to his convictions but reverse the ruling of the trial court as to the penalties, vacate defendant's four death sentences, and remand to the trial court to convene a new penalty phase trial.

On May 28, 1996, at approximately 12:10 p.m., Doris Foster arrived at the home of her cousin, Billy Lambert. Foster discovered the bodies of Lambert, his

sister Carol Hooper, Carol's daughter Maureen Kelly, and Maureen's infant son, Nicholas Kelly, all shot in the head. She left immediately and drove to a nearby store where the clerk called 911. When she returned to the scene with the police she noticed that Lambert's truck, which had been there when she arrived earlier, was now gone.

It was soon discovered that defendant, who had been staying in Lambert's home at the time, had fled the scene in Lambert's truck. At trial, the state presented evidence of defendant's highly suspicious behavior. Witnesses testified seeing him

speed away from the home at about 12:15 p.m. Defendant drove erratically, swerving into other lanes of traffic, forcing motorists off the road, and side-swiping another vehicle. A chase ensued and defendant was followed until he turned down a driveway, drove through a fence, abandoned the truck behind a house, and ran into the woods where the police later found him hiding. As they approached, defendant told the officers he was unanned and "on medication for violent tendencies."

Besides his incriminating conduct, the state presented additional physical evidence connecting defendant to the crime. When he was arrested, defendant had

Nicholas's blood on the sole and lace of his shoe, Lambert's knife in his pocket, and some cash and cigarettes in his possession. At the crime scene, a spot ofNicholas's blood was found on a towel in Lambert's bedroom and Lambert's wallet, emptied of cash, was found in defendant's room. All four victims were shot with a .38 caliber gun, the same caliber gun Lambert was known to keep in the house, but the weapon was never recovered. A gunshot residue expert testified that he found one particle on defendant's shirt, a few particles on his waistband, and many particles on his pant legs.

Finally, the state called Leroy Goodspeed to testify against defendant.

Goodspeed testified that in November 1997, while the two men were jailed together, defendant confessed to him that he "did those people, a man, two women and a small child, and threw the gun off of a bridge." Critically, the confession Goodspeed

testified about is not self-corroborating. In other words, it does not contain information that only the perpetrator of the crime could have known. ^[1] Since the reliability of the confessioncannotbe deteimined by its substance alone, to believe

that defendant confessedto the crime, a )uror must have taken Goodspeed on his

word that it occurred.Thus, Goodspeed'scredibility became and remains a relevant factor in this case.

At trial, Goodspeed'scredibility was put to a rigorous test. He underwent a

blistering cross-exatnunation by defendant's highly experienced attorney using

abundantimpeachment evidence that had been turned over by the state. The jury

heard that that Goodspeed had been arrested 24 times, amassed six felony

convxctxons, was mentally ill, took medication for auditory hallucinations, and

admitted that he will "say or do anything to get out of prison." State v. Robinson,

2002-1869, pp. 17-18 (La. 4/14/04), 874 So.2d 66. The jury also learned that when

Goodspeed reported defendant's confession, he had been facing up to 33 years in

prxson on charges pending in Rapides Parish; however, before defendant's trial,

Goodspeed accepted a plea deal in which he was sentenced to three years

imprisonment at hard labor with one year suspended, and was released after serving

11 months of that sentence. The state dispelled any suspicion this outcome related

to his asststance in defendant's case by calling Goodspeed's attorney who testified

that the lenient sentence he received was not related to his testimony against defendant.2

Nevertheless, despite the defense's successful incrimination of his character,

Goodspeed maintained that he had not received, requested, or been promised

anything from the state in exchange for his testimony against defendant. He

explained that he was only doing so because it was "the right thing to do." The jury

heard that Goodspeed had charges pending against him in Lafayette, where he was

facing up to life in prison, but his testimony suggested that he was unaware that his

2 There are, of course, a myriad of reasons, aside from seeking cooperation from Goodspeed, that the state may have offered him a plea deal on these charges.

asststance in defendant's case in Rapides Parish could possibly result in beneficial

treatment in Lafayette Parish. In its opening statement, the state asserted that

Goodspeed had no reason to lie about the confession and nothing to gain from his

testtmony. In closing, the state stressed that Goodspeed was not given anything,

offered anything, and did not ask for anything in exchange for his testimony.

After the trial, defendant discovered additional evidence that further

impeached Goodspeed's already marred credibility. As noted above, Goodspeed

denied receiving any favorable treatment from the state for his testimony at

defendant's trial in March 2001. However, on two occasions (on January 29, 1999,

and on February 2, 2001) pardons were entered into the Department of Corrections

offender tracking system on Goodspeed's behalf.3 In addition, on December 18,

2000, a probation officer wrote a letter to a judge recommending that Goodspeed's

probation in Rapides Parish not be revoked despite his arrest on first degree robbery

charges in Lafayette Parish. Neither the pardon entries nor the probation letter was

disclosed to defendant before Goodspeed testified against him. As a result, the jury

did not learn that Goodspeed had received these additional benefits from the state

after he came forward about the confession but before he testified against defendant.

A discussed above, at trial Goodspeed denied asking for or being promised

anything from the state in exchange for his testimony against defendant. However,

there is evidence, presented in post-conviction, from which one can reasonably infer

Goodspeed was incentivized by the state to testify against defendant. First, the

Lafayette Parish charges that were pending against Goodspeed at the time of

defendant's trial were all later dismissed expressly because he testified against

defendant. Rapides Parish Assistant District Attorney Mike Shannon testified in

post-conviction that after trial Goodspeed asked him to put in a "good word" for him

3 During the post-conviction hearing, the state could not provide an explanation as to how or why these entries were made.

with the Lafayette Parish District Attorney, he called and asked them to "find a way

to assist him [because] he was a material witness in a murder case." Internal

memoranda in the Lafayette Parish District Attorney file shows they made good on

this request and dismissed Goodspeed's charges because he was "an essential

witness in a murder trial." Second, while Goodspeed testified that he was only

testifying against defendant because "it was the right thing to do," Kevin Nichols

testified in post-conviction that when Goodspeed returned to his cell immediately

after testifying against defendant, he indicated he was worried "that he was not

getting his deal and he was headed back to Lafayette." Nichols's account points to

Goodspeed's belief that he had a deal with the state before he testified in defendant's

trial. Third, a post-conviction investigator spoke with Goodspeed in March 2012. He

told her that he received a deal on his Lafayette Parish charges in exchange for his

testimony against defendant." Fourth, the Rapides Parish District Attorney file

contained a handwritten note in the margin of a transcript of a police interview with

Goodspeed's wife about the confession. The note was scribbled over but appears to

say, in part, "try & reconcile...said this may help you to get out Det[ention]."

Weighing this evidence together, against the self-serving testimony of

Goodspeed at trial and Shannon in post-conviction-who both denied the existence

of a pre-trial deal-one could nevertheless reasonably conclude that there was, in

fact, some promise of additional, future aid by the state in exchange for Goodspeed's

testimony against defendant. Yet this agreement was not disclosed to defendant and

not revealed at trial. Without this information, defendant was not able to show to the

3iiry that, contrary to the claims of the prosecutor, Goodspeeddid have a reason to

lie about defendant's confession and that, despite his assertions otherwise,

4 Since Goodspeed died before the post-conviction hearing, we are relegated to considering hearsay evidence about his involvement in defendant's trial. While this is permitted in post- conviction proceedings, it is accorded less weight than if he had testified at the hearing and been subjected to the test of cross-examination. State ex rel. Tassin v. Whitley, 602 So.2d 721, 724 (La. 1992).

Goodspeed was not only testifying because it was "the right thing to do." Thus, while

Goodspeed was thoroughly impeached at trial, the jury did not hear all the reasons to reject his testimony as incredible.

There is additional favorable evidence that the state did not turn over to the

defense besides the undisclosed benefits made and promised to Goodspeed. At trial,

the jury heard about a red jacket collected from the Lambert house that was stained

with the blood of an unknown third party.5 At trial, the state presented testimony

suggesting that the blood on the jacket came from an injury sustained by a farm

worker and was not related to the murders. Contrary to the theory posited to the jury,

the state's own experts had examined the jacket before the trial and concluded that

some of the blood on the jacket was "high or medium velocity spatter." This

classification connects the blood on the jacket to a gunshot event and, thus, to the

murder. This fact was not disclosed to defendant before trial. If it had been, the

defense could have counteredthe state's theory ofthe origins ofthe blood and argued

that it pointed to the presence of someone other than defendant at the house when the murders occurred.

Finally, the state withheld handwritten notes providing investigative leads

relating to the timeline of the crime and when defendant was seen at the Lambert

house on the morning of the murders. The )ury heard from two witnesses who recalled seeing Lambert's truck speeding away from the house at around 12:15 p.m.

In closing argument, the prosecutor told the )ury that defendant arrived at the

Lambert house between 11:15 and 11:45 a.m., shot the victims between 11:45 and

11:50 a.m., and then had until 12:10 p.m. (when Doris Foster arrived) to steal

Lambert's money, knife, and cigarettes before fleeing in his truck. However, the

5 At trial the jury heard that the blood on the jacket was not from defendant or any of the victims. Later, post-conviction DNA testing of revealed that it came from Mark Moras, a former resident of the Lambert house who had an ongoing conflict with Lambert and who was the altemate perpetrator urged by defendant at trial.

state did not reveal to the defense that one of the witnesses told the police that he

and his brother may have seen another vehicle leave the house that morning. The

state also suppressed a note about anotherwitness, Kirby Brown, who saw defendant

being dropped off at the Lambert house that moming. If the state had told defendant

about Brown, they would have interviewed him and learned that he recalled seeing

defendant being dropped off at the Lambert house at 12 p.m. or later that day. If this

evidence had been turned over, the )ury would have heard testimony that was

inconsistent with the state's timeline and consistent with defendant's claim that he

happened upon the victims after they were murdered and fled in panic.

The cumulative effect of all the undisclosed evidence-the beneficial

treatment provided to Goodspeed by the state, the serological evidence relating to

the bloodstained jacket, and the investigative leads relating to the timeline of the

crime-is noteworthy. However, in my view, even taking into account the

suppressed evidence, the case for defendant's guilt remains strong and worthy of

confidence.6 Thus, unlike the majority, I decline to conclude that the withheld

evidence is material to the guilty verdicts and would not disturb defendant's convictions.7

Importantly, and distinct from the dissent, I believe that the withheld evidence

undermines confidence in defendant's death sentences, and I would reverse the

ruling of the trial court as to the penalty phase. In Brady v. Maryland, the United

6 La. R.S. 15:438 permits convictions based on circumstantial evidence alone when, "assuming every fact to be proved that the evidence tends to prove, [] exclude[s] every reasonable hypothesis of innocence." Furthermore, as this Court explained in State v. Davies, 350 So.2d 586, 588 (La. 1977), "[e]vidence of flight, concealment, and attempt to avoid apprehension . . . indicates consciousness of guilt and, therefore, is one of the circumstances from which the jury may infer guilt." 7 In so doing, I am cognizant of the impact overturning murder convictions has on surviving victims. See State v. Reddick, 2021-1893, pp. 15-16 (La. 10/21/22), 351 So.3d 273, 283. As I acla'iowledged in Reddick, "[e]ven when the evidence can be reassembled, conducting retrials years later inflicts substantial pain on crime victims who must testify again and endure new trials." Id., quoting Edwards v. %nnoy, 593 U.S. ---, 141 s.ct. 1547, 1554-55, 209 L.Ed.2d 651 (2021) and citing United States v. Mechanik, 475 U.S. 66, 72, 106 s.ct. 938, 89 L.Ed.2d 50 (1986) ("[V]ictims may be asked to relive their disturbing experiences.").

States Supreme Court held that a due process violation occurs when the state

withholds favorable evidence that is "material either to guilt or to punishment." 373

U.S. 83, 87, 83 s.ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963) (emphasis added).

During a penalty phase of a capital trial, the jury is required to consider "[a]ny []

relevant mitigating circumstance" when determining the approprtate sentence to be

imposed. La. C.Cr.P. art. 905.5(h). The United States Fifth Circuit Court of Appeals

has "frequently recognized the strategic value of relying on 'residual doubt"' by

defendants during the sentencing phase of a capital trial. Kirkpatrick v. itley, 992

F.2d 491, 497 n. 33 (5th Cir. 1993). Residual doubt has been defined as "a lingering

uncertainty about facts-a state of mind that exists somewhere between 'beyond a

reasonable doubt' and 'absolute certaimy.""Franklin v. Lynaugh, 487 U.S. 164, 166,

108 s.ct. 2320, 2323, 101 L.Ed.2d 155 (1988).

At the trial on the sentence, "[o]ne or more )urors [may] retain[] minor

trepidations about the nature" ofthe state's evidence "or [feel] a general ambivalence

about imposing the death penalty," and that "uncertainty, though not rxsing to the

level of reasonable doubt regarding guilt, might [lead] such a juror to hold out for a

life sentence." State v. Lee, 524 So.2d 1176, 1192 (La. 1987). The United States

Supreme Court has acknowledged that "[e]vidence that is material to guilt will often

be material for sentencing purposes as well." Cone v. Bell, 556 U.S. 449, 473, 129

s.ct. 1769, 1784, 173 L.Ed.2d 701 (2009). While not giving rise to a reasonable

doubt, there is a reasonable probability that the evidence withheld by the state in this case, considered cumulatively, may have reasonably caused at least one 3uror to

nevertheless entertain some residual doubt about defendant's guilt, and that juror

"can be expected to resist those who would impose the irremedial penalty of death."

Smith v. Balkcom, 660 F.2d 573, 580-81 (5th Cir. 1981).

"The Brady rule is based on the requirement of due process. Its purpose is

to ensure that a miscarriage of justice does not occur." United States v. Bagley, 473 [J.s. 00'7, 675, 105 s.ct. 3375, 3379-80, 87 L.Ed.2d 481 (1985). We are

required to apply heightened care to protecting the due process rights of the

defendant in capital prosecutions. See Woodson v. North Carolina, 428 U.S. 280,

305, 96 s.ct. 2978, 49 L.Ed.2d 944 (1976) (explaining that because of the

"qualitative difference" between the death penalty and life imprisonment, "there is

a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case."). Applying the heightened standard of care applicable to capital cases, it is my opinion that there is a reasonable probability that the Brady materials in this case would have caused trepidations about the nature of the state's case sufficient to cause one or more jurors to withhold capital punishment.8 For this reason, I believe the state's withholding of favorable evidence resulted in a miscarriage of justice rendering the death sentence imposed in this case not worthy of confidence. Therefore, I would vacate the sentence and remand the case for a new trial on the penalty phase.9 8 See La. C.Cr.P. art. 905.8, "The court shall sentence the defendant in accordance with the determination of the jury. If the jury is unable to unanimously agree on a determination, the court shall impose a sentence of life imprisonment without benefit of probation, parole or suspension of sentence." 9 Pursuant to La. C.Cr.P. art. 61, the District Attomey has the discretion to retry the penalty phase of the trial or not seek a capital verdict. In that circumstance, the trial court shall impose a sentence of life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. See La. R.S. 14:30(C)(2).

SUPREM:E COURT OF LOUISIANA

No. 2021-KP-00812

STATE EX REL. DARRELL J. ROBINSON vs. DARREL VANNOY, WARDEN, LOUISIANA STATE PENITENTIARY, ANGOLA, LOUISIANA

On Supervisory Writ to the 9th Judicial District Court, Parish of Rapides

CRAIN, J., dissenting. Billy Lambert, Carol Hooper, Maureen Kelly, and Maureen's infant son, Nicholas Kelly, were all murdered in Lambert's home on May 28, 1996. Defendant was spotted frantically fleeing the scene in Lambert's pickup truck at a high rate of speed, spinning-out, side-swiping a vehicle, and running other motorists off the road. An ensuing car chase ended with defendant driving through a fence, abandoning the truck, and fleeing on foot into nearby woods. Apprehended shortly thereafter, defendant had Nicholas's blood on his shoe and Lambert's knife in his pocket. Lambert's wallet, emptied of cash, and a towel stained with Nicholas's blood were found in defendant's room at Lambert's home. All four victims were shot at close range with a .38 caliber gun, the same caliber pistol Lambert had in his house before, but was never found after, the murders. Gunshot residue was found on defendant's shirt, waistband, and pants. A unanimous jury found defendant guilty on all four counts of first degree murder and recommended the death sentence, which the trial court imposed. On direct appeal, this court unanimously affirmed the verdict and sentence, finding "the circumstantial evidence presented at 'defendant's trial excluded any reasonable hypothesis of his innocence." State v. Robinson, 02-1869 (La. 4/14/04), 874 So. 2d 66, 75. The majority now finds the verdict not "worthy of confidence. I respectfully disagree. The majority's decision rests largely on the premise that the state failed to disclose a purported "deal" between the state and Leroy Goodspeed, the jailhouse informant who testified defendant admitted to the murders. This finding is contradicted by direct evidence from four witnesses who testified that nothing was promised or offered to Goodspeed in exchange for his testimony. These witnesses are Mike Shannon, the lead prosecutor in the murder trial; Ray Delcomyn, the district attorney's investigator for the murder trial; W.T. Annitage, a defense attomey who represented Goodspeed in a criminal proceeding in Rapides Parish; and Goodspeed himself. Implicitly finding these witnesses all cornrnitted perjury, the majority defers to a "factual conclusion" by the trial court "that the State failed to disclose that Goodspeed in fact testified in excliange for beneficial treatment." I cannot find any such conclusion by the trial court. In written reasons rejecting defendant's claim, the trial court pointed out that during the trial, "much effort was put forth to attack and reveal any possible adeal' made with Leroy Goodspeed." The trial court noted that Goodspeed, under cross- examination, admitted that he "would do anything in his power to avoid being in jail"; and the )ury was informed about the three-year sentence he received in the recently concluded Rapides Parish criminal proceeding The trial court then reviewed the "new" evidence presented by defendant, describing it as"more detailed evidence . that appears to indicate Goodspeed may have been allowed special treatment." (Emphasis added.) The trial court identifies the pardons, the statements allegedly made by Goodspeed to a cellmate and a defense investigator, and documents showing some communications between Sherman(the Rapides Parish assistant district attoniey) and a Lafayette assistantdistrict attorneyover two months after defendant's trial. But, the trial court made no factual conclusionsabout any of this "new" evidence. Instead, the court pretermitted any finding as to the existence

of the alleged deal and found no Brady violation based on a lack of materiality,

reasoning that Goodspeed's trial testimony was limited and subject to extensive

cross-examination about a possible deal. This is apparent from the closing sentences of the trial court's reasons on this issue:

The value of Goodspeed's testimony was very low compared to the other evidence brought against [defendant] at trial. Unlike witnesses in most cases where such Brady violations are found, he was not an eyewitness nor was liis testimony central to [defendant's] case. Goodspeed's testimony contained only an alleged jailhouse confession .... The jury was presented with evidence of special treatment at trial, which defense counsel was able to use to impeach Goodspeed in its cross-examination. The only additional evidence now being brought by [defendant] is similar circumstantial evidence possibly showing further special treatment received at later dates following the trial. Therefore, it is unlikely that this information would have seriously undermined Goodspeed's testimony any more than the evidence heard by the jury at trial. [Emphasis added.]

"[P]ossibly showing" something is not a factual conclusion. Particularly where that

conclusion means four witnesses, including both parties to the alleged deal, committed perjury.

Absent a factual finding by the trial court, de novo review of the relevant

evidence is appropriate on appeal to determine if defendant proved the state

promised or offered Goodspeed anything in exchange for his testimony. Cl State v.

Thompson, 11-0915 (La. 5/8/12), 93 So. 3d 553, 563 ("When a trial court makes

findings of fact . a reviewing court owes those findings great deference.") Based

upon my review of the evidence, defendant did not prove a deal between the state

and Goodspeed. Assistant District Attorney Sherman and Goodspeed both expressly

testified there was no agreement, understanding, or any other arrangement to induce

Goodspeed to testify. Their testimony was corroborated by the district attorney's investigator, who testified he was present for all meetings with Goodspeed and no

deal was ever discussed; and Goodspeed's defense attorney in the Rapides Parish proceeding, who confirmed there was no deal in that matter.

The contrary evidence is mostly inferences drawn from letters and otlier

communications that were adequately explained at the evidentiary hearing. The

probation officer who sent the letter to the judge presiding over Goodspeed's

probation did not say the letter was part of a deal or had been requested by anyone.

Instead, as recognized by the majority in footnote 7, the officer testified it was not

uncornrnon for him to not recommend revocation when there was a pending charge,

and "apparently I chose not to recommend revocation, between my supervisor and

I." The probation proceeding was pending in Rapides Parish, so it is not surprising

that the Rapides Parish District Attorney's office was copied with the letter.

Sherman likewise explained the circumstances surrounding him contacting the

Lafayette Parish assistant district attorney a'fter defendant's trial. That was at the

urging of a relative who had been in a halfway house with Goodspeed. The majority

also points to the "pardons" entered into a database by the Department of

Conections, but there is no evidence the Rapides Parish District Attorney is

authorized to direct such entries or was otherwise involved in that record keeping by the Department of Corrections. The only testimony referring to a deal is second-

liand information reported by Goodspeed's cellmate and a defense investigator, wliich I find are not more persuasive than the direct testimony from the witnesses involved in the alleged deal, all of whom refute it.

Finding no agreement between the state and Goodspeed, the state did not violate its obligation to disclose any such agreement and did not present, or fail to correct, false testimony. See Giglio v. United States, 405 U.S. 150, 150-51; 92 s.ct.

763, 764; 31 L.Ed.2d 104 (1972); Napue v. People ofState ofIll., 360 U.S. 264, 265;

79 s.ct. 1173, 1175; 3 L.Ed.2d 1217 (1959).

Defendant alternatively argues the state should have disclosed the letter from

the probation officer, the existence of the two pardons, and the prosecutor'snotes in the margin of a statement from Goodspeed's wife. This information is neither exculpatorynor sufficiently material to constitute a Brady violation. "Favorable

evidenceis material if there is a reasonable probability tliat, had the evidence

been disclosed to the defense, the result of the proceeding would have been

different." Kyles v. Whitley, 514 U.S. 419, 433; 115 s.ct. 1555, 1565; 131 L.Ed.2d

490 (1995). Whether considered in isolation or cumulatively with the other Brady

evidence, disclosure of the probation officer's letter, the prosecutor's notes, and the

pardons would not "have made a different result reasonably probable." See Kyles,

514 U.S. at 441; 115 s.ct. at 1569. In affirming the juty's verdict against defendant,

this court reviewed all of the evidence and specifically recognized the strength of

the state's circumstantial evidence, which "excluded any reasonable hypothesis of

his innocence. Robinson, 874 So. 2d at 75. Commenting on Goodspeed's

testxmony, this court observed, "Clearly... the quantum of the State's proof was

significantly more than the testimony of Leroy Goodspeed." Robinson, 874 So. 2d at 78. I agree. Given the convincing nature of the state's circumstantial evidence, the failure to produce information that, at best, might marginally further impeach Goodspeed's testimony is not a Brady violation. Defendant also maintains the state failed to disclose serology and otlier lab notes from the North Louisiana Criminalistics Laboratory, as well as diagran"is, and pl'iotographs. The trial court rejected this contention, fuiding, "The trial record sripports tlie State did disclose tliese pieces of evidence." Delcomyn, tlie district attorney's investigator, testified that he requested any and all laboratory notes from the Crime Labs in Alexandria and Shreveport. He received a large package of materials that he personally delivered to the defense attorney's office. Defendants were additionally given full access to the Crime Lab. This information was also not material, particularly given that defendant's expert had prolonged possession of the jacket that is the subject of the note related to blood splatter on the jacket sleeve.

Lastly, I find no merit to defendant's factually-innocent claim under Louisiana

Code of Criminal Procedure article 926.2. To prevail, a defendant must prove "by

clear and convincing evidence that, had the new evidence been presented at trial, no

rational juror would have found the petitioner guilty beyond a reasonable doubt.

La. Code Crim. Pro. art. 926.2B(1)(b). Defendant relies on evidence indicating that

blood on the back of a jacket in Lambert's house was from an alternative suspect

identified by the defense. The presence of this blood does not exculpate defendant

in these murders to the point that "no rational juror would have found him guilty."

Id.

Defendant had a fair trial that resulted in convictions on four counts of first degree murder. These convictions should not be set aside based on inferences drawn

from limited circumstantial evidence where every witness with personal knowledge of the relevant events confimied the actual facts. I dissent and would affirm the trial cotut's judgment.

SUPREME COURT OF LOIDSIANA

No. 2021-KP-00812

STATE EX REL. DARRELL J. ROBINSON vs. DARREL VANNOY, WARDEN, LOIDSIANA STATE PENITENTIARY, ANGOLA, LOIDSIANA

On Supervisory Writ to the 9th Judicial District Court, Parish of Rapides

McCallum, J., dissents for the reasons assigned by Justice Crain and assigns additional reasons. I respectfully dissent from the majority opinion for the reasons assigned by Justice Crain in his dissenting opinion. I write separately to emphasize that the jury weighed testimony and determined that the defendant was guilty of the murders of three adults and a child. The jury then determined that the defendant's actions warranted the death penalty. On direct appeal, this court affirmed the defendant's convictions and sentence. State v. Robinson, 02-1869 (La. 4/14/04), 874 So. 2d 66. The United States Supreme Court denied certiorari, leaving those convictions and sentence undisturbed. Robinson v. Louisiana, 543 U.S. 1023 (2004). After a review of the record, I agree with the trial court's denial of the defendant's petition for post-conviction relief. Unlike the majority, I find that the cumulative effect of the withheld evidence did not deprive defendant of the right to a fair trial, and the guilty verdicts and the convictions are worthy of confidence. Since the disputed evidence related to guilt, not the penalty, in my opinion, it logically follows that the death sentence imposed by the jury is also worthy of confidence.