Withholding Evidence Must Prejudice A Defendant in Order to Obtain Post Conviction Relief
In Gordon v. State, 2016 UT App 191, the Utah Court of Appeals addressed the issue of how a prosecutor’s withholding evidence can affect a defendant’s post-conviction relief petition.
Lee Lundskog was found dead outside a convenience store in Salt Lake County the morning of September 29, 2001. The autopsy showed the manner of death to be homicide caused by numerous blows to his head. An eyewitness reported seeing someone repeatedly kicking and stomping Lundskog’s head. The eyewitness described what the attacker looked like, and Adrian Gordon fit the description. The eyewitness later identified Gordon, and another witness saw the same man wave Lundskog toward him right before Lundskog was stomped on the head. Gordon was arrested for Lundskog’s homicide and convicted of first-degree murder.
Gordon appealed the district court’s order granting summary judgment in favor of the State and dismissing his petition for post-conviction relief with prejudice. This court reviewed these two issues for correctness without deference to the lower court’s conclusions of law. Gordon arranged for new counsel. The police department provided his new counsel a CD containing documents from its investigation. His counsel found images on the CD of handwritten notes made by a detective that were never disclosed to Gordon’s trial counsel. The notes appeared to say “Not characteristic of ‘Baseball Bat’” “Instrument” “More rough & uneven edges and surface.”
Under the Post-Conviction Remedies Act (PCRA), a criminal defendant may obtain relief if he establishes that his conviction was obtained in violation of the U.S. Constitution or Utah Constitution or if the defendant had ineffective assistance of counsel. One of the issues this court addressed was whether the district court erred in granting summary judgment to the State on Gordon’s claim that he was deprived of due process when the State failed to disclose the notes, or in other words was withholding evidence. The notes suggested that the instrument used to inflict Lundskog’s injuries had rough and uneven edges and surface.
The U.S. Supreme Court has held that the suppression by the prosecution of evidence favorable to an accused violates due process where the evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the prosecution. Brady v. Maryland, 373 U.S. 83, 87 (1963). The duty to disclose favorable evidence includes both exculpatory and impeachment evidence, and the duty is implicated even if the evidence is known to police investigators and not the prosecutor. A Brady claim has three elements: the evidence at issue is favorable to the accused, either because it is exculpatory, or because it is impeaching; the evidence was suppressed by the State, either willfully or inadvertently; and prejudice ensued. In Gordon’s Brady claim, the only element at issue was whether Gordon suffered prejudice as a result of the State’s failure to disclose the notes. The evidence must be material in order for the suppression of evidence to be prejudicial. Evidence is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.
Although the notes might suggest that Lundskog’s injuries could have been inflicted in another way, they do not directly undermine the evidence against Gordon or cast the whole case in a different light. The only real issue at trial was the identity of Lundskog’s attacker, not the exact manner of his death. The State’s nondisclosure of the notes does not undermine this court’s confidence in the outcome at trial. Because the notes do not implicate another perpetrator and because they would have done little to weaken the testimony of the State’s witnesses, the notes were not material for Brady purposes. The lower court correctly dismissed Gordon’s claim related to the State’s failure to disclose evidence because the nondisclosed evidence was not material.