Ballinger v. Kerby
3 F.3d 1371 (1993)
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Rule of Law:
The prosecution's failure to disclose evidence that could be used to impeach a key witness violates a defendant's due process rights under Brady v. Maryland if the evidence is material. Evidence is material when there is a reasonable probability that, had it been disclosed, the outcome of the proceeding would have been different.
Facts:
- Warren Uecker and petitioner Gene C. Ballinger were business partners at the Pine Cienega Ranch, where there was significant strife and tension between them.
- On July 22, 1980, Uecker's partially decomposed body was discovered at the ranch; he had died from a .32 caliber bullet wound.
- John Rizzo, another business partner, was arrested for the murder but agreed to testify against Ballinger in exchange for immunity.
- At trial, Rizzo testified that on the afternoon of July 19, 1980, he saw Ballinger leading Uecker away at gunpoint by looking through a bedroom window.
- Ballinger's wife, Phyllis, testified that her husband was asleep at that time and that she had seen Rizzo and Uecker drive away together, with Rizzo returning alone.
- The defense presented witness testimony that the bedroom window Rizzo claimed to see through was covered with a thick sheet of translucent plastic, making it impossible to identify specific individuals.
- Rizzo claimed to have located Uecker's body and the murder weapon through a process he called "dowsing."
- After the murder, investigators took numerous photographs of the ranch house, including the bedroom window, which were never disclosed to the defense.
Procedural Posture:
- Gene C. Ballinger was convicted of second-degree murder in a New Mexico state trial court.
- Ballinger's direct appeals in the state court system were unsuccessful.
- Ballinger filed a motion for a new trial in the state trial court based on newly discovered evidence (the undisclosed photograph), which the court denied.
- The New Mexico Court of Appeals affirmed the trial court's denial of the new trial motion.
- Ballinger then filed a state habeas corpus petition raising the failure-to-disclose claim, which a state court denied.
- Ballinger's subsequent attempt to have the New Mexico Supreme Court review the denial of his state habeas petition was rejected as untimely.
- Ballinger filed a petition for a writ of habeas corpus in the U.S. District Court for the District of New Mexico.
- The U.S. District Court granted the writ of habeas corpus, finding a Brady violation.
- Respondent Warden Dareld Kerby, the appellant, appealed the district court's grant of the writ to the U.S. Court of Appeals for the Tenth Circuit.
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Issue:
Does the prosecution's failure to disclose a photograph that could impeach its primary witness violate a defendant's due process rights when that witness's testimony is the only evidence linking the defendant to the victim on the day of the murder?
Opinions:
Majority - Logan, Circuit Judge
Yes, the prosecution's failure to disclose the photograph violates the defendant's due process rights. Under the materiality standard from United States v. Bagley, evidence is material if there is a 'reasonable probability' its disclosure would have changed the trial's outcome. The case against Ballinger was 'thin at best' and depended entirely on Rizzo's testimony, which was already suspect due to his immunity deal and his claims of 'dowsing.' The photograph, while not perfectly clear, appears to show the window was covered with plastic, providing physical evidence that would have substantially impeached Rizzo's claim he saw the events through it. Discrediting this testimony would have broken the only link between Ballinger and the murder, undermining confidence in the verdict and creating a reasonable probability of a different result.
Dissenting - Kelly, Jr., Circuit Judge
No, the failure to disclose the photograph does not violate due process rights. The photograph is not exculpatory and is merely cumulative impeachment evidence. The jury heard extensive conflicting testimony from numerous witnesses regarding whether the window was covered with plastic, and this ambiguous photograph, which is partially obscured by a tree branch and a shadow, would not have settled the issue. The jury was already aware of potential issues with Rizzo's credibility, including his immunity deal and 'dowsing' claims. Given the other evidence of Ballinger's motive and threats against the victim, this single piece of ambiguous evidence does not create a reasonable probability of a different outcome sufficient to undermine confidence in the trial.
Analysis:
This decision reinforces the broad scope of the Brady rule, clarifying that impeachment evidence can be just as material as directly exculpatory evidence. It highlights that the materiality of suppressed evidence is highly context-dependent, with its significance increasing dramatically in cases built on circumstantial evidence and the testimony of a single, questionable witness. The court's de novo review of materiality as a mixed question of law and fact establishes a key standard for federal habeas review of state court convictions. The ruling signals that prosecutors must be especially diligent in disclosing evidence that could undermine the credibility of their key witnesses, as failure to do so can easily lead to a verdict being overturned.
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