Johnson v. Bell

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 08a0167p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Petitioner-Appellant, -

CECIL C. JOHNSON, JR.,

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No. 04-5377

v.

,

>

RICKY BELL, Warden, -

Respondent-Appellee. -

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Appeal from the United States District Court

for the Middle District of Tennessee at Nashville.

No. 99-00047—Robert L. Echols, District Judge.

Argued: March 15, 2007

Decided and Filed: April 29, 2008

Before: BATCHELDER, COLE, and GIBBONS, Circuit Judges.

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COUNSEL

ARGUED: James G. Thomas, NEAL & HARWELL, Nashville, Tennessee, for Appellant. Alice

B. Lustre, OFFICE OF THE ATTORNEY GENERAL, Nashville, Tennessee, for Appellee.

ON BRIEF: James G. Thomas, James Franklin Sanders, NEAL & HARWELL, Nashville,

Tennessee, for Appellant. Alice B. Lustre, OFFICE OF THE ATTORNEY GENERAL, Nashville,

Tennessee, for Appellee.

GIBBONS, J., delivered the opinion of the court. BATCHELDER, J. (pp. 17-18), delivered

a separate concurring opinion. COLE, J. (pp. 19-24), delivered a separate dissenting opinion.

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OPINION

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JULIA SMITH GIBBONS, Circuit Judge. In 1981, petitioner-appellant Cecil C. Johnson,

Jr., was convicted by a Davidson County, Tennessee, jury of three counts of first degree murder, two

counts of robbery, and two counts of assault. Johnson was sentenced to death for the murders and

received four consecutive life sentences for the remaining convictions. The convictions and

sentences were upheld by the Tennessee Supreme Court on direct appeal, and the United States

Supreme Court denied Johnson’s petition for a writ of certiorari. Johnson twice sought post-

conviction relief in state court; both attempts failed. Johnson filed the instant petition in federal

court in January 1999. The district court granted respondent’s motion for summary judgment and

dismissed the petition. This court granted a certificate of appealability on six issues. For the

following reasons, we affirm the judgment of the district court.

1

No. 04-5377 Johnson v. Bell Page 2

I.

On July 5, 1980, Bob Bell’s Market in Nashville, Tennessee, was robbed by an armed

gunman. In the store at the time of the robbery were Bob Bell, Jr. (Bell), his son Bobbie, and Louis

Smith, an acquaintance of Bell’s. Bobbie Bell was helping at the cash register and Smith was

working at the store repairing a motor for Bell. The assailant pointed a gun at Bell and ordered him

and Smith behind the register where Bobbie Bell stood. While the captives were behind the counter,

other customers entered the market. The gunman ordered the Bells and Smith to act naturally and

attend to the customers. After the customers left, the gunman ordered Bobbie Bell to fill a bag with

the money in the cash register.

Soon thereafter, the gunman began shooting. Bobbie Bell was shot first and later died from

his wounds. After Bobbie Bell was shot, Smith threw himself on Bobbie in an effort to protect him

from further harm. In the process, Smith was himself shot twice. The gunman then shot at Bell’s

head but, because Bell had lifted his hands, his wrist deflected the shot and Bell survived. As the

gunman fled the market, he shot and killed two men—a cab driver and his passenger—who were

sitting in a car parked near the entrance to the market. The cab driver was later identified as James

Moore and the passenger as Charles House, a customer who had entered the market moments before

the gunman began shooting his victims. Bell left the market and attempted to follow the gunman

but was unable to do so successfully.

Information Bell gave to police officers immediately after the robbery led to Johnson’s arrest

on July 6, 1980. At trial, both Bell and Louis Smith identified Johnson as the perpetrator of the

crimes. In addition, Debra Smith, a customer who entered the market during the commission of the

robbery, identified Johnson as having been behind the counter with Bell, Bobbie Bell, and Louis

Smith.

Johnson was also connected to the crimes by Victor Davis, a friend who had spent most of

July 5, 1980, in the company of Johnson. During the course of the investigation, Davis made

statements to the prosecution and defense that provided Johnson with an alibi. In essence, Davis

said that he and Johnson were together continuously from roughly 3:30 p.m. on July 5 until

approximately midnight and that at no time did they visit Bell’s Market. However, the week before

the trial, and after he was arrested on unrelated charges, Davis made a statement to the prosecution

incriminating Johnson. At trial, Davis, who was promised immunity from prosecution for any

involvement in the crimes committed at Bell’s Market, confirmed his statements incriminating

Johnson. According to Davis’s testimony, he and Johnson left Franklin, Tennessee, at

approximately 9:25 p.m. on July 5 and arrived in Nashville in the vicinity of Bell’s Market shortly

before 10:00 p.m. Johnson then left Davis’s automobile after stating that he was going to rob Bell

and was going to “try not to leave any witnesses.”

Davis testified that he next saw Johnson some five minutes later near Johnson’s father’s

house, which was roughly a block from Bell’s Market. Davis stated that Johnson was carrying a

sack and pistol and, when he entered Davis’s automobile, Johnson said, “I didn’t mean to shoot that

boy.” Johnson discarded the gun, which Davis later retrieved and sold the following day. Davis

further testified that after he picked up Johnson, they drove directly to Johnson’s father’s house,

arriving shortly after 10:00 p.m. There, in the presence of Johnson’s father, Johnson took money

from the sack, counted approximately $200, and gave $40 of this money to Davis. According to

Davis, Johnson told his father that he and Davis had been gambling and that gambling was the

source of the money.

Johnson testified on his own behalf and denied being in Bell’s Market on July 5, 1980. His

testimony as to the events of the day was largely in accord with that of Victor Davis, except for the

time just before 10:00 p.m. Johnson testified that he never left Davis’s automobile on the trip from

No. 04-5377 Johnson v. Bell Page 3

Franklin to Johnson’s father’s house in Nashville and that he arrived at his father’s house shortly

before 10:00 p.m. Johnson’s father testified that Johnson arrived a few minutes before 10:00, just

before the 10:00 p.m. news began.

After hearing all the evidence, a Tennessee jury convicted Johnson of three counts of first

degree murder, two counts of assault with intent to commit murder, and two counts of armed

robbery. The jury recommended that Johnson be sentenced to death on each count of first degree

murder and to consecutive life sentences on each of the remaining counts. The trial court accepted

this recommendation and imposed the death penalty. On direct appeal in 1982, the Tennessee

Supreme Court affirmed Johnson’s convictions and sentence. State v. Johnson, 632 S.W.2d 542

(Tenn. 1982). The United States Supreme Court denied Johnson’s 1982 petition for a writ of

certiorari. Johnson v. Tennessee, 459 U.S. 882 (1982). Johnson filed an application to stay the

execution with the Tennessee Supreme Court in December 1982, pending the filing of a state

petition for post-conviction relief, which was granted. In January 1988, the Tennessee Court of

Criminal Appeals affirmed the trial court’s judgment in part but reversed and remanded the case for

a new sentencing hearing on the first degree murder convictions, based on error under Caldwell v.

Mississippi, 472 U.S. 320 (1985).1

Both Johnson and the State filed applications to appeal to the Tennessee Supreme Court.

The Tennessee Supreme Court reversed the appellate court’s reversal, reinstated the death sentences,

and affirmed the denial of relief on Johnson’s claims in all other respects.2 Johnson v. State, 797

S.W.2d 578 (Tenn. 1990). In September 1990, Johnson filed a petition for rehearing with the

Tennessee Supreme Court, which was denied, as was Johnson’s motion for leave to file a second

petition for rehearing.

Johnson filed his first federal petition for a writ of habeas corpus pursuant to 28 U.S.C.

§ 2254 in February 1991. Shortly thereafter, Johnson received information pursuant to a request

under the Tennessee Open Records Act suggesting that the prosecution may have suppressed

exculpatory material evidence at trial, in violation of Brady v. Maryland, 373 U.S. 83 (1963). The

district court granted Johnson’s request to add this Brady claim to his petition. In February 1995,

while his first habeas petition was still pending, Johnson filed a second post-conviction petition in

state court, which was denied by the trial court and affirmed by the state appellate court. Johnson

requested permission to appeal to the Tennessee Supreme Court, and while his application was

pending, the federal district court dismissed his first habeas petition without prejudice, pending the

exhaustion of the claims he had raised in his second petition for post-conviction relief. In October

1998, the Tennessee Supreme Court denied Johnson permission to appeal. Johnson filed his current,

second habeas petition in federal district court on January 25, 1999. The district court granted the

government’s motion for summary judgment on all ten of Johnson’s claims.

II.

This court reviews de novo a district court’s decision to grant or deny a petition for a writ

of habeas corpus. Burton v. Renico, 391 F.3d 764, 770 (6th Cir. 2004). Because Johnson filed his

habeas petition on January 18, 1999, this appeal is governed by the provisions of the Anti-Terrorism

1

The Court of Criminal Appeals found that the jury’s death penalty sentence was invalid because the prosecutor

improperly attempted to minimize the role and responsibility of the jury in imposing the death penalty. Johnson v. State,

No. 83-241-III, 1988 WL 3632, at *13 (Tenn. Crim. App. Jan. 20, 1988).

2

The Tennessee Supreme Court found that the prosecutor did not attempt to minimize the jury’s degree of

responsibility, as the appellate court had found, and that Johnson could not benefit from retroactive application of the

new constitutional rule established in Caldwell, as Johnson’s conviction had become final before the Caldwell decision.

Johnson v. State, 797 S.W.2d at 580.

No. 04-5377 Johnson v. Bell Page 4

and Effective Death Penalty Act of 1996 (AEDPA). Woodford v. Garceau, 538 U.S. 202, 210

(2003). Under AEDPA, a federal court may grant a writ of habeas corpus with respect to a claim

that was adjudicated on the merits in State court proceedings only if the state court’s decision was

“contrary to, or involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). A state-court

decision is contrary to clearly established federal law “if the state court applies a rule that contradicts

the governing law set forth in [the Supreme Court’s] cases” or “if the state court confronts a set of

facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless

arrives at a result different from [that] precedent.” Williams v. Taylor, 529 U.S. 362, 405-06 (2000).

A state-court decision is an unreasonable application of clearly established federal law if it

“correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular

prisoner’s case,” id. at 407-08, or if it “either unreasonably extends a legal principle from [Supreme

Court] precedent to a new context where it should not apply or unreasonably refuses to extend that

principle to a new context where it should apply,” id. at 407. Under 28 U.S.C. § 2254(e)(1), a state

court’s determination of a factual issue is presumed correct, and the petitioner has the burden of

rebutting this presumption by clear and convincing evidence. This presumption also applies to the

factual findings that the state appellate court makes on its review of the state trial record. Sumner

v. Mata, 449 U.S. 539, 546-47 (1981); Mason v. Mitchell, 320 F.3d 604, 614 (6th Cir. 2003).

III.

This court granted a certificate of appealability for the following issues: (1) whether the

prosecution’s failure to disclose material evidence violated Johnson’s constitutional rights;

(2) whether the prosecution violated Johnson’s right to compulsory process by improperly coercing

a defense witness; (3) whether the prosecution committed misconduct by improperly interfering with

defense witness Victor Davis; (4) whether the prosecution committed misconduct by improperly

vouching for a witness’s credibility and inflaming the passions of the jury during closing argument;

(5) whether the cumulative prosecutorial misconduct resulted in a violation of Johnson’s

constitutional rights; and (6) whether Johnson’s trial counsel rendered ineffective assistance during

the guilt phase by not moving for a continuance in light of certain pretrial developments and by not

seeking the recusal of the prosecutors after they participated in the conversion of Victor Davis to a

prosecution witness. We address these issues in turn.

A.

We first consider whether the prosecution’s failure to disclose material evidence violated

Johnson’s constitutional right to due process. After filing a request for information under the

Tennessee Open Records Act in 1992, Johnson received several police and medical reports that were

not previously provided to him, which he contends undermine the credibility of certain witnesses.

Johnson asserts that the following documents were exculpatory and withheld by the prosecution:

(1) a July 6, 1980, report prepared by Detective Jerry Moore of the Metropolitan Police Department

concerning his interview of Bob Bell; (2) a July 11, 1980, report of Officer J. Dobson concerning

his interview of Louis Smith; (3) a July 5, 1980, report of Detective William Flowers concerning

his interview of Louis Smith; (4) a July 5, 1980, report of Officer John Patton concerning his

interview of Louis Smith; (5) a pleading filed by the defense in State v. Louis Edgar Smith, No.

C6175-A, which was received by the Davidson County District Attorney’s office on approximately

November 11, 1980; (6) a July 6, 1980, report prepared by Detective William Robeck concerning

his interview of Louis Smith; and (7) a “History of Physical Examination” report prepared by Robert

Stein, M.D., concerning his examination of Bob Bell at Baptist Hospital on July 5, 1980.

Johnson contends that the decision of the Court of Criminal Appeals with respect to the

documents was contrary to the Supreme Court’s decisions in Brady and Kyles v. Whitley, 514 U.S.

419 (1995). The Court of Criminal Appeals identified Brady as the controlling authority and relied

No. 04-5377 Johnson v. Bell Page 5

on United States v. Bagley, 473 U.S. 667 (1985), and, to a lesser extent, Kyles for the standard for

determining materiality in a Brady claim. See State v. Johnson, 1997 WL 738586, at *4. The Court

of Criminal appeals concluded that the evidence was indeed exculpatory but, viewed collectively,

it was not material. Id. at *4-8. Because the Tennessee Court of Criminal Appeals rejected

Johnson’s Brady claim on the merits, id., the deferential AEDPA standard applies. See Hill v.

Mitchell, 400 F.3d 308, 313 (6th Cir. 2005).

Under Brady, “the suppression by the prosecution of evidence favorable to an accused upon

request violates due process where the evidence is material either to guilt or to punishment,

irrespective of the good faith or bad faith of the prosecution.”3 373 U.S. at 87. To assert a

successful Brady claim, a habeas petitioner must show that: (1) evidence favorable to the petitioner,

(2) was suppressed by the government, and (3) the petitioner suffered prejudice. Banks v. Dretke,

540 U.S. 668, 691 (2004).

We proceed directly to the issue of prejudice, or materiality,4 which is determinative of the

Brady claim. Favorable evidence is material under Brady “if there is a reasonable probability that,

had the evidence been disclosed to the defense, the result of the proceeding would have been

different.” Bagley, 473 U.S. at 682. A “reasonable probability” is a probability sufficient to

undermine confidence in the outcome of the trial. Strickler v. Greene, 527 U.S. 263, 289-90 (1999).

The materiality requirement is not a sufficiency of the evidence test; the defendant need not

demonstrate that disclosure of the suppressed evidence would have resulted in acquittal. See Kyles,

514 U.S. at 434. “The question is 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.” Id. Further, we conduct our

review mindful of the Supreme Court’s instruction that “suppressed evidence [must be] considered

collectively, not item by item,” when addressing the prejudice question. Kyles, 514 U.S. at 436; see

also Castleberry v. Brigano, 349 F.3d 286, 291 (6th Cir. 2003).

Johnson’s Brady claim centers on the use of the withheld material to impeach three witnesses

who testified at his trial: Bob Bell, Louis Smith, and Debra Smith. As noted previously, seven

documents are at issue, five of which relate to Louis Smith. Smith was working at Bell’s Market

at the time of the robbery and testified about the events that occurred that day. Smith’s testimony

corroborated the testimony of Bob Bell and provided details regarding the facts and time sequence

of the robbery. He remembered a few customers entering and leaving the market but stated that he

did not take close note of the customers because he was focused on the assailant. He was uncertain

about the number of customers and their gender but thought that there were two or perhaps

three—two men and a woman, perhaps with a child. Smith said he really did not remember about

the customers “for sure” and doubted that he could identify any of them except the last one. At trial,

Smith identified Johnson in court as the perpetrator of the robbery and murders. He further testified

that the assailant was a black male approximately 5' 8" and 160 pounds. Smith also testified that,

while he was in the hospital, he picked two photographs from a photo array that closely fit his

description of the assailant.5 Additionally, he testified that he later viewed a lineup at the police

3

We note the Kyles Court’s iteration of Justice Blackmun’s statement in Bagley that “the Constitution is not

violated every time the government fails or chooses not to disclose evidence that might prove helpful to the defense.

We have never held that the Constitution demands an open file policy . . . and the rule in Bagley (and, hence, in Brady)

requires less of the prosecution than the ABA Standards for Criminal Justice, which call generally for prosecutorial

disclosures of any evidence tending to exculpate or mitigate.” 514 U.S. at 436-37 (internal citations omitted).

4

“Demonstrating prejudice requires the defendant to show that the suppressed favorable evidence at issue is

material.” United States v. Jefferson, 134 F. App’x 52, 54 (6th Cir. 2005) (citing Strickler, 527 U.S. at 282)).

5

Smith did not testify that the individual in either of the photographs was Johnson.

No. 04-5377 Johnson v. Bell Page 6

department. Because police had told him to mark the card only if he was certain of his

identification, he did not do so. He verbally identified number two for police, however, noting that

the curled hair differed from that of the robber.6 Johnson’s counsel questioned Smith about a prior

statement that the robber had no facial hair.

The five documents relating to Louis Smith include: (1) a July 5, 1980, report of Detective

William Flowers concerning his interview with Smith; (2) a July 5, 1980, report of Officer John

Patton concerning his interview with Smith; (3) a July 11, 1980, report of Officer J. Dobson

concerning his interview of Smith, which apparently occurred on July 5, 1980; (4) a July 6, 1980,

report of Detective William Robeck concerning his interview with Smith; and (5) a request for

continuance of a November 11, 1980, trial date and notice of insanity defense filed on Smith’s behalf

in a criminal case in which Smith was charged with an offense occuring prior to July 5, 1980. The

Flowers report indicates that Smith said he could not describe the suspect at that time but was

willing to be interviewed again later, while Patton states that Smith says he did not get a good look

at the suspect. Dobson says in his report that Smith, who was in a great deal of distress and “near

death,” identified the suspect as a young black male but indicated that he could not see his face. The

Robeck report indicates that Smith picked out photos five and six from the photo display shown to

him in the hospital.7 Robeck also uses masculine pronouns to refer to two customers whom Smith

told him entered the store during the robbery. The pleading in Smith’s criminal case gives defense

counsel’s opinion that there was a “reasonable probability” that the most appropriate defense in the

case would be either insanity or diminished capacity.

Certainly, the officers’ reports would have assisted Johnson’s cross-examination of Smith

at trial, calling into question Smith’s identification of Johnson and his ability to recall the events of

the evening of July 5. Their contribution would have been limited, however, for several reasons.

All of them were taken at a time when Smith could hardly have been expected to describe the events

of the evening of July 5 with detailed clarity; Smith was in the hospital and “in distress” with

gunshot wounds in his neck and hand. Moreover, defense counsel was able to successfully impeach

Smith about identification of Johnson and his recollection of the events of the evening, based on

the information he did have. Smith admitted that by the time he verbally identified Johnson at the

police department, he had seen Johnson on television in connection with his arrest. He was

uncertain in his responses to the questions about facial hair. His testimony did not suggest that

Johnson was one of the individuals he identified from the earlier photo lineup in the hospital. And

Smith conceded that he was not sure about the number of customers who entered the store and their

gender and likely could identify only one of them. Given Smith’s testimony and other eyewitness

identifications of Johnson, the overall impeachment value of these reports, viewed collectively, is

fairly minimal.

With regard to the notice of insanity defense filed in Smith’s criminal case, this document

has no value as impeachment material. Assuming that cross-examination about it would have been

permitted, doubtless questioning would also have elicited8 the information that a psychiatric

examination of Smith failed to support the claimed defense.

The two remaining withheld items relate to Bob Bell. In the undisclosed July 6, 1980,

statement given to Detective Moore the morning after the robbery and while Bell was still

6

Person number two was in fact Johnson, who apparently had placed his hair in curlers for the lineup.

7

Photograph four was the photograph of Johnson.

8

Moreover, as this document was publically available, it simply does not present a Brady issue. See Bell v. Bell,

512 F.3d 223, 235 (6th Cir. 2008) (en banc).

No. 04-5377 Johnson v. Bell Page 7

hospitalized, Bell indicated that the assailant had no facial hair.9 Because Johnson’s mug shot taken

one day after the robbery revealed that he had some facial hair, Johnson’s counsel questioned Bell

on the issue of Johnson’s facial hair, even though he was unaware of Bell’s statement to Moore.

Bell testified that he focused on the assailant’s eyes during the robbery and noticed nothing

distinctive about his facial hair. The second relevant document is a medical report, completed the

night of the murders, which contained a single statement noting that Bob Bell’s medical history

indicated “some mental instability.” This statement provides little information, and any

impeachment value would have been slight. We also note that Bob Bell was an extremely

sympathetic witness and any cross-examination regarding his mental health would by necessity have

been delicate at best. Bell had just seen his son murdered, was already familiar with Johnson, and

had considerable interaction with the assailant during the course of the robbery. These factors would

have minimized any impeachment value stemming from either Bell’s statement to Detective Moore

or the withheld medical report. Moreover, after the robbery, Bell identified Johnson as the

perpetrator on four separate occasions. Bell also identified Johnson at trial and stated that he knew

Johnson as a customer who had frequented his market in the past. As a consequence, even in light

of the withheld evidence, Bob Bell’s testimony remains persuasive.

Finally, Johnson argues that Detective Robeck’s July 6, 1980, report could have been used

to impeach Debra Smith, the customer who entered the store during the robbery and the state’s third

eyewitness. Ms. Smith, no relation to Louis Smith, testified that she went to Bell’s Market on the

day of the robbery between 9:30 p.m. and 9:50 p.m. According to her testimony, Debra Smith

entered the market alone while Johnson was in the store, recognized him on the basis of their prior

acquaintance, and was aware that a robbery was ongoing but nevertheless purchased a soft drink and

then returned home. Other than informing her boyfriend and sister of the robbery, Smith did not

communicate her knowledge of the incident until contacted by the police on July 15, 1980. At trial,

Smith explained that she chose not to report her experience because she knew Johnson and wished

to remain uninvolved. As mentioned above, Robeck’s report implies that Louis Smith referenced

only males entering the market, thus potentially calling into question whether Debra Smith ever

entered Bell’s Market on the evening of the robbery. Putting aside the evidentiary difficulty of

impeaching Debra Smith with the statement of Louis Smith made to Robeck, we note that Debra

Smith’s testimony was already relatively weak, as it was marked by inconsistencies and statements

that called her veracity, or at least the accuracy of her memory, into question. Among other things,

Smith contradicted herself by describing Louis Smith as both African-American and Caucasian in

her testimony. Johnson’s counsel also significantly impeached Smith’s contention that she was quite

familiar with Johnson and his family. We find that any further impeachment of Ms. Smith would

have had little, if any, impact on her persuasiveness with the jury.

The thrust of Johnson’s argument is that the decision of the Court of Criminal Appeals is

contrary to Kyles. Johnson argues that the testimony of two witnesses in Kyles remained untainted

by the Brady violations, while the Brady material in this case impeaches all three primary witnesses,

thus making his an “easier” case than Kyles. Such a numerical comparison alone tells us little about

whether the suppressed evidence, when viewed collectively, undermines confidence in the verdict.

The suppressed evidence in Kyles far exceeded that suppressed here as measured both by quantity

and exculpatory persuasiveness. In Kyles, the withheld evidence strongly indicated that “Beanie,”

the primary informant who led investigators to Kyles, had actually planted the incriminating

evidence. Kyles, 514 U.S. at 425-32. Beanie also fit the physical description given by other

eyewitnesses and was the primary suspect in another recent murder involving the same modus

operandi. Id. Finally, the withheld evidence established that the six eyewitnesses gave substantially

9

The Tennessee Court of Criminal Appeals described Johnson’s facial hair as “a faint mustache and a goatee.”

State v. Johnson, 1997 WL 738586, at *5. Johnson’s mug shot, included in the appellate record, confirms this

characterization.

No. 04-5377 Johnson v. Bell Page 8

different physical descriptions of the assailant at the scene of the crime, only one of which roughly

matched Kyles. See id. at10423-28. Here, three eyewitnesses separately identified Johnson as the

perpetrator of the crimes. In sum, this is not a case where, as in Kyles, substantial withheld

evidence indicated that another person, not the defendant, was in fact the guilty party.

A defendant proves a Brady violation “by showing that the favorable evidence could

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

verdict.” Kyles, 514 U.S. at 435. In this case, the suppressed evidence, viewed collectively, does

not so undermine our confidence in the verdict as to be “material” for Brady purposes. We therefore

conclude that the decision of the Tennessee Court of Criminal Appeals was not contrary to, or an

unreasonable application of, federal law as determined by the Supreme Court. We affirm the district

court’s grant of summary judgment to the respondent on this claim.

B.

We next consider Johnson’s contention that the prosecution committed misconduct and

violated his right to compulsory process by improperly coercing defense witness Victor Davis.11

Victor Davis was originally scheduled to be Johnson’s principal alibi witness at trial. After the

robbery, Davis told defense investigators and the police that he was with Johnson the entire day of

July 5, 1980, and that Johnson did not have an opportunity to commit the murders. In his statements

shortly after the incident, Davis made no mention of Johnson’s discussing his intention to rob Bell’s

Market or any statement by Johnson regarding the murders or their aftermath. District Attorney

General Sterling Gray testified that, in early January 1981, he spoke with Davis’s attorney and

police officer Gordon Larkin about speaking with Davis before commencement of Johnson’s trial.

Larkin testified that on the afternoon of January 9, 1981, he told police officer John Patton that Gray

wished to talk with Davis.12 Near midnight that evening, Patton arrested Davis for public

drunkenness and carrying a weapon. Patton testified that Davis was one of three unknown males

who were stopped because of suspicious behavior near a gas station that had been robbed in the past.

Patton further testified that he recognized Davis only after Davis attempted to leave the stopped car

while Patton was questioning the driver. At trial, Davis acknowledged that he had been drinking

alcohol and smoking marijuana that evening.

Patton arrested all three men and took them for booking. On the ride downtown, Patton

called Larkin on the police radio and asked Larkin if he still wanted to talk to Davis. At

approximately 1:00 a.m. on January 10, 1981, Larkin met Patton at the booking room and took Davis

with him to the District Attorney’s office, where Gray and a criminal investigator were waiting.

Davis testified that he was interrogated for approximately three and one-half hours that morning.

After initially requesting his attorney, Davis withdrew the request after being told that he was being

questioned only about Johnson, not unrelated burglary and robbery charges that were also pending

against Davis. During this interrogation, Davis gave incriminating details related to Johnson’s

involvement in the Bell’s Market murders. Davis returned to Gray’s office with his attorney on

Monday, January 12, 1981, and provided Gray with a detailed statement. During this January 12

meeting, Gray offered Davis immunity from prosecution for crimes related to the Bell’s Market

10

We also note that the testimony of these three witnesses was strengthened by the testimony of Victor Davis,

which provided a detailed description of Johnson’s activities on July 5, 1980, and placed Johnson at Bell’s Market during

the time of the murder. Davis’s testimony was not affected by the documents that form the basis of the Brady claim.

11

Both the compulsory process and misconduct issues concern whether the prosecution improperly coerced

or interfered with defense witness Victor Davis. We therefore address these claims together.

12

Patton knew Davis because he had previously arrested him on an unrelated matter.

No. 04-5377 Johnson v. Bell Page 9

incident if he would testify in court. On January 21, 1981, the State dismissed the weapons

possession and public drunkenness charges against Davis.

Johnson maintains that the state courts never addressed the merits of this claim. To the

contrary, both the Tennessee Supreme Court (on direct appeal) and the Tennessee Court of Criminal

Appeals (on post-conviction review) addressed the claim and determined that the questioning of

Davis was not coercive. Specifically, the Tennessee Supreme Court found that the fundamental

claim being asserted was that Victor Davis’s constitutional rights—not Johnson’s—had been

violated. State v. Johnson, 632 S.W.2d at 546. As a consequence, Johnson lacked standing to

challenge any such alleged violation. Id. (“Even if the law enforcement officials violated Davis’s

[constitutional] right[s] . . . these are rights personal to Davis and can only be asserted by him and

not by some other person, such as [Johnson], who might be adversely affected by information

elicited during the detention and interrogation.”). The Tennessee Court of Criminal Appeals arrived

at the same conclusion. See Johnson v. State, 1988 WL 3632, at *8-9 (finding both that the

Tennessee Supreme Court had already addressed the question and that Davis did not change his

testimony in response to threats and intimidation but instead “was arrested legitimately for offenses

unconnected with the petitioner’s charges . . . [and Davis’s] recanted testimony was freely given”).

The deferential AEDPA standard therefore applies, the state courts’ determination of factual issues

is presumed correct, and Johnson bears the burden of rebutting this presumption of correctness by

clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Hill, 400 F.3d at 313.

The Supreme Court has recognized that a party’s right to present his or her own witnesses

in order to establish a defense is a fundamental element of due process.13 Washington v. Texas, 388

U.S. 14, 19 (1967). Government conduct that rises to the level of substantial interference with a

witness’s “free and unhampered determination to testify” violates this right. United States v. Foster,

128 F.3d 949, 953 (6th Cir. 1997). Johnson contends that Davis’s testimony was coerced as a part

of the pretrial arrest and questioning—which deprived him of his primary defense witness—and this

constituted a denial of compulsory process under Washington and Webb v. Texas, 409 U.S. 95

(1972).14

Johnson fails to show how the Tennessee state court decisions are contrary to, or an

unreasonable application of, Supreme Court precedent. Johnson relies exclusively on Washington

and Webb, which are easily distinguished. In Washington, the Court found that a Texas statute

violated the defendant’s right to compulsory process by “arbitrarily den[ying] him the right to put

on the stand a witness who was physically and mentally capable of testifying to events that he had

personally observed, and whose testimony would have been relevant and material to the defense.”

Washington, 388 U.S. at 23. Here, there is no indication that Davis was ever prevented from

testifying on Johnson’s behalf. Rather, he chose of his own accord to testify for the government.

Although the Washington Court articulated the basic parameters of a defendant’s compulsory

process rights, nothing in the opinion is directly contrary, or even related, to Johnson’s experience.

See id. at 19 (noting generally that “[t]he right to offer the testimony of witnesses, and to compel

their attendance, if necessary, is in plain terms the right to present a defense, the right to present the

13

The right to compulsory process is applicable to the states through the Fourteenth Amendment. Washington,

388 U.S. at 18-19.

14

Johnson characterizes the prosecution’s treatment of Victor Davis as both a violation of his compulsory

process rights and a “stand alone” instance of prosecutorial misconduct. Johnson addresses both claims together and

does not provide a separate legal analysis for his misconduct claim with regard to Victor Davis. He does, however,

include this allegation in his cumulative prosecutorial misconduct claim. Because we find that the prosecution’s

treatment of Victor Davis did not constitute misconduct, it has no impact on our consideration of Johnson’s cumulative

misconduct argument, as discussed more fully below.

No. 04-5377 Johnson v. Bell Page 10

defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the

truth lies”).

Webb is similarly inapposite. In Webb, the defendant called his only witness, Leslie Mills,

but before Mills could testify, the court of its own initiative admonished the witness of the

consequences of perjury, including stating that “the Court will personally see that your case goes

to the grand jury and you will be indicted [and you will likely] get convicted of perjury and [it]

would be stacked onto what you have already got.” Webb, 409 U.S. at 95-96. The Webb Court

concluded that the witness was willing to testify on the defendant’s behalf, but was dissuaded solely

by the comments made by the trial court. Id. at 97. The Court found that “[i]n the circumstances

of this case . . . the judge’s threatening remarks, directed only at the single witness for the defense,

effectively drove that witness off the stand, and thus deprived the petitioner of due process of law

under the Fourteenth Amendment.” Id.

Johnson contends that the prosecutors’ treatment of Davis differs in no material respect from

the treatment Mills experienced. We disagree. Davis’s detention was for an unrelated crime and

was the product of a lawful arrest. The record confirms that Davis knowingly and voluntarily

waived his right to counsel when he learned that the January 10, 1981, interrogation would be

limited to the Bell’s Market incident. Two days later, Davis and his attorney went to the office of

the district attorney, where Davis repeated his statement in the presence of his counsel, reduced the

statement to writing, and signed it as true. Moreover, Davis testified at trial and both parties were

able to explore the circumstances of Davis’s arrest, detention, and testimony implicating Johnson.

The defense was able to question Davis fully about his earlier statements exculpating Johnson. The

jury was free to consider the circumstances of Davis’s statements, which, presumably, informed its

evaluation of Davis’s credibility. This bears no resemblance to the trial court’s overt threats and

insinuations in Webb.

We cannot say that the prosecutorial conduct here substantially interfered with Davis’s free

and unhampered discretion to testify as he saw fit. See Davis v. Straub, 430 F.3d 281, 287 (6th Cir.

2005) (interpreting and applying Webb). We therefore find that the decisions of the Tennessee

courts were not contrary to, or an unreasonable application of, federal law as determined by the

Supreme Court, and therefore this claim fails.

C.

Johnson also contends that multiple instances of misconduct on the part of the prosecutor

violated his due process right to a fair trial. This court granted a certificate of appealability on the

following issues, all related to prosecutorial misconduct: (1) whether the prosecutor committed

misconduct by improperly interfering with defense witness Victor Davis; (2) whether the prosecutor

committed misconduct by improperly vouching for a witness’s credibility and inflaming the passions

of the jury during closing argument; and (3) whether the cumulative prosecutorial misconduct

resulted in a violation of Johnson’s constitutional rights. With respect to the cumulative

prosecutorial misconduct claim, Johnson asserted two further issues in his request on this issue: the

State improperly concealed the identity of Debra Smith as a government witness, and the State

misrepresented the time of the offense.

The relevant question in analyzing a claim for prosecutorial misconduct on habeas review

is “whether the prosecutors’ comments ‘so infected the trial with unfairness as to make the resulting

conviction a denial of due process.’” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (internal

quotation marks omitted). To satisfy this standard, the conduct must be both improper and flagrant.

Broom v. Mitchell, 441 F.3d 392, 412 (6th Cir. 2006); see also Pritchett v. Pitcher, 117 F.3d 959,

964 (6th Cir. 1997) (noting that reversal is required if the prosecutor’s misconduct is “so pronounced

and persistent that it permeates the entire atmosphere of the trial or so gross as probably to prejudice

No. 04-5377 Johnson v. Bell Page 11

the defendant”) (internal citation omitted). If conduct is found to be improper, four factors are then

considered to determine whether the conduct was flagrant and therefore warrants reversal: “(1) the

likelihood that the remarks of the prosecutor tended to mislead the jury or prejudice the defendant;

(2) whether the remarks were isolated or extensive; (3) whether the remarks were deliberately or

accidentally made; and (4) the total strength of the evidence against the defendant.” Bates v. Bell,

402 F.3d 635, 641 (6th Cir. 2005).

Because we previously addressed the prosecution’s alleged interference with Davis, we turn

now to the remaining issues.

1.

Johnson contends that the prosecutor improperly vouched for Victor Davis’s credibility.

“Improper vouching occurs when a prosecutor supports the credibility of a witness by indicating a

personal belief in the witness’s credibility thereby placing the prestige of the [government] behind

that witness.” United States v. Francis, 170 F.3d 546, 550 (6th Cir. 1999). Improper vouching

typically involves either blunt comments or some implication that the prosecutor has special

knowledge of facts not before the jury related to the credibility of a witness. Id. Johnson asserts that

various statements made by the prosecution in its direct examination of Victor Davis constituted

improper bolstering of the Davis’s credibility. See id. (“Bolstering and vouching are much alike and

go to the heart of a fair trial. Bolstering occurs when the prosecutor implies that the witness’s

testimony is corroborated by evidence known to the government but not known to the jury.”).

The district court found that significant portions of Johnson’s claim were defaulted, and we

agree. This court has explained the doctrine of procedural default as follows:

When a habeas petitioner fails to obtain consideration of a claim by a state court,

either due to the petitioner’s failure to raise that claim before the state courts while

state-court remedies are still available or due to a state procedural rule that prevents

the state courts from reaching the merits of the petitioner’s claim, that claim is

procedurally defaulted and may not be considered by the federal court on habeas

review.

Seymour v. Walker, 224 F.3d 542, 549-50 (6th Cir. 2000). On direct appeal, Johnson’s brief to the

Tennessee Supreme Court raised objections only to five allegedly leading questions. When Johnson

filed his petition for post-conviction relief with the Tennessee Court of Criminal Appeals, he

nevertheless cited the same twenty-one allegedly leading questions that he would later cite in his

federal habeas petition. The Court of Criminal Appeals held that Johnson’s additional claims were

defaulted. Johnson v. State, 1988 WL 3632, at *8 (finding that the claims had “been previously

determined or waived and [are] therefore foreclosed from review in a post-conviction proceeding

[under] Tenn. Code Ann. § 40-30-112”). Accordingly, we find that the appellate court did indeed

rely on Johnson’s failure to comply with state procedural rules in denying review. See Harris v.

Reed, 489 U.S. 255, 263 (1989) (“[A] procedural default does not bar consideration of a federal

claim on either direct or habeas review unless the last state court rendering a judgment in the case

clearly and expressly states that its judgment rests on a state procedural bar.”) (internal quotation

marks omitted). The Tennessee Supreme Court—also relying on Tenn. Code Ann. § 40-30-

112—found that Johnson had raised twenty-six issues on appeal, all of which were either previously

determined or waived due to failure to present them at trial or on direct appeal.15 Johnson v. State,

797 S.W.2d at 582. Like the district court, we find that, with the exception of the five objections

made on direct appeal, Johnson’s objections were procedurally defaulted.

15

The Tennessee Supreme Court found that the intermediate appellate court “properly reviewed, considered

and dealt with [these issues] appropriately.” The Court reversed on grounds not before this court.

No. 04-5377 Johnson v. Bell Page 12

As mentioned, Bell’s claims as to certain statements were adjudicated by the state courts on

the merits and exhausted and therefore are properly before this court. Those include the following

statements made by District Attorney General Gray during his questioning of Davis on direct:

Gray: Tell the jury what I told you Mr. Johnson [sic - Davis], Saturday morning.

...

Gray: What did I say to you about this case in terms of what you knew when I talked

to you?

...

Gray: Now, on Monday, of this week you came to our office with you [sic] attorney,

is that correct? . . . At that time you sat down and gave us a detailed statement of

what you have just told the jury, right?

...

Gray: Prior to doing that on Monday I told you that you had immunity in this case

if you would testify, is that correct . . . if you told the truth about what you knew

about it, is that right?

Finally, during closing argument, Gray stated:

[B]ecause I wanted you [the jurors] to have the benefit of every piece, everything we

knew about this case because of the magnitude of this case . . . . If you haven’t done

anything you can’t be indicted. If you haven’t done anything there is no reason to

be frightened. . . . [T]he burden that was on me was to [victims] Mr. Bell and to Mr.

Smith and Mr. House and Mr. Moore, saying to them I know a person that was

involved in either the death of your son or the robbery and I can’t do nothing with

him. That’s the thing, that’s the burden that was on me. But I had no proof, so I told

him, if you will tell the truth, get up there and tell the truth, then yes, you will [sic]

have to worry about what happens to you in this case. But the burden that I had was

a burden to them. Because I know that he is involved. He knows that he is involved,

but I can’t do nothing with him. I can’t come before you, ladies and gentlemen,

without proof on a person. That’s not the way our law is written.

Johnson contends that these statements were calculated to bolster Davis’s credibility with the jury.

The Tennessee Supreme Court reviewed these passages and rejected the objections as without merit.

State v. Johnson, 632 S.W.2d at 545.

Johnson offers nothing on appeal to indicate that the decision of the state court was in error.

We find that the statements here at issue, in the particular context in which they were made, do not

rise to the level of misconduct.16 Cf. Hodge, 426 F.3d at 377-80 (finding the prosecutor’s statements

that a key witness was “lying to extricate himself from what he’s done” and that another key witness

was “absolutely believable” constituted misconduct).

2.

Johnson next contends that District Attorney General Shriver inflamed the passions of the

jury by improperly using inflammatory language and injecting statements of personal interest into

his closing argument. We agree.

16

We note that it is not necessary for the prosecutor actually to use the words “I believe,” or some similar

phrase, for a statement to constitute an improper comment on the credibility of witnesses. See Hodge v. Hurley, 426 F.3d

368, 379 n.20 (6th Cir. 2005). However, we find that Gray neither directly nor indirectly vouched for Davis’s credibility

through the statements at issue. See Francis, 170 F.3d at 550.

No. 04-5377 Johnson v. Bell Page 13

In his closing rebuttal argument, Shriver told the jury:

I have a very personal interest in this case and I suppose that is why I am here today.

Little Bob Bell, twelve years old, started out in the first grade at Burton School with

my twelve year old daughter. They started, they have gone through school together.

Burton School, Stokes School, would have gone to John Trotwood Moore together

this year. It could have been my little girl that was in that store, a witness eliminated.

It could have been you. It could have been your children. It could have been any one

of us, if we decided that we wanted to buy something from Bob Bell, at nine fifty-

eight on July 5, 1980, we would have been dead.

Closing arguments that encourage juror identification with crime victims are improper. See Hodge,

426 F.3d at 384. Similarly, a prosecutor illicitly incites the passions and prejudices of the jury when

he calls on the jury’s emotions and fears—rather than the evidence—to decide the case. See Gall

v. Parker, 231 F.3d 265, 315 (6th Cir. 2000) (overruled on other grounds by Bowling v. Parker, 344

F.3d 487, 501 n.3 (6th Cir. 2003)). Here, the prosecutor’s remarks were clearly calculated to trigger

the jurors’ emotions and fears. We therefore find the statement improper.

Because we find the statement improper, we must address whether the statement was flagrant

and therefore warrants reversal.17 See United States v. Monus, 128 F.3d 376, 394 (6th Cir. 1997).

“Even if the prosecutor’s conduct was improper or even ‘universally condemned,’ we can provide

relief only if the statements were so flagrant as to render the entire trial fundamentally unfair.”

Bowling, 344 F.3d at 512 (internal citation omitted). Only one of the “flagrancy” factors is apposite

in this case. It is apparent that the prosecutor referenced his own child—and the possibility that the

jurors themselves could have been involved—quite deliberately. See Bates, 402 F.3d at 641. No

other factor is applicable. Nothing in the record indicates that the remarks were intended to mislead

the jury; the statements were undoubtedly intended to trigger the jurors’ emotions, but they were

made in the context of the prosecutor’s recitation of the facts of the case. Indeed, throughout his

rebuttal argument, Shriver encouraged the jury to focus on the evidence before it in reaching a

decision. Further, the prosecutor’s remarks—at least those before this court—were isolated.

Finally, the evidence against Johnson was substantial and included the testimony of three

eyewitnesses, in addition to Victor Davis. We therefore conclude that the prosecutor’s remarks,

though improper, were not flagrant.

If a comment is determined not to be flagrant, we will reverse only when: (1) the proof

against the defendant was not overwhelming; (2) opposing counsel objected to the conduct; and

(3) the district court failed to give a curative instruction. United States v. Cobleigh, 75 F.3d 242,

247 (6th Cir. 1996). As discussed above, the evidence against Johnson was substantial. See State

v. Johnson, 632 S.W.2d at 548 (reviewing the record and finding that the evidence established

Johnson’s guilt beyond a reasonable doubt). The record also shows that Johnson’s counsel did not

object to Shriver’s remarks at trial. Finally, at the close of trial, the court provided the following

curative instruction: “Statements, arguments, and remarks of counsel are intended to help you in

understanding the evidence and applying the law, but they are not evidence. If any statements were

made that you believe are not supported by the evidence, you should disregard them.” As a

consequence, the prosecutor’s non-flagrant, though improper, remarks were not “‘so egregious as

17

We agree with the district court’s conclusion that, although the prosecutor’s statement was set forth in

Johnson’s direct appeal brief, the Tennessee Supreme Court did not specifically address whether the comments were

improper. Once a federal claim has been presented to a state’s highest court, the exhaustion requirement is satisfied,

even if the state court failed to address a particular claim that was presented. Meeks v. Bergen, 749 F.2d 322, 325 n.1

(6th Cir. 1984). Because the claim was exhausted but not adjudicated, the district court properly turned to this court’s

four-factor test for determining whether a prosecutor’s improper statements are sufficiently “flagrant” to warrant a new

trial.

No. 04-5377 Johnson v. Bell Page 14

to render the trial fundamentally unfair’” and therefore do not warrant reversal. See Gillard v.

Mitchell, 445 F.3d 883, 898 (6th Cir. 2006) (quoting Angel v. Overberg, 682 F.2d 605, 608 (6th Cir.

1992)).

3.

Johnson next contends that the State knew of Debra Smith, an eyewitness to Johnson’s

presence at the scene of the robbery, as early as July 15, 1980, but concealed her existence until

January 2, 1981, and this concealment compromised his defense. The facts surrounding this

allegation are not in dispute. On September 3, 1980, Johnson filed a request for discovery that

specifically sought, among other things, the names of any witnesses the State intended to call to

testify at trial and the names of all persons known to have been present at the time of the robbery.

On September 23, 1980, the State responded that all of the witnesses it intended to call at trial were

listed in the indictment, which did not include Debra Smith. On November 17, 1980, Johnson made

a motion seeking to order the State to identify its witnesses. Neither the State nor the trial court

responded to this motion. On January 2, 1981, eleven days prior to commencement of the trial, the

State revealed that Debra Smith would testify as an eyewitness.

Under Rule 12.1(b) of the Tennessee Rules of Criminal Procedure, the district attorney

general must disclose no later than ten days before trial the name and address of any witness on

whom the state intends to rely to establish a defendant’s presence at the scene of the alleged offense.

The district attorney general complied with this rule. Further, the State’s production of a witness

that could place Johnson at the scene of the crime was not revelatory and did not necessitate

development of a new defense theory. Indeed, Johnson’s defense was already aware that two of the

victims (Bob Bell and Louis Smith) had identified Johnson as their assailant. Also, in the days

following disclosure of Debra Smith’s identity, Johnson’s counsel was able to and did gather

significant information to impeach and discredit Smith’s testimony. We therefore find that the

prosecution’s withholding of Smith’s identity as a witness does not rise to the level of misconduct.

4.

Johnson next contends that the State initially misrepresented the time it would argue that the

robbery took place, and that this comprised his defense. In its Motion for Notice of Alibi Defense

filed on September 23, 1980, the State indicated that robbery took place between 10:00 p.m. and

10:10 p.m. The State’s written discovery response, served at the same time, made the same

representation. In his response to the motion, Johnson stated that he was at his father’s house

between 10:00 and 10:10. The State ultimately presented evidence at trial indicating that the

robbery likely took place between 9:50 and 10:00 p.m.

Johnson fails to demonstrate how he was harmed by this discrepancy. In his answer to the

State’s request for an alibi notice, Johnson disagreed with the proffered hour of the incident and

sought to reserve the right to call other witnesses who would testify to his presence before and after

the robbery. At trial, Johnson did not limit his alibi evidence to the period of 10:00 p.m. to 10:10

p.m., but instead covered the period from 9:00 a.m. on July 5, 1980, until the following morning.

Johnson also fails to provide any case law declaring that a lack of precision in the time alleged for

an offense will violate due process. Accordingly, we find that the alleged misrepresentation does

not constitute misconduct.

5.

Johnson contends that the cumulative effect of the alleged prosecutorial misconduct

fundamentally compromised the fairness of his trial and was prejudicial to the extent that it

constituted a deprivation of due process. However, as discussed above, we find that the

No. 04-5377 Johnson v. Bell Page 15

prosecution’s personalized statement during closing argument was the sole occurrence of error. We

therefore do not have multiple errors to cumulate.

D.

We next consider whether Johnson’s trial counsel rendered ineffective assistance. Review

of an ineffective assistance of counsel claim is governed by Strickland v. Washington, 466 U.S. 668

(1984). To establish ineffective assistance and obtain relief under Strickland, Johnson must

demonstrate that his counsel’s performance was deficient and that this deficiency so prejudiced his

defense as to render the trial unfair and the result unreliable. Id. at 687. “Unless a defendant makes

both showings, it cannot be said that the conviction or death sentence resulted from a breakdown

in the adversary process that renders the result unreliable.” Id. To satisfy the prejudice prong of the

Strickland test, Johnson must show that a reasonable probability exists that, but for his counsel’s

unprofessional errors, the results of the proceeding would have been different. Poindexter v.

Mitchell, 454 F.3d 565, 570 (6th Cir. 2006). Our review of counsel’s performance is “highly

deferential and counsel is strongly presumed to have rendered adequate assistance and made all

significant decisions in the exercise of reasonable professional judgment.” Id. (internal quotation

marks omitted).

The certificate of appealability specified two claims of ineffective assistance for: (1) failure

to seek a continuance in light of developments that arose shortly before trial, and (2) failure to seek

the recusal of the prosecutors in light of their involvement in the conversion of Victor Davis to a

prosecution witness. We address each claim in turn.

1.

The Tennessee Court of Criminal Appeals found that Johnson’s attorneys’ failure to seek a

continuance did not constitute ineffective assistance. Johnson v. State, 1988 WL 3632, at *4

(emphasizing the minimal impact resulting from the state’s revelation of a new witness). AEDPA

therefore limits our inquiry to assessing whether the state court’s conclusion that Johnson failed to

demonstrate ineffective assistance under Strickland was contrary to, or involved an18unreasonable

application of, clearly established federal law as determined by the Supreme Court.

Johnson contends that, in light of the prosecution’s revelation of Debra Smith as a witness

eleven days before trial and the conversion of Victor Davis from the primary defense witness to a

prosecution witness less than a week before trial, his counsel rendered ineffective assistance by not

moving for a continuance to permit additional preparation for these developments. We disagree.

Although it would have been perfectly rational for Johnson’s counsel to seek a continuance, it is not

apparent that any such delay would have been productive. As the Tennessee Court of Criminal

Appeals found, Johnson’s counsel had created “sound defense strategy,” and the late revelations

prior to trial did not offer a clear alternative strategy. Id. The prosecution’s production of a witness

(Debra Smith) that could place Johnson at the scene of the crime was not revelatory, as Johnson’s

counsel were already aware that two of the victims had identified Johnson as their assailant. Further,

18

Johnson contends that the Tennessee Court of Criminal Appeals found that Johnson’s attorneys’ performance

was not deficient and therefore did not reach the prejudice prong of Strickland. As a consequence, he argues, the

deferential AEDPA standard should not apply to our consideration of the prejudice prong. Our review of the Court of

Criminal Appeals’s decision reveals that that court did not expressly distinguish between the two Strickland prongs. See

State v. Johnson, 1988 WL 3632, at *4. Instead, the court found that “although the new aspects of the prosecution’s case

were clearly damaging, they were not of a type that could be rectified by delaying the trial.” Id. This statement could

be construed as a resolution of either Strickland prong, or both. However, because we find that the Court of Criminal

Appeals at least found that Johnson’s counsel’s performance was not deficient, and this conclusion was not contrary to

or an unreasonable application of federal law as determined by the Supreme Court, we need not determine whether the

AEDPA standard applies to the prejudice prong.

No. 04-5377 Johnson v. Bell Page 16

as found by the Court of Criminal Appeals, Johnson’s counsel “made every effort possible” in the

days before trial to gain information to impeach and discredit Smith’s potentially harmful testimony.

See id. (“[T]he defense counsel prepared so thoroughly for trial that, despite the devastating nature

of the sudden turn of fortune, we can think of little more that an attorney could have done during a

continuance that counsel did not do at trial to counter this evidence.”).

Because additional time would not necessarily have aided Johnson’s defense, we cannot say

that his counsel’s failure to seek a continuance fell below an objective standard of reasonableness

such to constitute deficient performance.19 See Strickland, 466 U.S. at 688-89 (noting that “the

defendant must overcome the presumption that, under the circumstances, the challenged action

might be considered sound trial strategy”). His claim therefore fails.

2.

Lastly, we consider whether Johnson’s counsel rendered ineffective assistance by not seeking

the recusal of the prosecutors after they participated in the conversion of Victor Davis to a

prosecution witness. The Tennessee Court of Criminal Appeals found that the prosecutors’ actions

at issue were proper and that Johnson’s counsel’s performance could not be deemed ineffective for

not challenging evidence or actions that have already been found to be proper or acceptable.

Johnson v. State, 1988 WL 3632, at *4. We agree. Further, Johnson concedes that no precedent

supports his argument on this point. Instead, he argues only that “no conceivable sound trial

strategy” would include permitting the prosecutors to recount their version of the examination of a

witness. Without more, this bare allegation cannot establish objectively deficient performance.

Because Johnson fails to demonstrate how his counsel’s decision not to seek the prosecutors’ recusal

constituted deficient performance, we need not consider whether such failure resulted in prejudice

to Johnson’s defense.

IV.

For the foregoing reasons, we affirm the judgment of the district court.

19

Johnson asserts that his was an “eminently defensible and even winnable case,” but he fails to show how a

continuance would have been, or could have been, productive for his defense. Instead, he offers only that a continuance

would have afforded his defense “time to regroup” and the ability to “appreciate the full significance” of the relatively

late developments.

No. 04-5377 Johnson v. Bell Page 17

_____________________

CONCURRENCE

_____________________

ALICE M. BATCHELDER, Circuit Judge, concurring. I concur fully in the lead opinion

and rely upon the lead opinion’s sound reasoning as the basis for my decision. I write separately

merely to emphasize my disagreement with the dissent’s depiction of the value of the withheld

evidence.

The dissent proceeds from the acknowledged premise that the appellant needs only to

convince us “that the favorable evidence could reasonably be taken to put the whole case in such

a different light as to undermine confidence in the verdict.” The dissent then attempts to persuade

us why we ought not have confidence in the jury’s verdict. But, the dissent grossly overstates the

value of the withheld evidence and, as a result, its claims cannot survive scrutiny.

The dissent urges us to find, in light of the withheld evidence, that Debra Smith’s story

“rais[es] a substantial implication that the prosecutor had coached her to give it.” Further, the

dissent actually expresses “doubts as to whether she was even present in Bell’s store on the night

of the crime.” Thus, according to the dissent, Debra Smith is not simply mistaken or even

misleading — Debra Smith, under the direction of the prosecution, has concocted a story for the

purpose of incriminating and convicting Cecil Johnson, an acquaintance toward whom she had no

prior animosity. There is no support in the record for this accusation. Nor does the record contain

any basis upon which to assume that the prosecution did what it would have had to do to obtain such

perjured testimony, i.e.: (1) select her as a participant in this scheme; (2) instruct her to lie under

oath — to tell this false story when, in fact, she had not even been in the store; and (3) coach her into

giving this suspiciously inconsistent and unbelievable testimony, during which she repeatedly

contradicted herself and other prosecution witnesses. Although the dissent does not specify,

presumably, the prosecutors’ motive would have been to produce a fourth witness placing Johnson

at the scene of the crime. Of course, this requires us to assume that the prosecutors were so intent

on obtaining Johnson’s capital conviction that they would risk sanctions and prosecution for

suborning perjury — an assumption wholly lacking factual support in this record. And, even more

tenuous is the necessary assumption that Debra Smith acted without any motive whatsoever. The

dissent offers nothing — not even idle speculation, much less evidence from the record — to

indicate any motive for Debra Smith to commit this particular (extensive) perjury. To be sure, the

dissent is perfectly correct that motive has no role in the legal analysis. I raise the question of

motive only to demonstrate the incredibility of the dissent’s theory, i.e., that Debra Smith was never

even in the store and that she (with help from the prosecutors) concocted the entire story. Equally

implausible — in light of that theory — is the dissent’s later contention that “[She] might just simply

have been mistaken.” There is no question that Debra Smith was a poor witness, but contrary to the

dissent’s exaggerations, her weak and confused testimony does not demonstrate, or even suggest,

that the prosecutors suborned perjury in obtaining it. Indeed, the record suggests the contrary,

inasmuch as the prosecutors — had they been inclined to coach her into giving false testimony —

surely would not have coached her to give testimony that was so confused and inconsistent. The

withheld evidence does not render her testimony any less credible than it was on its own.

The dissent next urges us, again based on the withheld evidence, to completely disbelieve

the identification testimony of the two eye-witnesses, Bob Bell and Lewis Smith, testimony which

— from each of them — was otherwise coherent and consistent, both with the testimony of the other

and with the prosecutors’ theory of the case. I do not find their testimony questionable and thus, I

do not lack confidence in the jury’s verdict. Even if the withheld evidence did render the testimony

questionable — which it does not — in order to agree with the dissent, one would have to conclude

that the emphatic and unequivocal in-court identifications of Johnson were either terribly mistaken

No. 04-5377 Johnson v. Bell Page 18

or were part of a conspiracy to frame Johnson (a conspiracy orchestrated by the prosecution). And,

while the dubious possibility exists that the potential for conviction would motivate the prosecution,

the dissent’s only answer to why these two victims would testify falsely against Johnson — thereby

convicting an innocent man of murder while setting the actual murderer free — is that “[t]hey might

just simply have been mistaken,” and that without the withheld evidence, defense counsel was so

“severely crippled” that it could not “bring[] to light such mistakes.” Given the magnitude of these

alleged mistakes, this claim is as incredible as it is demeaning to defense counsel and jury alike.

Having thus discarded the testimony of Debra Smith, Bob Bell, and Lewis Smith, the dissent

would have us conclude that the prosecution was left with only the testimony of Victor Davis. And

that testimony, the dissent posits, was coerced by the prosecutors with “dangled threats of

prosecution and promises of immunity.” But, as the dissent concedes, none of the withheld evidence

had anything to do with Davis. Moreover, it is clear from the record that Johnson’s counsel had

ample opportunity to, and in fact did, cross-examine Davis about the circumstances of his arrest,

detention, and initial story to the police, as well as his testimony incriminating Johnson. The jury

had all of this information, and the dissent points to no new evidence to support its speculation that

Davis’s testimony was coerced. And while one could ascribe to this witness a motive to testify

falsely — avoiding implication in this triple murder and obtaining immunity on other crimes — one

would still have to assume, without basis, that in procuring this false testimony, the prosecutors were

willing to risk sanctions or prosecution for suborning perjury. In short, the jury was aware of this

witness’s motive to lie and the withheld evidence does not cast any further doubt on this testimony.

In sum, the dissent surmises that if Johnson’s counsel had been given the withheld evidence

before trial, he might have convinced the jury that Debra Smith lied, Bob Bell and Lewis Smith

either lied or erred drastically, and that this — when added to the argument that Davis’s testimony

was coerced and therefore unreliable — so undermines confidence in the jury’s verdict that the trial

was unfair. But the withheld evidence, considered in context with the totality of the evidence, is

neither as damaging to the witnesses nor as beneficial to the defense as the dissent suggests. And

though the dissent argues that the evidence is exculpatory, that too is a gross exaggeration — it

points to one witness’s misidentification, it does not point to anyone else as the murderer (there is

no “Beanie” in this case) and it does not even point away from Cecil Johnson. At most, the withheld

evidence makes a little bit of already questionable evidence a little bit more questionable. This does

not reduce confidence in the jury’s verdict and this is not a valid basis for habeas relief.

No. 04-5377 Johnson v. Bell Page 19

_______________

DISSENT

_______________

R. GUY, COLE, JR., Circuit Judge, dissenting. The facts giving rise to Johnson’s Brady

claim are undisputed and straightforward. The entire case against Johnson consisted of only four

witnesses and no physical evidence. One of the four witnesses was originally scheduled as an alibi

witness to corroborate Johnson’s innocence. On the day before trial, after a coerced midnight

encounter with the State prosecutor, that witness flipped. As for the other three witnesses, the State

admits that the prosecution withheld evidence that would have impeached each witness’

identification of Johnson as the perpetrator. To say the least, the jury saw a markedly different trial

than it would have had the prosecution honored its Brady obligations. See Brady v. Maryland, 373

U.S. 83, 87 (1963). Accordingly, the Tennessee Court of Criminal Appeals unreasonably determined

that the withheld evidence was immaterial and that, without it, Johnson still received a fair trial

“resulting in a verdict worthy of confidence.” Kyles v. Whitley, 514 U.S. 419, 434 (1995). Because

“‘fairness’ cannot be stretched to the point of calling this a fair trial,” id. at 454, I dissent.

I.

It is fundamental and firmly established that a defendant’s due process rights are violated

where the government (1) withholds evidence (2) favorable to the defendant (3) that is “material

either to guilt or to punishment.” Brady, 373 U.S. at 87. The State concedes that it withheld

favorable evidence that would have assisted in Johnson’s defense. At issue is only whether the

suppressed evidence was material.

Brady materiality is established where, viewing the withheld evidence collectively, the

“government’s evidentiary suppression ‘undermines confidence in the outcome of the trial.’” Kyles,

514 U.S. at 434 (quoting United States v. Bagley, 473 U.S. 667, 678 (1985)). The Supreme Court

has repeatedly stated that “a showing of materiality does not require demonstration by a

preponderance that disclosure of the suppressed evidence would have resulted ultimately in the

defendant’s acquittal.” Id.; accord, e.g., Youngblood v. West Virginia, 547 U.S. 867, 870 (2006).

Indeed, “[t]he reversal of a conviction is required upon a ‘showing that the favorable evidence could

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

verdict.’” Id. (quoting Kyles, 514 U.S. at 435). The Supreme Court has referred to this as only a

“reasonable probability” or a “significant possibility” of a different result. See, e.g., id.; Strickler v.

Greene, 527 U.S. 263, 298 (1999) (Souter, J., concurring in part and dissenting in part) (explaining

that “[reasonable] ‘probability’ raises an unjustifiable risk of misleading courts into treating it as

akin to the more demanding standard, ‘more likely than not’” and preferring the phrase “significant

possibility”). Accordingly, Brady materiality is not a sufficiency-of-the-evidence test. Kyles, 514

U.S. at 434. “A defendant need not demonstrate that after discounting the inculpatory evidence in

light of the undisclosed evidence, there would not have been enough left to convict.” Id. at 434–35;

accord Castleberry v. Brigano, 349 F.3d 286, 294 (6th Cir. 2003).

No. 04-5377 Johnson v. Bell Page 20

The prosecution withheld six items1 of evidence that, when considered collectively, as we

must, compel the conclusion that Johnson’s trial did not produce an outcome worthy of confidence.

As the Supreme Court of Tennessee explained, “[Johnson]’s insurmountable problem in this case

was not Davis’s testimony, but the testimony of the three eyewitnesses, two of whom looked into

the barrel of the pistol held by [Johnson] and were shot by him.” State v. Johnson, 632 S.W.2d 542,

547 (Tenn. 1982). Had the prosecution honored its Brady obligations by disclosing the six relevant

items of suppressed evidence, then the value of two of those “insurmountable” witnesses, Bob Bell

and Debra Smith, would have been substantially reduced, and the value of the third, Louis Smith,

would have been obliterated. A review of the withheld evidence reveals that its disclosure “would

have resulted in a markedly weaker case for the prosecution and a markedly stronger one for the

defense.” Kyles, 514 U.S. at 441. As Supreme Court precedent directs, I proceed with an evaluation

of “the tendency and force of the undisclosed evidence.” Id. at 437 n.10.

The first item of withheld evidence was a police report prepared by Detective Moore,

regarding his interview of Bell the day after the crimes. This report would have undermined Bell’s

identification of Johnson as the perpetrator. Bell testified that he was familiar with Johnson because

Johnson had frequented Bell’s store in the past, that the assailant had some facial hair, and that

Johnson was the assailant. It is undisputed that at the time of the crimes Johnson had a goatee and

a light moustache. Thus, the jury heard testimony from Bell that was internally consistent. In

Detective Moore’s suppressed report, however, Bell described the assailant as having “no facial

hair.” (JA 274.) Without employing any fantastic leaps of imagination, this withheld report would

have called into question the reliability of Bell’s identification. Simply put, by suppressing the

report, the prosecution was able to prevent the jury from learning a crucial inconsistency between

Bell’s initial description of the assailant and Bell’s identification of Johnson. Because reliability of

identification testimony depends in large part on the accuracy of a prior description, Manson v.

Brathwaite, 432 U.S. 98, 114 (1977), Bell’s identification would have been substantially undermined

by the use of this withheld police report.

The second item of evidence suppressed by the prosecution would have cast further doubt

on the reliability of Bell’s testimony—a medical report revealing that Bell had a history of “some

mental instability.” (JA 1288.) As the majority highlights, any cross-examination regarding Bell’s

mental health would by necessity have proceeded delicately. This, however, does not mean that

defense counsel would not have been able to use it to further undermine Bell’s credibility. Although

its suppression may not rank with the failure to disclose Detective Moore’s police report, it certainly

would have had some value to competent counsel, “and it counts accordingly in determining whether

. . . materiality is satisfied.” Kyles, 514 U.S. at 450. In short, the medical report “would have had

some weight and its tendency would have been favorable to [Johnson].” Id. at 451.

The third item of evidence suppressed by the prosecution would have impeached another

“insurmountable witness,” Debra Smith, by raising doubts as to whether she was present in Bell’s

store on the night of the crimes. The prosecution withheld a police report prepared by Detective

Robeck, revealing that Louis Smith indicated that no female customers entered the store during the

robbery. This evidence would have further undermined Debra Smith’s testimony, which, both the

majority and concurrence acknowledge, was already suspect. Debra Smith testified that, upon

entering Bell’s store on the night of the crimes, she immediately realized that a robbery was in

progress, yet still purchased a soft drink and inexplicably failed to call the police once she returned

1

Johnson claims that the prosecution withheld seven items. One of the items is a defense filing in an unrelated

case that arguably would have been readily available to Johnson by trial time. As that item does not change my analysis,

I proceed assuming that it is not part of the Brady calculus and address only six of the suppressed items. See, e.g.,

Matthews v. Ishee, 486 F.3d 883, 891 (6th Cir. 2007) (“[W]hen the information is readily available to the defense from

another source, there simply is nothing for the government to ‘disclose.’” (citing Coe v. Bell, 161 F.3d 320, 344 (6th Cir.

1998))).

No. 04-5377 Johnson v. Bell Page 21

home. Even more curiously, her testimony repeatedly described Louis Smith, one of only four

people apparently in the store when she entered, as a Black man. Louis Smith, however, is white.

Consistent with this theory, the prosecution never alleged a female was present in the store during

the robbery until only a few days before trial when it named Debra Smith as a potential witness. This

withheld police report puts at issue whether Debra Smith was in Bell’s store that night and, in the

hands of competent defense counsel, would have “fueled a withering cross-examination, destroying

confidence in [Debra Smith’s] story and raising a substantial implication that the prosecutor had

coached [her] to give it.” Id. at 443.

As the majority and concurrence point out, even without the disclosure of this withheld

police report, Debra Smith’s testimony was weak, inconsistent, and significantly impeached. There

is no question, however, that this report could have been used to further impeach Debra Smith, and

may even have been used to expose potential prosecution improprieties, like coaching. The

implication of coaching would have been strengthened by the suspicious circumstances surrounding

Davis’s conversion, which raises further questions of prosecutorial misconduct. Quite simply, it is

unreasonable to conclude that the withheld report would have had no value as exculpation or

impeachment, and therefore it too must be counted towards determining whether materiality has

been satisfied. See Kyles, 514 U.S. at 450.

I save the worst for last. The fourth, fifth, and sixth items of evidence withheld by the

prosecution relate to Louis Smith. Smith testified that he got a “good look” and even a “real good”

look at the assailant’s face. (JA 334, 364.) He further testified that he correctly identified Johnson

from a photo array. By all accounts, Smith was a strong witness for the prosecution. The following

three items of suppressed evidence in the hands of competent defense counsel, however, would have

obliterated his value as a prosecution witness.

Officer Dobson prepared a police report from an interview with Louis Smith immediately

after the shootings. This report indicates that Smith disavowed any ability to identify the assailant:

“I then talked to [Louis Smith] who related he was inside the market working on a motor when

assailant entered the market and shot and robbed him for no reason and he saw him to be a [young,

Black male] but did not see assailant[’s] face.” (JA 1276 (emphasis added).) Smith’s inability to

describe the assailant was similarly noted in another police report prepared by Detective Flowers

shortly after the crimes: “Louis Smith advised he could not describe susp[ect] at this time but is

willing to be reinterviewed at a later date.” (JA 1278.) Finally, and most alarmingly, a withheld

police report prepared by Detective Robeck reveals that Smith did not pick Johnson’s picture out

of a pre-trial photo array, but instead chose the pictures of two other young, Black males. (JA

298–99, 1281.) It is not hard to imagine what competent defense counsel would have done had the

prosecution disclosed these three crucial items. Doubtless, their disclosure would have effectively

reduced Louis Smith’s value as a prosecution witness to nil. Importantly, the prosecution’s

suppression of these items also prevented the jury from learning that, to the extent Louis Smith could

identify the assailant, he identified someone other than Johnson, rendering these items exculpatory

as well, despite the concurrence’s best attempts to characterize Louis Smith’s selection of someone

other than Johnson from a photo array containing Johnson’s photo as a mere “misidentification.”

Moreover, the demise of Louis Smith as a credible prosecution witness would have done

more than just nullify his testimony. For instance, it would have served to discredit generally the

police and prosecution methods employed in assembling the case against Johnson, calling into

question the veracity of the other “insurmountable witnesses” and Davis. As the Fifth Circuit aptly

explained, the consequences of destroying one eyewitness extend beyond just that witness:

We are tempted, but not persuaded, by this arithmetical approach; our

experience at the bar has been that positive identification by two unshaken witnesses

possesses many times the power of such an identification by one only, and that the

No. 04-5377 Johnson v. Bell Page 22

destruction by cross-examination of the credibility of one of two crucial

witnesses—even if the other remains untouched—may have consequences for the

case extending far beyond the discrediting of his own testimony.

Lindsey v. King, 769 F.2d 1034, 1042 (5th Cir. 1985).

Confronted with this, the Tennessee Court of Criminal Appeals nonetheless determined that

Supreme Court precedent did not compel the conclusion that the withheld evidence was material.

See Johnson, 1997 WL 738586, at *8. Curiously, the Tennessee court cited Kyles only once,

notwithstanding that Kyles came down two years before the Tennessee court’s decision and that it

was, and still is, the Supreme Court’s most thorough application of Brady to any set of facts. See id.

at *4 (citing Kyles for the proposition that “[t]he court must view the suppressed evidence

collectively in the context of the entire record to determine whether the evidence is material under

Bagley”). Regardless, because Johnson’s Brady claim presents at least as strong a case for

materiality as Kyles, the Tennessee court’s determination that the withheld evidence did not satisfy

Brady materiality was an unreasonable application of Supreme Court precedent. Williams v. Taylor,

529 U.S. 362, 405–07 (2000) (“[A] state-court decision involves an unreasonable application of

[Supreme Court] precedent if the state court identifies the correct governing legal rule from

[Supreme Court] cases but unreasonably applies it to the facts of the particular state prisoner’s

case.”).

In Kyles, the Supreme Court reversed a Fifth Circuit decision holding that evidence withheld

by the prosecution was immaterial under Brady. 514 U.S. at 454. Kyles was convicted of the

daytime murder of a woman outside a grocery store. Id. at 423. There was a mountain of evidence

against Kyles, which included four eyewitnesses, the murder weapon found in Kyles’s apartment,

and some of the victim’s personal effects found in Kyles’s trash. Id. at 430–32. That is, unlike the

case against Johnson, physical evidence implicated Kyles. The prosecution withheld the following

exculpatory evidence: six contemporaneous eyewitness statements taken by police that would have

impeached two of the four eyewitnesses, and various statements, memoranda, letters, and recordings

relating to “Beanie,” a police informant, who did not testify at trial, but was responsible for directing

the investigation towards Kyles. See id. at 423–26. At best, the Supreme Court acknowledged that

disclosure of the evidence would have served to raise some questions about whether the gun and

victim’s personal effects were planted by Beanie in an attempt to frame Kyles, and would have

“substantially reduced or destroyed” the value of two of the four eyewitnesses. Id. at 441. Not every

item of the State’s case, however, would have been directly undercut had the suppressed evidence

been disclosed. Importantly, the Court recognized that two eyewitnesses would have remained

untouched. These eyewitnesses consistently identified Kyles as the perpetrator immediately after

the murder, in a photo array, and in court. Moreover, even without the eyewitness testimony, the

overwhelming physical evidence still would have pointed towards Kyles, unless the jury had

believed that Beanie was the mastermind behind a massive conspiracy to frame Kyles—an account

that Justice Scalia described as “strain[ing] credulity to the breaking point.” Id. at 470 (Scalia, J.,

dissenting).

Comparing the probable impact of the withheld evidence in Kyles to the probable impact of

the evidence withheld by the State that would have been favorable to Johnson compels the

conclusion that the withheld evidence in Johnson’s case is material. Here, the withheld evidence

would have served to attack all three eyewitnesses, leaving the State with only Davis’s testimony.

Davis, of course, was a nineteen-year-old, who changed his story the day before trial after a coerced

midnight encounter with a prosecutor who dangled threats of prosecution and promises of immunity

before Davis. Indeed, his testimony was sufficiently suspect that the Supreme Court of Tennessee

discounted it in affirming Johnson’s convictions. See Johnson, 632 S.W.2d at 547. Because the case

against Johnson relied almost exclusively on eyewitness identification, the materiality of the

No. 04-5377 Johnson v. Bell Page 23

withheld evidence, which called into question the testimony of all three eyewitnesses, compels a

materiality finding.

True enough, the withheld evidence would not have directly undercut Davis’s testimony,

and, therefore, even had the withheld evidence been disclosed, there may have been sufficient

evidence for a jury to convict, notwithstanding the suspicious nature of Davis’s conversion. That is,

any reasonable jury may very well have believed Davis’s testimony. But this is not the proper

inquiry. Brady materiality is not a sufficiency-of-the-evidence test. Kyles, 514 U.S. at 434. The

withheld evidence need not touch every prosecution witness and every item of incriminating

evidence before materiality is satisfied. To be sure, “the effective impeachment of one eyewitness

can call for a new trial even though the attack does not extend directly to others.” Id. at 445 (citing

United States v. Agurs, 427 U.S. 97, 112–13 n.21 (1976)) (emphasis added).

Consistent with this, we have concluded that withheld evidence satisfies materiality where

its disclosure would have left several prosecution witnesses completely unscathed. For instance, in

Castleberry v. Brigano, we held that three items of suppressed evidence, when evaluated

collectively, “strongly support[ed] the conclusion that Castleberry’s trial did not produce an outcome

worthy of confidence,” thus satisfying Brady materiality. 349 F.3d at 292. In reaching this

conclusion, we acknowledged that some testimony of witnesses present at the scene of the crime

“would not have been contradicted by the withheld evidence.” Id. at 294. Nevertheless, we

acknowledged, “[t]he key question . . . ‘is not whether the state would have had a case to go to the

jury if it had disclosed the favorable evidence, but whether we can be confident that the jury’s

verdict would have been the same.’” Id. (quoting Kyles, 514 U.S. at 453).

The Supreme Court explained this principle in Kyles:

[N]ot every item of the State’s case would have been directly undercut if the Brady

evidence had been disclosed. It is significant, however, that the physical evidence

remaining unscathed would . . . hardly have amounted to overwhelming proof that

Kyles was the murderer. . . .

....

The inconclusiveness of the physical evidence does not, to be sure, prove

Kyles’s innocence, and the jury might have found the eyewitness testimony . . .

sufficient to convict . . . . But the question is not whether the State would have had

a case to go to the jury if it had disclosed the favorable evidence, but whether we can

be confident that the jury’s verdict would have been the same.

514 U.S. at 451, 453.

Before concluding, I am compelled to address the concurrence’s disagreement with what it

calls my “depiction” of this case. By my best reading, I find three wholly unconvincing points buried

in the concurrence and nary a citation.

The first point seems to be that the six items of withheld evidence were all impeaching as

opposed to exculpatory, and that this would have rendered it somehow less valuable to competent

defense counsel. This is a distinction not supported by case law. The Supreme Court has repeatedly

“disavowed any difference between exculpatory and impeachment evidence for Brady purposes.”

E.g., Kyles, 514 U.S. at 433; Bagley, 473 U.S. at 676. Regardless, it is also a contention unsupported

by the record. As mentioned, the suppressed Detective Robeck report would have revealed that

Louis Smith did not pick Johnson’s picture out of a pre-trial photo array, but instead chose the

pictures of two other young, Black males. That the concurrence characterizes this as a mere

“misidentification” strains credulity and ignores the Supreme Court of Tennessee’s finding that

No. 04-5377 Johnson v. Bell Page 24

Louis Smith’s testimony was “insurmountable” because he supposedly “looked into the barrel of the

pistol held by [Johnson] and [was] shot by him.” Johnson, 632 S.W.2d at 547.

The concurrence’s second concern appears to be that no motive existed for the three

witnesses to implicate Johnson. This concern again finds no basis in law or fact. The touchstone of

materiality is a “reasonable probability” of a different result. Kyles, 514 U.S. at 434. All suppressed

evidence that has any value as exculpation or impeachment counts in determining whether

materiality is satisfied. Id. at 450. Indeed, even the concurrence must begrudgingly admit that the

suppressed evidence would have assisted Johnson’s defense, notwithstanding that the witnesses

apparently had no motive to lie. Surely, to conclude otherwise would be to proceed with blinders.

Regardless, even assuming that the three eyewitnesses here had no motive to lie, the concurrence’s

assertion that they needed a motive to implicate the wrong person defies common sense. They might

just simply have been mistaken. The hallmark of an effective defense is bringing to light such

mistakes. Without the suppressed evidence, there is no question that Johnson’s defense was severely

crippled in accomplishing this basic defense task.

Finally, the concurrence appears to conclude, after summarily discounting almost the entire

value of the suppressed evidence, that it would still have found Johnson guilty of the murders had

it been a juror in a hypothetical trial where the suppressed evidence was disclosed. Musing about

such hypotheticals, however, is unnecessary because that is not what Brady directs. Supreme Court

precedent is crystal clear: the Brady materiality inquiry “is not a sufficiency of the evidence test.”

Id. at 434. “[T]he question is not whether the State would have had a case to go to the jury if it had

disclosed the favorable evidence, but whether we can be confident that the jury’s verdict would have

been the same.” Id. at 453. Here, there can be no confidence.

Johnson’s case is not even a close one. As in Kyles, Brigano, and others, the same is true

here: confidence that Johnson’s verdict would have been the same simply cannot survive a recap of

the suppressed evidence and its significance for the prosecution. The withheld evidence, taken

together, reveals at a minimum that one witness’s first and most lucid description of the assailant

did not comport with his in-court identification, that one witness may not have been present in Bell’s

store on the night of the crimes, and that one witness implicated someone other than Johnson when

confronted with a photo array containing Johnson’s picture. These were the same three witnesses

that the Supreme Court of Tennessee called Johnson’s “insurmountable problem.” Johnson, 632

S.W.2d at 547. Had the prosecution disclosed the six items of withheld evidence, competent defense

counsel may very well have destroyed the value of their identifications, or at least raised serious

questions in the jurors’ minds as to their reliability. This is to say nothing of the potential inferences

of police and prosecutorial misconduct that the jurors may also rationally have made had they been

apprised of the suppressed evidence. Simply put, Johnson’s defense was substantially crippled in

cross-examining the three critical witnesses on the only serious issue in this case—identification.

See Lindsey, 769 F.2d at 1040. “No reasonable court can have confidence in the decision of a jury

that did not hear this withheld evidence.” Castleberry, 349 F.3d at 294 (citation omitted).

II.

The Tennessee Court of Criminal Appeals applied Kyles unreasonably when it determined

that the evidence withheld by the prosecution was immaterial and that, without it, Johnson received

a fair trial resulting in a verdict worthy of confidence. Such unreasonable application of Supreme

Court precedent mandates that we grant Johnson’s petition for a writ of habeas corpus. So, I dissent.