Reply Brief — Randolph Moore, Petitioner v. Nevada, et al.

Supreme Court briefNov 7, 2018

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No. 18-6182

OCTOBER TERM, 2018

IN THE SUPREME COURT OF THE UNITED STATES

RANDOLPH LYLE MOORE, Petitioner,

WILLIAM GITTERE, Warden;

ADAM LAXALT, Attorney General, State of Nevada; Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

REPLY TO RESPONDENT’S BRIEF IN OPPOSITION

Rene L. Valladares

Federal Public Defender of Nevada

Randolph M. Fiedler

Assistant Federal Public Defender

Counsel of Record

Randolph_Fiedler@fd.org

411 E. Bonneville, Ste. 250

Las Vegas, Nevada 89101

(702) 388-6577

(702)-388-5819 (Fax)

Counsel for Petitioner

TABLE OF CONTENTS

ARGUMENT .................................................................................................................. 1

The Nevada Supreme Court decided a federal question in rejecting

Moore’s claim that the State violated Brady v. Maryland, 373 U.S.

83 (1963). .................................................................................................. 1

The Nevada Supreme Court misapplied Brady by requiring a

higher showing of prejudice than is required by this Court’s

precedents. ................................................................................................ 3

Moore’s Brady claim is meritorious. ........................................................ 5

CONCLUSION............................................................................................................... 8

TABLE OF AUTHORITIES

FEDERAL CASES

Brady v. Maryland, 373 U.S. 83 (1963) .............................................................. passim

Coleman v. Thompson, 501 U.S. 722 (1991) ........................................................... 2, 3

Giglio v. United States, 405 U.S. 150 (1972) .............................................................. 6

Kyles v. Whitley, 514 U.S. 419 (1995) ................................................................. 3, 4, 6

Rippo v. Baker, 137 S. Ct. 905 (2017) ...................................................................... 1,2

Turner v. United States, 137 S. Ct. 1885 (2017) ………………………………………… 2

Wearry v. Cain, 136 S. Ct. 1002 (2016) …………………………………………………… 2

STATE CASES

Heglemeier v. State, 903 P.2d 799 (Nev. 1995) .......................................................... 6

Lisle v. State, 351 P.3d 725 (Nev. 2015) ..................................................................... 1

Mazzan v. Warden, 993 P.2d 25 (Nev. 2000) .............................................................. 1

Rippo v. State, 423 P.3d 1084 (Nev. 2018) .................................................................. 1

State v. Bennett, 81 P.3d 1 (Nev. 2003) ...................................................................... 1

State v. Huebler, 275 P.3d 91 (Nev. 2012) .............................................................. 1, 2

STATE STATUTES

Nev. Rev. Stat. § 175.291 ............................................................................................. 6

iii

ARGUMENT

The Nevada Supreme Court decided a federal question in rejecting

Moore’s claim that the State violated Brady v. Maryland, 373 U.S. 83

(1963).

Moore’s claim was that the State violated Brady v. Maryland, 373 U.S. 83

(1963). The suppressed evidence was that the State threatened a key witness,

Angela Saldana, with the death penalty, coached her testimony, and provided her

with police reports so she would testify exactly as her handlers wished. This

evidence would have impeached her. This evidence is material because Saldana was

the most important witness in the prosecution of Moore.

The Nevada Supreme Court found that this claim was “procedurally barred

absent a demonstration of good cause and prejudice.” App. 018. The court then

considered whether the State’s violation of Brady constituted good cause and

prejudice. App. 018-22. This was consistent with longstanding Nevada law

recognizing that “[g]ood cause and prejudice parallel the second and third Brady

components; in other words, proving that the State withheld the evidence generally

establishes cause, and proving that the withheld evidence was material establishes

prejudice.” App. 019 (quoting State v. Bennett, 81 P.3d 1, 8 (Nev. 2003)). 1

And so the Nevada Supreme Court evaluated the merits of Moore’s Brady

claim. See Rippo v. Baker, 137 S. Ct. 905, 907 n.* (recognizing Nevada procedural

default was not independent of merits of federal claim). First, the Nevada Supreme

1 See also Rippo v. State, 423 P.3d 1084, 1099-1100 (Nev. 2018); Lisle v. State, 351 P.3d 725,

728 (Nev. 2015); State v. Huebler, 275 P.3d 91, 95-96 (Nev. 2012); Mazzan v. Warden, 993 P.2d 25,

37 (Nev. 2000).

Court noted the elements required for successful Brady claim: (1) favorable evidence

(2) that the State suppressed and (3) that is material. See App. 019. The court found

that the evidence would be favorable evidence possessed by the State. App. 021.

But, the court concluded, the evidence was not material. App. 021-22. In finding

that the evidence was not material, the Nevada Supreme Court relied on this

Court’s cases and its own cases construing Brady. See App. 022 (citing Wearry v.

Cain, 136 S. Ct. 1002 (2016); Turner v. United States, 137 S. Ct. 1885 (2017)); see

also App. 022 (citing Huebler, 275 P.3d at 98). 2

There can be no question that the Nevada Supreme Court considered the

merits of Moore’s Brady claim. The State nonetheless argues that an adequate and

independent state ground bars this Court’s consideration of the Nevada Supreme

Court’s judgment. See Br. in Opp. at 3-6. Though an adequate and independent

state ground would bar this Court’s consideration, the Nevada Supreme Court’s

ruling does not rely on an independent bar. See Coleman v. Thompson, 501 U.S.

722, 729 (1991) (“This Court will not review a question of federal law decided by a

state court if the decision of that court rests on a state law ground that is

independent of the federal question . . . .”). A decision is not independent of federal

law if it is resolved by addressing the federal question. Id. at 735 (“[I]f the decision

2 The Nevada Supreme Court quoted Huebler, 275 P.3d at 202: “Normally evidence is

material if it creates a reasonable doubt.” App. 022. The previous sentence from the Huebler decision

shows how interwoven the federal constitutional question and the state procedural question are:

“Prejudice for purposes of a Brady violation requires a showing that the withheld evidence is

‘material.’” Huebler, 275 P.3d at 202.

of the last state court to which the petitioner presented his federal claims fairly

appeared to rest primarily on resolution of those claims, or to be interwoven with

those claims . . . a federal court may address the petition.”). The Nevada Supreme

Court decided Moore’s Brady claim by finding it meritless.

Indeed, the State appears to concede that the Nevada Supreme Court

resolved Moore’s Brady claim by noting that “the Nevada Supreme Court held that

the allegedly withheld evidence was not material under Brady.” Br. in Opp. at 6; see

also id. at 7 (“Nevada’s articulation and application of federal law pursuant to

Brady and its progeny is accurate.”). The State also acknowledged that the Nevada

Supreme Court relied on this Court’s Brady precedents. See Br. in Opp. at 6

(quoting Nevada Supreme Court quoting Wearry, 136 S. Ct. 1002, for Brady

materiality standard).

Because the Nevada Supreme Court answered the federal question of Moore’s

Brady claim, this Court may consider the federal question presented here.

The Nevada Supreme Court misapplied Brady by requiring a higher

showing of prejudice than is required by this Court’s precedents.

The Nevada Supreme Court’s published opinion notes that suppressed

evidence is material only if it is “crucial” to the State’s case. App. 006 (“Saldana’s

secondhand testimony was not a crucial part of the State’s case.”). This is not the

correct standard. See, e.g., Kyles v. Whitley, 514 U.S. 419, 434 (1995) (“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.”). And as noted in

the Petition for Writ of Certiorari, the Nevada Supreme Court’s use of a higher

standard is not unique to Moore’s case. See Pet. for Writ of Cert. at 12-13 (noting

other cases).

The State argues that the Nevada Supreme Court did not impose a higher

standard by using the word “crucial,” insisting that the court applied the correct

standard. Br. in Opp. at 6. The State is wrong. The Nevada Supreme Court, in

reasoning that Saldana’s testimony was not “crucial,” conducted a weighing

analysis; the court imagined giving Saldana’s testimony less weight, and then

reweighing the remaining evidence to calculate how much inculpatory evidence

remained. See App. 006. The prejudice from such evidence is not merely

impeachment of Saldana, but impeachment of the integrity of the State’s case—the

prejudicial effect of learning that the State threatened Saldana with the death

penalty, provided her with police reports, and then coached her testimony. This is

especially important in light of a major defense theme at trial: that the State was

using improper tactics to coerce all of the witnesses’ testimony. By asking only

whether Saldana’s testimony was “crucial,” as compared to the other testimony, the

Nevada Supreme Court requires not only that suppressed evidence would

undermine confidence in the verdict, but also that the evidence be crucial to the

State’s case. 3

Moore’s Brady claim is meritorious.

The State argues that Moore’s Brady claim lacks merit because defense

counsel knew of the basic underlying facts of this claim. See Br. in Opp. at 7-15. But

there are significant differences between the facts the State asserts were known at

trial and the facts underlying Moore’s current Brady claim. Compare Br. in Opp. at

7-15 with Pet. for Writ of Cert. at 2-9.

Moore alleges that Robert Peoples, a lifelong criminal, and Beecher Avants, a

district attorney investigator, worked together to threaten Saldana until she gave

exactly the testimony they wanted. They threatened to send her to prison; they

threatened her with execution. They provided her with police reports so she would

get the details correct. And then during subsequent retrials, they repeated the

process of coercion and threats.

This is categorically different from the State’s description: Angela Saldana,

encouraged by Peoples, contacted members of law enforcement, had a sexual

relationship with one codefendant, promised marriage to another codefendant, and

received $2,000. See Br. in Opp. at 8-9. Absent from the State’s recitation is any

3 The Brief in Opposition does not address the Nevada Supreme Court’s two other

misapplications of Brady. It was error for the Nevada Supreme Court to require Moore “to

demonstrate that the withheld evidence would have affected the outcome of the penalty hearing.”

Pet. for Writ of Cert. at 12. And the Nevada Supreme Court misapplied Brady by requiring Moore to

show that the withheld evidence would “affirmatively undermine the evidence presented to the jury

as to Moore’s involvement, the motive for the murders, or the aggravating circumstances.” Compare

Pet. for Writ of Cert. at 12 with Br. in Opp.

indication that Saldana was threatened, that she was provided with police reports,

or that her testimony was manufactured.

Notably, the Nevada Supreme Court did not based its decision on what

defense counsel knew at the time of trial. See App. 021-022. Rather, the Nevada

Supreme Court accepted Moore’s assertions as true, assumed this evidence was

suppressed, and agreed that the evidence is favorable. Id. This was, in part,

necessary because no evidentiary hearing was permitted on this claim. See App. 021

n.5.

The Nevada Supreme Court disagreed with Moore about materiality. But, as

discussed above, the court applied the wrong materiality standard. See Argument §

B above. Applying the correct standard, the suppressed evidence was material.

Evidence is material if there exists “any reasonable likelihood” that the withheld

evidence would have affected the jury’s judgment. Giglio v. United States, 405 U.S.

150, 154 (1972). “[I]t is not a sufficiency of the evidence test. 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.” See Kyles,

514 U.S. at 434-35.

The withheld evidence here would have affected the jury’s judgment for two

reasons. First, Nevada has a corroborative evidence rule, which requires the State

to present corroborating evidence to the testimony of coconspirators. See Nev. Rev.

Stat. § 175.291; Heglemeier v. State, 903 P.2d 799 (Nev. 1995). With the exception

of Saldana, the inculpatory evidence from this case came from coconspirators. 4

Thus, Saldana’s testimony was a necessary prerequisite to Moore’s conviction.

Second, as presented to the jury, Saldana was the only witness free from

State coercion. The other inculpatory witnesses were cross-examined about their

involvement, and were either not prosecuted at all or received favorable treatment.

The addition of evidence that the State threatened and manufactured Saldana’s

testimony would have affected the jury’s judgment because the jury would have

seen that every witness offering inculpatory testimony was compelled by the threat

of prosecution. This is in addition to the cross-examination that Saldana already

faced because of her sexual relationship with one codefendant, her agreement to

marry a different codefendant, and her receipt of $2,000 for testifying. See Br. in

Opp. at 8-9.

In light of Saldana’s unique role in the State’s case, the jury’s verdict is

unworthy of confidence, and the State’s suppression of evidence prevented Moore

from receiving a fair trial.

///

4 To take the State’s list of inculpatory witnesses as demonstrative examples, see Br. in Opp.

at 13: Rusty Havens testified he was part of planning the homicides and agreed to participate; Tom

Akers testified he was present for conversations planning the homicides and that he aided the

homicides by driving; and John Lucas told officers that he helped dispose of the weapons. The State

also lists Lisa Licata and Michelle Gray, who testified that a knife found at the crime scene belonged

to a codefendant. The testimony of Licata and Gray had nothing to do with Moore.

CONCLUSION

For the foregoing reasons, Moore respectfully requests that this Court grant

his petition for writ of certiorari.

DATED this 7th day of November, 2018.

Respectfully submitted,

Rene Valladares