Opposition Brief — Owens v. Steele (No. 09-130)

Supreme Court, U.S.

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No. 09-130 AVS 28 dv

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—

In The

Supreme Court of the Gnited States

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GAILE K. OWENS,

Petitioner,

V.

JEWEL STEELE, Warden,

Respondent.

4

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

¢

RESPONDENT’S BRIEF IN OPPOSITION

4

ROBERT E. COOPER, JR.

Attorney General & Reporter

State of Tennessee

MICHAEL E. MOORE

Solicitor General

GORDON W. SMITH

Associate Solicitor General

Counsel of Record

425 Fifth Avenue North

Nashville, Tennessee 37243

(615) 741-4150

Counsel for Respondent

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

CAPITAL CASE

QUESTION PRESENTED FOR REVIEW

Whether the court of appeals’ conclusion — that

the suppression of documentary evidence corrob-

orating the victim’s extramarital affair was not

“material” for the purposes of petitioner’s sentencing

hearing within the meaning of Brady v. Maryland’

because the petitioner knew or should have known

the essential facts permitting her to take advantage

of any exculpatory information, and the evidence she

wanted was clearly available from another source —

conflicts with decisions of this Court.

' 373 U.S. 83 (1963)

1

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW............. i

TABLE: OF Gi tlie occsscasececcesecssceccecc ees. li

TABLE -OF AU TRIP iee Bley o0.oc.c.2.000000000.00..0.0s0ce000. ill

OPTIC Riis nooo cecsccssreesscees 1

STATEMENT OF JURISDICTION ....................... 1

STATEMENT OF THE CASE....................cccceeeseeees 1

REASONS FOR DENYING THE WRIT ................ 20

I. THE SIXTH CIRCUIT’S DECISION DOES

NOT CONFLICT WITH PRIOR DECI-

STONE Cb Bae GE srvcecncscvecescesscnenscese 20

A. The Sixth Circuit’s opinion demon-

strates that the court performed this

Court’s “materiality” test in analyzing

petitioner’s Brady claim...................0006 21

B. The Sixth Circuit’s resolution of the

Brady claim is not inconsistent with

Brady and its progeny.................cccceeee 23

Il. THE DECISION BELOW IS CORRECT..... 27

CON CLAIR crore tes ht ohn anssess....... 33

ill

TABLE OF AUTHORITIES

Page

CASES

Brady v. Maryland, 373 U.S. 83 (19638)............. passim

Coe v. Bell, 161 F.3d 320 (6th Cir. 1998)...........0........ 24

Cone v. Bell, 129 S.Ct. 1769 (2009)................ 20, 21, 22

Cornwell v. State, 430 N.W.2d 384 (lowa 1988) ........ 26

Edwards v. Ayers, 542 F.3d 759 (9th Cir. 2008)......... 32

Giles v. Maryland, 386 U.S. 66 (1967)................. 24, 25

In re Imbler, 60 Cai.2d 554 (1963) ............. eee ceee eee 24

Kyles v. Whitley, 514 U.S. 419 (1995)... passim

Lugo v. Munoz, 682 F.2d 7 (1st Cir. 1982) ................. 26

Luton v. Grandison, 44 F.3d 626 (8th Cir. 1994)....... 32

Moore v. Illinois, 408 U.S. 786 (1972).............cccccceeees 24

Owens v. State, 13 S.W.3d 742 (Tenn. Crim.

Fa, TENSE saxttismintciisstinicnaseneanaeeavot 15

Owens v. Tennessee, 531 U.S. 846 (2000)............00..... 15

Porterfield v. Tennessee, 486 U.S. 1017 (1988)............ 6

State v. Bisner, 37 P.3d 1073 (Utah 2001)..........00..... 26

State v. Hobley, 752 So.2d 771 (La. 1999).................. 26

State v. Porterfield, 746 S.W.2d 441 (Tenn.

BI hig icshchctsecosjusnadscncadaacecdaiens Ge 2, 3, 4, 5

State v. Wooden, 898 S.W.2d 752 (Tenn. Crim.

FR. TP siissaaeiskcceornccsessi sane 14

Strickler v. Greene, 527 U.S. 263 (1999)........ 21, 22, 29

lV

TABLE OF AUTHORITIES — Continued

Page

Tate v. Wood, 963. F.2d 20 (2d Cir. 1992).........00000.000.. 25

United States v. Agurs, 427 U.S. 97 (1976).......... 24, 25

United States v. Bagley, 473 U.S. 667 7

(RR LO PRE RONEN oR BE 19, 20, 21, 22

United States v. Clark, 928 F.2d 733 (6th Cir.

3 PREG PREM eD Wt ct oA Oem 25

United States v. Davis, 787 F.2d 1501 (11-h Cir.

ED rhe cis ixscseuacbswskatc tuisieabebiadedna meena ouikes 26

United States v. Erickson, 561 F.3d 1150 (10th

cela a ak aaa 25

United States v. Gaggi, 811 F.2d 47 (2d Cir.

I Sa Dk ele eo a ee er 25

United States v. Grossman, 843 F.2d 78 (2d Cir.

| Re ete ety Renard ED NES oe CPR Ya IS ORE 26

United States v. LeRoy, 687 F.2d 610 (2d Cir.

Oe eel Sek ee 26

United States v. Newman, 849 F.2d 156 (5th

a ei ea 26

United States v. Prior, 546 F.2d 1254 (5th Cir.

cio sccca ag cao tad tea eee ee or 26

United States v. Wilson, 901 F.2d 378 (4th Cir.

sis vcicccesccrdsaclaceentiatiasse ace 26

STATUTES

I AR ah MD oo she reves cel sauna eeesud ciseouuns 1

Tenn. Code Ann. § 39-1-301 (1982) ...... eee cece eee eee 2

TABLE OF AUTHORITIES — Continued

Page

Tenn. Code Ann. § 39-2-203(1)(4) (1982) ..... eee eee 5

Tenn. Code Ann. § 39-2-203(1)(5) (1982) .............. wcuceeeeel

Tenn. Code Ann. § 39-2-206 (1982) ............ cece ce cece eees 2

1

OPINIONS BELOW

The opinion of the court of appeals (Pet.App. 1) is

reported at 549 F.3d 399. The order denying the

petition for rehearing en banc (Pet.App. 212) is

uireported. The opinion of the district court (Pet.App.

73) is unreported.

*

STATEMENT OF JURISDICTION

The judgment of the court of appeals was entered

on December 9, 2008. An order denying the petition

for rehearing en banc was filed on February 25, 2009.

On April 30, 2009, Justice Stevens extended the time

for filing the petition for writ of certiorari until July

25, 2009 (Saturday), and the petition was filed on

July 27, 2009 (Monday). Petitioner invokes this

Court’s jurisdiction under 28 U.S.C. § 1254(1).

*

STATEMENT OF THE CASE

I. State Trial and Sentencing Proceeding

On February 17, 1985, Ronald Owens was

murdered in his Memphis home. Sidney Porterfield

and Ronald Owens’ wife, Gaile K. Owens (“petitioner”

or “Owens”), subsequently were indicted for the

murder. At a joint trial in January 1986, a Shelby

County Criminal Court jury convicted Porterfield of

2

first-degree murder and Owens of accessory before

the fact to first-degree murder.”

The evidence at the trial showed that, over the

course of several months, Owens solicited several

men to kill her husband. One of the men was

Porterfield, with whom she met on at least three

occasions. At the last meeting at 2:30 P.M. on Sunday,

February 17, 1985, she told Porterfield that her

husband either would be home alone that night or at

their church playing basketball. State v. Porterfield,

746 S.W.2d 441, 444 (Tenn. 1988).

That evening, Owens, her husband, and their two

sons attended an evening church service. Afterwards,

Owens refused to allow the boys to remain at the

church to watch their father play basketball, which

they usually did, and took them to dinner instead and

then to her sister’s home, where they stayed until

10:30 P.M. When they returned home at 11:00 P.M.,

Ronald Owens’ car was in the driveway. The car doors

were open, the interior light was on, and his coat and

tie were on the seat. The back door to the house was

partially open, and his keys were in the lock. There

* Under Tenn. Code Ann. § 29-1-301 (1982), in effect at the

time of the «..mmission of the offense, “[aJny person who shall

feloniously move, incite, counsel, hire, command or procure any

other person to commit a felony, is an accessory before the fact.”

Under Tenn. Code Ann. § 39-2-206 (1982), “[aJny person tried

and convicted as an accessory before the fact of murder in the

first degree shall be punished by life imprisonment or by

death... .”

3

were signs of a struggle in the kitchen, with blood

spattered on the wall and the floor. Ronald Owens

was found unconscious in the den, his head covered

with blood. He died six hours later. Jd.

The autopsy revealed that his death resulted

from multiple blows to the head. He had been struck

at least 21 times with a blunt instrument, which the

pathologist described as a long, striated cylinder, such

as a tire iron. The blows had been delivered with such

force that his skull was crushed, driving bone

fragments into his brain and his face into the floor.

The pathologist also found extensive injuries to the

victim’s hands and strands of hair between his

fingers, indicating that he had been covering his head

with his hands during the attack. Jd.

After the killing, George James, one of the men

solicited by Owens to kill her husband, contacted the

police and told them of her offer. He agreed to meet

Owens while wearing a hidden microphone monitored

by the police. At the meeting, Owens paid James $60

to keep quiet, telling him that this was all the money

she had. She told James that she had her husband

killed because of “bad marital problems.” Jd.

Owens was promptly arrested. At first, she

insisted that she only had hired people to follow her

husband and “rough him up.” However, she later

confessed to paying out $4,000 to $5,000 to various

men for “expenses” and to offering three men $5,000

to $10,000 to kill her husband. She admitted meeting

a man she knew as “Little Johnny” at 2:30 P.M. on

4

the day of the murder, discussing killing her husband

with him, and promising to pay him three or four

days after the murder. Owens explained to the police

that she had contracted to have her husband killed

because “we’ve just had a bad marriage over the

years, and I just felt like he had been cruel to me,”

although she admitted that “[t]here was very little

physical violence.” Jd.

Porterfield confessed to the murder. He admitted

meeting Owens on three occasions to discuss the

plans, the last time at 2:30 P.M. on the day of the

murder. He stated that Owens offered him $17,000 to

kill her husband. He stated that he went to the house

that evening at about 9:00 P.M. and took a tire iron

with him. He further stated that he was in the

backyard when the victim arrived home, that the

victim thought he was a burglar, that they struggled,

ending up in the kitchen, and that when he was

unable to break away, he struck the victim with the

tire iron. Porterfield admitted continuing to strike the

victim’s hands and head. On leaving, he threw the

tire iron and the gloves he was wearing into a

dumpster. Jd. at 445.

The prosecution also produced the testimony of

witnesses identifying Porterfield as the man who met

Owens on Sunday afternoon. A witness also placed

Porterfield in the vicinity of the Owenses’ house a

week before the murder. In addition, there was

evidence that, shortly after her husband’s funeral,

Owens asked her father-in-law for $17,000 “to pay

some bills.” Jd. at 445.

5

Neither Porterfield nor Owens testified at trial,

and Porterfield offered no evidence. Owens produced

a neighbor, who testified that Owens was almost

hysterical after her husband was found. A funeral

home employee also testified that a large balance was

owing on the victim’s funeral bill. Jd. at 445.

At the sentencing phase, the pathologist again

testified concerning the circumstances of the victim’s

death, and two photographs of the victim’s head

wounds were introduced. The State also presented

proof of Porterfield’s prior convictions for armed

robbery and simple robbery. Jd. at 448.

In mitigation, Owens presented evidence that she

had been treated by a psychiatrist on one occasion

in 1978 for severe behavioral problems. She also

produced two jail employees, who testified that she

was a good prisoner who caused no problems,

volunteered to work, and attended Bible study. Jd. at

448.

The jury imposed the death sentence for Owens

and Porterfield. With respect to Owens, the jury

found two aggravating circumstances: “(t]he

defendant ... employed another to commit the mur-

der for remuneration or the promise of remunera-

tion,” Tenn. Code Ann. § 39-2-203(i)(4) (1982), and

{tlhe murder was especially heinous, atrocious or

cruel in that it involved torture or depravity of mind,”

Tenn. Code Ann. § 39-2-203(i)(5). Id. at 448. The

Tennessee Supreme Court affirmed the judgment in

1988. Owens did not seek a writ of certiorari from

6

this Court. Porterfield did, but the petition was

denied. Porterfield v. Tennessee, 486 U.S. 1017 (1988).

II. State Post-Conviction Proceeding

Owens filed a petition for state post-conviction

relief in 1991, raising, inter alia, a boilerplate claim

that “(t]he state feiled to disclose evidence to which

petitioner was entitled at both guilt and sentencing.”

(C.A.J.App. 189) Owens narrowed the claim at the

post-conviction evidentiary hearing to allege the

suppression of sentencing-phase mitigating evidence

substantiating the victim’s marital infidelity: cards

and notes revealing a romantic relationship between

the victim and Gala Scott; and a police report relating

the discovery of the cards and notes during a search

of the victim’s office and stating that, when

interviewed, Scott had admitted the affair. (No. 2:00-

02765, Docket Entry No. 17, Addendum No. 12 at

165-69 (Post-Trial Brief of Petitioner))

The post-conviction court summarized the evi-

dence on this claim:

Mr. Emmons, one of petitioner’s attorneys,

filed a written motion pre-trial due to

information he believed came from an

interview with petitioner alleging that

there was a search of the entire

house of the deceased after the

defendant was in custody; his

personal possessions at his office

were inventoried and seized and

7

numerous friends and_ business

acquaintances were interviewed by

officers. Counsel believes that at the

house and office were found numer-

ous items that would verify the

above allegations including but not

limited to names, addresses, and

correspondence to and from “lovers”

which would be of great benefit to

the defense.

Defendant moves the Court to

order the state to seek out these

items through its agents and to

make available to the defense the

entire contents of the house seized

and the contents of the office of the

deceased.

During a hearing on this pretrial motion

three months before the trial, petitioner’s

attorneys requested this material be turned

over to them, and if not in the possession of

the state, to order turned over to them

names of witnesses who could discover such

evidence. The state responded:

MR. STROTHER: Your honor, I

think that we are required, and as

we have done, show them — you

know, we talk about items coming

from the house. To the best of my

knowledge, we have shown them

every single scintilla of evidence

which we have seized and which we

have that came from the house.

8

Anything that is in the possession of

any law enforcement agency we

have and we have shown to counsel

for the defense.

As to any other information

that could be developed, then I

think we might be, if we have such

information, required to furnish

them the names and addresses of

any individuals who can shed any

light on it. And I will be happy to do

that if — and I think it has in fact

been done.

THE COURT: Mr. Emmons,

who made — who allegedly made the

search at [sic] the personal property

at the office?

MR. EMMONS: Your Honor,

I'm not sure. I’m not sure if it was

police officers or if it was simply

hospital personnel cleaning out his —

or if it were in fact relatives of the

family.

I believe probably — and this is

just a guess based on what

information I have — that it was

maybe hospital personnel and

relatives of the family, and thus,

would not involve police officers, but

I don’t know that for a fact.

Now, the point I want to stress

to the court is that assuming the

9

state exercised a search warrant

and seized only certain items, we

have no doubt but that they would

furnish us with everything they

seized. But there was a housefull of

stuff there. There was an office full

of stuff that are not in our

possession that are in somebody’s

possession.

THE COURT: You claim they’re

in the state’s possession?

MR. EMMONS: I claim that

they could be. I claim that the state

has the power and the authority to

get those items that we don’t have

the power to and the authority to

ot...

THE COURT: Well, unless

they're in the possession of the

State, the court has no jurisdiction

to order somebody to turn them

over.

The trial judge denied the motion to make

the state go out and look for these items, and

told Mr. Emmons to use his subpoena power.

He then asked the state if it had such

evidence in its possession.

THE COURT: Do you have an

inventery of items in his office?

MR. STROTHER: Not that I

am aware of, Your Honor. Every-

thing we have in the way of any

10

kind of piece of physical evidence,

any piece of paper, any notebook,

any ~— anything along those lines,

letters and etcetera that we have,

we have made available to them.

The names of any people who we

know who would know anything

about this and the addresses of

those individuals, I think likewise

we have provided them with. That’s

the only thing I know to say.

Entered as Exhibit “C” to the hearing on

this petition is a General Assignment Report

of Investigation written by K. D. Wray, Chief

of Police in Bartlett, Tennessee, [the city

where the victim’s body was found] stating

that he went with another officer to Baptist

Hospital [the victim’s workplace] and met

with the chief of security who allowed them

to look at the property in the victim’s office.

They found several cards and notes from a

Gala Scott and a Diane Wood. He inter-

viewed Gala Scott that day and she verified

she had an affair with the victim during

1981 and 1982. But they had since stopped

seeing each other romantically [the victim

was killed in 1985].

Chief Wray testified at the hearing that

the notes from Diane Wood were merely

friendly. The ones from Gala were more

sexual. He held them for a while, and then

Gala Scott called him, asking for them back,

he checked with an attorney, was told they

had no bearing on the case, and returned

11

them to her. He could not remember who the

attorney was — either the two prosecutors,

Mr. Strother and Challen, or the Bartlett,

Tennessee city attorney. None of petitioner’s

trial attorneys, Mr. Emmons, Mr. Stein or

Mr. Marty recall having seen that report

prior to the hearing on this petition.

(C._A.J.App. 243-45) (internal citations omitted) Owens

did not testify. Mr. Strother, Mr. Challen, and Gala

Scott were not called as witnesses; nor were the cards

and notes introduced.

The post-conviction court concluded:

This Court cannot find from the record

before it that the State wrongfully withheld

evidence in its possession from petitioner.

Although it is unclear exactly when the

Bartlett Police Department returned these

notes and cards to Ms. Scott, it is clear that

they were never turned over to the two

state’s attorneys. The only remaining ques-

tions are whether or not the report of the

affair between the victim and Ms. Scott

should have been turned over to petitioner’s

attorneys, and whether or not this prejudiced

petitioner.

Assuming arguendo that the state was

aware of the report, and willfully failed to

turn the information over to petitioner’s

attorneys (which is not shown by the proof),

that would clearly be a violation of their

agreement at the above-mentioned hearing

on the motion. However, since petitioner

12

already knew of the affair with Ms. Scott,

she did not need the state to give her notice

of it. She told her psychological intern that

her husband has [sic] been having affairs

when they attempted to evaluate her in

October prior to her January trial. Detective

Townsend asked her when taking her

confession whether her husband had been

“soing out on her,” and she told him she

didn’t care if he did or not. Mr. Gentry, her

“traumatologist,” testified at the hearing

that petitioner told him that in December,

1984, she had gone to her husband’s job to

find out if he and his car were there, or if he -

was with his mistress, and confronted him

when he and Gala Scott returned to the

parking lot together early the next morning.

She told Gentry her husband told her “Don’t

you ever follow me again, bitch...” and she

then realized that his allegiance was

attached to Gala Scott. She told Mr. Gentry

that she went around for the next three days

with photographs and diagrams trying to

find semeone to kill him. Since Ms. Owens

did not testify at the hearing on this petition,

it is unclear whether or not she withheld this

information from her attorneys, but it seems

extremely unlikely that she would have if

that incident precipitated the killing. If she

did withhold knowledge of the affair from

her trial attorneys, she can not now blame

the state for withholding information she

already knew. If she did not withhold the

information, but told her attorneys about the

affair and they decided not to use it, there is

13

no prejudice to petitioner that the state did

not also tell them. Mr. Emmons testified that

he filed the motion for the “love notes”

because he felt he had discussed their

existence with Ms. Owens and co-counsel.

Although Mr. Marty could not remember

whether or not he had received the report, he

testified as follows as to its possible use:

Q. Mr. Marty, going back to an

earlier question concerning, for

instance, the report by K. D. Wray

concerning the verification of an

affair, sexual affair with Ron Owens,

do you think that would have been

important knowledge for you to have

in this case?

A. It may or may not have been. !t

may have given her a motive to ki..

him.

Q. Do you think it might have been

useful in sentencing, perhaps, to

give the jury a reason not to kill

her?

A. It may have given them a

stronger reason to kill her.

Q. Well, we’re talking about sen-

tencing now. Do you —

A. Iunderstand that.

Q. Have you ever used the defense

that utilized affairs that the de-

ceased might have had?

14

A. Inthe right case, yes, we have.

Q. You did not consider —

A. Not ina capital murder case.

This court can find no _ intentional

wrongdoing on the part of the state from the

proof in the record, and even if there were,

there has been no prejudice shown to

petitioner. Since the duty of the State to

disclose under Brady v. Maryland, 373 U.S.

83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963),

does not extend to information that the

deferise already pussesses or is abie to

obtain, or to information not in the posses-

sion or control of the prosecution, State v.

Wooden, 898 S.W.2d 752, 755 (Tenn. Crim.

App. 1994), this issue is without merit.

(C.A.J.App. 245-46) (some internal citations omitted)

On appeal, the Court of Criminal Appeals

affirmed the judgment of the post-conviction court,

concluding:

The proof establishes that the appellant

discovered the victim’s affair with Gala Scott

several months prior to the murder. This

discovery led the appellant to consider sui-

cide and subsequently solicit her husband’s

murder. Moreover, tiie appellant’s attorneys

were aware of extramarital affairs of the

victim through their conversations with the

appellant as evidenced by their request for

information in their exculpatory motion. The

duty upon the State under Brady dves not

15

extend to information already in the posses-

sion of the defense or that they are able to

obtain or to information not in possession or

control of the prosecution.

More importantly, however, is the require-

ment that the information suppressed must

have been exculpatory, i.e., faveruble to the

appellant. We conclude that this evidence

was not favorable and accordingly, no Brady

violation is found. In this regard, we would

not disagree with trial counsel’s testimony

that introduction of this evidence may have

provided the appellant with a motive to kill

her husband. This issue is without merit.

Owens v. State, 13 S.W.3d 742, 758-59 (Tenn. Crim.

App. 1999). The Tennessee Supreme Court denied

review, and this Court denied Owens’ petition for a

writ of certiorari. Owens v. Tennessee, 531 U.S. 846

(2000).

III. Federal Habeas Corpus Proceeding

On August 23, 2000, Owens initiated the instant

action by filing a petition for a writ of habeas corpus

in the district court. Owens raised the Brady claim,

asserting:

Had the State provided defense counsel with

(1) the cards and notes from Ms. Scott to Ms.

Owens; (2) the police report in which Chief

Wray recounts the discovery of those cards

and notes and that Ms. Scott admitted that

Mr. Owens and she had an affair; or (3) any

16

information indicating that the cards and

notes existed or that Ms. Scott admitted that

Mr. Owens and she had an affair, and had

the jury been presented that information, a

reasonable probability existed that the jury

would have sentenced Ms. Owens to life

imprisonment instead of death.

(C.A.J.App. 32-33) However, Owens’ petition acknowl-

edges that “throughout the marriage of Mr. and Ms.

Owens, Mr. Owens had affairs with other women,

including Carolyn Nobles and Gala Scott” and that

she learned of Mr. Owens’ affair with Ms.

Scott when she received a letter made up of

words cut out of a magazine stating that

everyone but Ms. Owens knew that Mr.

Owens was having an affair with Ms. Scott[.]

[] During the final months of 1984, Ms.

Owens caught Mr. Owens and Ms. Scott

riding together in a parking lot. Mr. Owens

responded by pushing Ms. Owens against a

car and yelling, “Don’t you ever follow me

again bitch,” or words to that effect[.] [] Ms.

Owens drove off of the parking lot intending

to commit suicide[.] [] [Als Ms. Owens drove

her car, she saw some African-American men

standing on a street corner drinking wine.

Ms. Owens decided that instead of killing

herself, she would have her husband killed.

Ms. Owens asked the men she saw if they

would be interested in killing her husband[.]

(C.A.J.App. 24)

17

Based upon a review of the state-court record, the

district court rejected the claim, concluding:

Brady requires the disclosure of evidence

that is material either to guilt or to punish-

ment. The record indicates that Petitioner

knew of Mr. Owens’ affair with Scott months

before his murder. In fact, Owens asserted

that she solicited her husband’s murder after

finding him in a parking lot with Scott.

Moreover, as established by defense counsel’s

request for evidence of Mr. Owens’

extramarital affairs, Petitioner had informed

her attorney of Mr. Owens’ liaisons. Despite

knowing this, the defense presented no

mitigation evidence at the sentencing phase

of the decedent’s illicit conduct.

Petitioner maintains that she did not present

such evidence because she had nothing to

corroborate her allegations. The Court finds

this argument unavailing because she could

have corroborated her allegations with

Scott’s testimony. Had Petitioner wished to

introduce evidence of the decedent’s extra-

marital affairs, she could have subpoenaed

Scott to testify. Petitioner has not shown that

there was a reasonable probability that her

conviction or sentence would have been

different had these materials been disclosed.

She therefore cannot show materiality or

prejudice under Brady. The Court finds

therefore that the state court’s conclusion

that petitioner’s Brady claim is without

merit is neither contrary to, nor an unrea-

sonable application of, clearly established

18

federal law, as determined by the Supreme

Court of the United States; nor is it an

unreasonable determination of the facts in

light of the evidence presented in the State

court proceeding.

(Pet.App. 134-35) The district court granted the

respondent’s motion for summary judgment. (/d. 197)

In response to Owens’ motion to alter or amend

the judgment, the district court revisited the Brady

claim. Owens’ reiteration of her argument that she

was prejudiced at sentencing by the suppression of

the items, pointing to cases in which a defendant did

not receive the death penalty for killing an unfaithful

spouse, was rejected. The district court observed that

the cases, dealing with “killings resulting from

sudden and excited passions on the part of the

defendant-spouse, usually owing to confrontations

with the victim-spouse while engaged in acts of

adultery, confrontations with the paramour of the

adulterous spouse, or after heated argument with the

spouse,” were inapposite. (Jd. 200-01) Owens’ case,

the court observed, was different:

It is uncontested that Petitioner acted with

malice and premeditation in procuring her

husband’s murder. Indeed, none of the cases

cited by Petitioner as examples lending

support to her claim that her husband’s

infidelity should mitigate her punishment

are reflective of the protracted deliberation

and repeated effort exhibited by the

Petitioner in soliciting her husband’s murder.

The extent of Petitioner’s premeditation and

19

her concerted efforts over a period of months

to solicit the eventual killer, as well as

helping to plan the actual murder, remove

her from the class of cases where the death

penalty has been held inappropriate due to

the killer’s visceral emotional reaction to a

spouse’s infidelity. Petitioner’s case is there-

fore more closely analogized to cases where a

spouse has received the death penalty for his

or her role in the murder-for-hire scheme

resulting in the death of their spouse.

(Id. 202) In rejecting Owens’ argument that the cards’

and notes’ sexual explicitness would have “sickened

the jury” and “conclusively proved the reason for

Gaile Owens’ actions,” the district court stated:

It defies reason to suggest that Petitioner

would have her husband killed due to his

infidelity, and then abandon presenting any

evidence of the adultery in mitigation of her

punishment, even without the victim’s love

letters from his mistress. Nonetheless, with

the proof presented against Owens at trial,

Petitioner has not shown that, had the notes

been disclosed to her prior to trial, there was

a reasonable probability that her sentence

would have been different, or that the

suppression of the cards and notes “under-

mine[d] confidence in the outcome of the

trial.” U.S. v. Bagley, 473 U.S. 667, 678

(1985); see also Kyles v. Whitley, 514 U.S.

419, 434 (1995).

(Id. 203-04)

20

On December 9, 2008, the court of appeals

affirmed the judgment in a 2-1 decision. The majority

agreed with the district court that Owens failed to

prove prejudice and concluded that the state courts

did not unreasonably apply clearly established

federal law in rejecting the Brady claim. The court

reasoned that Owens knew that her husband was

having an affair with Gala Scott, that proof of the

affair was available elsewhere, at a minimum,

through Scott, and that there was no evidence in the

record that Scott, who had admitted the affair to

police, would have refused to testify or would have

committed perjury. (Pet.App. 37-41)

¢

REASONS FOR DENYING THE WRIT

I. THE SIXTH CIRCUIT’S DECISION DOES

NOT CONFLICT WITH PRIOR DECISIONS

OF THIS COURT.

Petitioner contends that the Sixth Circuit's

decision is at odds with this Court’s “materiality” test

for Brady violations as expressed in Cone v. Bell, 129

S.Ct. 1769 (2009), United States v. Bagley, 473 U.S.

667 (1985), and Kyles v. Whitley, 514 U.S. 419 (1995),

in that it failed to examine the existing record and

the impact of suppression on that record. She also

argues that the lower court’s application of the

principle that “Brady does not apply when the infor-

mation is available from another source” constitutes

an unprecedented and indefensible curtailment of

Brady and its progeny. Neither assertion is correct.

21

The opinion below reflects that the court applied this

Court’s materiality test in a way that is consistent

with Cone, Bagley, and Kyles. Furthermore, the

principle that Brady does not apply to information

that is not wholly within the control of the

prosecution and is not violated where a defendant

knew or should have known the essential facts

permitting him to take advantage of any exculpatory

information or where the evidence is available from

another source is neither novel nor inconsistent with

Brady. Indeed, this principle is a logical corollary to

the rule of Brady and its progeny and is entirely

consistent with the OCourt’s test for Brady

“materiality.”

A. The Sixth Circuit’s opinion demon-

strates that the court performed this

Court’s “materiality” test in analyzing

petitioner’s Brady claim.

In Brady, the Court held that “the suppression 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.” 373 U.S. at

87. To prevail on a Brady claim, a petitioner must

show that the evidence (1) was favorable either

because it was exculpatory or because it was im-

peaching; (2) was suppressed by the prosecution; and

(3) was material because prejudice ensued. Strickler

v. Greene, 527 U.S. 263, 281-82 (1999). Evidence is

material when “there is a reasonable probability that,

22

had the evidence been disclosed to the defense, the

result of the proceeding would have been different.”

Kyles, 514 U.S. at 433 (quoting Bagley, 473 U.S.

at 682) (internal quotation marks and citations

omitted). “In other words, favorabie evidence is

subject to constitutionally mandated disclosure when

it ‘could reasonably be taken to put the whole case in

such a different light as to undermine confidence in

the verdict.’” Cone, 129 S.Ct. at 1783 (quoting Kyles,

514 U.S. at 435).

Contrary to petitioner’s contention, the Sixth

Circuit performed this calculus in evaluating peti-

tioner’s Brady claim. The court reviewed the state

trial evidence, including the sentencing hearing.

(Pet.App. 3-5) The court also reviewed the evidence

offered in support of the Brady claim at the state

post-cunviction proceeding. (Jd. 35-39) The court

correctly stated the applicable test:

Brady v. Maryland, 373 U.S. 83, 83 S.Ct.

1194, 10 L.Ed.2d 215 (1963), obligates the

government to turn over evidence that is

both favorable to the accused and material

to guilt or punishment. “There are three

components of a true Brady violation: the

evidence at issue must be favorable to the

accused, either because it is exculpatory, or

because it is impeaching; that evidence must

have been suppressed by the State, either

willfully or inadvertently; and prejudice

must have ensued.” Strickler v. Greene, 527

U.S. 263, 281-82, 119 S.Ct. 1936, 144

L.Ed.2d 286 (1999). Prejudice in the Brady

23

sense means the same as in the Strickland

sense: a reasonable probability that there

would have been a different result had the

evidence been disclosed. Kyles v. Whitley, 514

U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d

490 (1995).

(Id. 33-34) After thoroughly analyzing the evidence,

the court applied the test, concluding that “the

district court correctly denied habeas based on a

finding of no prejudice” (id. 33), and stated that “we

. reject [Owens’] [Brady] claim on the ground that

she suffered no prejudice.” (Jd. 37) Owens’ contention

that the court of appeals eschewed an examination of

the existing record and the impact of suppression on

that record is simply mistaken.

B. The Sixth Circuit’s resolution of the

Brady claim is not inconsistent with

Brady and its progeny.

The Sixth Circuit observed that critical to the

Brady analysis is the rule that

Brady obviously does not apply to infor-

mation that is not wholly within the control

of the prosecution. There is no Brady

violation where a defendant knew or should

have known the essential facts permitting

him to take advantage of any exculpatory

information, or where the evidence is

available ... from another source, because in

such cases there is really nothing for the

government to disclose.

24

(Pet.App. 34 (quoting Coe v. Bell, 161 F.3d 320, 344

(6th Cir. 1998) (internal citations and quotations

omitted)). Petitioner contends that this rule is an

unprecedented and indefensible curtailment of Brady.

But that is not so.

First, the rule is a logical corollary of Brady’s

holding that “the suppression of evidence favorable to

an accused upon request violates due process where

the evidence is material either to guilt or to punish-

ment.” Following Brady, this Court made it clear that

the prosecution is “under no duty to report sua sponte

to the defendant all that they learn about the case

and about their witnesses.” United States v. Agurs,

427 U.S. 97, 109 (1976) (quoting In re Imbler, 60

Cal.2d 554, 569 (1963)); see also Moore v. Illinois, 408

U.S. 786, 795 (1972) (“We know of no constitutional

requirement that the prosecution make a complete

and detailed accounting to the defense of all police

investigatory work on a case.”). Indeed, the Court

remarked that “[t]he mere possibility that an item of

undisclosed information might have helped the

defense, or might have affected the outcome of the

trial, does not establish ‘materiality’ in the constitu-

tional issue.” Agurs, 427 U.S. at 109-10. Suggesting

that “materiality” must take into account what is

known by the defense, the Court quoted with

approval Justice Fortas’s opinion concurring in the

judgment in Giles v. Maryland, 386 U.S. 66 (1967), in

which he stated that convictions should not be

reversed under Brady

25

on the ground that information merely

repetitious, cumulative, or embellishing of

facts otherwise known to the defense or

presented to the court, or without impor-

tance to the defense for purposes of the

preparation of the case or for trial was not

disclosed to defense counsel.

Agurs, 427 U.S. at 109 n.16 (quoting Giles, 386 U.S.

at 98 (Fortas, J., concurring)) (emphasis added). As

Justice White, also concurring in the judgment in

Giles, observed: “In the end, any allegation of

suppression boils down to an assessment of what the

State knows at trial in comparison to the knowledge

held by the defense.” Giles, 386 U.S. at 96 (White, J.,

concurring) (emphasis added). Thus, a rule that

Brady does not apply to information that is not

wholly within the control of the prosecution is

logically consistent with Brady.

Moreover, the rule is not novel. Both federal

and state courts have routinely applied this Brady

corollary. See, e.g., United States v. Erickson, 561 F.3d

1150, 1163 (10th Cir. 2009) (“[D]efendant is not

denied due process by the government’s nondisclosure

of evidence if the defendant knew of the evidence

anyway.”); Tate v. Wood, 963 F.2d 20, 25 (2d Cir. 1992)

(Brady does not require disclosure if “‘the defendant

knew or should have known the essential facts

permitting him to take advantage of any exculpatory

evidence.’”) (quoting United States v. Gaggi, 811 F.2d

47, 59 (2d Cir.), cert. denied, 482 U.S. 929 (1987));

United States v. Clark, 928 F.2d 733, 735 (6th Cir.),

26

cert. denied, 502 U.S. 846 (1991) (same) (quoting

United States v. Grossman, 848 F.2d 78, 85 (2d Cir.

1988), cert. denied, 488 U.S. 1040 (1989)); United

States v. Wilson, 901 F.2d 378, 380 (4th Cir. 1990)

(“{T]he Brady rule does not apply if the evidence in

question is available to the defendant from other

sources.’”) (quoting United States v. Davis, 787 F.2d

1501, 1505 (11th Cir.), cert. denied, 479 U.S. 852

(1986)); United States v. Newman, 849 F.2d 156, 161

(5th Cir. 1988) (“‘The government is not obligsted to

furnish a defendant with information he already has

or can obtain with reasonable diligence.’”) (quoting

United States v. Prior, 546 F.2d 1254, 1259 (5th Cir.

1977)); Lugo v. Munoz, 682 F.2d 7, 9-10 (1st Cir. 1982)

(no Brady violation where the information at issue

was “available to the defense attorney through

diligent discovery”); Cornwell v. State, 430 N.W.2d

384, 385 (Iowa 1988) (“Exculpatory evidence is not

‘suppressed’ if the defendant either knew or should

have known of the essential facts permitting him to

take advantage of the evidence.”) (citing United

States v. LeRoy, 687 F.2d 610, 618 (2d Cir. 1982));

State v. Hobley, 752 So.2d 771, 785-86 (La. 1999), cert.

denied, 531 U.S. 839 (2000) (no. Brady violation for

suppression of mental health clinic records “[b]ecause

defendant would have had knowledge of the treat-

ment he received at the mental health clinic”); State

vu. Bisner, 37 P.3d 1073, 1083 (Utah 2001) (failure to

disclose potentially exculpatory information not

Brady violation where defendant knew or should

have known the essential facts permitting him to

take advantage of exculpatory information).

27

Finally, the rule is consistent with the Court’s

test for “materiality” in the Brady analysis — a

reasonable probability that there would have been a

different result had the evidence been disclosed. As

the Sixth Circuit observed:

This rule makeg sense ‘ecause if the

defendant could have presented similar

evidence to prove the same point that the

allegedly-suppressed information would have

been introduced to prove. but did not, it is

not reasonably probable that government

disclosure would have led to a different

result.

(Pet.App. 34)

II. THE DECISION BELOW IS CORRECT.

Petitioner contends that the undisclosed evidence

“as “material” under Brady for purposes of sen-

tencing because the defense could have used the

evidence to show that, rather than being -notivated

by the insurance proceeds to have her husband killed,

she was “a classic, jealous, long-suffering wife

betrayed and humiliated by her husband.” (Pet.18-19)

But this argument is fatally flawed. Petitioner never

saw the cards and notes. Therefore, as the district

court concluded, “aspects of her husband's affair that

she did not know about cannot be said to have

affected her state of mind and are therefore not

probative of her contention that her husband’s affair

drove her to precipitate his murder.” (C.A.J.App. 981

n.5) The only relevance of the cards and notes would

28

have been to corroborate the existence of her

husband’s affair with Gala Scott. But petitioner knew

that her husband was having an affair with Scott:

¢ Petitioner acknowledges that “through-

out the marriage ... , Mr. Owens had

affairs with other women, including

Carolyn Nobles and Gala _ Scott.”

(C.A.J.App. 24)

¢ Petitioner learned of the affair with Gala

Scott “when she received a letter made

up of words cut out of a magazine

stating that everyone but Ms. Owens

knew that Mr. Owens was having an

affair with Ms. Scott[.]” (C.A.J.App. 24)

¢ In December 1984, two months before

the murder, petitioner discovered her

husband together with Gala Scott in a

parking lot and confronted them.

(C.A.J.App. 561-62) It was this incident

that precipitated her determination to

kill her husband (/d. 563)

¢ Prior to trial, petitioner informed her

attorneys of the affair, as demonstrated

by her attorneys’ request of the prosecu-

tion for evidence that Mr. Owens “had

numerous girl friends, extra marital

sexual affairs possibly involving unusual

sexual proclivities and/or perversions

and that these proclivities, perversions,

and affairs were flaunted and visited

upon the defendant with such regularity

and in such ways as to contribute to her

29

state of mind and mental condition... .”

(C.A.J.App. 101-02)

Thus, petitioner and her attorneys had knowledge of

the essential facts surrounding the victim’s infidelity,

and if Owens wanted to present evidence of the affair,

she could have testified, produced the anonymous

letter, or subpoenaed Gala Scott.’ Owens had as much

access to the relevant witnesses as the police did and,

therefore, the information was not under the sole

control of the gevernment. Cf. Brady, 373 U.S. at 84

(accomplice’s confession unknown to defense and in

sole possession of police); Kyles, 514 U.S. at 428-29

(items in government’s sole possession); Strickler, 527

U.S. at 285 (existence of record of prosecution

witness’s interviews with police and notes from

_ witness to police unknown to defense counsel and

notes undiscoverable from witness because she

refused to speak to defense counsel before trial).

Moreover, the documentary evidence, corroborative of

what was already known, would have been merely

cumulative. Owens knew or should have known the

essential facts permitting her to take advantage of

any exculpatory information, and the evidence she

wanted was clearly available from another source.

* There is no evidence in the record from which to conclude

that Scott would have refused to testify or would have

committed perjury. Scott acknowledged the affair to the police.

As the Sixth Circuit observed, this “suggests that she was not

taking a position of outright denial.” (Pet.App. 39) There is no

evidence in the record that petitioner ever tried to contact Scott

before or during the litigation.

30

Petitioner contends that any assertion that she

could have testified, that she could have produced

the anonymous letter, or that she could have

subpoenaed Scott has “no grounding in the reality

of criminal trials” because the Fifth Amendment

protects criminal defendants from being forced to

testify, and her own testimony, evidence of the letter,

or Scott’s testimony would pale in comparison to the

sexually explicit cards and notes.’ (Pet.23-24) These

arguments are insubstantial. True enough, the Fifth

Amendment protects defendants from compelled self-

incrimination. But any decision by Owens to testify

at the sentencing phase would not be a _ product

of government compulsion, but instead a strategic

choice to present mitigating evidence — a choice

criminal defendants are often called upon to make.

And petitioner’s argument about the relative impact

of the cards and notes on her mental state ignores a

basic fact: because petitioner had not seen the cards

and notes, they could not have been relevant to her

mental state. They were only relevant to corroborate

the existence of the affair, about which she already

knew. The district court and the Sixth Circuit were

clearly correct in concluding that the state court’s

* The best evidence of the contents of these cards and notes

would be the items themselves, but they were not introduced at

the state post-conviction proceeding. Other than Chief Wray’s

recollection that they were romantic and “explicitly sexual” in

nature and contained references to “pet names” for the victim

and Scott (C.AJ.App. 412-13), their exact contents are

unknown.

31

determination that the documentary evidence was

not “material” was not an unreasonable application of

Brady.

Furthermore, although not a basis for the court

of appeals’ rejection of petitioner’s Brady claim, the

decision below is correct for the additional reason

that the documentary evidence was not “favorable,”

i.e., exculpatory or impeaching. If admitted as

mitigating proof at petitioner’s sentencing hearing,

the evidence likely would have been as equally

damaging as beneficial to petitioner. This murder

was not a heat-of-passion crime, where evidence of

marital infidelity might suggest to some jurors a less

blameworthy defendant, but instead a calculated,

cold-blooded murder for hire, premeditated over the

course of several months. Trial counsel, who would

have faced the decision whether to use the cards and

notes at trial, acknowledged that the admission of the

evidence would have demonstrated a strong motive

for the murder and might have had the effect of

hardening the jury’s feeling toward the petitioner at

the sentencing hearing:

Q. Mr. Marty, going back to an earlier

question concerning, for instance, the report

by K. D. Wray concerning the verification of

an affair, sexual affair with Ron Owens, do

you think that would have been important

knowledge for you to have in this case?

A. It may or may not have been. It may

have given her a motive to kill him.

32

Q. Do you think it might have been useful

in sentencing, perhaps, to give the jury a

reason not to kill her?

A. It may have given them a stronger

reason to kill her.

(C.A.J.App. 391) Nor was the evidence particularly

relevant because, as the district court observed,

“aspects of her husband’s affair that she did not know

about cannot be said to have affected her state of

mind and are therefore not probative of her

contention that her hushand’s affair drove her to

precipitate the murder.” (C.A.J.App. 981 n.5) With

the exact contents of the cards and notes unknown

and their utility substantially offset by the likely

negative consequences of their admission, petitioner

did not sustain her burden under Brady of demon-

strating that the evidence was “favorable.” See, e.g.,

Edwards v. Ayers, 542 F.3d 759, 771-72 (9th Cir.

2008) (finding no Brady error where suppressed

evidence was more damaging than helpful and “would

not have been favorable to the defense”); Luton v.

Grandison, 44 F.3d 626, 629 (8th Cir. 1994) (finding

suppression of statement was not Brady error where,

“(tlaken as a whole, the ... statement is clearly not

favorable to the appellant, and was, in fact, quite

damaging to her”). Therefore, regardless of the

correctness of the Sixth Circuit's materiality analysis,

the decision below is correct because the state courts’

conclusion that the documentary evidence was not

——

33

“favorable” was not an unreasonable application of

Brady.

*

CONCLUSION

The petition for writ of certiorari should be

denied.

Respectfully submitted,

ROBERT E. Cooper, JR.

Attorney General & Reporter

State of Tennessee

MICHAEL E. MOORE

Solicitor General

GORDON W. SMITH

Associate Solicitor General

Counsel of Record

425 Fifth Avenue North

Nashville, Tennessee 37243

(615) 741-4150

Counsel for Respondent