Before Terry and Ruiz, Associate Judges, and King, Senior Judge.
The opinion of the court was delivered by: King, Senior Judge
Appeals from the Superior Court of the District of Columbia Hon. Henry H. Kennedy, Jr., Trial Judge
Opinion for the court by Senior Judge King.
Dissenting opinion by Associate Judge Ruiz at p.15.
This case is before us for the second time, following remand of the record to the trial court. In 1992, Farley was convicted by a jury of various drug trafficking and weapons charges, as well as assault with a dangerous weapon. *fn2 Before trial, the trial court denied Farley's motion to compel discovery of some statements made to the police by Dennis Miles, a civilian witness.
Farley noted a direct appeal, and he also appealed the trial court's denial of his motion under D.C. Code § 23-110 alleging ineffectiveness of counsel. Dennis Miles was a witness at the hearing on the § 23-110 motion, and during his testimony he referred to a complaint he had filed with the Civilian Complaint Review Board ("CCRB") regarding the conduct of some of the police officers who participated in the effort to arrest Farley shortly after the offenses were committed. On appeal, Farley contended that the statements to the police and the CCRB complaint were Brady *fn3 material which had been impermissibly withheld. Appellant had not raised the Brady claim with respect to the CCRB complaint before the trial court and, thus, the trial court never had an opportunity to consider that claim.
When the case was first before us, we rejected all of Farley's contentions except for the Brady claim and remanded the record for further proceedings. See Farley v. United States, 694 A.2d 887 (D.C. 1997) (hereinafter "Farley I"). In remanding, we observed:
Unfortunately, the record was not sufficiently developed during the § 23-110 hearing to provide a sound basis for our evaluation of the government's obligation to disclose the CCRB complaint under Brady, the impact of the CCRB complaint on the lack of documentation on Miles' statements to the police, or the materiality of the undisclosed information in relation to other evidence adduced at trial. Therefore, we remand the record to the trial court for a hearing and determination of whether Miles' complaint to the CCRB was Brady material and, if so, whether had it been disclosed to the defense, there is a possibility that the result of the trial would have been undermined. Id. at 890.
On remand, the trial judge conducted a hearing and, in a comprehensive Memorandum on Remand, ruled that the CCRB complaint should have been provided to Farley under the Brady doctrine. However, the trial judge concluded, quoting Kyles v. Whitley, 514 U.S. 419, 441 (1995), that "disclosure of the suppressed evidence to competent counsel would [not] have made a different result reasonably probable." The case is now back before us on the Brady issue. We affirm. *fn4
While there is a serious question in our mind whether the existence of Dennis Miles' complaint to the CCRB was sufficiently known to the government at the time of trial to trigger a disclosure obligation on its part pursuant to Brady, we will assume for the sake of argument that the information should have been made known to the defense. *fn5 Nonetheless, we hold that the trial court did not err in concluding that disclosure of the material in question "would [not] have made a different result reasonably probable." Kyles, supra, 514 U.S. at 441.
The facts relevant to the Brady issue are summarized in our first opinion. See Farley I, supra, 694 A.2d at 888. The substance of Miles' complaint was that he was mistreated by some police officers after they entered his apartment in pursuit of a drug seller who had assaulted an undercover police officer with a pistol. It is conceded that the only potential use of the undisclosed material would have been for impeachment to show possible bias on the part of the officers who testified at trial. Farley maintains that the identifying officers, even though they were not the subject of the complaint to the CCRB, would have been motivated to tailor their testimony in order to produce a perpetrator (presumably anyone would do) in order to justify the police action with respect to Miles. This argument is made even though there has been no showing that the officers knew, when they testified, that the complaint had been made against the other officers. In assessing the impact this material would have had on the outcome of the trial, had it been available, the trial judge observed:
While constituting Brady material, the disclosure of this material "would [not] have made a different result reasonably probable." Kyles v. Whitely [sic], 514 U.S. 419, 441 (1995). First, the undersigned, who was on "the spot," is completely confident that whatever bias that might have been shown, on the part of the police in general or the identifying witnesses in particular, such bias would not have undermined the force of the police officers' identifications and the strong corroborating evidence provided by the items identifying Farley found in the coat worn by the fleeing suspect. Second, in his tape recorded interview, Miles stated that when he first saw the coat, it was being carried out of his kitchen. While not completely consistent with the testimony of police officers, it undercuts Miles' statements in his CCRB complaint that the coat was brought into his apartment from the outside and is fully consistent with the government's over-all theory of the case. In this court's judgment, there is no reason to lack confidence in the outcome of Farley's trial. (alteration in original) (emphasis added).
In so ruling, the trial judge applied the proper standards in his analysis.
The controlling cases are clear on that point. For example, we have said that when Brady information has not been timely disclosed, reversal "is warranted only where there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different." Edelen v. United States, 627 A.2d 968, 971 (D.C. 1993) (emphasis added). Further, a "`reasonable probability' of a different result is . . . shown when the government's evidentiary suppression `undermines confidence in the outcome of the trial.'" Kyles, supra, 514 U.S. at 434 (quoting United States v. Bagley, 473 U.S. 667, 678 (1985)). As the italicized passages in the trial judge's ruling quoted above make clear, the judge was fully aware of the controlling standards.
Nor is it accurate to say that the trial judge applied a sufficiency of the evidence standard. Rather, fully cognizant of the evidence that had been presented at trial from his perch on "the spot" and being aware of the effect of that evidence on the jury, the trial judge made the judgment that there was "no reason to lack confidence in the outcome" of the trial because the undisclosed material would have had an insignificant impact. A witness's demeanor, the certainty or uncertainty of an identification by a witness, or the physical characteristics of the trial participants which a jury or a judge observes without remark, are all factors that the trial judge who was "on the spot" absorbs and takes into account when judging whether the outcome of the trial was compromised by the absence of certain evidence.
Under our case law, our review of the ruling of the trial court on this issue "is limited to a determination of whether that decision was reasonable." Davies v. United States, 476 A.2d 658, 661 (D.C. 1984). *fn6
There is a question, however, as pointed out by Judge Ruiz, whether the standard set forth in Davies, and its progeny, is the correct standard to be followed by a reviewing court considering the effect of withheld evidence on the outcome of a trial. As Judge Ruiz observes, since Brady was decided, the Supreme Court, without expressly holding what standard should govern, has in some cases conducted an independent review of the evidence, giving little, if any, deference to the trial court's assessment. *fn7 The question of which standard to apply was not addressed by the parties in their supplemental briefs - indeed, to the extent the standard was discussed at all, it was assumed that the standard was the one set forth in our cases, i.e., our review "is limited to a determination of whether that decision was reasonable . . . An independent review is precluded." Davies, supra, 476 A.2d at 661. We will not attempt to resolve that issue in this appeal, *fn8 however, because we are satisfied that under either standard the withheld material "would [not] have made a different result reasonably probable." Kyles, supra, 514 U.S. at 441.
At bottom, this case is an identification case which, because of the vagaries of that kind of proof, should always give us pause when assessing the impact of evidence that the jury should have heard, but did not. But even when we subject what was presented here, and what was not presented, to the most rigorous scrutiny, we arrive at the same ...