STATE v. WARNER (2023)

Writ application denied.

Defendant was found guilty as charged of aggravated rape and aggravated kidnapping in 2011. Although the crimes occurred in 1990, defendant was not identified as the perpetrator until a DNA match was discovered more than 20 years later. The State did not disclose the identity of the victim before trial; she was identified only by her initials and her birthdate. This lack of disclosure later formed the basis of defendant's application for post-conviction relief, in which he presented claims under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The district court granted relief because it found that the State's withholding of the victim's name, and counsel's failure to take adequate steps to seek that information early enough, hamstrung the defense theory at trial that defendant and the victim had an ongoing consensual sexual relationship.

The materiality standard under Brady v. Maryland is identical to the prejudice standard under Strickland v. Washington, see Johnson v. Scott, 68 F.3d 106, 109–10 (5th Cir. 1995),¹ and they present considerable obstacles here. In the post-conviction evidentiary proceedings, defendant has presented little additional evidence to support his consent defense theory that was not already presented to the jury. Furthermore, although defendant obtained an affidavit from the victim herself, the weight of this evidence is diminished because the victim refused to testify in the post-conviction proceedings, and the district court refused to admit the affidavit into evidence or consider it. Furthermore, there are indicia that the affidavit was obtained in exchange for financial assistance to the victim, which possibility could not be adequately explored because the victim would not testify.

Regardless, defendant's argument with regard to prejudice/materiality based on the victim's affidavit presumes the victim would have provided a comparable affidavit pretrial, and then presumably testified differently at trial than she did or be subject to impeachment.² However, the victim could have refused to meet with the defense team, just as she refused to testify at the post-conviction evidentiary hearing. See R.S. 46:1844(C)(3) (“The victim and the victim's family may refuse any requests for interviews with the attorney for the defendant or any employee or agent working for the attorney for the defendant.”). Nowhere in the victim's affidavit does she state that, had the defense contacted her prior to trial, she would have been responsive to an interview, much less that she would have testified differently at trial. Furthermore, without the victim's affidavit, which must be viewed with some skepticism for the reasons above, none of the remaining evidence offered by defendant corroborates the consent defense or contradicts the fact that the victim could not see her attacker well enough to identify him, regardless of whether he was familiar to her otherwise.

Under these circumstances, I find that the trial court's decision that defendant proved his ineffective assistance claim under Strickland’s two-pronged standard merits careful scrutiny. Therefore, I would grant the State's application for full briefing, oral argument, and further consideration.

FOOTNOTES

1.   Implicit in the requirement of materiality under Brady “is a concern that the suppressed evidence might have affected the outcome of the trial.” United States v. Bagley, 473 U.S. 667, 675, 105 S.Ct. 3375, 3379, 87 L.Ed.2d 481 (1985). Under the prejudice prong of Strickland, defendant must show that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. A “reasonable probability” is “a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 693–94, 104 S.Ct. at 2068.

2.   The victim's trial testimony was clear. She was unable to identify defendant as the man who raped her because it was dark; she was distracted by her attacker pointing a gun at her head; her 18-month-old son was with her for the duration of the attack; and, she was worried about her son's safety because her attacker kept pushing him over the seat of the car as he cried and tried to reach her while she was being assaulted. Although she has now produced an affidavit in which she asserts her attacker was someone she did not know and she did know defendant in 1990, courts view recantations with the “utmost suspicion.” State v. Clayton, 427 So.2d 827, 833 (La. 1982); see also State v. Prudholm, 446 So.2d 729, 736 (La. 1984).

Crichton, J., would grant and docket and assigns reasons. Crain, J., would grant. McCallum, J., would grant.