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Goudy v. Cummings

United States Court of Appeals, Seventh Circuit

May 1, 2019

Walter Goudy, Plaintiff-Appellant,
Rodney J. Cummings, et al., Defendants-Appellees.

          Argued October 30, 2018

          Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. l:12-cv-00161-SEB-TAB - Sarah Evans Barker, Judge.

          Before Wood, Chief Judge, and Sykes and Barrett, Circuit Judges.

          WOOD, CHIEF JUDGE.

         In 1963 the Supreme Court announced that the prosecution team has a duty under the Due Process Clause of the Fourteenth Amendment to turn over material, exculpatory evidence to criminal defendants. Brady v. Maryland, 373 U.S. 83 (1963); see also Kyles v. Whitley, 514 U.S. 419 (1995); United States v. Bagley, 473 U.S. 667 (1985). Walter Goudy contends in this case that the state and local officials who pursued him for a 1993 murder failed to comply with their Brady obligations, and that he is entitled to damages under 42 U.S.C. § 1983 for the years he spent in prison. That request was based on his success in an earlier round of litigation, which culminated with this court's ruling that Goudy was entitled to a writ of habeas corpus under 28 U.S.C. § 2254. Goudy v. Basinger, 604 F.3d 394 (7th Cir. 2010) (Goudy I). The state elected not to re-try him; he was released; and 17 months later he filed this suit.

         The district court winnowed the section 1983 action down to three allegations that the investigators in the case violated his due process rights, by (1) subjecting him to an improper show-up procedure, (2) withholding a videotape showing a line-up in which several witnesses identified a different person as the shooter, and (3) withholding interview notes showing that the other suspect initially had denied any involvement in the murder, but later switched his story. The court granted summary judgment for the defendants on all aspects of the case. We conclude that this was premature: Goudy presented enough evidence on the second and third arguments to move forward. We therefore reverse and remand for further proceedings.


         We can be brief about the underlying incident, which was described by both the Indiana Supreme Court, in Goudy v. State, 689 N.E.2d 686 (Ind. 1997), and by this court in our 2010 opinion. On October 3, 1993, two men fired shots into a car occupied by several people, including Marvin McCloud and Damon Nunn. The shooters killed McCloud, who had been driving, and seriously injured Nunn. A number of people witnessed these events, including Jill Barclay, Jackie Barclay (Jill's sister), LaTonya Young, and Kaidi Harvell.

         Police from Anderson, Indiana, where the shooting had taken place, picked up Goudy at the Oasis Club on February 5, 1994, after they received an anonymous tip that one of the shooters was there. One of the defendants, Detective Rodney Cummings, contacted Jill Barclay and asked her to come to the police station to make an identification. When she arrived at the station, Detective Steve Napier, Cummings's partner and the other defendant here, told her that they were going to show her a suspect in the shooting. Cummings then brought Jill into a room with a one-way mirror and showed her Goudy; she identified him as one of the shooters. She then talked to Jackie and told him that the shooter she saw looked like one of their acquaintances.

         Our focus, however, is on evidence that the jury never heard, because the state never disclosed it to Goudy. First, the state had three police reports that contained pertinent information. We discussed these reports in our 2010 opinion:

The first report describes a phone call to police from Jill Barclay in which she said she saw one of the gunmen at an Indianapolis mall. She stated that she thought he kept looking at her "over his shoulder" and that she later saw him outside "attempting to look at her license plate." She later identified this man as [Kaidi] Harvell and said she was positive he was one of the gunmen.

604 F.3d at 397. The first police report also included information about a photo spread that Jill Barclay, Jackie Barclay (Jill's sister), and LaTonya Young viewed. Jackie and LaTonya saw the shooting from across the street. All three women "'positively and without hesitation' identified Harvell as the gunman on the driver's side of McCloud's car, and said he wore brown clothing." Id.

         In addition to the photo lineup, there was an in-person lineup viewed by Nunn, Jill and Jackie Barclay, as well as another witness, Donzerta Clay (who did not testify at trial). Once again, the results favored Goudy: "Clay and the Barclay sisters identified Harvell; Nunn identified a non-suspect as the shooter." Id. Moreover, Goudy's own counsel failed to introduce a video confession by Goudy's lookalike half-brother, Romeo Lee. In that video, Lee identified himself and Harvell as the two shooters.

         As we noted, after his conviction for murdering McCloud and attempting to murder Nunn, Goudy sought postconviction relief. He argued throughout these proceedings that the state's failure to comply with Brady had deprived him of a fair trial and that he had received ineffective assistance of counsel in violation of Strickland v. Washington, 466 U.S. 668 (1984).

         Goudy was unsuccessful in the state courts, but in Goudy I we found that the suppressed evidence was both favorable to Goudy's defense and material. Accordingly, we found that Goudy was entitled to a writ of habeas corpus. Goudy I, 604 F.3d at 401. We found it unnecessary to rule on Goudy's Strickland claim. Id. at 401-02.

         Goudy is now suing two of the investigators on the case, Rodney Cummings and Steve Napier, for depriving him of due process in violation of the Fourteenth Amendment. See U.S. Const, amend. XIV; 42 U.S.C. §1983. Although Cummings wore two hats-that of an investigator and later that of the County Prosecutor -our focus is on his investigatory work. The same is true of Napier. (We refer to them collectively as the investigators, unless the context requires otherwise.)

         In general, Goudy's new case asserts the same due-process theory that formed the basis of the decision to issue the writ in Goudy I: that he was deprived of a fair trial in violation of his constitutional rights, as outlined in the Brady line of cases. But the conduct for which he seeks to hold the investigators liable is different from the actions and omissions at issue in Goudy I. The issue in Goudy I involved material exculpatory evidence that was not turned over to the defense, but that was given to the prosecutors trying the case. Police officers generally discharge their Brady obligations by turning over such evidence to the prosecutors, who in turn have a duty to disclose the evidence to the defense. Beaman v. Freesmeyer, 776 F.3d 500, 512 (7th Cir. 2015). (Notably, "the [Brady] rule encompasses evidence known only to police investigators and not to the prosecutor." Strickler v. Greene, 527 U.S. 263, 280-81 (1999) (cleaned up).) Cummings and Napier thus cannot be held liable in their capacity as investigators for the failure of the trial prosecutors to turn over the specific police reports at issue in Goudy I.

         But the three allegations that form the basis of Goudy's section 1983 action are new. We focus on two of the three identified by the district court. The first is Goudy's assertion that Cummings withheld a videotape of the lineup in which multiple witnesses identified Harvell as a shooter and Nunn identified a non-suspect. The second is his allegation that the investigators both withheld interview notes-newly discovered in the course of this litigation-demonstrating that Harvell initially denied being at the scene at all, contradicting his trial testimony. Together, we refer to these arguments as the Brady allegations. We do not reach Goudy's third theory, which is that the ...

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