McCue v. City of Rochester, et al. CV-94-480-M 05/13/97 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Richard G. McCue

v. Civil No. 94-480-M

City of Rochester, New Hampshire; Chief of Police Kenneth P. Hussey; Police Officer Paul J. Moore; and Does 1-3

O R D E R

Plaintiff's civil rights action has been considerably

narrowed by the court's order of September 18, 1996, granting

defendants' motion for summary judgment on most of McCue's

federal claims. McCue's claim that Officer Moore, and other

unidentified police officers, withheld exculpatory information

from him in violation of his constitutional rights, see Bradv v.

Maryland,

(1963), survived. In denying summary

judgment as to the Bradv claim, the court noted that the parties

had not addressed the Bradv materiality reguirement articulated

in Kyles v. Whitley, 115 S. C t . 1555 (1995). Defendants now move

for summary judgment on grounds that the allegedly withheld

evidence was not material to McCue's defense.

DISCUSSION Summary judgment is appropriate if the "pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to judgment as a matter of law." Fed. R. Civ. P.

56(c). The moving party first must show the absence of a genuine

issue of material fact for trial. Anderson v. Liberty Lobby,

Inc.,

(1986). If that burden is met, the

opposing party can avoid summary judgment on issues that it must

prove at trial only by providing properly supported evidence of

disputed material facts that would reguire trial. Celotex Corp.

v. Catrett,

(1986).

The court interprets the record in the light most favorable

to the nonmoving party, the plaintiff in this case, and resolves

all inferences in his favor. McIntosh v. Antonino,

(1st Cir. 1995). Nevertheless, the plaintiff is obligated to

support his claim with "more than steamy rhetoric and bare

conclusions." Lawton v. State Mutual Life Assurance Co. of

America,

(1st Cir. 1996). The plaintiff

establishes a genuine factual dispute if "the evidence about the

fact is such that a reasonable jury could resolve the point in

the favor of the non-moving party" and a material fact is one

that has "the potential to affect the outcome of the suit under

2 applicable law." Sanchez v. Alvarado,

(1st

Cir. 1996) (internal quotations omitted). Accordingly, summary

judgment will be granted only if the record shows no trialworthy

factual issue and the moving party, the defendant here, is

entitled to judgment as a matter of law. EEOC v. Green,

(1st Cir. 1996).

Richard McCue was convicted on December 8, 1988, of first

degree murder for killing Arlene Courchesne on October 18, 1987.

His conviction was affirmed in April 1991. See State v. McCue,

(1991). At trial, McCue's defense focused on

pointing to other suspects, including Russell Healy, as the

likely murderers. Healy testified at McCue's trial and denied

any involvement in Courchesne's murder.

Following his conviction, McCue moved for a new trial based

on newly discovered exculpatory evidence allegedly implicating

Healy. McCue had obtained a statement from Elizabeth Grant in

September of 1991 in which she said that Healy told her within

weeks of Courchesne's death that "He [Healy] was three to four

hundred dollars in the hole to [Courchesne]" and "we don't have

to worry about [Courchesne] because I took care of her." Grant

also stated that she contacted the Rochester police a few weeks

later, before McCue's trial, and told Officer Moore about Healy's

statements. Healy died in November of 1991.

3 While that motion for a new trial was pending, McCue filed a

second motion for new trial on grounds of juror misconduct, which

was granted. Prior to the second trial, the state moved to

exclude Grant's anticipated testimony about Healy's alleged

implicit confession1 of involvement in Courchesne's death. Both

Grant and Officer Moore testified at a hearing on the motion,

each contradicting the other about Grant's having told the

Rochester police of Healy's alleged "confession." The state

trial judge ruled that testimony by Grant about Healy's alleged

statements to her would be inadmissible hearsay, and did not

allow it. Nevertheless, McCue's second trial in February 1993

resulted in his acguittal on all charges.

In the pending motion for summary judgment, defendants

contend that because Grant's statements about Healy's

"confession" were not material to McCue's defense and, therefore,

even if it is assumed that Grant told Officer Moore about Healy's

"confession," the information was not withheld in violation of

1 Although McCue refers to Healy's alleged statement to Grant as a "confession," the statement is open to a variety of interpretations, not all of which necessarily imply Healy's complicity in Courchesne's death. Taking the facts in the light most favorable to McCue, as is necessary for purposes of this motion, the court accepts the statement as an implicit confession.

4 McCue's federal due process rights.2 See Bradv,

.

Withheld exculpatory evidence is material, in the context of a

Bradv claim, "'if there is a reasonable probability that, had the

evidence been disclosed to the defense, the result of the

proceeding would have been different.'"

Kyles, 115 S. C t . at 1565 (guoting United States v. Bagiev,

(1985) (opinion of Blackmun, J.)). Kyles

describes "reasonable probability" in light of four principles.

First, "reasonable probability" does not reguire a showing by a

preponderance of the evidence that the defendant would otherwise

have been acguitted. Kyles, 115 S. C t . at 1566. Second,

materiality is instead determined by whether "the favorable

evidence could reasonably be taken to put the whole case in such

a different light as to undermine confidence in the verdict."

Kyles, 115 S. C t . at 1566. Third, the materiality standard makes

a harmless error analysis redundant.

Fourth, the effect of

withheld evidence is to be evaluated as a whole, or cumulatively,

rather than piece by piece. Id. at 1567.

2 As noted in the September 1996 order, defendants dispute that Grant ever contacted Officer Moore or anyone at the Rochester Police Department about Healy's alleged "confession," and accordingly, argue that no evidence was ever withheld. For purposes of summary judgment, however, defendants proceed as if that factual dispute does not exist.

5 The Supreme Court recently decided that withheld information

is not material under Bradv if it is inadmissible as evidence and

would not otherwise have affected the outcome. Wood v.

Bartholomew, 116 S. C t . 7, 10-11 (1995). Grant's alleged report

of Healy's "confession" is considered in light of the Kyles and

Wood materiality standard.

A. Admissibility

Defendants argue that Healy's alleged confessional

statements to Grant3 were not material because they lacked

reliability and trustworthiness, based on the trial court's

ruling that the statements, as reported by Grant, were

inadmissible hearsay. Although defendants do not expressly raise

the Wood issue regarding materiality of inadmissible evidence, it

may be fairly inferred from the arguments they do make. McCue

contends that the inadmissibility of Healy's alleged statements

to Grant should not affect their materiality in the Bradv

3 To the extent defendants challenge the reliability of Grant's statements (rather than the reliability of Healy's alleged "confession," which was the subject of the trial court's hearsay ruling), they are challenging Grant's story that she in fact reported Healy's "confession" to the Rochester police, or whether Healy in fact made the "confession." Because that argument raises a genuine issue of material fact that would preclude summary judgment, see supra, the court construes defendants' argument to focus on the reliability of Healy's statements to Grant rather than on Grant's own credibility.

6 context. However, the Supreme Court has precluded McCue's policy

argument. See Wood, 116 S. C t . at 10-11. In light of Wood,

therefore. Grant's report of Healy's statements is not material

if it would not have been admissible at McCue's first trial and

would not otherwise have affected the outcome of the trial in

McCue's favor.

In Wood, the Supreme Court considered whether the

prosecution's failure to reveal polygraph examinations of two

witnesses in a criminal case constituted a Bradv violation. The

court held that because polygraph results were inadmissible under

state law, either as direct evidence or for impeachment (absent a

stipulation by the parties), the results were not evidence at

all. Wood, 116 S. C t . at 10. The Court concluded, based on the

facts of the case and the defense strategy, that failure to

disclose the polygraph results had no effect on the trial (mere

speculation that defense counsel might have prepared differently

was insufficient) so that there was no reasonable probability

that the verdict would have been different if the information had

been disclosed. Id. at 11.

In this case, the asserted inadmissibility of Healy's

alleged "confession," as reported by Grant, is based on the state

trial court's hearsay ruling prior to the second trial rather

than on state law precluding any evidentiary use of Grant's

7 statement (like the polygraph results). Even if Wood were deemed

to apply in such circumstances, here the state trial court's

evidentiary ruling before the second trial is not determinative

of the admissibility of Grant's report of Healy's statement in

the context of the first trial, when Healy was alive and

available to testify. Cf. id. at 10; Hoke v. Netherland,

, 1356 n.3 (4th Cir.) (application of state rape shield

law), cert, denied, 117 S. C t . 630 (1996). Accordingly, the

evidentiary ruling from the second trial does not establish the

categorical inadmissibility of the statements at the first trial.

The parties have not addressed the admissibility of Grant's

testimony about Healy's statements in the context of the first

trial. Although it is possible that Grant's testimony about

Healy's statements would have been ruled inadmissible hearsay at

the first trial, it is also at least arguable that the testimony

might have been admissible on other grounds. Withheld evidence

does not have to be directly admissible to implicate Bradv

reguirements, as impeachment evidence is also subject to

disclosure. See Kyles, 115 S. C t . at 1569; Giglio v. United

States,

(1972); see also Brewer v. Marshall,

(D. Mass. 1996); United States v.

Gonzalez,

(D.Del. 1996). In addition,

undisclosed evidence does not have to have a direct effect at trial to be material as long as some nonspeculative effect is

demonstrated. See Wood, 116 S. C t . at 10. Therefore, while

McCue carries the ultimate burden of proving materiality, see

United States v. Marshall,

(1st Cir. 1997),

defendants have not carried their own initial burden on summary

judgment on the Wood issue, that is, showing the absence of a

genuine issue of material fact with regard to whether Grant's

testimony about Healy's statements would have been inadmissible

at the first trial and, if so, would otherwise have been

immaterial.

B. "Reasonable Probability" of a Different Outcome

As the issue of admissibility has not been resolved against

McCue, it must be determined whether timely disclosure of Grant's

report about Healy's statements would have provided a "reasonable

probability" of a different result in the context of the first

trial. At the first trial, the defense theory was that Healy, or

someone other than McCue, murdered Courchesne. Healy testified

and denied any involvement in the murder, and McCue was

convicted. Though speculative on this record, still, some

connection may be presumed since if Healy had confessed, McCue

would likely have been acguitted. McCue offers an affidavit from the attorney who represented

him during both of his state criminal trials. The affidavit

states that if counsel had known of Grant's story before the

first trial, he would have focused McCue's defense on Healy's

"confession," both by calling Grant as a witness and by

guestioning Healy about his statements on cross examination.

Whether Grant's testimony implicating Healy in Courchesne's

murder or, at least, use of that information to impeach Healy's

testimony that he was not involved in the murder, would have

provided a "reasonable probability" of a different result largely

would have depended on the credibility of the witnesses.

Credibility issues about Grant's, Healy's, and other possible

witnesses' statements and testimony must be resolved by a fact­

finder and cannot be decided on summary judgment, at least not on

the record presented here. See Elliott v. Cheshire County, New

Hampshire,

(1st Cir. 1991). Therefore, because it

is apparent that a trialworthy issue remains concerning the

materiality of Grant's statements, defendants are not entitled to

summary judgment.

CONCLUSION

Defendants' motion for summary judgment (document no. 17) is

denied.

10 SO ORDERED.

Steven J. McAuliffe United States District Judqe

May 13, 1997

cc: Andrew L. Isaac, Esq. William G. Scott, Esq.

11