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Due Process – Exculpatory Evidence, Failure to Disclose – Impeachment: Not Material, Where Cumulative

State v. Xavier J. Rockette (II), 2006 WI App 103, PFR filed 6/29/06 (prior unrelated appeal involving same defendant, different case: 2005 WI App 205)
For Rockette: Timothy A. Provis

Issue/Holding: Failure to disclose evidence that a prosecution witness had falsely implicated Rockette in another homicide did not violate Brady, because it would not have had an impact on the outcome of the trial:

¶41      Evidence of impeachment is material if the witness whose testimony is attacked “supplied the only evidence linking the defendant(s) to the crime,” United States v. Petrillo, 821 F.2d 85, 90 (2d Cir. 1987), or “where the likely impact on the witness’s credibility would have undermined a critical element of the prosecution’s case.” United States v. Payne , 63 F.3d 1200, 1210 (2d Cir. 1995). Impeachment evidence is notmaterial, and thus a new trial is not required “when the suppressed impeachment evidence merely furnishes an additional basis on which to impeach a witness whose credibility has already been shown to be questionable.” Id. (citations omitted). In sum, “Generally, where impeachment evidence is merely cumulative and thereby has no reasonable probability of affecting the result of trial, it does not violate the Bradyrequirement.” United States v. Dweck, 913 F.2d 365, 371 (7th Cir. 1990); see alsoUnited States v. Fallon, 348 F.3d 248, 252 (7th Cir. 2003) (finding no Brady violation in part because the additional evidence would have been merely cumulative and therefore not material).  ¶42      The evidence allegedly withheld was merely cumulative of other evidence presented at trial that challenged Grandberry’s credibility and would not have placed his testimony in a different light. …

¶43      In addition, Grandberry’s testimony certainly did not supply the only evidence linking Rockette to the murder, see Petrillo, 821 F.2d at 90, and the excluded evidence would not have impacted Grandberry’s credibility in such a way as to undermine a critical element of the State’s case, see Payne, 63 F.3d at 1210. The jury had before it other evidence implicating Rockette in the Furet murder. …


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