SUPREME COURT OF THE UNITED STATES
JUAN SMITH, PETITIONER v. BURL CAIN, WARDEN
on writ of certiorari to the orleans parish criminal district court of louisiana
[January 10, 2012]
Justice Thomas, dissenting.
The Court holds that Juan Smith is entitled to a new murder trial because the State, in violation of Brady v. Maryland,
373 U. S. 83 (1963)
, did not disclose that the eyewitness who identified Smith at trial stated shortly after the murders that he could not identify any of the perpetrators. I respectfully dissent. In my view, Smith has not shown a “reasonable probability” that the jury would have been persuaded by the undisclosed evidence. United States v. Bagley,
473 U. S. 667,
(opinion of Blackmun, J.). That materiality determination must be made “in the context of the entire record,” United States v. Agurs,
427 U. S. 97,
, and “turns on the cumu- lative effect of all such evidence suppressed by the government,” Kyles v. Whitley,
514 U. S. 419,
. Applying these principles, I would affirm the judgment of the Louisiana trial court.
The evidence presented at trial showed the following facts. On March 1, 1995, Larry Boatner and several friends gathered at Rebe Espadron’s home in New Or- leans. Boatner and others were drinking and talking in the kitchen when Boatner heard the loud sound of a car without a muffler outside. As Boatner opened the kitchen’s outside door to investigate the noise, armed men pushed their way through the door, demanding drugs and money. Tr. 153–154 (Dec. 5, 1995). The first man though the door put a gun in Boatner’s face and pushed him backwards. Id., at 154–155. The men initially ordered Boatner and his friends to the floor, but then ordered Boatner to stand up. At that time, the man who had been the first one through the door placed his gun under Boatner’s chin. Id., at 156–157. When Boatner asked what the men wanted him to do, the first man struck Boatner on the back of the head with his gun, knocking Boatner back to the ground. Id., at 157–158.
After hearing the commotion, Espadron emerged from a back bedroom, where she had been when the men entered the house. As Espadron opened an inside door leading to the kitchen, a man with a “covering” over his mouth pointed his gun at her face and ordered her to the floor. Id., at 70–71. Disregarding his command, Espadron ran back toward the bedroom, at which point the intruders opened fire. Id., at 71–72, 159.
When the shooting was over, four people lay dead. A fifth person, 17-year-old Shelita Russell, was mortally wounded and died later at the hospital. Of those originally gathered in the house, the only survivors were Boatner, who suffered a severe laceration to his head from the first man’s blow but was otherwise uninjured; Espadron, who escaped unharmed; and Reginald Harbor, who had remained in a back bedroom during the shooting. The police also found a man named Phillip Young at the scene. Young was alive but had suffered a gunshot wound to the head. Because Boatner, Espadron, and Harbor had never seen Young before, the police surmised that Young had been one of the perpetrators.
New Orleans police officer Joseph Narcisse was a first responder to the scene of the shooting. He testified at trial that he encountered Boatner in the bathroom of Espadron’s home, where Boatner was attempting to care for the laceration to his head. According to Narcisse, “Mr. Boatner . . . had let inside the perpetrators and did see them.” Id., at 21 (Dec. 4, 1995). Narcisse further explained that Boatner “had a description” of the person that he saw, the details of which Narcisse could not recall. Id., at 32.
Detective John Ronquillo, the lead investigator of the shootings, testified that Boatner had described the first man through the kitchen door as having a “short-type haircut,” “a lot of golds in his teeth,” and “brown-ski[n].”
Id., at 115 (Dec. 5, 1995). Ronquillo further testified that Boatner could describe no other perpetrator, but that Boatner had viewed the first man twice: once when the man initially came through the door and again when Boatner was ordered to stand up and the man held a gun to his chin. Id., at 117–118.
Ronquillo also testified that, during the four months following the shootings, Boatner viewed 14 six-person photograph arrays of potential suspects—only one of which contained a picture of Smith. Id., at 89–100. Three weeks after the crime, Ronquillo presented Boatner with one of the arrays that did not include a picture of Smith. Ronquillo recalled that Boatner noted that one man in the array had a “similar haircut” and “a similar expression on his face” as the “gentleman that came into the house initially with the gun that [Boatner] confronted,” but that Boatner “was positive this wasn’t the individual.” Id., at 97; see also 5 Record 828. A few months later, Ronquillo presented Boatner with the array that included a photograph of Smith. Tr. 99–101 (Dec. 5, 1995). Ronquillo testified that Boatner identified Smith “immediately,” stating, “ ‘This is it. I’ll never forget that face.’ ” Id., at 100. Of the 84 photographs that Boatner viewed, Smith’s photograph was the only one that Boatner identified.
Boatner identified Smith again when he was called to the stand during Smith’s trial. Boatner testified that Smith’s face was the “[s]ame face,” id., at 174, and that Smith’s mouth was the “[s]ame mouth” “full of gold,” ibid., as that of the first man who came through the kitchen door on the night of the attack. Boatner also testified that Smith’s hair at trial was “shaved on the sides” as it was during the crime, but that “the top was a little bit lower” at the time of the murders. Id., at 165. Boatner explain- ed that, during the attack, he had focused on the first man through the door—who was unmasked—but that he “didn’t notice” the faces of any of the other assailants or whether they were masked. Id., at 154. On cross-examination, Boatner testified that he had described the first man’s build, haircut, and gold teeth jewelry to the police. Id., at 178.
Based on this evidence, the jury convicted Smith of first-degree murder. Following the conclusion of direct review, Smith petitioned the trial court for postconviction relief. Smith argued that the State had failed to disclose various police notes revealing favorable evidence material to Smith’s guilt. As relevant here, those items include pretrial statements by Boatner; statements by victim Shelita Russell and Espadron’s neighbor, Dale Mims; a pretrial statement by firearms examiner Kenneth Leary; statements by cosuspect Robert Trackling and Trackling’s fellow inmate, Eric Rogers; and a statement by cosuspect Phillip Young. After holding a 4-day evidentiary hearing, the postconviction judge—who had also presided over Smith’s 2-day trial—denied Smith’s Brady claims.
Like the postconviction court below, I conclude that Smith is not entitled to a new trial under Brady. In my view, Smith has not established a reasonable probability that the cumulative effect of this evidence would have caused the jury to change its verdict.
Smith first identifies two undisclosed statements by Boatner, which the Court concludes are “plainly material.” Ante, at 3. First, a note by Ronquillo, documenting a conversation he had with Boatner at the scene, states that Boatner “could not . . . supply a description of the perpetrators other th[a]n they were black males.” 5 Record 809. Second, a handwritten note by Ronquillo, documenting a phone conversation he had with Boatner on March 6, five days after the murders, states that “Boatner . . . could not ID anyone because couldn’t see faces . . . glanced at 1st one—saw man—through door—can’t tell if had—faces covered didn’t see anyone . . . Could not ID—would not know them if—I saw them.” 13 id., at 2515. Ronquillo’s typed summary of this note states that Boatner advised him that he “could not identify any perpetrators of the murder.” 5 id., at 817.
Smith is correct that these undisclosed statements could have been used to impeach Boatner and Ronquillo during cross-examination. But the statements are not material for purposes of Brady because they cannot “reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Kyles, 514 U. S., at 435. When weighed against the substantial evidence that Boatner had opportunities to view the first perpetrator, offered consistent descriptions of him on multiple occasions, and even identified him as Smith, the undisclosed statements do not warrant a new trial.
The evidence showed that, notwithstanding Ronquillo’s on-scene note, Boatner offered a description of the perpetrator at the scene. Officer Narcisse testified that Boatner provided him with a description of the perpetrator that Boatner saw. Narcisse’s testimony thus corroborated Boatner’s trial testimony that he saw the first man and described him to police.
Narcisse’s testimony also mitigated the impeachment value of Ronquillo’s on-scene note by indicating that, although Boatner may have provided no detailed description to Ronquillo at the scene, Boatner had described the first man to another officer.
In any event, Ronquillo’s notes reflect that Boatner provided a description of the first perpetrator at the police station only a few hours after the shootings occurred. Tr. 403 (Jan. 22, 2009). Boatner was asked if he could “describe the subjects wh[o] shot the people in the house.” 5 Record 866. He responded: “I can tell you about one, the one who put the pistol in my face, he was a black male with a low cut, gold[s] in his mouth . . . about my complexion, brown skinned.” Ibid. When asked, “[Y]ou say you can’t describe any of the other shooters besides the one who put the gun in your face after you opened the door,” Boatner replied, “No, I can’t.” Ibid. In his brief, Smith cites this station house statement as an example of favorable, undisclosed evidence. But this statement actually corroborates Boatner’s trial testimony that he saw and described the first perpetrator to police and that he did not get a good look at the other assailants. Moreover, the description Boatner provided was consistent with Smith’s appearance. The Court completely ignores Boatner’s station house statement, but our cases instruct us to evaluate “the net effect of the evidence withheld by the State” in assessing materiality. See Kyles, supra, at 421–422.
The evidence not only shows that Boatner described the first perpetrator twice in the immediate aftermath of the crime, but also that Boatner described him again three weeks later when he viewed a photograph array and eliminated a similar-looking individual. The evidence before the jury further indicated that, several months after the crime, Boatner confidently identified Smith in an array, after evincing a discriminating, careful eye over a 4-month investigative period. What is more, the reliability of Boatner’s out-of-court identification was extensively tested during cross-examination at Smith’s trial. In particular, Boatner was asked whether the fact that he saw Smith’s picture in a newspaper article naming Smith as a suspect had tainted his identification. Boatner did not waiver, responding, “I picked out the person I seen come in that house that held a gun to my head and under my chin and the person that was there when all my friends died.” Tr. 190 (Dec. 5, 1995). That Boatner credibly rejected defense counsel’s “suggestion” theory is supported by the fact that Boatner did not identify cosuspect Robert Trackling—whose photograph was included in a separate array shown to Boatner on the same day that Boatner identified Smith—even though Trackling’s picture was next to Smith’s in the same newspaper article. 5 Record 833, 835.
When weighed against Boatner’s repeated and consistent descriptions and confident out-of-court and in-court identifications, Boatner’s March 6 statement is also immaterial. As an initial matter, Ronquillo’s note of his March 6 conversation with Boatner contains an internal contradiction that undercuts its impeachment value. Although the note states that Boatner “didn’t see anyone,” it also states that Boatner “glanced at 1st one—saw man—through door.” 13 id., at 2515. The latter part is consistent with Boatner’s repeated statements that he only saw the first man through the door. Moreover, the jury would have evaluated any equivocation in Boatner’s statement in light of the fact that he made it a mere five days after a traumatic shooting, when the perpetrators were still at large. The jury would have considered Boatner’s trial testimony that, following the murders of his friends, he began having nightmares, had difficulty sleeping, quit his job, and began drinking heavily—so much so that he checked into a hospital for substance abuse treatment and grief counseling. Tr. 162–163, 170–171, 182 (Dec. 5, 1995). Any impeachment value in the March 6 note would have been further mitigated by the fact that, as Ronquillo explained, “on the night of the incident [Boatner] said that he could [identify someone] and he gave a description that was very close to Mr. Smith’s description.” Id., at 401 (Jan. 22, 2009). And, following his March 6 conversation with Ronquillo, Boatner viewed numerous photograph arrays, described the first perpetrator, and ultimately identified him as Smith.
Of course, had the jury been presented with Ronquillo’s notes of Boatner’s on-scene and March 6 statements, it might have believed that Boatner could not identify any of the perpetrators, but a possibility of a different verdict is insufficient to establish a Brady violation. See Strickler v. Greene,
527 U. S. 263,
; see also Agurs, 427 U. S., at 109–110 (“The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not es- tablish ‘materiality’ in the constitutional sense.” Rather, a “petitioner’s burden is to establish a reasonable prob- ability of a different result.” Strickler, supra, at 291.
Instead of requiring Smith to show a reasonable probability that Boatner’s undisclosed statements would have caused the jury to acquit, the Court improperly requires the State to show that the jury would have given Boatner’s undisclosed statements no weight. See ante, at 3 (“[T]he State’s argument offers a reason that the jury could have disbelieved Boatner’s undisclosed statements, but gives us no confidence that it would have done so”). But Smith is not entitled to a new trial simply because the jury could have accorded some weight to Boatner’s undisclosed statements. Smith’s burden is to show a reasonable probability that the jury would have accorded those statements sufficient weight to alter its verdict. In light of the record as a whole—which the Court declines to consider—Smith has not carried that burden.
Smith also argues that statements by Shelita Russell and Dale Mims documented in Ronquillo’s handwritten notes could have been used to impeach Boatner’s identification of Smith because the statements indicate that the perpetrators were masked. One undated note, which contains several entries about various aspects of the investigation, states, “female—face down against cabinets—conscious.” On the next line, the note continues, “said—in kitchen saw people barge in—one—black cloth across face—first one through door—[no further statement].” 13 Record 2556. When cross-examined during the postconviction hearing about whether this note documented the statement of Russell, Ronquillo confirmed that the note was in his handwriting, but he testified that he never talked to Russell, that he did not know when the note was made, and that someone else could have relayed the information to him. Tr. 415–418 (Jan. 22, 2009).
I will assume arguendo that, had this note been disclosed, it would have been admissible at Smith’s trial as a dying declaration of Russell.
But the note would have had minimal impeachment value because, contrary to Smith’s assertions, it is ambiguous in light of the context in which the statement was made. Officer Narcisse testified that Russell was conscious and able to talk, but that she was in “bad condition.” Id., at 20 (Dec. 4, 1995). Similarly, Reg- inald Harbor testified that, as Russell lay wounded, she was “whining” and he “didn’t catch nothing [t]hat she said.” Id., at 205 (Dec. 5, 1995). And, although Smith contends that the note says “exactly” that the “first person through the door had a black cloth across his face,” that is not how the note reads. Reply Brief for Petitioner 11 (emphasis deleted; internal quotation marks omitted) (hereinafter Reply Brief). The note first states that the declarant “saw people barge in,” then states “one—black cloth across face—first one through door—[no further statement].” 13 Record 2556 (emphasis added). It is at least as logical to read this statement as indicating only that “one” of the “people” had a “black cloth across [his] face.” Russell, suffering from fatal wounds, said nothing further after “first one through door,” and it is impossible to know whether the “first one” was also the “one” with a “black cloth across [his] face.”
The second statement Smith identifies is that of Dale Mims, who lived down the street from Espadron’s home and who heard the shooting. A note by Ronquillo states that Mims saw four males fleeing Espadron’s home, “all wearing mask[s].” Id., at 2518. Like Russell’s purported statement, this statement has minimal impeachment value in light of the record. Mims’ undisclosed statement does not address whether some or all of the perpetrators were masked inside Espadron’s home.
Moreover, had Mims been called as a witness at trial, he presumably would have testified, as he did at the postconviction hearing, that he was “positive” that he only saw three perpetrators fleeing, and that, of those three, only two were masked. Tr. 269, 271–273, 275 (Jan. 13, 2009).
Both Russell’s purported statement and Mims’ testimony are consistent with Boatner’s testimony that he did not know whether any of the other perpetrators were masked, id., at 154 (Dec. 5, 1995), and with Officer Narcisse’s and Espadron’s testimony that the single perpetrator whom Espadron observed was wearing some sort of face cover- ing, id., at 30–31 (Dec. 4, 1995); id., at 71 (Dec. 5, 1995). Thus, the totality of the evidence indicates that some, but not all, of the perpetrators were masked, a conclusion that in no way undermines Boatner’s consistent assertions that the only perpetrator he saw was unmasked.
Smith also contends that Ronquillo’s undisclosed note documenting a pretrial statement by firearms examiner Kenneth Leary is material for purposes of Brady. The note states that “Leary advised Ronquillo that the 9MM ammunition confiscated from [the scene of the murders] was typed to have been fired from a[n] [Intratec], ‘Mac[-] 11’ model type, semi automatic weapon.” 5 Record 831. According to Smith, this statement conflicts with Leary’s trial testimony that the 9-millimeter ammunition found at the scene “was fired by one particular weapon, one 9-millimeter handgun,” Tr. 132 (Dec. 5, 1995), because an Intratec or Mac-11 pistol is not a “handgun.” Smith further argues that Leary’s pretrial statement could have been used to exculpate Smith, whose guilt the prosecution attempted to show by calling a pathologist to testify that Shelita Russell’s wounds could have been inflicted by a 9-millimeter “handgun,” id., at 39 (Dec. 4, 1995), and by calling Boatner to testify that the gun Smith held under his chin was a 9-millimeter silver “hand gun,” id., at 157 (Dec. 5, 1995).
Contrary to Smith’s contentions, Leary’s pretrial statement does not undermine the evidence presented at trial. Leary’s pretrial statement is consistent with his and Boatner’s trial testimony because an Intratec or Mac11 pistol is a 9-millimeter handgun. Smith concedes that such a weapon uses 9-millimeter cartridges. Brief for Petitioner 48. Moreover, a “handgun” is simply “[a] firearm that can be used with one hand,” American Heritage Dictionary 819 (3d ed. 1992), and no one disputes that an Intratec or Mac-11 pistol can be used with one hand. Smith nonetheless insists that, “as a colloquial matter, machine pistols of the Intratec or MAC-11 type would be considered automatic or semiautomatic weapons, rather than handguns.” Reply Brief 18. But even assuming that Smith is correct, he fails to explain why Leary, a firearms expert, would have been expected to use colloquial rather than technical terminology.
The record also makes clear that, when Boatner used the term “handgun,” he did not understand it to exclude automatic or semiautomatic machine pistols. In the immediate aftermath of the murders, as well as at trial, Boatner stated that a second perpetrator carried a “Ma[c] 10” or “Tech Nine” “Uzi” type weapon, Tr. 159, 179 (Dec. 5, 1995); 5 Record 809, 813, 866, and Boatner described that weapon as a “handgun,” id., at 809. Moreover, Boatner’s pretrial description of the silver or chrome “handgun” that the first man held was consistent with Leary’s undisclosed statement that the gun that fired the 9-millimeter ammunition found at the scene was a semiautomatic weapon. In his station house statement, Boatner described the first man’s weapon as a “big,” “automatic pistol.” Id., at 813, 866. Because Leary’s pretrial statement is neither impeaching nor exculpatory, Leary’s undisclosed statement cannot form the basis of a Brady violation. See Strickler, 527 U. S., at 281–282 (To make out a Brady viola- tion, “[t]he evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching”).
Smith next points to purportedly exculpatory and ma- terial undisclosed pretrial statements made by Robert Trackling, a member of the “Cut Throat Posse” street gang with which Smith was allegedly associated, and by Eric Rogers, an inmate who was incarcerated with Trackling. 5 Record 845. Police notes reflect that Eric Rogers gave an interview to investigators on May 19, 1995, during which he described a conversation that he had with Trackling while in prison. During that conversation, Trackling described the murders at Espadron’s home and stated that he had committed the crime along with “Fat, Buckle, and a guy they call uh, Short Dog.” Id., at 841. According to Rogers, Fat’s real name was “Darnell [Donielle] Banister,” Buckle’s real name was “Contez [Kintad] Phillips,” and Short Dog’s real name was “Juan.” Id., at 843–844.
Smith contends that Rogers’ interview was exculpatory in two respects. First, he points to the following comment by Rogers later during the interview: “They call Contez Philip Buckle, they call Darnell Banister Fat, Short Dog that’s what they call him, they call Robert Home.” Id., at 845. Smith suggests that Rogers’ prior identification of “Short Dog” as “Juan [Smith]” was equivocal in light of his later statement that “Short Dog” was a man named “Robert Home.” Reply Brief 21. Second, Smith asserts that disclosure of Rogers’ interview would have led the defense and the jury to learn of Rogers’ allegation—made for the first time 10 years after Smith’s trial—that the police had asked him to implicate Juan Smith as “Short Dog,” Tr. 284–285 (Jan. 13, 2009).
Neither argument is persuasive. If the jury had learned of Rogers’ statement, it would have heard information directly inculpating Smith as “Short Dog,” a perpetrator of the shootings. Rogers’ physical description of “Short Dog”—“he[’s] short[,] he[’s] got golds going across his mouth[,] and . . . he’s like built,” 5 Record 844–also corroborated Boatner’s description of the first man through the door as having a “mouth full of gold” and a “heavy” build. Furthermore, Smith ignores other inculpatory information documented in Ronquillo’s notes of Rogers’ statement. Those notes reflect Trackling’s own interview with police on June 1, 1995, in which Trackling identified Phillips, Bannister, and “Juan Smith” as the perpetrators of the murders at Espadron’s home. Id., at 832; see also id., at 854–855. Trackling’s statement only strengthens the inculpatory nature of Rogers’ interview.
Further, the jury assuredly would not have believed Smith’s suggestion that Rogers identified “Short Dog” as a man named “Robert Home.” When this statement is taken in context, it appears that Rogers was describing the nickname—“Home”
—of Robert Trackling, the “Robert” whom Rogers had repeatedly referenced throughout his interview. See id., at 839–850. Indeed, Rogers’ phrase- ology, “they call Robert Home,” was consistent with his pre- vious comments that “[t]hey call Contez Philip Buckle,” and “they call Darnell Banister Fat.” Id., at 845 (emphasis added). Unsurprisingly, in the thousands of pages of record material, I have not found, nor have the parties cited, a single reference to anyone named “Robert Home.”
If the jury had heard Rogers’ postconviction testimony that police asked him to implicate Smith and that Trackling’s description of the murders did not include Smith, Tr. 284–285 (Jan. 13, 2009), it would have weighed Rogers’ allegation against Trackling’s own statement to the police that Smith had participated in the murders at Espadron’s home, 5 Record 832. The prosecution also would have called Smith’s sister, Trinieze Smith, to testify that she believed her brother was known as “Short Dog,” as she did at the postconviction hearing. Tr. 371 (Jan. 14, 2009). On this record, the undisclosed statements by Rogers and Trackling actually strengthen rather than weaken confidence in the jury’s guilty verdict.
Finally, Smith argues that an undisclosed handwritten note by Ronquillo documenting a statement by Phillip Young—the man found injured at the scene and suspected of having participated in the crime—is also material evidence warranting a new trial. At trial, Ronquillo testified that he met with Young while Young was hospitalized as a result of permanent brain damage suffered in the shoot- ings. Id., at 102 (Dec. 5, 1995). According to Ronquillo, Young “was strapped to a chair. He really couldn’t talk, [h]e mumbled. He could use his left hand, that was all. He couldn’t walk or anything. He was fed through a tube by the people there. He was in really bad shape.” Id., at 102–103. When asked whether Young was able to communicate with him “at all,” Ronquillo responded, “No. I couldn’t understand anything that he was saying.” Id., at 103.
The undisclosed note from Ronquillo’s meeting with Young reads as follows: “Short Dog/Bucko/Fats—No—Didn’t shoot me—No—Not with me when went to house—Yes—one of people in house shot me—No—Not responsible—‘Posse’—Didn’t drive to house—‘Posse’—Yes—Knows names of perps—Yes—Drove in car—Yes—girlfriend’s car.” 13 Record 2568. Smith contends that this note is exculpatory in that it suggests that he was “not involved” in the shootings. Brief for Petitioner 43.
Young’s statement is only exculpatory if Smith concedes (as the statement asserts) that he is, in fact, “Short Dog” and a member of the “Cut Throat Posse.” Such a concession would only have strengthened the inculpatory value of the statements by Rogers and Trackling indicating that Smith was the “Short Dog” who committed the murders at Espadron’s home. In any event, the exculpatory value of the note is minimal for several other reasons. First, it is unclear whether Ronquillo’s note reflects a statement by Young that the “Posse” was not responsible for shooting the victims or a statement that the “Posse” was not responsible for shooting Young. Further, the statement that “Short Dog” and others were not with Young when he went to the house is certainly not a clear statement that “Short Dog” did not commit the murders, especially in light of evidence in the record that the assailants used two cars on the night of the murders.
Second, had the jury learned of Ronquillo’s note, it would have presumably heard Ronquillo testify, as he did at the postconviction hearing, that he was not even sure whether his note actually reflected statements by Young, given that Young “couldn’t talk,” was “jumbled,” could only “kind of move his head,” and sometimes would just sit and stare when Ronquillo asked a question.
Tr. 423–424 (Jan. 22, 2009). Accordingly, Ronquillo explained, “I never had hide nor hair actually of what [Young] said.” Id., at 423.
The jury thus would have evaluated Ronquillo’s note, of unclear exculpatory value on its face, against a backdrop of doubt as to what, if anything, Young actually communicated. The jury also would have weighed this evidence against the strongly inculpatory nature of Boatner’s descriptions and identifications and Rogers’ and Trackling’s statements, which corroborated Boatner’s identification. When all of the evidence is considered cumulatively, as it must be, Smith has not shown a reasonable probability that the jury would have reached a different verdict.
* * *
The question presented here is not whether a prudent prosecutor should have disclosed the information that Smith identifies. Rather, the question is whether the cu- mulative effect of the disclosed and undisclosed evidence in Smith’s case “put[s] the whole case in such a different light as to undermine confidence in the verdict.” Kyles, 514 U. S., at 435. When, as in this case, the Court departs from its usual practice of declining to review alleged misapplications of settled law to particular facts, id., at 456 (Scalia, J., joined by Rehnquist, C. J., and Kennedy and Thomas, JJ., dissenting), the Court should at least consider all of the facts. And, the Court certainly should not decline to review all of the facts on the assumption that the remainder of the record would only further support Smith’s claims, as the Court appears to have done here. Ante, at 3–4.
Such an assumption is incorrect. Here, much of the record evidence confirms that, from the night of the murders through trial, Boatner consistently described—with one understandable exception—the first perpetrator through the door, that Boatner’s description matched Smith, and that Boatner made strong out-of-court and in-court identifications implicating Smith. Some of the undisclosed evidence cited by Smith is not favorable to him at all, either because it is of no impeachment or exculpa- tory value or because it actually inculpates him. Because what remains is evidence of such minimal impeachment and exculpatory value as to be immaterial in light of the whole record, I must dissent from the Court’s holding that the State violated Brady.