               Filed
      fourt qt appeals oiv i
       STATE Of WASHINGTON

       20ft MARIO PM2MI

      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

In the Matter of the Personal Restraint
of                                                 No. 61853-9-1


RAYMOND McCOY,                                    DIVISION ONE


                       Petitioner.                UNPUBLISHED OPINION



                                                  FILED: March 10,2014


         Grosse, J. —To prevail on a Brady1 claim, a defendant must show that the State
suppressed evidence favorable to the defendant as a result of which the defendant was

prejudiced. Here, an informant identified the defendant as the perpetrator in three bank
robberies.     Evidence established that the defendant was unaware that the informant

was a paid confidential informant for the Federal Bureau of Investigation (FBI) and had
previously provided false information in an unrelated case. The State concedes that the
informant's identification was material in two of the bank robberies and that those

convictions should be reversed because of the Brady violation. But the State argues

that the third conviction should be affirmed because the undisclosed evidence did not

affect the outcome of the trial. We accept the State's concession as to those two

convictions and agree that there was sufficient independent evidence to identify the
defendant as the perpetrator in the third conviction. Accordingly, we reverse the two
convictions for the robberies, but affirm the third conviction.




     Bradv v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
No. 61853-9-1/2


                                          FACTS

       Raymond McCoy was convicted of three counts of first degree robbery for a

series of bank robberies. We affirmed the judgment and sentence on direct appeal.2
Acting pro se, McCoy filed a personal restraint petition with this court. While the petition

was pending, the State, without informing this court, advised McCoy that one of the

State's key witnesses, Kevin Olsen, may have lied during his testimony.          This court

dismissed the personal restraint petition finding that all of McCoy's concerns had been

considered and rejected in his direct appeal.      We did not address the Brady issue

surrounding Olsen's testimony.

       The Supreme Court granted McCoy's motion for discretionary review and

permitted him to supplement the record with the information that he had received from

the State regarding Olsen's status as a confidential informant. The Supreme Court

remanded the petition to the Court of Appeals with directions to refer the matter to

superior court for a reference hearing pursuant to RAP 16.11. The matter was

remanded. McCoy acted pro se through the reference hearing. The superior court

transmitted its findings to this court. We determined that the petition raised a non-

frivolous issue and appointed counsel to represent McCoy.

       McCoy appeals, arguing that the failure to inform McCoy about Olsen violated his
right to due process and requires reversal of all three convictions. The State concedes
that the Brady violation was material in two of the convictions but argues that it was not

with regard to the conviction for the robbery of Key Bank because there was substantial
forensic evidence to identify McCoy as the perpetrator.



2 State v. McCoy, noted at 145 Wn. App. 1049 (2008).
                                             2
No. 61853-9-1/3


                                        ANALYSIS

       In Brady v. Maryland, the Supreme Court held that "suppression by the

prosecution of evidence favorable to an accused upon request violates due process

where the evidence is material either to guilt or to punishment, irrespective of the good

faith or bad faith of the prosecution."3 Evidence is material only if there is a reasonable
probability that had the prosecution disclosed the evidence to the defense, the

proceeding would have had a different result.4 In other words, when the credibility of a
witness may be determinative of guilt, the failure of the prosecutor to disclose material

evidence regarding that witness's credibility violates due process and requires a new

trial if there is a reasonable likelihood that the absence of such evidence affected the

jury's determination. Applying the "'reasonable probability'" standard, "the question is
whether the defendant received a fair trial without the evidence—that is, 'a trial resulting

in a verdict worthy of confidence.'"5
       Olsen and McCoy were in jail at the same time. The two researched evidentiary

issues in their cases and checked the law on evidence.           They shared information

regarding fingerprint and identification issues. Olsen testified that McCoy had told him
that the trainee at Sterling Savings Bank had identified him "almost to a T," whereas the

more experienced teller was not able to do so. McCoy also relayed to Olsen that he
had snatched money from the hand of the teller at Sterling Savings Bank, as described


3 373 y g at 87
4 State v. Thomas, 150 Wn.2d 821, 850, 83 P.3d 970 (2004) (quoting United States v.
Baglev, 473 U.S. 667, 682, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985)); In re Pers.
Restraint of Benn, 134Wn.2d 868, 916, 952 P.2d 116 (1998) (quoting Baqley, 473 U.S.
at 682).
5 Thomas, 150 Wn.2d at 850-51 (quoting Kvles v. Whitley, 514 U.S. 419, 434, 115 S.
Ct. 1555, 131 L. Ed. 2d 490 (1995)).
No. 61853-9-1/4


in the teller's testimony. Additionally, Olsen testified that he wrote down the information

McCoy gave him because he was in contact with authorities and planned to share the

information with them.     With regard to Key Bank, Olsen testified that McCoy was

discouraged because he had left a palm print and the two strategized about McCoy

stating that he was at the bank previously and that must have been when the print was

left. Olsen testified that he had not received any promises of leniency for his testimony.

Olsen was impeached with his prior crimes. However, subsequent to trial, and McCoy's

direct appeal, McCoy learned that Olsen was a paid FBI informant and that he had

made false incriminating statements regarding a defendant in an unrelated trial.

       The State concedes that the identification by witnesses was material in both the

Sterling Savings Bank and U.S. Bank robberies.          In both of those counts, I and III

respectively,   McCoy's identification     as   the   robber was      established    through

photomontage picks and in-court identifications of widely varying degrees of

consistency and certainty.6 There was no other independent evidence. However, in
count II, the robbery of Key Bank, substantive forensic evidence independently

established McCoy as the perpetrator. Tuan Le, the teller, testified that the robber

placed his hand on the counter in front of his teller window during the robbery. Shortly

after the robbery, the police lifted two latent fingerprints from the counter in front of Le's

teller window. Testimony from Key Bank's janitorial service indicated that the evening

before the robbery, teller Le's counter was thoroughly cleaned with a rag and cleaning

solution. McCoy testified that he went to the bank the morning of the robbery to change


6 McCoy's photograph in the montage had the darkest complexion. McCoy was the
only black male in the courtroom when the witnesses made in-court identification. Also,
some of the witnesses had seen McCoy in handcuffs in the hall outside the courtroom.
No. 61853-9-1/5


some coins into dollars. McCoy asserted that it was then that he placed his hand on

Le's counter.   However, bank records established that the teller's window was closed

until noon when Le reported for work.

       Under the "reasonable probability" standard, McCoy's trial resulted in a verdict

"worthy of confidence." McCoy has failed to satisfy the third prong of the Brady test,

that is, 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.'"7 The evidence
was not material in the sense that if it had been disclosed to the defense, there is no

reasonable probability that the result of the proceeding would have been different.8
Thus, the impact of impeachment evidence "may not be material if the . . . other

evidence is strong enough to sustain confidence in the verdict."9 There was more than
sufficient evidence to establish McCoy's guilt as the robber in that instance.

       In a separate motion, McCoy also objects to the trial court's findings of fact and

requests that this court remand the case for another reference hearing to determine

whether the State knew that Olsen had provided false information in a different case.

Exhibit 5 conclusively established that Olsen provided false information in that unrelated

trial and further that both the King County detective and FBI agent were involved with

that incident. That knowledge was constructively implied to Detective Dag Aakervik and

the prosecutor. Actual knowledge is irrelevant under Brady if the evidence in question

is in the possession of a member of the prosecution team, as it was here.10 Thus, the


7 Younqblood v. West Virginia, 547 U.S. 867, 879, 126 S. Ct. 2188, 165 L. Ed. 2d 269
(2006) (quoting Kvles. 514 U.S. at 435).
8 Strickler v. Greene, 527 U.S. 263, 281-82, 119 S. Ct. 1936, 144 L. Ed. 2d 286 (1999).
9Smith v. Cain, _ U.S._, 132 S. Ct. 627, 629, 181 L. Ed. 2d 571 (2012).
10 See Kvles, 514 U.S at 437.
No. 61853-9-1/6


trial court's finding that neither Detective Aakervik nor the trial prosecutor were aware of

the impeachment evidence is of no import.

        Nor did the trial court err in denying McCoy's request for overly broad subpoenas

duces tecum. The purpose of the reference hearing was to discover whether there was

evidence that Olsen was a paid informant of the FBI who had given false information in

a prior case. This the trial court did. There was no need for additional evidence.

Should the State decide to refile the charges against McCoy on the two bank robberies,

the issue of whether additional evidence is needed at that time may be addressed by

the trial court.

        We accept the State's concession and reverse the two robbery convictions for

Sterling Savings Bank and US Bank, and affirm the conviction for the robbery of Key

Bank.




WE CONCUR:




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