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Phillips v. State6/11/1992
d to be the same as exculpatory evidence for Brady purposes "if disclosed and used effectively, it may make the difference between conviction and acquittal." United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985). However, failure to provide evidence useful to the defense but not likely to change the result does not require reversal. Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972). In order to warrant reversal for failing to disclose potential impeachment evidence, the evidence must be "material," not simply favorable. The United States Supreme Court has articulated the following test to determine if evidence is "material":
The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A "reasonable probability" is a probability sufficient to undermine confidence in the outcome.
473 U.S. at 682, 105 S.Ct. at 3383. The evidence withheld here is not material under this test.
Lacey testified to witnessing the abduction, following the truck, and notifying the police. Evidence of these events was also presented through the testimony of the victim, Phillips' co-conspirator Harvey, and various police officers. The other evidence so overwhelmingly established that the victim was grabbed, put in the truck, and the truck travelled to the place where appellant was apprehended by police that it was really without dispute — and that is all Lacey testified to. With these facts so clearly established, Lacey's credibility made no difference. His testimony could have been totally discounted. It, therefore, was not material in that there was not a probability sufficient to undermine confidence in the outcome of the case. The prosecution's failure to give Lacey's background information to Phillips does not violate Brady. See United States v. Buchanan, 891 F.2d 1436, 1443 (10th Cir. 1989), cert. denied 494 U.S. 1088, 110 S.Ct. 1829, 108 L.Ed.2d 958 (1990).
9. Cumulative Error
Phillips' final issue amounts a claim of cumulative error. A claim of cumulative error depends upon error being recognized. Thom v. State, 792 P.2d 192, 196 (Wyo. 1990). No error exists in this case.
Finding no error in the issues brought by appellant, this case is
Affirmed.
URBIGKIT, C.J., dissents (dissent to be filed at a later date, see Harvey v. State, 835 P.2d 1074 (1992)).
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