Personal Restraint Petition Of Raymond D Mccoy

Filed
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STATE Of WASHINGTON
20ft MARIO 	PM2MI
IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
In the Matter of the Personal Restraint
of
RAYMOND McCOY,
Petitioner.
No. 61853-9-1
DIVISION ONE
UNPUBLISHED OPINION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).
9 Smith 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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