United States District Court, S.D. Indiana, Indianapolis Division
ORDER GRANTING DEFENDANTS' MOTIONS FOR SUMMARY
EVANS BARKER, JUDGE
cause is now before the Court on the Motion for Summary
Judgment [Docket No. 235] filed on September 16, 2016, by
Defendants Rodney J. Cummings, in his individual capacity as
a police officer, and Steve Napier, in his individual
capacity as a police detective, (collectively, “the
City Defendants”),  and the Motion for Summary Judgment
[Docket No. 269] filed on April 11, 2017, by Defendant Rodney
J. Cummings, in his individual capacity as a prosecutor.
Plaintiff Walter Goudy's cause of action stems from his
conviction for murder and attempted murder following a 1995
jury trial. After a lengthy appeal process, the Seventh
Circuit reversed his conviction in 2010, concluding that
three police reports implicating another suspect in the crime
were not produced to Mr. Goudy's defense attorney.
Goudy v. Basinger, 604 F.3d 394 (7th Cir. 2010)
Goudy subsequently initiated this action against Defendants,
alleging a number of federal and state claims, many of which
were based on the theory that Detectives Napier and Cummings
knew of the supplemental police reports, but wrongfully
withheld them from the deputy prosecutors assigned to the
case, in violation of Brady v. Maryland, 373 U.S. 83
(1963), and that following Cummings's election as Madison
County prosecutor, he continued to withhold the police
reports. However, it has since been established that the
deputy prosecutors who prosecuted Mr. Goudy's criminal
case did in fact have possession of those police reports
before Mr. Goudy's trial, and thus, that those reports
were not improperly withheld by Napier or Cummings. Mr. Goudy
concedes this fact and no longer pursues a due process claim
based on the withholding of the police reports. Mr. Goudy has
also abandoned his § 1983 conspiracy claim as well as
his state law claims. Summary judgment is therefore granted
in Defendants' favor on those claims.
the only remaining claim at issue is Mr. Goudy's due
process claim premised upon his assertion that he was
subjected to: (1) a Brady violation caused by the
withholding of newly discovered exculpatory materials; and
(2) an improper show-up procedure that denied him a fair
trial. For the reasons detailed below, we GRANT
Defendants' Motions for Summary Judgment.
Background on Plaintiff's Trial and Conviction
early morning hours of October 3, 1993, in Anderson, Indiana,
two men fired multiple shots into a car occupied by Marvin
McCloud, Damon Nunn, and Jill Barclay, killing Mr. McCloud
and seriously injuring Mr. Nunn. The shooting occurred while
Mr. McCloud was in the driver's seat and Mr. Nunn was in
the passenger's seat. Goudy v. State, 689 N.E.2d
686 (Ind. 1997). On December 21, 1995, Plaintiff Walter Goudy
was convicted of the murder of Mr. McCloud and attempted
murder of Mr. Nunn. Because the underlying facts surrounding
Mr. Goudy's conviction were previously set forth in
detail in the Seventh Circuit's 2010 habeas
decision, we incorporate those findings here:
Goudy's conviction was based on the testimony of five eye
witnesses. The five were Damon Nunn, Jill Barclay, Jackie
Barclay, LaTonya Young and Kaidi Harvell.
Nunn and Jill Barclay were passengers in McCloud's car.
Nunn was in the front seat and was shot several times. Jill
Barclay was in the backseat, but was not wounded. Both
testified that McCloud pulled into a parking lot near an
after-hours hangout and picked up Jill Barclay. They told the
jury that as McCloud pulled out of the lot, Goudy and a
shorter accomplice approached on either side of the car and
fired several shots, killing McCloud; both testified that
Goudy was the man on the passenger side of the car. Nunn said
Goudy wore a brown or beige corduroy jacket, was around five
feet eight to five feet ten inches tall, had an Afro
hairstyle and wore a cap on his head. Jill Barclay said Goudy
wore a dark sweatshirt, had a jeri-curl hairstyle that was
partially covered by the hood from the sweatshirt. Both
witnesses said they saw Goudy and three other men earlier in
the evening at a nearby club called the Oasis.
Jackie Barclay, Jill's sister, and LaTonya Young
testified that they witnessed the shooting from across the
street. Jackie Barclay and Young had also been at the Oasis
that night and both said they saw Goudy and three other men.
After the Oasis closed, both went to the after-hours club.
Jackie Barclay testified that she was talking with some
friends outside the club when she saw Goudy and another man
approach McCloud's vehicle. She said Goudy was around six
feet tall and wore a dark jacket, dark pants or jeans, and
had braids in his hair that were partially covered by his
hood. The shooter on the driver's side was shorter, wore
a “brown uniform, ” and had no facial hair.
LaTonya Young told the jury that Goudy was the shooter on the
driver's side, that he was around five feet eight inches
tall with braids and a ponytail and wore no hat or hood.
Young also testified in court that a recording of Goudy's
car alarm was the same alarm she heard in the Oasis parking
lot that night.
A roommate of Goudy's, Kaidi Harvell, was the state's
primary witness and testified that he had been with Goudy in
Anderson on the night of the shooting. He told the jury that
he, Goudy, and Goudy's two brothers, Romeo Lee and Lamont
Thomas drove up from Indianapolis together that night to go
to some bars. Harvell said that Goudy and Lee coveted the
tires and rims on McCloud's car and had been talking
about “jacking” them. After the group left the
Oasis, they headed toward the after-hours club with other
locals, where Goudy and Lee planned to steal McCloud's
car. According to Harvell, he and Thomas were instructed to
drive around the block while Goudy and Lee would steal the
car. Harvell told the jury that Goudy shot into the
driver's side of McCloud's car, and that he wore a
brown “prison coat, ” black cap and gloves. Lee
shot into the passenger side.
In addition to the evidence produced at trial, the government
possessed three police reports that outlined statements by
Jill and Jackie Barclay, Young, Harvell, and another witness
(who did not testify at trial) named Donzetta Clay. The first
report describes a phone call to police from Jill Barclay in
which she said she saw one of the gunmen at an Indianapolis
mall. She stated that she thought he kept looking at her
“over his shoulder” and that she later saw him
outside “attempting to look at her license
plate.” She later identified this man as Harvell and
said she was positive he was one of the gunmen. The report
additionally describes a photo lineup viewed by the Barclay
sisters and Young. All three “positively and without
hesitation” identified Harvell as the gunman on the
driver's side of McCloud's car and said he wore brown
clothing. The second police report details an in-person
lineup viewed by Nunn, Jill and Jackie Barclay, and Donzetta
Clay. Clay and the Barclay sisters identified Harvell; Nunn
identified a non-suspect as the shooter. The third report
contains a statement from Harvell indicating that he had been
in contact with one of Goudy's alibi witnesses. He says
he “talked with” her and that she “wants to
change her story.”
The government did not disclose any of these statements to
Goudy, even though they implicate Harvell and conflict with
Harvell's version of events; contradict Young's
statement at trial that Goudy was the driver's side
shooter, and conflict with Nunn's description of the
Goudy, 604 F.3d at 396-97.
noted above, the only claim remaining in this litigation is
an alleged due process violation based on Defendants'
failure to disclose certain exculpatory evidence apart from
the three police reports referenced in the Seventh
Circuit's opinion and the City Defendants' use of an
improper show-up procedure. We outline the additional facts
relating to this claim in the following section:
The City Defendants' Identification Procedures
February 5, 1994, Mr. Goudy was picked up by the police at
the Oasis after an anonymous caller told the police that her
boyfriend saw one of the shooters there. Exh. N (Rodney
Cummings Deposition, Part 1) at 112. Upon arrival at the
Anderson Police Department, Mr. Goudy was placed in a room
with a one-way mirror. At this point, Mr. Goudy was not free
to leave the Anderson police station of his own will. Exh. Q
at 253. Thereafter, Defendant Cummings, in his role as
Anderson Police Detective, contacted Jill Barclay and asked
her to come to the police department to make an
identification. Exh. C (Jill Barclay Trial Testimony) at
173-74; Exh. O (Jill Barclay Deposition) at 124-25. Ms.
Barclay testified that Defendant Cummings and his partner
Defendant Napier informed her before she was to make the
identification that the person they wanted her to view was a
suspect in the shooting. Exh. C at 177; Exh. O at 124-26. Ms.
Barclay identified Mr. Goudy from the one-person show-up as
one of the shooters.
Cummings testified in his deposition that he conducted the
one-person show-up both because Mr. Goudy requested it and
because he did not believe that Ms. Barclay would identify
Mr. Goudy as one of the shooters and so it would not be an
issue. Exh. N at 62-63, 66-67. But he also acknowledged in
his testimony that a one-person show-up is an identification
procedure that is less reliable than a normal lineup and can
in some cases make it more likely that the witness will later
pick out that same suspect in future lineup procedures.
Id. at 60-61, 66-67.
Ms. Barclay identified Mr. Goudy from the one-person show-up
as one of the shooters, Defendants Cummings and Napier showed
her a lineup on that same day wherein she knew four of the
five “fillers” and she again identified Mr.
Goudy. Exh. C at 1, 152-1, 155. Ten days later, on February
15, 1994, Ms. Barclay was asked to view another lineup and
she once again identified Mr. Goudy as one of the shooters.
Mr. Goudy was the only person in common in these three
identification procedures. Exh. P (Jill Barclay Suppression
Hearing Testimony) at 178, 183-84, 187-88.
point in between the show-up and lineup on February 5, 1994
and the second lineup on February 15, 1994, Jill Barclay
spoke to her sister, Jackie Barclay, about the identification
she had made. Jill told Jackie that the person she identified
looked like “John Casey, ” a local man from their
neighborhood. Exh. O at 140-141; Exh. P at 189-190. Jackie
subsequently identified Mr. Goudy as one of the shooters.
Goudy was originally charged with Mr. McCloud's murder
and Mr. Nunn's attempted murder in February 1994 by
then-Madison County Prosecutor William Lawler. Those charges
were dropped three months later on May 16, 1994. Exh. N at
93. Defendant Cummings and Defendant Napier disagreed with
Mr. Lawler's decision to drop the charges against Mr.
Goudy. Thereafter, in the fall of 1994, Defendant Cummings
campaigned to replace Mr. Lawler as Madison County
Prosecutor. Exh. S (Steve Napier Deposition, Part 1)
at 21-25. During this time period, on September 6, 1994,
Defendant Cummings signed out of the Anderson Police
Department Property Room a videotape recording of a September
1, 1994 lineup wherein Jill Barclay, Jackie Barclay, and
Donzetta Clay identified Kaidi Harvell as one of the two
shooters; this lineup was the subject of one of the three