A jury found Kevin Johnson guilty of armed robbery, kidnapping with bodily injury, aggravated assault, burglary, and possession of a firearm during the commission of a felony. He was sentenced to life in prison plus five years. The Court of Appeals affirmed his convictions and sentence. Johnson v. State , 255 Ga. App. 721 566 SE2d 440 2002. Johnson filed a petition for a writ of habeas corpus on December 3, 2003, and a hearing was held in April 2005 at which the habeas court received documentary evidence as well as the deposition testimony of Johnson’s trial and appellate counsel. On August 31, 2006, the habeas court granted relief to Johnson based on its finding that, inter alia, the State had suppressed evidence favorable to Johnson in violation of Brady v. Maryland , 373 U.83, 87 83 SC 1194, 10 LE2d 215 1963. The warden, Victor Walker, appealed, and we affirm the vacation of Johnson’s convictions due to the Brady error. 1. Johnson’s Brady claim is based upon the State’s failure to produce to the defense audiotapes containing exculpatory witness statements and Johnson’s own statement to police during investigation of the crimes. This claim is not procedurally defaulted because Johnson has shown cause and prejudice to excuse the default. OCGA § 9-14-48 d. Neither Johnson nor his counsel were aware of the tapes as a result of the State’s failure to provide them in discovery, and the tapes were obtained only after the denial of Johnson’s direct appeal when Johnson’s father filed an Open Records Request. See OCGA § 50-18-72 a 4. As for the required showing of prejudice, Johnson’s underlying claim is a constitutional claim involving the denial of his Fourteenth Amendment due process rights. Thus, “the underlying claim and the prejudice analysis necessary to satisfy the cause-and-prejudice test are coextensive.” Schofield v. Palmer , 279 Ga. 848, 851 621 SE2d 726 2005.
2. Finding no procedural bar to Johnson’s claim, we turn to the merits. The United States Supreme Court ruled in Brady that “the 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.” Brady , supra, 373 U.at 87. Evidence is material “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” United States v. Bagley , 473 U.667, 682 105 SC 3375, 87 LE2d 481 1985. To succeed on his Brady claim, Johnson thus was required to show: 1 the State possessed evidence favorable to his defense; 2 he did not possess the favorable evidence and could not obtain it himself with any reasonable diligence; 3 the State suppressed the favorable evidence; and 4 had the evidence been disclosed to the defense, a reasonable probability exists that the outcome of the trial would have been different. Schofield , supra, 279 Ga. at 852 2.
