Hendrix v. StateHendrix v. State
The appellant, Samuel David Hendrix, was indicted in a multi-count indictment on two counts of first degree rape, in violation of
The appellant raises four issues1 on appeal. The relevant facts will be discussed as necessary.
I
The appellant first contends that the prosecutor withheld exculpatory evidence and that the prosecutor‘s actions in withholding such evidence constituted prosecutorial misconduct. He specifically аrgues that the prosecutor failed to supply him with the names of six other suspects in the incidents. There is no dispute that the appellant requested that he be given any exculpatory information.
Three elements must be proven in order to establish a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). These elements include 1) the prosecution‘s suppression of evidence; 2) the favorable character of the suppressed evidence for the defense; and 3) the materiality of the suppressed evidence. Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97. Our review of the record, including the testimony presented at trial and at the heаring on the appellant‘s motion for new trial, leads us to conclude that the trial court could have determined that the State had not suppressed any exculpatory material.
The assistant district attorney who prosecuted this case testified at a hearing on the appellant‘s motion for new trial that during the week of April 2, 1990, she and all of the investigators involved in the casе met with the appellant‘s attorney concerning the case. All the parties brought their
The appellant‘s attorney testified that he was not made aware of any other possible suspects prior to trial. He testified that he was given the opportunity to talk to the investigators at the meeting and that the investigators were cooperative.
The appellant was tried in May 1990. A review of the trial record reveals testimony which supports the assistant district attorney‘s testimony that the alleged exculpatory material was in fact supplied to thе appellant. Melissa Lackey, the investigator who handled A.C.‘s case, testified that she had never at any time attempted to hide any of her reports from the appellant‘s attornеy or from the court. Rachel Hopper, an investigator who was involved in J.B.‘s case, testified that she, Investigator Pierce, Investigator Lackey, and the assistant district attorney met with the appellant‘s attorney sometime prior to the trial. At that time, the appellant‘s attorney reviewed the evidence, which included her reports and notes. She testified that they discussed the details of the case and that all of the files were open for him. She testified that she had a “free-flowing” conversation with him. (R. 886.) She further stated that the assistant district attorney never told her to withhold any infоrmation from the appellant‘s attorney.
Our view of the record leads us to conclude that the appellant failed to prove the first element of Brady. See United States v. Willis, 759 F.2d 1486 (11th Cir.), cert. denied, 474 U.S. 849, 106 S.Ct. 144, 88 L.Ed.2d 119 (1985); Poe v. State, 510 So.2d 852 (Ala.Crim.App. 1987). We also note that even if the evidence had been suppressed, the appellant failed to show that the evidence was material to his case. “[E]vidence is material only if there is a reasonable prоbability 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 сonfidence in the outcome.” United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481, 494 (1985). The record reveals that of the six persons that the appellant alleges were suspects, two were never suspects in the case. Investigation of the four other individuals revealed that they were not viable suspects for various reasons. Indeed, these other individuals were not “suspects in the sense that the investigation actually foсused on them.” Jarrell v. Balkom, 735 F.2d 1242, 1258 (11th Cir. 1984), cert. denied, 471 U.S. 1103, 105 S.Ct. 2331, 85 L.Ed.2d 848 (1985). The appellant conducted a very thorough and sifting cross-examination of Investigator Lackey concerning these individuals. Furthermore, the evidence against the appellant was very strong, convincing, and abundant. Our review of the record leads us to conclude that even if the evidence of these other suspects was suppressed, there was no reаsonable probability that the timely disclosure of this evidence would have affected the outcome of the trial. Because we hold that the appellant failed to prove that any evidence was suppressed, we also hold that there was no prosecutorial misconduct.
II
The appellant next contends that his prior felony conviction could be used tо enhance only one of his new convictions rather than all of his new convictions. He also argues that application of the Habitual
There is nothing in the language of the statute that supports the appellant‘s argument. The Habitual Felony Offender Act states, “In all cases when it is shown that a criminal defendant has been previously convicted of any felony and after such conviction has committed another felony, he must be punished as follows. . . .”
We find that the appellant was correctly sentenced under the Habitual Felony Offender Act. Furthermore, his sentences fell within the statutory range of punishments. Shirah v. State, 555 So.2d 807 (Ala.Crim.App. 1989); Walker v. State, 523 So.2d 528 (Ala.Crim.App. 1988).
III
The appellant argues that he could not be sentenced for both the sodomy and sexual abuse of A.C. beсause the offenses were part of one continuous transaction. We disagree. “Where there is evidence of separate and distinct acts constituting separate criminal offenses, separate convictions and sentences may be legally had under multiple counts of an indictment.” Terrell v. State, 429 So.2d 656, 659 (Ala.Crim.App. 1982). See also Beverly v. State, 497 So.2d 513 (Ala.Crim.App. 1985), rev‘d on other grounds, 497 So.2d 519 (Ala. 1986); Clements v. State, 390 So.2d 1131 (Ala.Crim.App.), cert. denied, 390 So.2d 1136 (Ala. 1980).
The State‘s evidence indicated that A.C. was made to perform at least two acts of oral sex on the appellant. This evidence was sufficient to prove sodomy. See
IV
The appellant finally contends that the trial court erred in failing tо give the jury one of his written, requested instructions. The appellant failed to preserve this issue for review because he failed to state the grounds of objection with particularity. Lee v. State, 562 So.2d 657 (Ala.Crim.App. 1989); Bogan v. State, 529 So.2d 1029 (Ala.Crim.App. 1988).
For the rеasons set forth above, this cause is due to be, and it hereby is, affirmed.
AFFIRMED.
All the Judges concur.