649 So. 2d 1328 | Ala. Crim. App. | 1994
The appellant, Harold Dilton Putman, was convicted of burglary in the third degree, theft of property in the first degree, assault in the second degree, and sexual abuse in the *1329 first degree. He was sentenced as a habitual felony offender to life imprisonment on each conviction, with the sentences to run concurrently. He was also convicted of robbery in the first degree and was sentenced to imprisonment for life without parole. He raises three issues on this direct appeal from those convictions.
Two months before trial, the prosecution responded to the appellant's discovery request by delivering to the appellant copies of the indictment, the search warrant, the appellant's statement, and the inventory list. The prosecution informed the appellant by letter that: "If you feel you are entitled to anything more or different than what is attached hereto, please contact me. Any items of physical evidence are in the possession of law enforcement officials. If you wish to view those items, please contact me and we will make appropriate arrangements." C.R. 10, R. 129-30.
The appellant had sufficient notice and sufficient opportunity to further inquire into this matter if he was not satisfied with the prosecution's response to his discovery request. The prosecutor stated that he had given the appellant what was in the prosecution's file and that the appellant could have checked with the clerk's office and found "the original search warrant there." R. 132. The trial court overruled the appellant's objection to the prosecution's alleged failure to produce and stated that "if you didn't think the search warrant and inventory list that you got on March 24 were adequate, you had two months almost to the day today to call them up and say, 'Where is the executed copy of the search warrant?' or 'Where is the complete inventory list?' " R. 133.
The appellant has not shown that the prosecution failed to disclose exculpatory evidence to the defense. " 'ABrady violation occurs where: 1) the prosecution suppressed evidence; 2) the evidence was favorable to the defendant; and 3) the evidence was material to the issues at trial.' " Johnsonv. State,
In addition, the appellant failed to show how completed copies of the search warrant and inventory list were favorable to the defense or material to the issue of the appellant's guilt.
*1330"The trial court determines the admissibility of non-disclosed evidence as it may be 'pertinent to the issue of the innocence or guilt of the accused.' Brady v. Maryland,
373 U.S. 83 ,90 ,83 S.Ct. 1194 ,1198 ,10 L.Ed.2d 215 (1963). . . ." 'The evidence suppressed must have been material, probative, vital and exculpatory to the accused. A new trial is required only if the evidence undisclosed could, in any reasonable likelihood, have affected the judgment of the jury. In United States v. Agurs, [
427 U.S. 97 ,96 S.Ct. 2392 ,49 L.Ed.2d 342 (1976)], the United States Supreme Court stated that the correct rule is that a constitutional error has occurred if the omitted evidence creates a reasonable doubt that did not otherwise exist and that the omission must be evaluated in the context of the entire record.' (Footnotes omitted.)
C. Gamble, McElroy's Alabama Evidence, § 290.05(2) (3d ed. 1977)."McNeely v. State,
" '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.' "Johnson v. State,
"Before any custodial statements may be allowed into evidence, the state must show that the defendant was read hisMiranda rights and that his waiver of those rights was voluntary." Holder v. State,
"[O]nce Miranda warnings have been given and a waiver made, a failure to repeat the warnings before a subsequent interrogation will not automatically preclude the admission of an inculpatory response. Whether the Miranda warnings must be repeated depends on the facts of each individual case, with the lapse of time and the events which occur between interrogation being relevant factors to consider." Hollander v. State,
The evidence shows that Investigator John David Richardson failed to advise the appellant before interviewing him that "you can decide at any time to exercise these rights and not answer any questions or make any statements." R. 147. However, Investigator Junior Witt testified that the appellant had been given the proper and full Miranda warnings approximately five minutes before Richardson began tape-recording the appellant's statement. Witt testified that he read the appellant hisMiranda rights inside Richardson's office before the tape recorder was turned on. R. 149, 151. Those rights were read from a printed card and included the portion omitted by Richardson.
"The Miranda decision requires no talismanic formulation of the warnings to be given to a criminal defendant as to the constitutional rights protected by that decision." Jones v.State,
Sufficient evidence was presented for the trial court to conclude that the appellant was properly advised of all of hisMiranda rights and that he knowingly and voluntarily waived those rights.
In response to the appellant's objection, the trial court stated:
"Well, it's just obvious to me that if you are a prosecutor, you don't leave somebody on a jury who your office has prosecuted in the past, or whose close relative you have prosecuted in the past.
"There's a substantial possibility that there might be some lasting bad feeling from that. So I find those reasons to be race-neutral." R. 23.
A "connection with or [involvement in] criminal activity includes the juror in question, as well as close relatives and friends of the juror." Heard v. State,
"[W]e know of no requirement that the prosecutor must be bound by and must accept a veniremember's response at face value." Jones v. State,
The judgment of the circuit court is affirmed.
AFFIRMED.
All Judges concur.