Smith v. StateSmith v. State
Thе appellant, James Woodrow Smith, was convicted of murder, a violation of §
The appellant shot and killed the victim following a brief altercation outside a bar in Montgomery. A handgun, believed to have belonged to the victim, was recovered near the victim‘s body. The murder weapon was never recovered. There were several witnesses to the shooting. The appellant attempted to show that he shot the victim in self-defense, and he presented a witness at trial who testified that she saw the victim come toward the appellant with a gun pointed at him before the appellant fired at the victim. None of the witnesses who testified for the state saw the victim with a gun in his hand whеn the shooting occurred, and there was evidence suggesting that the victim‘s gun was in his pants when the appellant shot him.
The appellant‘s motion for a new trial contained a statement by the appellant‘s counsel that approximately two wеeks after the appellant was sentenced, a probation officer provided counsel with an “information sheеt” that had been used as a notepad by the foreman of the grand jury during grand jury proceedings for the appellant‘s case. According to the appellant‘s counsel, the handwritten notes revealed that one of the investigating officers had taken a statement from a witness to the shooting to the effect that the victim drew and fired a gun at the appellant beforе the appellant shot him. The appellant‘s counsel alleged in the motion for a new trial that the state had failed to provide this witness‘s statement to the defense and that that failure violated Brady and
Although the trial court entered an order setting the motion for a new trial for a hearing, the record does not reflect that a hearing was ever held or that a ruling on the motion was ever issued. Therefore, the appellant‘s motion was denied by operation of law 60 days after sentencing. See
The appellant‘s motion for a new trial was unverified and was not accompanied by any affidavits in support of the assertions therein. ” ‘Assertions of counsel in an unverified motion for a new trial are bare allegations and cannot be considered as evidence or proof of the facts alleged.’ ” Ingram v. State, 629 So.2d 800, 804 (Ala.Cr.App. 1993) (quoting Smith v. State, 364 So.2d 1, 14 (Ala.Cr.App. 1978)). Accord Arnold v. State, 601 So.2d 145, 154 (Ala.Cr.App. 1992); see also Similton v. State, 672 So.2d 1363 (Ala.Cr.App. 1995). “There is no error in a trial court‘s denial оf a motion for new trial where no evidence is offered in support of that motion.” Arnold, 601 So.2d at 154. Furthermore, although the state did not answеr the allegations in the motion for a new trial and although the motion was denied by operation of law, since the motion fоr a new trial is not supported by an affidavit or any other evidence and the grounds relied on in the motion are not shown by the rеcord, “it is unnecessary for this court to reverse and remand this case to the trial court for a hearing on the appellant‘s allegations . . . contained in the motion for new trial.” Similton, supra, 672 So.2d at 1366; see Hill v. State, 675 So.2d 484 (Ala.Cr.App. 1995). The denial of the motion for a new trial is due to be uрheld.
We note that a transcript of the grand jury testimony in question was not attached to the appellant‘s motion for a nеw trial and was not presented to the trial court in any manner. Nor was the grand jury testimony made a part of the record on аppeal. Instead, the appellant has attached a copy of the transcript of the grand jury testimony to his brief on appeal in the form of an appendix, “Exhibit A.” The transcript of the grand jury testimony is not properly before this court and shоuld not and cannot
Even if we were to consider the transcript of the grand jury testimony when assessing the correctness оf the trial court‘s denial of the motion for a new trial, we would nonetheless find that the appellant failed to establish a Brady violation or a violation of
In order to prove a Brady violation, the appellant must show “(1) that the prosecution suppressed evidence, (2) that the evidence was оf a character favorable to his defense, and (3) that the evidence was material.” Jefferson v. State, 645 So.2d 313, 315 (Ala.Cr.App. 1994).” The appellant has failed to show that the state suppressed exculpatory evidence; therefore, the appellant has proven neither a Brady violation nor a violation of
The judgment of the trial court is affirmed.
AFFIRMED.
All Judges concur.