Cooks v. State

• Decision Date: 13 February 1973
• Docket Number: 1 Div. 310
• Citation: 276 So.2d 634,50 Ala.App. 49
• Parties: Jasper Lee COOKS, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 634

276 So.2d 634

50 Ala.App. 49

Jasper Lee COOKS, alias v. STATE.

1 Div. 310.

Court of Criminal Appeals of Alabama.

Feb. 13, 1973.

Rehearing Denied March 20, 1973.

David L. Barnett, Mobile, for appellant.

William J. Baxley, Atty. gen., and Don C. Dickert, Asst. Atty. Gen., for the State.

HILL, Circuit Judge.

The appellant, Cooks, was convicted of Burglary, 1st Degree and pursuant to jury verdict was duly sentenced to ten years imprisonment.

The State's evidence as to the commission of the offense and the identification of the defendant as the guilty party was given by a Mrs. Robertha Cox who lived alone. At approximately four-thirty o'clock, a.m., on June 28, 1972, she was awakened by a noise and a flick of the light in the living room of her home in Mobile. From her bed she could see someone in her living room. The intruder went into the kitchen and turned on a light. Upon hearing a 'stirring in the drawer' she walked through the living room and toward the kitchen asking 'who is in here?' The intruder opened the back door and squatted down near the screen door. She testified she saw and recognized the intruder as the appellant, Jasper Cooks, who lived across the street and whom she had known since he was a baby. The intruder was holding a flashlight. The person told her several times that he was the law. There was no eidence of recognition of him by voice. He then went into a bedroom and Mrs. Cox ran out the front door and screamed for help. Entry had been gained by tearing away a screen nailed to a bathroom window. The burglary occurred during the night, a dark night. The witness testified there were no lights burning in her home, that the kitchen light just 'came on and off and that's when I asked who it was,' that the house was in the middle of the block and there was a street light at each end of the block. Another light shone from a neighbor's yard at the back of her home. From this light from the outside she could and did recognize and identify the defendant as the intruder from a distance of twelve feet away.

The defendant was arrested by officers later during the night at his place of abode across the street. He was later, while in custody, identified as the guilty party by Mrs. Cox in a lineup procedure. Defense evidence was confined to that of defendant's mother to the effect that defendant lived in a room adjacent to her home, that he came home about 2:00 o'clock, a.m., and did not leave the place after that on the night in question.

It is first contended that certain criminal discovery rights were denied the defendant to his prejudice.

On trial date the defense filed in writing a pretrial motion that the prosecution prduce for inspection any statement made by the defendant and any agent of the State of Alabama. Though the record indicates this motion was overruled, the transcript discloses that before any evidence was heard and immediately following an opening statement of instructions by the Court to the jury the following transpired:

'THE COURT: I haven't seen the motion. What is it about?

'MR. BARNETT: We're just asking for any statement that the Defendant nay have given.

'MR. CAMPBELL: We have no statement.

'THE COURT: All right. Bring the jury in.'

Thus it was certified that there was no statement of the defendant. It is seen that a portion of the pretrial motion sought for inspection 'any statement made by any agent of the State of Alabama.' Also, later during the trial and at the conclusion of the direct testimony of the prosecuting witness, Mrs. Cox, the defense sought for inspection 'any notes made by any police officer at the scene or during the investigation of this case related to the defendant or any of the defendant's activities.' There was no error in the court's denial of either request. The defense was not entitled to a mere fishing expedition. Sanders v. State, 278 Ala. 453, 179 So.2d 35; Smith v. State, 282 Ala. 268, 210 So.2d 826. The material called for in both instances could not in any event be considered admissible evidence. (See Davidson v. State, 48 Ala.App. 446, 265 So.2d 888, wherein the court was dealing only with a pretrial motion for discovery). There was nothing to indicate in either demand that it was made for the purpose of securing material for use in cross examination or impeachment of witnesses. Notes or memorandums personally compiled by law enforcement authorities in the course of their investigation, even if they include notes of conversations with the accused, constitute the work product of the state and are privileged from pretrial discovery. State v. Superior Court, 106 N.H. 228, 208 A.2d 832, 7 A.L.R.3d 1, and Annotation thereto.

A statement, memoranda, or notes, not read by the witness interiewed and not signed or authenticated by the witness cannot be considered evidence. Marbry v. State, 40 Ala.App. 129, 110 So.2d 250. In this case, Harwood, J., writing for the court quoted with approval:

'Perhaps the answer is best summarized in a statement by Cardozo, C.J., in People ex rel. Lemon v. Supreme Court of State of New York, 245 N.Y. 24, 156 N.E. 84, 85, 52 A.L.R. 200, wherein he observed:

"Documents are not the subject to inspection for the mere reason that they will be useful in supplying a clew whereby evidence can be gathered. Documents to be subject to inspection must be evidence themselves."

Judge (now Justice) Harwood then stated:

'Clearly, the mere memoranda sought in this case, made by investigators during the course of an interview, not read by the witness interviewed, and not signed r adopted by them in any way cannot be considered evidence.'

However, a more serious question is presented in that Mr. Barnett, defense attorney, at the conclusion of the direct testimony of the prosecuting witness (homeowner) orally moved the court 'for the production of any statement made by the witness to any police officer during the investigation of the case.' The defense attorney stated to the Court: 'All I'm asking for is any statement that this lady made to any police officer or any notes he made regarding her statement in the investigation of this case. If this is denied, the defendant is denied his effective right of cross examining this witness and he is denied his right to learn any information that is contradictory to what the witness states here on the witness stand.'

The Court overruled the oral motion saying: 'I will repeat the ruling I made on your written motion. I will only grant your motion to the extent of requiring the State to furnish you with any evidence that the State has knowledge of that would tend to exonerate the defendant.' No such statement was produced. There is nothing in the record to indicate that the State used any statement of the witness in questioning the witness on the stand nor is there any indication of the existence of any such statement.

In this connection it is of interest to note the definition of 'statement' in a statute, 18 U.S.C.A. § 3500, enacted for the federal courts in September, 1957, in which it is declared that 'statement' means: 'a written statement made by said witness and signed or otherwise adopted or approved by him.' See discussion in the Mabry case, supra. The Supreme Court of the United States subsequently in 1959 in applying this statute restricted documents which must be produced only to 'those statements which could properly be called the witness' own words.' Palermo v. United States (1959), 360 U.S. 343, 79 S.Ct. 1217, 3 L.Ed.2d 1287. This statute was enacted following the decision in Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103, which held that it was no longer incumbent upon the defendant to first lay a predicate of inconsistency between the previous statement of the witness and his testimony on trial as a condition precedent to production of the prior statement. The Jencks decision, however, was not predicated upon constitutional provisions but...