Ex parte Land

• Decision Date: 02 July 1998
• Citation: 775 So.2d 840
• Court: Alabama Court of Criminal Appeals
• Parties: Ex parte Michael Jeffrey LAND. (In re State of Alabama v. Michael Jeffrey Land).

775 So.2d 840

Ex parte Michael Jeffrey LAND.

(In re State of Alabama v. Michael Jeffrey Land).

CR-97-1473.

Court of Criminal Appeals of Alabama.

July 2, 1998.

J. Drew Colfax, Montgomery, for petitioner.

Bill Pryor, atty. gen., and Michael B. Billingsley, asst. atty. gen., for respondent.

LONG, Presiding Judge.

The petitioner, Michael Jeffrey Land, filed this petition for a writ of mandamus requesting that we direct the Honorable James H. Hard IV, circuit judge for the Tenth Judicial Circuit, to grant his discovery motion. In December 1993, Land was convicted of two counts of murder made capital because the murder of Candace Brown was committed during the commission of a burglary and a kidnapping. Land was sentenced to death by electrocution. This Court affirmed his conviction and his death sentence. Land v. State, 678 So.2d 201 (Ala.Cr.App.1995), aff'd, 678 So.2d 224 (Ala.), cert. denied, 519 U.S. 933, 117 S.Ct. 308, 136 L.Ed.2d 224 (1996). In October 1997, Land filed a 57-page post-conviction petition pursuant to Rule 32, Ala.R.Crim. P., attacking his conviction and sentence.¹ Land subsequently filed a lengthy discovery motion that, in essence, requested access to the complete files of the Jefferson County district attorney's office related to the case, and the complete files of all other agencies involved in the case, including the Jefferson County Sheriff's Department, the Birmingham Police Department, the Jefferson County coroner's office, the Alabama Bureau of Investigation, the Alabama Department of Forensic Sciences, and the Alabama Department of Youth Services. Judge Hard allowed Land to inspect the files in the Jefferson County district attorney's office, but did not allow discovery of any of the other files. Land moved for Judge Hard to reconsider; that motion was denied, and this petition for a writ of mandamus followed. Judge Hard stayed action on the post-conviction petition pending disposition by this Court of this mandamus petition.

Before we reach the merits of the petitioner's claim, we must determine if mandamus is the proper method by which to review Judge Hard's ruling. Mandamus has been used repeatedly to review a trial court's ruling on a discovery motion. Ex parte HealthSouth Corp., 712 So.2d 1086 (Ala.1997); Ex parte Compass Bank, 686 So.2d 1135 (Ala.1996); Ex parte Life Ins. Co. of Georgia, 663 So.2d 929 (Ala. 1995); Ex parte Riggs, 423 So.2d 202 (Ala. 1982).

The Alabama Supreme Court recently in Ex parte Horton, 711 So.2d 979 (Ala.1998), cited the standard of review for evaluating a mandamus petition concerning the denial of a discovery motion. The Court stated:

"Trial courts are vested with broad discretion in controlling the discovery process and in making rulings pertaining to discovery matters. Ex parte Heilig-Meyers Furniture Co., 684 So.2d 1292 (Ala.1996); Ex parte Thomas, 628 So.2d 483 (Ala.1993). A petition for the writ of mandamus is the proper means for seeking appellate review of the question whether a trial court has abused its discretion in a discovery matter. Ex parte Heilig-Meyers Furniture Co.; Ex parte General Motors Acceptance Corp., 631 So.2d 990 (Ala.1994). However, mandamus is a drastic and extraordinary writ that will be issued only when there is: (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court. Ex parte United Service Stations, Inc., 628 So.2d 501 (Ala.1993); Ex parte AmSouth Bank, N.A., 589 So.2d 715 (Ala.1991). In sum, the writ of mandamus will not issue to compel a trial court to change its discovery order unless the appellate court determines, based on all the facts that were before the trial court, that the trial court clearly abused its discretion. Ex parte Fuller, 600 So.2d 214 (Ala.1992); Ex parte Knox Kershaw, Inc., 562 So.2d 250 (Ala.1990)."

711 So.2d at 983.

Land, citing Ex parte Monk, 557 So.2d 832 (Ala.1989), argues that he is entitled to all of the information he requested, because, he says, the severity of the punishment allows a "heightened level of discovery." Land specifically argues that he "[c]annot fully investigate the possibility that the state withheld exculpatory evidence in this case without access to the above enumerated law-enforcement files," and that he cannot prove that his counsel's performance was ineffective without access to those files.

Land is correct in stating that a trial judge may order "broader discovery" when a defendant is facing the death penalty. The Alabama Supreme Court so held in Ex parte Monk, 557 So.2d 832 (Ala.1989).

"The capital case is `sufficiently different' from other cases, because there is no other criminal case in which the crime is murder and the possible punishment is death or life imprisonment without parole. See: § 13A-5-39 et seq. Justice Brennan explained how the Justices of the United States Supreme Court view capital cases, as follows: `When the penalty is death, we, like state court judges, are tempted to strain the evidence and even, in close cases, the law in order to give a doubtfully condemned man another chance.' Furman v. Georgia, 408 U.S. 238, 287, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). The hovering death penalty is the special circumstance justifying broader discovery in capital cases."

557 So.2d at 836-37. (Emphasis added.) However, Land ignores the fact that the current proceeding is a post-conviction proceeding collaterally attacking his conviction and sentence. Land has already been tried for, and convicted of, capital murder.

In Alabama, there is no constitutional right to discovery in a criminal case. Rule 19, Alabama Rules of Criminal Procedure, affords an accused a limited right of discovery in a pending criminal action. The extent of discovery is within the discretion of the trial court. As this court stated in Mason v. State, 768 So.2d 981, 1001 (Ala.Cr.App.1998):

"While Monk does encourage liberal discovery in capital murder cases, it does not mandate that the state disclose to a defendant the name and address of every individual who has furnished information to the state in the investigation of a crime; rather, `Monk made it clear that whether to order discovery beyond that required by the constitution or by state law or rule is discretionary with the trial court.' Council v. State, 682 So.2d 500, 501 (Ala.1996) (Hooper, C.J., concurring specially in denial of certiorari review)."

(Emphasis original.)

The cases cited above all concern pretrial discovery. Few Alabama cases specifically address the availability of discovery in a post-conviction proceeding. The only reference to discovery in Rule 32 appears in Rule 32.4, which states:

"A proceeding under this rule displaces all post-trial remedies except post-trial motions under Rule 24 and appeal. Any other post-conviction petition seeking relief from a conviction or sentence shall be treated as a proceeding under this rule. Proceedings under this rule shall be governed by the Rules of Criminal Procedure, except that the trial court in its sole discretion may allow the taking of depositions for discovery or for use at trial."

(Emphasis added.)

The Alabama Supreme Court in Ex parte Martin, 628 So.2d 421, 422 (Ala. 1993), addressed the applicability of Rule 16.2(b)² to a post-conviction proceeding and held that Rule 16.2(b) did not apply to a post-conviction proceeding because Rule 16.2(b) specifically states that it applies "solely in connection with the particular offense with which the defendant is charged." The Court further stated, "Martin is not presently charged with an offense. He has already been tried and convicted and is pursuing a collateral attack on that conviction." 628 So.2d at 422.

Rule 16 contains many other references that support the conclusion in Martin —that Rule 16 has no applicability in post-conviction proceeding. Rule 16.1(a)(2) and Rule 16.1(b)(2), in enumerating the statements that must be disclosed, provides that the prosecution must disclose those statements "which the state/municipality intends to offer in evidence at the trial." Rule 16.1(c), in listing those documents the defendant is to have access to, refers to those documents "which are material to the preparation of defendant's defense...." Rule 16.3 states that a party has a continuing duty to disclose "if prior to or during trial" the party discovers or decides to use new evidence. The wording of Rule 16 clearly reflects that the application of Rule 16 to a post-conviction proceeding is severely limited.³

Our research has revealed one Alabama case, Ex parte Davis, 628 So.2d 530 (Ala. 1993), that discusses Rule 32.4.⁴ In Davis, the Supreme Court was reviewing a petition for a writ of mandamus filed against a circuit judge who had allowed the State to depose the petitioner but who had not allowed the petitioner, who was raising a claim of ineffective assistance of counsel, to depose his former counsel and the chief district attorney who had prosecuted him. The Supreme Court stated:

"Rule 20 (now superseded by Rule 32, A.R.Cr.P.), made deposition discovery available on post-conviction review. Where a defendant has been sentenced to death and contends in a post-conviction proceeding that he had ineffective assistance of counsel, and the State has been allowed to depose the defendant regarding his claim of ineffective assistance, we hold that fundamental principles of due process dictate that the defendant likewise be allowed to depose his trial counsel and the chief prosecutor before the hearing on the post-conviction petition."

628 So.2d at 531.

A literal reading of Rule 32 reveals that there is limited discovery in post-conviction proceedings. Because there is little Alabama law on this issue, we have looked to other jurisdictions for guidance. We cite with approval the New Jersey Supreme Court, which stated in State v....