Gardner v. State

• Decision Date: 10 March 1987
• Docket Number: 1 Div. 352
• Parties: Rita GARDNER and Ammon Weaver v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 250

530 So.2d 250

Rita GARDNER and Ammon Weaver v. STATE.

1 Div. 352.

Court of Criminal Appeals of Alabama.

March 10, 1987.

Rehearing Denied as to Weaver Nov. 10, 1987.

Barbara Brown, Mobile, for appellant Gardner.

W. Gregory Hughes, Mobile, for appellant Weaver.

Charles A. Graddick, Atty. Gen., and Beatrice Oliver, Asst. Atty. Gen., for appellee.

McMILLAN, Judge.

Appellant Weaver was indicted for the offense of burglary in the third degree and appellant Gardner was indicted for receiving stolen property in the second degree and theft of property in the third degree. This case was consolidated by agreement of the parties. Appellant Weaver was convicted and sentenced to 30 years' imprisonment and appellant Gardner was convicted of receiving stolen property in the second degree and sentenced to three years' imprisonment.

John Reams testified that he owned property on which a three-bedroom house was located. Mr. Reams apparently used the house for storage purposes. Mr. Reams testified that he had owned a motorcycle shop in Mobile. However, he testified that it had been some time since he had operated the shop as a business. He testified that on June 19, 1985, he received a telephone call from a Mr. Rosenthall, who owns Custom Motorcycle Services. Mr. Reams, at the request of Mr. Rosenthall, went to Mr. Rosenthall's shop and looked at some "material" which he had in his possession. Mr. Reams testified that the items he observed belonged to him. He stated that he had stored these items in a house on his property. He further testified that he had not been to the house for approximately a week and a half to two weeks before he received this telephone call. Mr. Rosenthall testified that the appellants came to his shop attempting to sell the merchandise. He further testified that appellant Gardner indicated that the items had belonged to her deceased husband. Mr. Rosenthall gave the appellants a $100.00 check for the merchandise and wrote down the license tag number of the appellants' car. He stated this was his customary procedure with sellers who did not have a receipt or sales slip for their merchandise. Mr. Rosenthall testified that the items were new and unused, but covered with dust. He discovered stickers on several of the items which indicated that they had been previously sold to Mr. Reams's motorcycle shop. He testified that he had known Mr. Reams for some time and therefore called him to inquire about the merchandise. Mr. Reams called the Sheriff's Department to have someone look at the items and to search his house for any evidence.

Mr. Reams testified that the appellants lived in a house approximately 50 yards from his house. He also testified that he had previously left his house secured. He further testified that after talking to Mr. Rosenthall, he called the Sheriff's Department and then went to his house. He observed that the top portion of the back bedroom window had been pried down. He further testified that the grass in his yard had grown to approximately two and a half or three feet high and that there was a path beaten from his kitchen door leading to the appellants' house.

Detective Phillips of the Mobile County Sheriff's Department testified that he went to Mr. Reams's home to investigate a burglary. He testified that when he arrived at the scene, he did not observe the condition of any windows or doors because a vehicle pulled up to the house next door which matched the description of the car driven by the people who had sold the merchandise at Mr. Rosenthall's shop. Detective Phillips testified that he knew that a subject by the name of Rita Gardner had received a check for the merchandise and, when he went next door, the lady who came out identified herself as Rita Gardner. Detective Phillips further testified that he felt it was necessary to advise her of her rights and then to ask her permission to search the premises. She signed a consent form. Detective Phillips testified that appellant-Gardner admitted selling the merchandise to Mr. Rosenthall. Appellant Gardner told Detective Phillips that "a man named John" had given her all of the merchandise. Detective Phillips indicated that he wanted everything she had received from John. She produced a vacuum cleaner and a rug, which were subsequently identified as having been taken from Mr. Reams's house. Appellant Gardner informed Detective Phillips after his inquiry about the sale of the merchandise to Mr. Rosenthall that appellant Weaver had been with her at the motorcycle shop; therefore, Detective Phillips asked to speak to appellant Weaver. When Weaver walked outside, Detective Phillips advised him of his rights and asked him if he knew about a burglary at the house next door. Weaver denied any knowledge of a burglary, whereupon Mr. Reams approached the two and stated "well, if you don't know anything about it, ... why are you wearing my shoes?" Appellant Weaver removed the shoes and threw them.

Deputy Sheriff Sloke testified that he "developed" a latent fingerprint off of an empty gun scope box in Mr. Reams's bedroom. He identified the print as coming from appellant Weaver's number nine finger, which is his left ring finger.

ISSUES RAISED BY APPELLANT GARDNER

I.

Appellant Gardner argues that the trial court erred in allowing Detective Phillips to testify as to what the co-defendants had told him while at the scene of the offense during his initial investigation, because the discovery order was allegedly violated by the State. The record indicates that during the trial, a hearing was held outside the presence of the jury concerning the alleged violation of the discovery order by the State. Although the prosecutor alleged that she did not become aware of the transcribed statement made by appellant Gardner to Detective Phillips until the morning of the trial, the trial court suppressed any evidence of the statement because the State failed to disclose this statement to the appellant in accordance with the directives of the discovery order. However, the trial court allowed testimony by Mr. Reams as to appellant Weaver's remarks concerning the sandals which he was wearing and which were determined to belong to Mr. Reams. The court also allowed testimony from Detective Phillips as to statements made by appellant Gardner indicating that she sold the parts to Mr. Rosenthall, that she had received the items from a man named John, and that he had also given her the rug and vacuum cleaner.

The discovery order states in pertinent part:

"The District Attorney shall produce or make available to the Defendant's attorney at arraignment the following:

"...

"(b) All statements of the Defendant which are reduced to writing "(c) All statements of the Defendant which are electronically recorded or taped, and any transcripts thereof;

"(d) The substance of any oral statements made by the Defendant which are not included within (b) and (c) hereof or if the District Attorney knows of any statements or spontaneous remarks made while the Defendant is in the custody of the police or during the investigation."

During the hearing conducted by the trial court, evidence was presented that two responses to the discovery were prepared by the State and given to the defense counsel. One response indicated that appellant Gardner had stated that she sold the motorcycle parts. This response indicated that no statements had been made by appellant Weaver at that time. The other response indicated that appellant Weaver acknowledged that the sandals belonged to Mr. Reams and that he kicked them off. This response indicated that no statements had been made by appellant Gardner at that time. Thus, the only statements left in question were those elicited during the testimony of Detective Phillips indicating that appellant Gardner told him that she had obtained the parts, the vacuum cleaner, and the rug from a man named John.

"Pursuant to United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), undisclosed evidence is material under the Brady rule ( Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)) only when it is reasonably probable that the outcome of the trial would have been different had the evidence been disclosed to the defense." Hamilton v. State, 520 So.2d 155 (Ala.Cr.App.1986).

"Thus, where the prosecutor fails to disclose evidence, regardless of its admissibility or its trustworthiness, the crucial question is whether the nondisclosure might have affected the outcome of the trial. State v. Kimberly, 463 So.2d 1106, 1108 (Ala.Cr.App.1984), rev'd, Ex parte Kimberly, 463 So.2d 1109 (Ala.1984). '[T]he omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt.' United States v. Agurs, [427 U.S. 97, 112-13, 96 S.Ct. 2392, 2401-02, 49 L.Ed.2d 342, 349 (1976) ]. ' "The principle of Mooney v. Holohan, [294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935) ], is not punishment of society for misdeeds of a prosecutor but avoidance of an unfair trial to the accused." Brady, 373 U.S. at 87, 83 S.Ct. at 1197.' State v. Kimberly, supra, at 1108-09."

Robinson v. State, 528 So.2d 343 (Ala.Cr.App.1986).

" 'Even where there is total non disclosure of information the test is whether the use of the information at trial would have changed the result by creating a reasonable doubt where one did not otherwise exist. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); Jones v. State, 396 So.2d 140 (Ala.Cr.App.1981). As the United States Supreme Court stated in Beck v. Washington, 369 U.S. 541, 558, 82 S.Ct. 955, 964, 8 L.Ed.2d 98 (1962):

" ' "While this Court stands ready to correct violations...