Killough v. State

• Decision Date: 29 June 1982
• Docket Number: 3 Div. 400
• Parties: Lee KILLOUGH v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 311

438 So.2d 311

Lee KILLOUGH v. STATE.

3 Div. 400.

Court of Criminal Appeals of Alabama.

June 29, 1982.

Rehearing Denied July 27, 1982.

Vaughan H. Robison, David B. Byrne, Jr., and John M. Bolton, III of Robison & Belser, Montgomery, for appellant.

Charles A. Graddick, Atty. Gen., and Rivard Melson, Asst. Atty. Gen., for appellee.

BOWEN, Judge.

This is a companion case to Deep v. State, 414 So.2d 141 (Ala.Cr.App.1982), cert. denied. Following Deep's conviction for theft, the defendant in this cause was indicted for the theft of the same property, a Morgan portable building, in violation of Alabama Code 1975, Section 13A-8-3. Sentence was three years' imprisonment. Seven issues are raised on appeal.

I

The theft of the building occurred while the defendant was the Director of Disaster Housing in Mobile following Hurricane Frederic. William Foster was the Mobile Home Chief of the Disaster Housing Office from September 14, 1979, until April 30, 1980. During this time he kept a personal diary relating to the operations of the Disaster Housing Office. The defendant contends that the failure of the trial judge to order the production of the entire diary constitutes reversible error.

Four days before trial, the defendant formalized his request for production of the diary by causing Foster to be served with a subpoena duces tecum as authorized by Alabama Code 1975, Section 12-21-2.

After a jury had been empaneled but before any witness had taken the stand, a hearing was conducted to determine whether "THE COURT: What, specifically, are you looking for in it, Mr. Byrne (defense counsel)? Can you tell the court that?

Foster would be required to produce the diary for inspection by the defense. Although Foster testified as a State's witness at the trial of Toofie Deep, defense counsel stated that he did not know the contents of the diary, but that its production was essential to impeach the anticipated testimony Foster would give as a State witness. The following colloquy is revealing:

"MR. BYRNE: Your Honor, I don't have any idea. All I know is that the State of Alabama has taken a document that is not their work product and they are jumping up and down to prevent it from being brought to light in any fashion. And we submit, and based upon ... I don't know what is in it."

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"MR. BYRNE: Well, we know through the testimony of that witness that there were conversations on January the 4th, on January the 7th, and at the Deep trial he testifies to who was there. I want to know if there is a notation in there that on that day, January 4, the day prior or the day this building was moved, whether my client was there or not. I want to know if he was present on January the 7th, and I don't want to take the D.A.'s stipulations."

Later in the proceedings the following exchange occurred:

"THE COURT: Do you want January the 4th and 7th, and March the 4th; or all from September the 12th to April the 30th?

"MR. BYRNE: What I would like, Your Honor, particularly, is at least an in camera review and statement on the part of the court as a result of the in camera review that nothing appears relevant to this proceeding from the beginning of it until April 30th. And, in addition, we would like the entries which deal particularly with January the 4th, January the 7th and March the 4th, plus or minus four days."

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"... But we say we are absolutely entitled to January the 4th and January the 7th. And we really, basically, submit that under the due process clause, we are entitled from September the 13th until April the 30th."

The District Attorney moved to quash the subpoena duces tecum that had been served on Foster alleging that the defense was attempting to conduct a "fishing expedition". Also, the District Attorney vigorously contended that Foster's diary, which was in the District Attorney's possession at the time of the hearing, was protected from disclosure by the Grand Jury Secrecy Act (Alabama Code 1975, Section 12-16-214 et seq.). The District Attorney argued that, if the contents of the diary were divulged, further investigation into the alleged irregularities in the operation of the Department of Civil Defense and in the Disaster Housing Office would be "severely hampered".

At the hearing, Foster testified that he had made the diary at the suggestion of his personal friend, then State Senator Bishop Barron ¹, to "protect" himself. The diary was not made for the purpose of prosecuting anyone. It consisted of Foster's handwritten personal observations and copies of various documents and records which came through the Disaster Housing Office.

Foster gave the diary to Senator Barron for safekeeping during the first week in May, 1980. Foster gave the Senator "full authorization" to use the diary as he saw fit: "I authorized him to do what ... would be the right thing to do as far as the law is concerned, because he knows more about it than I do." Although Senator Barron was a practicing attorney, he was acting only as Foster's friend and there was no attorney-client relationship.

Foster was served with a Grand Jury subpoena on the 1st of June, 1980. In response When Foster testified before the Grand Jury in June of 1980, he did not use his diary. However, the diary was used by an Assistant District Attorney in questioning Foster.

to that subpoena, he delivered his diary to the District Attorney of Montgomery County. Foster testified that, since that time, the diary has never been in his possession. The defendant's subpoena duces tecum was served on March 13, 1981.

The day following this hearing the defendant's trial began and the trial judge entered an order ² requiring the District Attorney to make available to the defendant the entries in the diary for January 5th and 6th and March 4, 1980. The trial judge stated in its order that he had read the diary in its entirety and was not persuaded that the entire diary should be made available to the defendant. The judge found that the defendant's name was not mentioned in the diary entries for January 4th and 7th or March 4, 1980.

In our opinion, the trial court's order denying the defendant's request for production of the complete diary was proper and within his discretion. The order of the trial judge is self-explanatory and does not require further justification. However, the following comments are warranted by the facts of this case.

Although the defendant and the State on this appeal have spent considerable time debating whether or not the subpoena duces tecum served on Foster should have been enforced or quashed, we do not believe that a discussion of this issue is necessary for the resolution of the question now presented.

Initially, it must be noted that, when the subpoena was served on Foster, he did not have possession of the diary. The factual issue of whether or not Foster could have obtained possession of the diary from the District Attorney or whether he had relinquished all ownership and control over the document has never been presented.

It is apparent from the March 16th hearing that, when it was learned that Foster did not have possession of the diary and that the diary was actually in the possession of the District Attorney, the defendant focused his attention on having the State produce the diary, not Foster. Argument concerning Foster's compliance with the subpoena duces tecum to produce the diary was, for all intents and purposes, abandoned. Indeed, the trial judge's order requiring partial production was directed to the District Attorney, not Foster. Thus, whether or not there was technical compliance with Alabama Code 1975, Section 12-21-2 in seeking the enforcement of the subpoena duces tecum would resolve nothing. ³

The real question is not whether Foster should have been required to produce the entire diary before he testified at trial, but whether the State, who had the diary, should have.

The Supreme Court of this state, in the recently decided case Ex parte Pate, 415 So.2d 1140 (Ala.1981), reviewed the question "whether or when the defendant in a criminal case is entitled to inspection of a statement of a prosecution witness for the purpose of cross examination or impeaching the witness." This case confirmed the "general rule that an accused is not entitled to discover statements of government witnesses before trial." Thigpen v. State, 355 So.2d 392 (Ala.Cr.App.), affirmed, 355 So.2d 400 (Ala.1977); Beard v. State, 337 So.2d 1372 (Ala.Cr.App.1976). The Court specifically noted that "(t)he rule of discovery is different where a prosecution witness has testified on direct examination in the trial of the case from the instance where the statement is sought before the witness testifies."

Time and time again the courts of this state have held that an accused is not entitled to the inspection or discovery of evidence in the possession of the prosecution to conduct a mere fishing expedition in preparation of his defense. Smith v. State, 282 Ala. 268, 210 So.2d 826 (1968); Sanders v. State, 278 Ala. 453, 179 So.2d 35 (1965); Cooks v. State, 50 Ala.App. 49, 276 So.2d 634, cert. denied, 290 Ala. 363, 276 So.2d 640 (1973). This principle comports with the general proposition that a defendant is not, as a matter of right, entitled to inspection or disclosure of evidence in the possession of the prosecution prior to trial. Bellew v. State, 238 Miss. 734, 106 So.2d 146 (1958), cert. denied, 360 U.S. 473, 79 S.Ct. 1430, 3 L.Ed.2d 1531 (1959). Also see Annot., Discovery-Prosecution's Evidence, 7 A.L.R.2d 8, 22 (1966); C. Gamble, McElroy's Alabama Evidence, Section 290.05 (3rd ed. 1977).

We hold, as did the trial judge, that when a defendant's avowed purpose for inspecting a statement or document prepared by a potential prosecution witness is to cross examine or impeach that witness's testimony should he actually testify, then any such request for production prior to trial is premature. Pate, supra; Millican v. State, ...