McCart v. State
Decision Date | 01 October 1999 |
Citation | 765 So.2d 21 |
Parties | William Gary McCART, Peggy Wilson McCart, and Gary Keith McCart v. STATE. |
Court | Alabama Court of Criminal Appeals |
James Warren May, Foley, for appellants.
Bill Pryor, atty. gen., and Stephanie N. Morman, asst. atty. gen., for appellee. On Applications for Rehearing
This court's opinion of May 28, 1999, is withdrawn and the following opinion is substituted therefor.
The appellants, William Gary McCart (Gary), Peggy Wilson McCart, and Gary Keith McCart (Keith), were convicted of conspiracy to traffic in marijuana, in violation of §§ 13A-12-204 and 13A-12-231(1)a., Ala.Code 1975, and unlawful possession of drug paraphernalia, in violation of § 13A-12-260(c), Ala.Code 1975. The trial court sentenced each appellant to serve 25 years in prison and ordered each to pay a $25,000 fine on the conspiracy convictions. The court also sentenced each appellant to serve one year in the Baldwin County jail and to pay a $2,000 fine on the unlawful possession of drug paraphernalia convictions. This appeal followed.
The appellants argue that the trial court erred in denying their motions to compel discovery of audiotape recordings made by a confidential informant and law enforcement officers during the investigation of the case. In their motions, the appellants maintained that it was "well within reason to suspect that the tape or tapes will contain exculpatory material for at least one, if not more, of these co-defendants." (R. 25, 91, 133.) After reviewing the tapes in camera, the trial court entered the following order:1
(R. 2, 68, 110.) Afterward, defense counsel requested that the tapes be made a sealed exhibit to the record, and the trial court granted counsel's request. The State did not introduce the tapes into evidence at trial.
The appellants allege that the tapes must have contained exculpatory evidence, which would have been discoverable under Rule 16, Ala. R.Crim. P., and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). However, they have not specified any information that they allege was exculpatory. Under Rule 16, a criminal defendant is entitled to discover documents and tangible things Rule 16.1(c), Ala. R.Crim. P. "To prove a Brady violation, a defendant must show that `"(1) the prosecution suppressed evidence; (2) the evidence was favorable to the defendant; and (3) the evidence was material to the issues at trial."'" Freeman v. State, 722 So.2d 806, 810 (Ala.Cr. App.1998) (quoting Johnson v. State, 612 So.2d 1288, 1293 (Ala.Cr.App.1992)). In the Brady context, "evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985). Finally, with regard to discovery of exculpatory evidence, we have held:
], we hold that Russell was not entitled to examine the complete file of the DHS concerning the victim. Here, the trial judge examined the entire file and provided Russell with the material which was `conceivably exculpatory.' This satisfied the requirement that the defendant be allowed access to information material to his defense. Ritchie, 107 S.Ct. at 1002. This same procedure was approved and ordered in Ex parte Riggs, 423 So.2d 202, 203 (Ala. 1982) ( ).
Russell v. State, 533 So.2d 725, 727-28 (Ala.Cr.App.1988) (quoting Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987)).
We have reviewed the audiotapes, and we agree with the trial court's assessment that they do not contain exculpatory material. Furthermore, the State did not introduce the audiotapes at trial, and the audiotapes did not originally belong to any of the appellants. Therefore, the tapes were not discoverable under Rule 16, Ala. R.Crim. P., or under Brady. Consequently, the State was not required to give the appellants access to the tapes, and the trial court did not abuse its discretion in denying the appellants' motions to compel production of the tapes.
The appellants' second argument is that the trial court erred in admitting into evidence two photographs that depicted "sex toys" or "marital aids" that were located in a drawer beneath Gary and Peggy McCart's bed.2 Before trial, the appellants moved in limine to exclude the photographs, arguing that their prejudicial effect far outweighed their probative value. The defense also offered to stipulate that officers found marijuana in the drawer and that both Gary and Peggy McCart knew the marijuana was in the drawer. The State argued that the photographs were relevant to show that the marijuana was found in a location that contained personal items that belonged to both Gary and Peggy McCart. Further, in asserting that the stipulation would not be sufficient, the prosecutor argued:
(R. 24-25.) However, the State did agree to offer only two of four photographs of the contents of the drawer.3 The trial court then denied the appellants' motion in limine, but stated that it would give a curative instruction concerning the photographs during the trial. Before the photographs were shown to the jury, the trial court instructed the jurors as follows:
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