McCart v. State

CourtAlabama Court of Criminal Appeals
Writing for the CourtBASCHAB.
Citation765 So.2d 21
PartiesWilliam Gary McCART, Peggy Wilson McCart, and Gary Keith McCart v. STATE.
Decision Date01 October 1999

765 So.2d 21

William Gary McCART, Peggy Wilson McCart, and Gary Keith McCart
v.
STATE

CR-97-1770.

Court of Criminal Appeals of Alabama.

October 1, 1999.

Opinion on Return to Remand February 4, 2000.


765 So.2d 22
James Warren May, Foley, for appellants

Bill Pryor, atty. gen., and Stephanie N. Morman, asst. atty. gen., for appellee.

765 So.2d 23
On Applications for Rehearing

BASCHAB, Judge.

This court's opinion of May 28, 1999, is withdrawn and the following opinion is substituted therefor.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.

I.

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

"The court has listened to tape recordings in the possession of the State in camera. There is no exculpatory evidence therein. The State shall not be required to provide the tapes to the Defendant or to disclose the identity of the confidential informant unless they intend to use the same at trial."

(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 "(1) [w]hich are material to the preparation of defendant's defense; ... (2)[w]hich are intended for use by the state/municipality as evidence at the trial; or (3)[w]hich were obtained from or belong to the defendant." 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:

"`A defendant's right to discover exculpatory evidence does not include the unsupervised authority to search through the [State's] files. See United States v. Bagley, 473 U.S. [667], at 675, 105 S.Ct. [3375], at [3379], [87 L.Ed.2d 481 (1985)]; United States v. Agurs, supra, 427 U.S. [97], at 111, 96 S.Ct. [2392], at 2401, [49 L.Ed.2d 342 (1976) ]. Although the eye of an advocate may be helpful to a defendant in
765 So.2d 24
ferreting out information, Dennis v. United States, 384 U.S. 855, 875, 86 S.Ct. 1840, 1851, 16 L.Ed.2d 973 (1966), this Court has never held— even in the absence of a statute restricting disclosure—that a defendant alone may make the determination as to the materiality of the information. Settled practice is to the contrary. In the typical case where a defendant makes only a general request for exculpatory material under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 [10 L.Ed.2d 215 (1963) ], it is the State that decides which information must be disclosed. Unless defense counsel becomes aware that other exculpatory evidence was withheld and brings it to the court's attention, the prosecutor's decision on disclosure is final. Defense counsel has no constitutional right to conduct his own search of the State's files to argue relevance. See Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 846, 51 L.Ed.2d 30 (1977) ("There is no general constitutional right to discovery in a criminal case, and Brady did not create one").
"`We find that Ritchie's interest (as well as that of the [State]) in ensuring a fair trial can be protected fully by requiring that the [Children and Youth Services] files be submitted only to the trial court for in camera review. Although this rule denies Ritchie the benefits of an "advocate's eye," we note that the trial court's discretion is not unbounded. If a defendant is aware of specific information contained in the file (e.g., the medical report), he is free to request it directly from the court, and argue in favor of its materiality. Moreover, the duty to disclose is ongoing; information that may be deemed immaterial upon original examination may become important as the proceedings progress, and the court would be obligated to release information material to the fairness of the trial.
"`. . . .'
"On authority of [Pennsylvania v.] Ritchie, [480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987)], 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) (in mandamus proceeding, parent in damage suit against teacher sought to have trial judge required to permit her to discover records of Department of Pensions and Security concerning investigation of teacher's alleged assault on parent's child).
"This Court has examined the entire DHS file, the portion of that file disclosed to Russell, and the portion available to the district attorney. We have found no material information or information which, had it been disclosed to the defense, would have created a reasonable probability that the result of the trial would have been different. In our opinion, Russell received all the information to which he was entitled and has no cause for complaint."

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

765 So.2d 25
the appellants' motions to compel production of the tapes

II.

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:

"I think it's important for the jury to see where the marijuana was being stored to show the elements of the conspiracy and the knowledge and, you know, the intent. And it's stored in a drawer that involves personal items that would be personal to both Mr. and Mrs. McCart, and I think that's significant.... It's in a drawer that would show joint ownership."

(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:

"Ladies and gentlemen, before you see these photographs I want to give you a cautionary instruction. There will be portrayed in these photographs sexual aids or sexual devices. And the Court instructs you that the Court has ruled these photographs are admissible for what they show and may be used by the State for purposes of evidence to show what they will argue is access to or possession of or control of items within a drawer.
"But you may, if you disapprove of such devices or think they're inappropriate or have any negative feelings about sexual aids or devices, you may not hold that against the defendants and that notion alone is not proof and may not be used by you as
...

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8 practice notes
  • Peraita v. State
    • United States
    • Alabama Court of Criminal Appeals
    • May 30, 2003
    ...780, 783 (Ala.1989), cert. denied, 497 U.S. 1032, 110 S.Ct. 3297, 111 L.Ed.2d 806 (1990)." (Emphasis added.) See also McCart v. State, 765 So.2d 21 For the reasons set forth in Ball and Duncan, we conclude that the trial court did not err when it did not require the State to accept the appe......
  • Revis v. State Of Ala., CR-06-0454
    • United States
    • Alabama Court of Criminal Appeals
    • January 13, 2011
    ...contained anything exculpatory or that he was prejudiced as a result of the lateness of the disclosure. Similarly, in McCart v. State, 765 So. 2d 21 (Ala. Crim. App. 1999), McCart alleged that he was entitled to certain tapes made during the course of the investigation that had involved a c......
  • Revis v. State, CR–06–0454.
    • United States
    • Alabama Court of Criminal Appeals
    • August 17, 2012
    ...contained anything exculpatory or that he was prejudiced as a result of the lateness of the disclosure. Similarly, in McCart v. State, 765 So.2d 21 (Ala.Crim.App.1999), McCart alleged that he was entitled to certain tapes made during the course of the investigation that had involved a confi......
  • Hall v. State, CR–15–0273.
    • United States
    • Alabama Court of Criminal Appeals
    • July 8, 2016
    ...; Arrington v. State , 757 So.2d 484 (Ala.Crim.App.1999) ; Wild v. State , 761 So.2d 261 (Ala.Crim.App.1999) ; McCart v. State , 765 So.2d 21 (Ala.Crim.App.1999) ; Pace v. State , 766 So.2d 201 (Ala.Crim.App.1999) ; Prince v. State , 736 So.2d 1144 (Ala.Crim.App.1999) ; Harris v. State , 74......
  • Request a trial to view additional results
8 cases
  • Peraita v. State
    • United States
    • Alabama Court of Criminal Appeals
    • May 30, 2003
    ...780, 783 (Ala.1989), cert. denied, 497 U.S. 1032, 110 S.Ct. 3297, 111 L.Ed.2d 806 (1990)." (Emphasis added.) See also McCart v. State, 765 So.2d 21 For the reasons set forth in Ball and Duncan, we conclude that the trial court did not err when it did not require the State to accept the appe......
  • Revis v. State Of Ala., CR-06-0454
    • United States
    • Alabama Court of Criminal Appeals
    • January 13, 2011
    ...contained anything exculpatory or that he was prejudiced as a result of the lateness of the disclosure. Similarly, in McCart v. State, 765 So. 2d 21 (Ala. Crim. App. 1999), McCart alleged that he was entitled to certain tapes made during the course of the investigation that had involved a c......
  • Revis v. State, CR–06–0454.
    • United States
    • Alabama Court of Criminal Appeals
    • August 17, 2012
    ...contained anything exculpatory or that he was prejudiced as a result of the lateness of the disclosure. Similarly, in McCart v. State, 765 So.2d 21 (Ala.Crim.App.1999), McCart alleged that he was entitled to certain tapes made during the course of the investigation that had involved a confi......
  • Hall v. State, CR–15–0273.
    • United States
    • Alabama Court of Criminal Appeals
    • July 8, 2016
    ...; Arrington v. State , 757 So.2d 484 (Ala.Crim.App.1999) ; Wild v. State , 761 So.2d 261 (Ala.Crim.App.1999) ; McCart v. State , 765 So.2d 21 (Ala.Crim.App.1999) ; Pace v. State , 766 So.2d 201 (Ala.Crim.App.1999) ; Prince v. State , 736 So.2d 1144 (Ala.Crim.App.1999) ; Harris v. State , 74......
  • Request a trial to view additional results

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