McMillian v. State

Citation594 So.2d 1253
Decision Date20 September 1991
Docket Number1 Div. 864
PartiesWalter McMILLIAN v. STATE.
CourtAlabama Court of Criminal Appeals

Bryan A. Stevenson, Montgomery, for appellant.

Don Siegelman, Atty. Gen., and William D. Little, Asst. Atty. Gen., for appellee.

ON RETURN TO REMAND

PATTERSON, Presiding Judge.

On September 21, 1990, we remanded this case to the trial court with instructions that that court hold an evidentiary hearing The appellant, relying on Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), contends that he was denied due process of law by the state's failure to disclose an alleged agreement it had with Hooks, a key prosecution witness, in reference to his testimony at trial. After a hearing, the trial court found that there was no agreement between Hooks and the state with respect to his testifying in the appellant's trial. This finding is supported by the testimony at the hearing.

to determine whether the state had an agreement with Bill Hooks, Jr., in reference to his testimony in this case, and if so, to determine the facts of that agreement. McMillian v. State, 570 So.2d 1285 (Ala.Cr.App.1990). In addition, we instructed the court to determine whether Hooks had been extended any favors or consideration in return for his testimony and cooperation, and we further instructed the court if it found any favors or consideration to have been extended or an understanding or agreement to exist, to determine whether that information was furnished to the appellant, Walter McMillian, prior to trial or whether the appellant was aware of it prior to trial. We further instructed the court to determine the precise agreement that existed between the state and Ralph Bernard Myers at the time he gave his testimony and to determine whether information about that agreement was furnished to the appellant prior to trial or whether the appellant was aware of such information prior to trial. The trial court has conducted a hearing in accordance with our remand and has filed a return with this court, which includes a transcript of the proceedings below along with written findings of fact. A copy of the findings of fact is attached to this opinion as Appendix A and made a part thereof.

The appellant also contends that the state gave Hooks favorable treatment in exchange for his testimony and that this was not disclosed to the appellant. Under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the prosecution is required to disclose to the defendant evidence which is favorable to the defendant. The Brady rule applies to impeachment evidence. United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). However, the failure to disclose will result in a new trial only where the evidence is material. Id. at 682, 105 S.Ct. at 3383. Materiality in this context exists only if there is a reasonable probability that, had the evidence been disclosed, the result of the proceedings would have been different. Id. at 682, 685, 105 S.Ct. at 3383, 3385. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.

The matters involving Hooks that the appellant contends constituted favorable treatment and, thus, that should have been disclosed pursuant to Brady are the following: a plea bargain agreement between Hooks and the district attorney in reference to a pending, unrelated burglary charge whereby Hooks pleaded guilty to the lesser offense of trespass, was given credit for the six months that he had been in confinement on the burglary charge, and was released; the assistance of an investigator from the district attorney's office, who also was an investigator in the instant case, in requesting a Monroeville municipal judge to give Hooks more time to pay a fine for an offense of public lewdness; the failure of the Monroeville police to arrest Hooks for the nonpayment of fines and costs resulting from several convictions for traffic offenses; and loans made by the sheriff to Hooks. The appellant also contends that Hooks received reward money in return for his testimony.

Hooks did receive reward money, which was paid after the appellant's conviction; however, there is no evidence that law enforcement officers or representatives of the prosecution ever discussed the possibility of a reward with Hooks. The fact that substantial rewards had been offered in this case was well known by the appellant at the time of trial, and his attorneys mentioned this fact to the jury in their closing argument as a reason that the prosecution witnesses, including Hooks, lacked credibility.

The record supports the conclusion that the negotiations involving the settlement of the burglary case were not linked in any way to Hooks's testimony at the appellant's trial or to his furnishing information or to his cooperation with the state in the investigation of the death of Ronda Morrison. Hooks's testimony denying any such link or connection is supported by the testimony of the district attorney and of Hooks's defense counsel who had been appointed to represent him in the burglary case. See Appendix A for the trial court's thorough discussion of the circumstances surrounding Hooks's guilty plea.

In reference to the past-due fine for public lewdness, which was, in effect, forgiven by the municipal judge, to the failure of the city to pursue the collection of the traffic fines, and to loans by the sheriff, the record offers no evidence to support a conclusion that these matters, even if considered to be favors, are in any way connected to Hooks's cooperation or testimony in the appellant's case. The investigator, the sheriff, and Hooks denied any connection. The record shows that the manner in which the fine for lewdness was handled was not unusual in Monroeville. The trial court explained this incident as follows: "[The investigator] told the [municipal] judge that Hooks had been in jail for six months on the Conecuh County burglary charge and asked for time to allow Hooks to pay. However, the city judge simply nol prossed the case rather than remitting the fines and costs or setting up a payment schedule." The record also shows that the failure to pursue the collection of the traffic fines was nothing more than laxness in the city's enforcement procedures. We note that Hooks paid the fines after he collected the reward money. In regard to the loans, the sheriff testified that he gave Hooks $75 prior to McMillian's trial so that Hooks could go to Pensacola, Florida, and stay with some relatives for his protection after he had reported to the sheriff that someone had attempted to "run him off the road" and that he feared for his life. The sheriff investigated the report and concluded from the physical evidence that Hooks's report was true. The sheriff also testified that Hooks sought loans from him on other occasions. In his trial testimony, Hooks had admitted that he received loans; he stated that he received $20 from the sheriff on two occasions to go to Pensacola. At the evidentiary hearing on remand, he testified that on one occasion the sheriff loaned him $100. It is not clear from the record when this loan was made. Conceivably, it could have been made after the trial. The sheriff was not questioned about the $100 loan. The sheriff and Hooks denied that the loans were conditioned upon Hooks's cooperation or upon his testifying in the appellant's case. Hooks's denial, at the remand hearing, was a reiteration of his trial testimony that "[d]idn't nobody pay me to say ... [or] do nothing."

The trial court found that prior to trial the appellant was not informed of the investigator's efforts to assist Hooks with the fine for his lewdness case, of the uncollected traffic fines, or of the loans from the sheriff; however, the court pointed out that the state court and municipal court files pertaining to Hooks's cases were matters of public record and were available to the appellant's counsel. The trial court further found that, in regard to Hooks's guilty plea to trespassing, the court file was also available to counsel.

After reviewing the record before us and considering the trial court's findings of fact, we find that, even if the details of the settlement of Hooks's burglary case, the assistance of the investigator leading to the settlement of the lewdness charge and fine, the failure of the Monroeville police to pursue the collection of Hooks's traffic fines, and the undisclosed loans from the sheriff had been disclosed, there is no reasonable probability--a probability sufficient to undermine confidence in the outcome--that the result of the trial would have been different. We are not willing to conclude, as the appellant urges us to do, that Hooks testified falsely at the trial. While at times Hooks appeared to be reluctant to discuss the loans and the traffic tickets, viewing his testimony in its entirety, we do not believe that the record supports a conclusion that he knowingly testified falsely The appellant also claims that the state violated the requirements of Giglio by failing to correct allegedly false testimony by Myers regarding his plea arrangement with the state. The state contends that it did not fail to disclose its arrangement with Myers and that the substance of the arrangement was made known to the jury.

                either at trial or during the evidentiary hearing on remand.  However, assuming, arguendo, that Hooks knowingly testified falsely in regard to the number and amount of loans from the sheriff or in reference to the traffic tickets, there is no reasonable likelihood that, had the true facts been known to the jury, the verdict in this case would have been affected.  See Giglio v. United States, 405 U.S. at 154, 92 S.Ct. at 766.   In reaching this conclusion, we have given some consideration to the fact that Hooks was willing to talk with the authorities from the day that the crime was committed and to
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