McMullin v. State

• Decision Date: 04 October 1983
• Docket Number: 6 Div. 883
• Citation: 442 So.2d 155
• Parties: Mizell McMULLIN v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 155

442 So.2d 155

Mizell McMULLIN v. STATE.

6 Div. 883.

Court of Criminal Appeals of Alabama.

Oct. 4, 1983.

Rehearing Denied Nov. 1, 1983.

Certiorari Denied Dec. 22, 1983

Alabama Supreme Court 83-212.

L. Dan Turberville, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., and Richard L. Owens, Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

Mizell McMullin, the appellant, was arrested while fleeing the scene of a burning residence. He was indicted and convicted for arson in the first degree. Alabama Code Section 13A-7-41 (1975). Since McMullin had two prior convictions for rape, he was sentenced as an habitual offender to life imprisonment. Four issues are raised on appeal.

I

McMullin alleged in his motion for new trial that the prosecutor knowingfully and willfully withheld the name of an eyewitness until after trial and thereby violated his right to due process under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

McMullin's pretrial motion to produce was granted. That motion contained a specific request for "(t)he names and addresses of all witnesses or prospective witnesses which the State of Alabama intends to call upon the trial of this case" and a general request for "(a)ll material or information which the State of Alabama has which tends to negate the guilt of the Defendant."

Sometime before trial, the prosecutor telephoned Mrs. Lilly Wills who lived next door to the burned residence. The prosecutor testified at the motion for new trial that he learned Mrs. Wills' name from a newspaper article which was stapled to the back of a report of the arresting officer which defense counsel "got to see." He stated that Mrs. Wills told him that she did not see anyone set the fire and that she indicated she "could not identify anybody." He also testified that he told defense counsel that there were "possibly witnesses next door, putting out the fire."

Defense counsel stated that the reason he did not discover the existence of this witness before trial was because he "relied on the prosecutor all the way up to the trial that there were no witnesses."

The trial judge held the hearing on the motion for new trial in abeyance for approximately three weeks so defense counsel could "produce something exculpatory that the State didn't give you." When the hearing reconvened, defense counsel testified that with some difficulty he had managed to contact Mrs. Wills. He stated that she told him that she saw two men in a car "casing the house" the night of the fire. She also saw someone "pouring some gas" then throwing something "which resembled a rolled up newspaper or something" onto the porch to start the fire. However, "she could not say absolutely that he (McMullin) was the same person that she saw near the porch" nor could she state that McMullin was one of the men she saw in the car. Mrs. Wills was not subpoenaed for the hearing.

"There is no general constitutional right to discovery in criminal cases, and Brady did not create one." Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 846, 51 L.Ed.2d 30 (1977). "A defendant has no constitutional or statutory right to compel the pretrial discovery of the State's witnesses." Peoples v. State, 418 So.2d 935, 937 (Ala.Cr.App.1982). "Prosecutors have no duty under Brady to disclose evidence that is inculpatory or available to the defense from another source ... or (to) produce duplicative information." 71 Georgetown L.J. 449, 511 Twelfth Annual Review of Criminal Procedure: United States Supreme Court And Courts of Appeal 1981-1982 (1982).

The moral culpability, or the willfulness, of the prosecutor is not a factor in deciding the constitutional issue involved here. "If the suppression of evidence results in constitutional error, it is because of the character of the evidence, not the character of the prosecutor." United States v. Agurs, 427 U.S. 97, 110, 96 S.Ct. 2392, 2401, 49 L.Ed.2d 342 (1976). The suppression of evidence "material either to guilt or to punishment" violates due process "irrespective of the good faith of the prosecutor." Brady, 373 U.S. at 87, 83 S.Ct. at 1197.

Whether the withheld evidence is material is to be determined by applying the following standards: Where the accused has requested the specific information withheld or not produced, a new trial should be granted only if the nondisclosure "might have affected the outcome of the trial." Agurs, 427 U.S. at 104, 96 S.Ct. at 2398; Brady, supra. In cases where there has been merely a general request for exculpatory matter, and in cases where there has been no request at all, the conviction should be reversed only if the undiscovered evidence would create "a reasonable doubt that did not otherwise exist." Agurs, 427 U.S. at 109-12, 96 S.Ct. at 2400-02; United States v. Gaston, 608 F.2d 607, 612 (5th Cir.1979); Cannon v. Alabama, 558 F.2d 1211, 1215-16 (5th Cir.1977).

"(I)f the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the 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."

Agurs, 427 U.S. at 112-13, 96 S.Ct. at 2402.

Project, 71 Geo.L.J. at 513, n. 1174 and 1175.

Here, the motion to produce specifically sought the names of those witnesses or prospective witnesses which the State "intends to call upon the trial of this case." The prosecutor's testimony at the hearing on the motion for new trial makes it clear that the State never intended to call Mrs. Wills as a trial witness. Consequently, we find, as did the trial judge employing this same reasoning, that the prosecutor did not violate the judge's order granting the motion to produce. Compare this request to the request in Wright v. State, 424 So.2d 684 (Ala.Cr.App.1982), for "(a) list of all witnesses interviewed by the State in connection with this prosecution and their residence and/or business addresses."

It is also clear from the prosecutor's testimony that his conversation with Mrs. Wills was a product of his own initiative and investigation. Defense counsel was given access to the police report containing the newspaper article that led the prosecutor to telephone Mrs. Wills and was also told that the people next door put out the fire. "Truth, justice, and the American way do not ... require the (State) to discover and develop the defendant's entire defense." United States v. Brown, 628 F.2d 471, 473 (5th Cir.1980).

"The purpose of the Brady rule is not to provide a defendant with a complete disclosure of all evidence in the (State's) file which might conceivably assist him in the preparation of his defense, but to assure that he will not be denied access to exculpatory evidence known to the government but unknown to him."

United States v. Ruggiero, 472 F.2d 599, 604 (2nd Cir.1973).

The information given to the prosecutor by Mrs. Wills is in no way exculpatory or favorable to the defendant. See Reed v. State, 407 So.2d 153 (Ala.Cr.App.1980), reversed on other grounds, 407 So.2d 162 (Ala.1981). At best, her testimony could be characterized as neutral, for she could neither identify the defendant as the person who started the fire, nor state that he was not the person who started the fire. Hughes v. Hopper, 629 F.2d 1036 (5th Cir.1980); United States v. Rhodes, 569 F.2d 384 (5th Cir.), cert. denied, 439 U.S. 844, 99 S.Ct. 138, 58 L.Ed.2d 143 (1978). Cf. United States v. DePalma, 461 F.2d 240, 241 (9th Cir.1972) (where the testimony of an eyewitness who observed a man dressed in clothing similar to that worn by the robber but could not identify the appellant as the man she saw was characterized as being of "such vague and uncertain quality that it cannot be said to fall within the suppression rule.") See Annot. 34 A.L.R.3d 16, Section 26(a) (1970). This nondisclosed information would not even have been useful for impeachment purposes. United States v. Mesa, 660 F.2d 1070, 1076 (5th Cir.1981). On the contrary, it tends to corroborate the testimony of the State's main witness. ¹ See Greenwood v. Massey, 469 F.Supp. 935 (S.D.Fla.1979).

Mrs. Wills' testimony does not meet either of the materiality standards outlined above. Evaluated in the context of the entire record, the information she could have imparted at trial would certainly not create a "reasonable doubt that did not otherwise exist." Agurs, 427 U.S. at 112, 96 S.Ct. at 2402.

Even if we consider McMullin's request to be a specific request for the names of eyewitnesses, his conviction is due to be reversed only if the nondisclosure "might have affected the outcome of the trial." Agurs, 427 U.S. at 104, 96 S.Ct. at 2398; Project: Criminal Procedure, 71 Geo.L.J. at 513, no. 1174. Because Mrs. Wills' testimony was totally neutral as to the identity of the perpetrator of this offense and tended to substantiate the testimony of the State's main witness, we are confident in concluding that nothing in that testimony would have affected the jury's verdict and that the nondisclosure of her identity did not affect McMullin's right to a fair trial.

II

McMullin argues that the trial judge improperly and prematurely excused a venireman "without sufficient voir dire to test the nature of the relationship and the ability of the prospective juror to be guided by the Court as to the consideration of evidence and the determination of guilt or innocence."

In response to voir dire examination by the prosecutor, venireman McGill stated that he knew McMullin, that he went to school with him, that it would make him feel "somewhat uneasy" to sit on the jury, and that he felt he "might" be biased one way or the other because of his...