Millican v. State
Decision Date | 29 June 1982 |
Docket Number | 7 Div. 947 |
Citation | 423 So.2d 268 |
Parties | Gene MILLICAN, Alias v. STATE. |
Court | Alabama Court of Criminal Appeals |
Rowan S. Bone and Edward Cunningham, Gadsden, for appellant.
Charles A. Graddick, Atty. Gen., and Jeffery H. Long, Asst. Atty. Gen., for appellee.
The defendant was indicted and convicted for the unlawful sale or disposition of cocaine. Alabama Code 1975, Section 20-2-70(a). Sentence was eight years' imprisonment.
The only issue raised on appeal is the defendant's argument that he was "entitled to have copies of any statements or notes of testimony made before the Grand Jury by a State's witness after the witness testified on direct examination." The portion of the record upon which this argument is based is found in defense counsel's cross examination of State's witness B.J. Alexander.
In Pate v. State, 415 So.2d 1140 (Ala.1981), our Supreme Court held:
"While a witness may always be impeached by showing that he has made a contradictory statement as to material matters before the grand jury, the inquiry must be limited to contradictions and not corroborations." Mullins v. State, 31 Ala.App. 571, 573, 19 So.2d 845 (1945). Adams v. State, 33 Ala.App. 136, 140, 31 So.2d 99, cert. denied, 249 Ala. 294, 31 So.2d 105 (1947). Smith v. State, 183 Ala. 10, 26, 62 So. 864 (1913); Wyatt v. State, 35 Ala.App. 147, 157, 46 So.2d 837, cert. denied, 254 Ala. 74, 46 So.2d 847 (1950); Riley v. State, 21 Ala.App. 655, 656, 111 So. 649, reversed on other grounds, 216 Ala. 536, 114 So. 12 (1927). "(F)or impeachment of a witness, ... a grand juror may be required to disclose the testimony of any witness examined by that body." State ex rel. Baxley v. Strawbridge, 52 Ala.App. 685, 687, 296 So.2d 779, cert. denied, 292 Ala. 506, 296 So.2d 784 (1974); Davis v. State, 30 Ala.App. 562, 10 So.2d 35 (1942); Alabama Code 1975, Section 12-16-201. "The fact that the alleged contradictory statement was made before a grand jury in no way excepts it from the general rule that a witness may be cross examined as to prior statements made by him contradictory to statements made in his testimony in the pending trial." Williams v. State, 32 Ala.App. 597, 601, 28 So.2d 731 (1947); Bryson v. State, 38 Ala.App. 517, 520, 84 So.2d 782, affirmed, 264 Ala. 111, 84 So.2d 785 (1956).
The majority rule appears to be that "where a prosecution witness has testified on direct examination in the trial of the case, the defendant, upon laying a proper foundation if required, may be permitted to inspect the transcript of the grand jury testimony of such prosecution witness for the purpose of cross examining or impeaching him." Anno. 20 A.L.R.3d 7, 104 (1968). In line with this, "(o)ur appellate courts have held that the trial court is not put in error if it does not allow the inspection and use of grand jury notes until the State has used them to test recollection, to impeach or unless contradiction is shown." Stroud v. State, 56 Ala.App. 692, 695, 325 So.2d 200, cert. quashed, 295 Ala. 424, 325 So.2d 204 (1975).
"While the matter is within the sound discretion of the trial court, and the proper predicate for impeachment must be laid, the general rule is that a witness may be discredited, or impeached, as to testimony given on the trial by inconsistent testimony given by him before the grand jury which found the indictment; as to material matters; the inquiry has been required to be limited to contradictions and not corroborations." 98 C.J.S. Witnesses Section 594(c) (1957). (emphasis added)
"Where the impeaching written evidence consists of testimony before a grand jury, the required foundation is to be laid by showing or reading it to the witness or allowing him to read it, by calling his attention to such testimony, although not to particular statements alleged to be contained therein, by inquiring whether or not he made the statements, and by affording an opportunity for explanation." 98 C.J.S. Witnesses Section 604(a).
It is a clear and fundamental rule that before a witness may be impeached by extrinsic evidence, "the impeaching party must lay a proper predicate by asking the party being impeached whether he made such statement, specifying with reasonable certainty the time when, the place where, the person to whom such supposed statement was made and the substance of such statement." C. Gamble, McElroy's Alabama Evidence, Section 157.01 et seq. (3rd ed. 1977). Bryson, 38 Ala.App. at 520, 84 So.2d 782.
Before a defendant is allowed to inspect a transcript of a State's witness who testified before the grand jury or before a trial judge should conduct an in camera inspection of such testimony, see Palermo and Pate, supra, the defendant should at least and at a very minimum make some offer of proof (1) that the matters...
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Arthur v. State
...and that the secrecy of such proceedings remain inviolate.' Alabama Code 1975, Sections 12-16-214 through 226." Millican v. State, 423 So.2d 268, 270-71 (Ala.Cr.App.1982). In the present case, the appellant has failed to make the preliminary showing necessary before the secrecy surrounding ......
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...testimony should he actually testify, then any such request for production prior to trial is premature. Pate, supra; Millican v. State, 423 So.2d 268 (Ala.Cr.App.1982). Furthermore, the defendant received all the specific information he requested. The defendant specifically wanted to know w......
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Blackmon v. State
...test of showing a "particularized need" for breaching the secrecy of those proceedings. As this Court stated in Millican v. State, 423 So.2d 268 (Ala.Crim. App.1982): "Before a defendant is allowed to inspect a transcript of a State's witness who testified before the grand jury or before a ......
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Mitchell v. State
...and that the secrecy of such proceedings remain inviolate." Alabama Code 1975, Sections 12-16-214 through 226.' "Millican v. State, 423 So.2d 268, 270-71 (Ala.Cr.App.1982)." See Mims v. State, 591 So.2d 120, 126 (Ala.Cr.App.1991). "While it is true that broader discovery is to be allowed in......