Savage v. State

• Decision Date: 31 January 1992
• Citation: 600 So.2d 405
• Parties: Sam SAVAGE v. STATE. CR 90-542.
• Court: Alabama Court of Criminal Appeals

Page 405

600 So.2d 405

Sam SAVAGE v. STATE.

CR 90-542.

Court of Criminal Appeals of Alabama.

Jan. 31, 1992.

Rehearing Denied March 13, 1992.

William Robert McMillan, Monroeville, for appellant.

James H. Evans, Atty. Gen., and Joseph G.L. Marston III, Asst. Atty. Gen., for appellee.

JAMES H. FAULKNER, Retired Justice.

Sam Savage was indicted for the offense of murder, in violation of § 13A-6-2, Code of Alabama 1975. The jury found Savage guilty of the lesser included offense of manslaughter, in violation of § 13A-6-3, Code of Alabama 1975, and he was sentenced to 10 years' imprisonment and was fined $1,000.

The sole issue raised on appeal is whether the trial court committed reversible error by denying Savage's motion for new trial, which alleged that the State withheld exculpatory information from defense counsel in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

As part of his preparation for trial, George Elbrecht, Savage's trial counsel, filed a motion for discovery, including "any information which would exculpate the defendant herein." The trial court issued an order directing the district attorney to provide "all discovery requested in said motion." Pursuant to this order, the district attorney provided Elbrecht with copies of the following documents: 1) the written statement of Jessie Peters, the brother of the decedent, Lavon Peters, who was questioned by Investigator Johnny Blackmon of the Conecuh County Sheriff's Department; 2) the written statement of Roney Peters, the mother of the decedent, who was also questioned by Blackmon; 3) two written statements of Janice Peters, the wife of the decedent, who was also questioned by Blackmon; 4) the autopsy report relating to the decedent; and 5) the written statement of Savage, who was also questioned by Blackmon.

Prior to trial, Elbrecht asked the district attorney and Investigator Blackmon whether any witnesses who were present either when the decedent was stabbed or when the decedent died at the hospital had made inconsistent statements to the police. Blackmon replied that Roney Peters, the mother of the decedent, made an initial oral statement that implied that Savage had acted in self-defense in stabbing her son and that this oral statement conflicted with her subsequent written statement. As a result of Roney Peters's inconsistent statements, the district attorney elected not to call her as a witness for the prosecution.

At trial, the district attorney called the following eyewitnesses to the stabbing to testify on behalf of the prosecution: 1) Janice Peters, the wife of the decedent; 2) George Washington Johnson, Jr., a friend of the decedent's brother, Jessie Peters; 3) Henry Peters, a brother of the decedent; and 4) Jessie Peters, a brother of the decedent.

Johnson testified at trial that he observed Savage and the decedent, Lavon Peters, arguing about when Savage would reclaim the decedent's shotgun from a pawn shop. According to Johnson, when Savage told the decedent that he could not reclaim the gun until the following Monday, the decedent threw a brick at Savage, who was sitting on the front porch of Roney Peters's house. Johnson testified that although Roney Peters attempted to separate the two men, the decedent threw a second brick at Savage and then turned and ran. According to Johnson, Savage then jumped off the porch and ran after the decedent, the decedent tripped over a crosstie in the yard, and Savage then jumped on the decedent and they began fighting. Johnson further testified that the decedent then got up and grabbed his neck and that Savage said "I told him I'd fuck him up."

Henry Peters testified at trial that the decedent threw a brick at Savage and then turned and ran and that Savage immediately ran behind him, cutting at the decedent with a knife. Henry Peters further testified that the decedent then tripped over a crosstie and that Savage then jumped on the decedent and cut him. According to Henry Peters, the decedent then got up and said that Savage had cut him, and, that Savage was walking around in the yard saying that he was going to kill the decedent and, that the next time the decedent "messed with him he was going to kill him."

Although Savage presented evidence that he had stabbed the decedent in self-defense, the jury found Savage guilty of manslaughter. At the sentencing hearing, Elbrecht learned for the first time that in addition to Roney Peters, other eyewitnesses had initially made oral statements upholding Savage's claim of self-defense but subsequently had changed their statements:

"Q (Mr. Chapman): Did the statements you received from other witnesses who were there at the time of the cutting coincide with either one of Roney Peters' statements?

"A: Yes, sir. I had statements from--I had talked to several people at the hospital that--and the statements they gave there [were] basically the same as the fact of it being self defense or Lavon starting the altercation. Then when the statements from other people, I got written statements, it was basically that Lavon started it, but, Lavon ran then.

"Q: So, all of the statements changed a little bit when you got written statements?

"A: Yes, sir."

At the conclusion of the sentencing hearing, Elbrecht withdrew as counsel for Savage, and William Robert McMillan was appointed as appellate counsel for Savage. McMillan filed a motion for new trial on the ground that the State had failed to comply with the discovery order, which precluded defense counsel from adequately preparing Savage's defense because the information withheld was arguably exculpatory in nature or would otherwise have aided the defense counsel in the defense of the case.

Elbrecht testified at the hearing on the motion for new trial that the district attorney had provided him with copies of the written statements of Savage, Jessie Peters, Roney Peters, and Janice Peters, and that the district attorney had informed him of the inconsistent statement of Roney Peters. Elbrecht further testified that "I specifically asked Mr. Blackmon before we went to trial out there in that hall if any of the other people that were at the scene made inconsistent statements. And he told me no."

Investigator Blackmon then testified that he had received oral statements from Roney Peters, Henry Peters, and George Washington Johnson, Jr., but that none of these oral statements were taken down as contemporaneous notes. Blackmon testified that each of these three individuals indicated to him that the decedent was at fault and that Savage was acting in self-defense. Blackmon testified concerning Johnson as follows:

"Q (By Mr. McMillan): Now, you got an oral statement from Mr. George Washington Johnson, Jr., is that correct?

"A: Yes, sir.

"Q: All right. What was the oral statement that you got from him?

"A: It was awfully brief. I asked him the question: 'What do you think about it?' And he--well, I kind of got to go along with them. I said, 'You think Lavon started it?' He said, 'Yes, sir, I do.' I said, 'Do you think that it was basically self defense?' And he kind of indicated yes.

"Q: He was going along with what Roney Peters and what Henry Peters had said, is that correct?

"A: The best I could understand him, yes, sir.

"Q: And that's what you understood at that time Roney Peters and ...