Summerford v. State
Decision Date | 12 February 1993 |
Docket Number | CR-91-1106 |
Parties | Glenn SUMMERFORD v. STATE. |
Court | Alabama Court of Criminal Appeals |
Gary Lackey, Scottsboro, for appellant.
James H. Evans, Atty. Gen., and Robert Ward, Asst. Atty. Gen., for appellee.
The appellant, Glenn Summerford, was indicted for the attempted murder of his wife, Darlene Summerford, in violation of § 13A-4-2, Code of Alabama 1975. The jury found the appellant guilty as "charged in the indictment." The appellant was sentenced as a habitual felon to the term of 99 years in the penitentiary. He raises four issues on appeal.
The appellant contends that the State violated a discovery order by suppressing allegedly exculpatory evidence. Specifically, he asserts that the prosecution committed reversible error by failing to provide him a copy of a statement made by his wife to an investigating officer. The record reflects that the appellant filed a discovery motion, which requested "any matters, materials or memoranda which are exculpatory in nature." (R. 7.) The court ordered that the State comply with the request unless the State filed a motion for a protective order. The record contains no such motion.
During the trial, the wife testified regarding the events leading to the arrest of the appellant. Clarence Bolte, the investigating officer, also testified to information the wife conveyed to him.
After the trial, the appellant's counsel filed a motion for a new trial, citing as one ground the State's failure to produce exculpatory evidence. In his memorandum in support of his motion for a new trial, the appellant asserted that during the examination of Bolte, the district attorney requested, in a bench conference, to use notes made by Bolte during his questioning of the wife. The appellant stated that the district attorney indicated he wanted to use these notes because Bolte's testimony varied from his notes. This bench conference is not contained in the record. The notes in question had not been provided to the appellant when he filed his motion for a new trial, but he asserted in his motion that the notes appeared to contain information that contradicted the wife's testimony.
A hearing was held on the motion for a new trial. During the hearing, the appellant's counsel attempted to obtain from Bolte the notes made by him during his interview with the wife. The State objected on the grounds that the notes were the prosecution's work-product and therefore not subject to discovery and, further, that they contained nothing exculpatory. The trial judge indicated that these notes would become part of the record. The trial judge denied the motion for a new trial.
The appellant contends on appeal that the wife's trial testimony varies from the statement she gave to Bolte and that, therefore, Bolte's notes were exculpatory because, he argues, they could have been used to impeach the wife. Thus, he argues, it was reversible error not to grant his motion for a new trial based on the prosecution's failure to provide him with the notes.
In Gibson v. State, 555 So.2d 784 (Ala.Crim.App.1989), in discussing the discoverability of statements of prosecution witnesses, we held:
Id. quoting Cooks v. State, 50 Ala.App. 49, 276 So.2d 634, 637 cert. denied, 290 Ala. 363, 276 So.2d 640 (1973).
Gibson, 555 So.2d 784, 791. See also A.R.Cr.P. 16.1(e).
In the instant case, the notes were not signed or otherwise authenticated by the wife and the trial judge determined that the notes were not discoverable before trial or after the wife testified. We find no abuse of discretion in this decision. The following excerpt from the trial court's order denying the motion for a new trial is especially relevant to our determination that the trial court did not abuse its discretion:
(R. 45.)
The appellant contends that the judgment in this case should be reversed because, he says, the jury foreman failed to disclose, during voir dire, that he had known the wife and her family for more than 20 years. The appellant asserts that this error occurred because he was not allowed to state during voir dire where the wife resided. He argues that had he been able to say where his wife lived, the juror's memory might have been enhanced and he would have been able to indicate his relationship to the wife.
During the hearing on the motion for a new trial, the following colloquy occurred:
(R. 559-562.) (Emphasis added.)
From our reading of the above portion of the record, we find no evidence that the juror knew the wife or her family. He merely indicated that he had known of her family....
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