Underwood v. State, CR-92-806

• Decision Date: 30 December 1993
• Docket Number: CR-92-806
• Citation: 646 So.2d 692
• Parties: Robert Lee UNDERWOOD v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 692

646 So.2d 692

Robert Lee UNDERWOOD v. STATE.

CR-92-806.

Court of Criminal Appeals of Alabama.

Dec. 30, 1993.

Rehearing Denied March 4, 1994.

Certiorari Denied Oct. 7, 1994

Alabama Supreme Court 1930834.

Diana Mock, Andalusia, for appellant.

James H. Evans, Atty. Gen., and Yvonne Saxon, Asst. Atty. Gen., for appellee.

TAYLOR, Judge.

The appellant, Robert Lee Underwood, was convicted of robbery in the first degree in the Circuit Court for Covington County, in violation of § 13A-8-41, Code of Alabama 1975. The appellant was sentenced to 10 years in prison and was ordered to pay restitution.

The state's evidence tended to show that on the night of June 2, 1992, Underwood was picked up by Frank Gross outside a Tom Thumb convenience store in Opp where the appellant had been using a pay telephone. Gross testified to the following events. He asked Underwood if he knew of a place he could "get a drink or party." Underwood told Gross of a place down the road, and Gross asked Underwood if he could take him there because he was unfamiliar with Opp. Gross was not satisfied with the place he was taken to, so he returned to the convenience store for some beer. Gross purchased the beer and he and Underwood again left together in Gross's vehicle.

Gross further testified that while he was turning around on the side of the road, his truck became entangled in a barbed wire fence. He said that he and Underwood stopped to try and free the truck. He testified that while on the side of the road, the appellant hit him in the head with a wrench, yelling, "Give me your money, man, give me your money." He said that the appellant took his wallet and demanded that he give him the money he had in his pockets. He said that the appellant struck him in the head a few more times until he gave the appellant his money and that the appellant then got back into Gross's pick-up truck and drove away, leaving Gross bleeding on the side of the road.

Underwood, who was identified from the description given by Gross, was picked up and questioned by Investigator Marcus Nawlin of the Opp Police Department. Underwood admitted to having seen Gross at the Tom Thumb convenience store, but he denied getting into the truck with him. Underwood was released after questioning. Several hours later, Underwood was arrested when a police officer saw him burning something near some housing authority apartments. Gross's social security card was found in the remains of the fire. Later that day, Investigator Nawlin again questioned Underwood, and he admitted at that time striking Gross in the head with the wrench and taking his money and the truck.

Underwood testified at trial that he first saw Gross when Gross drove past him on Barnes Road. That is when Underwood says he got into the car with him. He testified that as they were driving around they heard a scraping noise from underneath the truck. According to Underwood, they got out of the truck and Gross made sexual advances towards Underwood. Underwood testified that he struck the victim with the wrench in an attempt to get away from the victim, who continued making sexual advances. The appellant did not deny that he took the victim's wallet, pocket money, and pickup truck. The appellant also admitted that he was burning the victim's wallet when he was arrested.

I

The appellant initially argues that the court erred in denying his motion for a judgment of acquittal made at the end of the state's case.

In determining whether there is sufficient evidence to support the verdict of the jury and the judgment of the trial court, we must accept as true the evidence introduced by the state, accord the state all legitimate inferences therefrom, and view the evidence in the light most favorable to the prosecution. McMillian v. State, 594 So.2d 1253 (Ala.Cr.App.1991); Faircloth v. State, 471 So.2d 485 (Ala.Cr.App.1984), aff'd, 471 So.2d 493 (Ala.1985); Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.), cert. denied, 368 So.2d 877 (Ala.1979). Here, there was sufficient evidence introduced to present the case to the jury. "Conflicting evidence presents a jury question not subject to review on appeal, provided the state's evidence establishes a prima facie case." McMillian, 594 So.2d at 1263.

The evidence supports the jury verdict. Accordingly, the trial court did not err in denying Underwood's motion for a judgment of acquittal.

II

Underwood further contends that the trial court erred in denying his motion for a mistrial. Specifically, he contends that the state violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to disclose to him evidence in possession of the authorities that was favorable to him. He contends that the state did not tell him that they had evidence of inconsistent statements given to Investigator Nawlin by Gross.

The appellant is entitled to any exculpatory evidence--i.e. evidence favorable to his defense. The United States Supreme Court stated in Brady:

"The suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution."

Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97.

In order to prove a Brady violation, a defendant must show (1) that the prosecution suppressed evidence, (2) that the evidence was favorable to his defense, and (3) that the evidence was material. Ex parte Cammon, 578 So.2d 1089, 1091 (Ala.1991); Ex parte Brown, 548 So.2d 993, 994 (Ala.1989), citing Ex parte Kennedy, 472 So.2d 1106 (Ala.1985), cert. denied, Kennedy v. Alabama, 474 U.S. 975, 106 S.Ct. 340, 88 L.Ed.2d 325 (1985).

Underwood, in his discovery motion, requested "any information that is favorable to the defendant." Investigator Nawlin had taken two statements from Gross and had made notes regarding his interview with Gross. Underwood was not given the notes relating to either of the statements. The trial court found, after reviewing Nawlin's notes, that the two statements given by Gross were inconsistent and, consequently, exculpatory.

In the first statement, Gross told Investigator Nawlin that he had been riding through a neighborhood when he picked up Underwood. Gross also told Nawlin that Underwood had asked to pull off the road so that he could relieve himself, and that when he did so, Underwood attacked him. He said that Underwood began beating him while they were inside the cab of the truck, and that Underwood pulled him out of the truck after he finished beating him.

In Gross's second statement to Investigator Nawlin, he alleged that he had gotten out of the truck and had walked around to the passenger side of the truck when Underwood attacked him. Gross also told Investigator Nawlin that his pickup truck had become entangled in the barbed wire. Thus, the second statement, which was consistent with this trial testimony, was slightly different than the first.

Here, the statements were brought to the court's attention before the jury was charged. The trial court showed Gross's statements to Underwood. Underwood then recalled Investigator Nawlin and Gross to the witness stand for further questioning. Underwood cross-examined both Investigator Nawlin and Gross, exploring the inconsistencies in Gross's statements. We do not condone the actions of the prosecutor in not disclosing before trial this exculpatory evidence; however, under the facts of this case, no reversible error occurred. The trial court did an excellent job of curing any error by showing Underwood the statements and by receiving the testimony of the appropriate additional witnesses before the trial concluded. The jury was aware of Gross's inconsistent statements and found Underwood guilty.

In most cases, concealment or late disclosure of exculpatory evidence such as this could constitute reversible error. Late or delayed disclosure denies the accused the opportunity to consider the evidence and its effect, to research the law, to locate and interview possible witnesses, and, in general, to prepare a case. It appears that in this case, Underwood and Gross were trying to arrange a sex-for-money transaction. The purchaser was beaten and the seller was found in possession of the purchaser's billfold. The defense or evidence in mitigation that could be based on this could have been presented as well without evidence of the contradictory statements.

Under the specific facts in this case, we find no Brady violation.

III

The appellant further argues that the prosecution used its peremptory strikes in a racially discriminatory manner. He contends that the prosecution's removal of four of the seven blacks from the venire violated the United States Supreme Court's holding in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

The party making the Batson objection must first make a prima facie showing of intentional racial discrimination before the court is required to entertain the reasons for striking the prospective jurors. Batson, 476 U.S. at 93-94, 106 S.Ct. at 1721. The other party has the burden of showing clear, specific, and legitimate reasons for striking the prospective jurors. Batson, 476 U.S. at 97, 106 S.Ct. at 1723. However, "this showing need not rise to level of a challenge for cause." Ex parte Jackson, 516 So.2d 768, 772 (Ala.1986).

In this case, the trial court found that a prima facia case of racial discrimination did exist, and the prosecution proceeded to offer his reasons for his peremptory strikes.

We have considered the reasons offered by the prosecutor for his strikes of the black prospective jurors, and we conclude that the reasons given for striking black venirepersons numbers 1, 24, 29, and 70 were race-neutral. Prospective juror number 1 was struck because her son had been prosecuted by the district attorney's office and had been convicted on the charge. Striking a prospective juror because a family...