Ex parte State of Alabama.

REL:09/30/2014

Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
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the opinion is printed in Southern Reporter.

SUPREME COURT OF ALABAMA
SPECIAL TERM, 2014
____________________

1121390
____________________

Ex parte State of Alabama

PETITION FOR WRIT Of MANDAMUS

(In re: State of Alabama

v.

Andre Lamon Ellis)

(Pike Circuit Court, CV-12-238)

BOLIN, Justice.

The State of Alabama petitions this Court for a writ of

mandamus directing Judge Jeffrey W. Kelley of the Pike Circuit
1121390

Court to vacate his May 17, 2013, order granting Andre Lamon

Ellis's motion for a new trial. We deny the petition.

I. Facts and Procedural History

On March 26, 2012, M.B. was allegedly raped in her

residence located in Hunter's Mountain Mobile Estates. M.B.

identified Ellis in a police photographic lineup as the

perpetrator. Although there was no forensic or physical

evidence linking Ellis to the alleged rape, a video from a

security camera located at Hunter's Mountain on that day

showed Ellis's vehicle entering Hunter's Mountain at 4:41 p.m.

and leaving at 4:46 p.m. Ellis, in fact, lived in Hunter's

Mountain. Following the alleged rape, M.B. went to the

hospital with vaginal injuries requiring multiple surgeries.

M.B. initially reported to her doctor that she had fallen on

a "door stop" in her bathroom but later stated that she had

been raped.

On January 18, 2013, Ellis was convicted of rape in the

first degree regarding Q.C.,1 rape in the first degree

1
Q.C. also lived in Hunter's Mountain and claimed to have
been raped by Ellis on the same day M.B. alleged that she was
raped . Although there were separate indictments charging
Ellis with the rapes of both M.B. and Q.C., the cases were
tried jointly.
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regarding M.B., and burglary in the second degree regarding

the residence of M.B. Ellis was sentenced to 85 years in

prison. On March 25, 2013, Ellis moved for a new trial,

alleging, among other things, that the State had failed to

disclose crucial evidence in violation of Brady v. Maryland,

373 U.S. 83 (1963). The trial court ordered the State to

disclose in camera certain evidence and, after conducting a

hearing, entered an order dated May 17, 2013, granting Ellis's

motion for a new trial based on the State's failure to turn

over evidence in violation of Rule 16, Ala. R. Crim. P., and

in violation of the principles of law set forth in Brady v.

Maryland. The State filed a motion for reconsideration, on

which the trial court did not rule.

On June 24, 2013, the 38th day after the trial court

ordered a new trial, the State filed a petition for a writ of

mandamus with the Court of Criminal Appeals pursuant to Rule

21, Ala. R. App. P. In its petition, the State sought a writ

directing the trial court to set aside its order granting

Ellis's motion for a new trial. The State had relied on Rule

4(b)(1), Ala. R. App. P., to determine that it had 42 days

from the date of the order to file its petition.

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On August 20, 2013, the Court of Criminal Appeals entered

an order dismissing the State's petition after concluding that

it was not filed within a presumptively reasonable time and

that the State had failed to include a "statement of

circumstances constituting good cause" as to why the petition

had been filed outside the presumptively reasonable time. See

Rule 21(a)(3), Ala. R. App. P. The Court of Criminal Appeals

determined that the presumptively reasonable time for the

State to file its petition was seven days from the date of the

trial court's ruling that was subject to the petition. See

Rule 15.7, Ala. R. Crim. P. The State did not file an

application for rehearing with the Court of Criminal Appeals.

State v. Ellis (No. CR-12-1514, Aug. 20, 2013), ___ So. 3d ___

(Ala. Crim. App. 2013) (table).

On August 30, 2013, the State filed its petition for a

writ of mandamus in this Court pursuant to Rule 21(e), Ala. R.

App. P., seeking de novo review of the Court of Criminal

Appeals' dismissal of its original petition, as well as a writ

directing the trial judge to vacate its order granting Ellis's

motion for a new trial. The State included in its petition a

mandatory statement of circumstances constituting good cause

4
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for this Court's consideration. This Court issued an order

dismissing the State's petition as untimely.

On January 27, 2014, the State filed an application for

a rehearing complaining that this Court's order dismissing its

petition for a writ of mandamus failed to "address whether the

State's petition was untimely filed with the Supreme Court or

if the State's original Petition for Writ of Mandamus filed

with the Alabama Court of Criminal Appeals was untimely."

Specifically, the State argued that its original petition

filed with the Court of Criminal Appeals was not untimely

because, it claimed, it did not seek review of a pretrial

order pursuant to Rule 15.7, Ala. R. Crim. P., but rather

sought relief from a posttrial order granting Ellis's motion

for a new trial.

On March 31, 2014, this Court granted the State's

application for a rehearing, and on June 9, 2014, we ordered

the parties to file answers and briefs. We also ordered the

parties to include in their briefs a discussion as to "whether

[this] Court is vested with jurisdiction and whether the

proper time standard for submitting [the State's petition to

5
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the Court of Criminal Appeals] is pursuant to Rule 4(b), Ala.

R. App. P., or Rule 15.7(b), Ala. R. Crim. P."

II. Standard of Review

"Mandamus is an extraordinary remedy and will be
issued only when there is '(1) a clear legal right in
the petitioner to the order sought; (2) an imperative
duty upon the respondent to perform, accompanied by
a refusal to do so; (3) the lack of another adequate
remedy; and (4) properly invoked jurisdiction of the
court.' Ex parte Alfab, Inc., 586 So. 2d 889, 891
(Ala. 1991). 'A decision of a court of appeals on an
original petition for writ of mandamus or prohibition
or other extraordinary writ (i.e., a decision on a
petition filed in the court of appeals) may be
reviewed de novo in the supreme court....' Rule
21(e)(1), Ala. R. App. P."

Ex parte Sharp, 893 So. 2d 571, 573 (Ala. 2003).

III. Discussion

A. Applicable Time: Rule 15.7, Ala. R. Crim. P., or Rule
4(b), Ala. R. App. P.?

Rule 21(a)(3), Ala. R. App. P., provides that "[t]he

presumptively reasonable time for filing a petition [for a

writ of mandamus] seeking review of an order of a trial court

or of a lower appellate court shall be the same as the time

for taking an appeal." The State maintains that, in dismissing

its original petition for a writ of mandamus as untimely, the

Court of Criminal Appeals assumed that the State was taking an

appeal from a pretrial order pursuant to Rule 15.7(b), Ala. R.

6
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Crim. P., and that the court therefore improperly held that

the 7-day period in Rule 15.7 for filing its petition applied

instead of the 42-day period in Rule 4(b), Ala. R. App. P. We

agree.

Rule 15.7, Ala. R. Crim. P., governs pretrial appeals by

the State; it provides, in pertinent part:

"(a) Generally. In any case involving a felony,
a misdemeanor, or a violation, an appeal may be taken
by the state to the Court of Criminal Appeals from a
pre-trial order of the circuit court (1) suppressing
a confession or admission or other evidence, (2)
dismissing an indictment, information, or complaint
(or any part of an indictment, information, or
complaint), or (3) quashing an arrest or search
warrant. Such an appeal may be taken only if the
prosecutor certifies to the Court of Criminal Appeals
that the appeal is not brought for the purpose of
delay and that the order, if not reversed on appeal,
will be fatal to the prosecution of the charge."

(Emphasis added.)

Rule 15.7(b) provides that the State's notice of appeal

from such a pretrial order shall be filed "within seven (7)

days after the order has been entered, but in any case before

the defendant has been placed in jeopardy under established

rules of law." It is clear that the State in this case was

not taking an appeal from a pretrial order "suppressing a

confession or admission or other evidence"; "dismissing an

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indictment, information, or complaint"; or quashing an arrest

or search warrant" –- any of which would require the State to

certify that the order appealed from, if not reversed, would

be fatal to the prosecution of the charge. Rather, the State

was seeking review of a posttrial order granting a new trial

following a jury verdict; accordingly, the State could not

have certified that the "order, if not reversed on appeal,"

would be fatal to the prosecution of the charge. Because the

State did not seek review of a pretrial order, but rather of

a posttrial order, we conclude that the State's mandamus

petition in the Court of Criminal Appeals, filed on the 38th

day after the trial court's ruling, was filed within a

reasonable time pursuant to Rule 21, Ala. R. App. P., and Rule

4(b), Ala. R. App. P. Therefore, its petition for a writ of

mandamus filed in this Court within 14 days of the denial of

the State's application for rehearing by the Court of Criminal

Appeals is timely.

Rule 4(b), Ala. R. App. P., contemplates appeals by the

State when authorized by statute or rule:

"When an appeal by the state as of right is
authorized by statute or rule, the notice of appeal
shall be filed in the trial court within 42 days (6
weeks) after the decision, order, or judgment

8
1121390

appealed from; except that any pre-trial appeal by
the state shall be taken within the time allowed by
[Rule 15.7, Ala. R. Crim. P.]."2

(Emphasis added.) The State does not dispute that it has no

right to appeal from an order granting a new trial.

B. Grounds for Issuance of the Writ

The State maintains that, in the absence of a right to

appeal, a writ of mandamus is the appropriate vehicle by which

to challenge the trial court's ruling granting a new trial.

Specifically, the State asserts that this Court should grant

mandamus review because, it says, in granting a new trial in

this case the trial court exceeded its discretion and usurped

the factfinding province of the jury. In Ex parte Nice, 407

So. 2d 874, 879 (Ala. 1981), this Court held that "[m]andamus

cannot be used as a substitute for appeal, when no appeal is

authorized by law or court rule, but mandamus can be used to

prevent a gross disruption in the administration of criminal

2
The State's power to appeal from an adverse ruling of the
trial court is authorized by § 12-12-70(c), Ala. Code 1975 (an
appeal from a judgment holding a statute or ordinance
invalid); § 12-22-90(b), Ala. Code 1975 (an appeal from an
order granting a petition for a writ of habeas corpus); § 12-
22-91, Ala. Code 1975 (an appeal when an act of the
legislature under which an indictment or information is
proferred is held by a lower court to be unconstitutional);
and by Rule 15.7, Ala. R. Crim. P. (providing that appeals may
be taken from certain pretrial orders).
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1121390

justice." (Emphasis omitted.) This Court in Ex parte Nice

concluded that the Court of Criminal Appeals was presented

with exceptional circumstances justifying its issuance of a

writ of mandamus where the trial court had granted a new trial

based solely on its belief that a witness's testimony was

"dubious," which, the Court held, amounted to a usurpation of

power. This Court cautioned, however, that "[o]ur holding

that mandamus is appropriate ... is not an invitation to the

State to invoke supervisory writs to seek review of lower

court rulings which are adverse. We state again that only the

rarest of circumstances merit intervention by mandamus." 407

So. 2d at 882 (emphasis omitted).

The threshold issue for our review in this case is whether

the State has presented this Court with rare and/or

exceptional circumstances justifying the issuance of a writ

directing the trial court to set aside its order granting

Ellis's motion for a new trial. We conclude that it has not.

It is well settled that

"[i]n cases such as this one, where the court
grants a motion for new trial for grounds other than,
or in addition to, a finding that the verdict is
against the great weight or preponderance of the
evidence, our review is limited:

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"'It is well established that a ruling on a
motion for a new trial rests within the
sound discretion of the trial judge. The
exercise of that discretion carries with it
a presumption of correctness, which will
not be disturbed by this Court unless some
legal right is abused and the record
plainly and palpably shows the trial judge
to be in error.'

"Kane v. Edward J. Woerner & Sons, Inc., 543 So. 2d
693, 694 (Ala. 1989) (citation omitted). See also,
Land & Assoc., Inc. v. Simmons, 562 So. 2d 140, 148
(Ala. 1989)."

Curtis v. Faulkner Univ., 575 So. 2d 1064, 1065 (Ala. 1991).

Being mindful of the presumption of correctness that

attaches to a trial court's ruling on a motion for a new

trial, we quote in its entirety the trial court's May 17,

2013, order, which is clearly the product of careful thought

and consideration:

"Prior to the hearing [on Ellis's motion for a
new trial,] this court on March 27, 2013, entered an
order for the State to determine if there are any
interviews or statements taken by law enforcement
regarding the investigation and to provide the court
copies under seal [of] the following:

"1. Copy of a transcript of any interview
or statement that was recorded as a part of
law enforcement's investigation into this
case that has not previously been
disclosed.

"2. Copy of all notes, files or summaries
of any interviews or statements taken by

11
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law enforcement that has not been
previously disclosed.

"3. Any exculpatory or impeachable
evidence, statements or interviews not
previously produced.

"In response to said Order the State produced in
camera the following:

"A. Copies of transcript of the March 27,
2012, and May 23, 2012, recorded interviews
with victim M.B.

"B. Copy of the transcript of the interview
with witness M.M. made May 15, 2012.

"C. A CD which contained interviews of
M.B., M.M. and J.H.

"This court made a finding that the two (2)
statements of M.B. and the statement of J.H.
contained exculpatory and/or impeachable evidence
that should have been disclosed and ordered that the
State provide [Ellis] with copies prior to the
hearing on the motion for new trial.

"Prior to the hearing the State provided
additional information in camera for the court to
review. The information provided included a case
summary by Investigator Brian McLendon, an affidavit
by Lee Barnes of the Troy Police Department seeking
a search warrant for telephone records of S.L.F. and
other documents.

"[Charges and Convictions]

"[Ellis] was indicted by a Pike County Grand
Jury in Count I of rape in the first degree regarding
victim Q.C., Count II of rape in the first degree
regarding victim M.B. and burglary in the 2d degree
regarding the residence of M.B.

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"A jury returned verdicts of guilty on all three
(3) offenses. [Ellis] was sentenced to eighty five
(85) years in prison on each rape offense and twenty
(20) years on the burglary 2d degree. The sentences
were to run concurrently with each other.

"[Applicable Law]

"The suppression by the prosecution of evidence
favorable to an accused violates due process where
the evidence is material to guilt or to punishment,
irrespective of the good faith or bad faith of the
prosecution. Brady v Maryland, 373 U.S. 83, 83 S.Ct.
1994, 10 L. Ed. 2d 215 (1963). The Supreme Court in
Brady stated that the purpose of sanctions for
suppression of favorable evidence is not to punish
society for misdeeds of a prosecutor, but instead is
the avoidance of an unfair trial to an accused.
Society not only wins when the guilty are convicted
but when criminal trials are fair; our system of
administration of justice suffers when any accused is
treated unfairly. The court in Brady made reference
to an inscription on the walls of the Department of
Justice which reads, 'The United States wins its
point when Justice is done its citizens in the
courts.'

"The U.S. Supreme Court in Giglio v. [United
States], 405 U.S. 150, 92 S. Ct.763, 31 L. Ed. 2d 104
(1972) rejected any distinction between impeachment
and exculpatory evidence and held that impeachment
evidence as well as exculpatory evidence falls within
the 'Brady Rule.'

"Evidence is favorable to an accused if such
evidence, if disclosed and used effectively, may make
the difference between conviction and acquittal. Nape
v. Illinois, 360 U.S. 264, 79 S. Ct. 1173, 3 L. Ed.
2d 1217 (1959).

"A jury's estimate of the truthfulness and
reliability of a given witness may well be

13
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determinative of guilt or innocence and it is upon
subtle factors that a defendant's life or liberty may
be deprived. United States v. Bagley, 473 U.S. 667,
105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985). When the
reliability of a witness may well determine guilt or
innocence, nondisclosure of evidence affecting
credibility falls within the 'Brady Rule.' Giglio
supra; Bagley supra.

"The prosecution has a duty to disclose
impeachment and exculpatory (favorable) evidence even
if there has been no request by the accused. [United
States] v. Agurs, 427 U.S. 97, 96 S. Ct. 2392; 49 L.
Ed. 2d 342 (1976).

"The 'Brady Rule' encompasses evidence 'Known
only to the police and not to the prosecutor.' Kyles
v. Whitley. 514 U.S. 419, 115. S. Ct. 1555, 131 L.
Ed. 2d 490 1995).

"The U.S. Supreme Court held in Kyles that a
Brady violation occurred by the failure to disclose
that a witness had tentatively picked at a lineup
someone other than the defendant as the killer and
was told by law enforcement that the wrong person was
identified.

"Brady requires the prosecution to produce
evidence that someone else may have committed a
crime. Nicks v. State, 783 So. 2d 895 (Ala. Crim.
App. 1999), quoting Jarrell v. Balkcom, 735 F.2d.
1242, (11th Cir. 1984). Nondisclosure of exculpatory
evidence bearing on the identity of the perpetrator
has often led courts to hold that the principles of
Brady were violated. See Patton v State, 530 So. 2d
886 (Ala. Crim. App. 1988). A telephone call from an
alleged eyewitness who implicated someone other than
the accused that was not disclosed is a Brady
violation. Hall v. State, 625 So. 2d 1162 (Ala. Crim.
App. 1993). Pretrial statements of witnesses
implicating someone else other than accused or
containing details inconsistent with witnesses' trial

14
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testimony would be favorable and a Brady violation.
Jefferson v. State, 645 So. 2d 313 (Ala. Crim. App.
1994); Martin v State, 839 So. 2d 665 (Ala. Crim.
App. 200l).

"Failure of prosecution to disclose a 'be on the
lookout' (BOLO) containing a witness's description of
the perpetrators violated the prosecution's
obligation under Brady to inform defendant of
impeachment evidence, where the BOLO description
differed significantly from the Defendant's actual
appearance. Martin v. State, 839 So. 2d 665 (Ala.
Crim. App. 2001).

"To prove a Brady violation, a defendant must
show:

"1. That the prosecution suppressed
evidence.

"2. That the evidence was of a character
favorable to the defense.

"3. That the evidence was material (or the
defendant was prejudiced).

"Jefferson v. State, 645 So. 2d 313 (Ala. Crim. App.
1994); Ex parte Cannon, 578 So. 2d 1089 (Ala. 1991).

"For a Brady violation, the suppression of
evidence need not have been made knowingly or
negligently by the government. [United States] v.
Pelisamen, 641 F.3d 399 (9th Cir. 2011).

"In determining whether the suppressed evidence
was material for a Brady violation, the court shall
consider the cumulative effect of all suppressed
evidence, and shall not consider each item of
evidence individually. Kyles v. Whitley, 514 U.S.
419, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995).

15
1121390

"Evidence is material as to the 'Brady Rule' if
there is a reasonable probability that had the
evidence been disclosed to the defense, the results
of the proceeding would have been different. A
'reasonable probability' is a probability sufficient
to undermine confidence in the outcome. [United
States] v. Baxley, 473 U.S. 667, 682, 105 S. Ct.
3375, 3383, 87 L. Ed. 2d 481 (1985).

"[Analysis]

"The two (2) recorded interviews with M.B. that
were not disclosed have inconsistencies and are
inconsistent with certain trial testimony of M.B. In
one recorded interview M.B. stated that her roommate
had been gone about twenty (20) minutes before the
alleged rape. In the other interview M.B. stated the
roommate had been gone about an hour and thirty (30)
minutes. M.B. in one statement says her telephone was
in the bathroom and in the other she says the
telephone was in the kitchen at the time of the rape.
M.B. gave inconsistent testimony as to the type of
clothes the [rapist] was wearing. M.B. said in the
statement of March 27, 2012, that the rape lasted
like four (4) or five (5) minutes and this would be
inconsistent with the time line which established the
truck of [Ellis] entered the mobile home park at 4:41
p.m. and drove by the office at 4:46 p.m. M.B. did
not tell about her and J.H. (boyfriend) having sex
shortly prior to the alleged rape. At trial M.B.
testified in the State's case-in-chief that she was
sick and feeling bad on the day of the alleged rape.
M.B. did not testify on direct about having sex with
J.H. a couple hours prior to the alleged rape. M.B.
did testify that she and J.H. had sex when called as
an adverse witness by the defense. Defense counsel
only found out about the fact that M.B. had sex with
boyfriend at a bench side conference, just prior to
the State resting its case and after M.B. had
testified. M.B. in the March 27, 2012, statement said
she did not see the penis of the rapist. She said she
closed her eyes. However at trial M.B. testified that

16
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she could see he had on a condom and could see the
erect penis. In the March 27, 2012, statement M.B.
when asked about the rapist she said, 'I was really
scared to look at him in the face'; however, at trial
M.B. testified she would not forget the eyes of the
rapist. At trial M.B. testified she was bent out with
her legs straight at the time of the rape; however,
in one of the nondisclosed statements she said her
knees were bent the whole time of the rape.

"K.H., the roommate, testified at trial that she
and M.B.'s mother left the hospital and went to the
mobile home at about 8:00 p.m. and cleaned up the
blood. In the recorded statement she said they went
to the mobile home about 10:00 p.m.

"J.H., the boyfriend of M.B., gave a recorded
interview to law enforcement, which was not disclosed
to defense counsel. J.H. was not called as a witness
at trial, and defense counsel was not aware that J.H.
was the boyfriend of M.B. until M.B. was called as an
adverse witness. J.H. in his recorded interview
stated that he and M.B. did not have sexual
intercourse the day of the rape. J.H. stated they
were together and then he had to go to a baseball
meeting either at 4 or 4:30 p.m. and after the
meeting, which lasted no more than five (5) minutes,
he called M.B. and she was on the way to the
hospital. The evidence would have been useful to
attack the time line of 4:41 p.m. to 4:46 p.m.

"The text messages and call log of M.B. which
was produced in camera notes that at 4:45 p.m. K.H.
sent a text message to M.B. that stated 'How are you
feeling?' M.B. responded at 4:45 p.m. 'terrible about
to sit in the tub.' M.B. has provided information in
the statements that she was about to take a bath when
she heard a knock at the door and the rape occurred.
This evidence is exculpatory and would be useful for
impeachment purposes, specifically if the rape had
not occurred at 4:45 p.m. and [Ellis's] truck was on
the video passing the office at 4:46 p.m., then the

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rape had to have occurred between 4:45 p.m. and 4:46
p.m.

"Additionally, the State did not disclose the
affidavit of Lee Barnes of the Troy Police Department
which was utilized to obtain a search warrant for
cellular telephone records of a suspect other than
[Ellis], namely [S.L.F.]. The affidavit stated the
investigation had led to the suspect, S.L.F., and
that the victim had made a tentative identification
of S.L.F. through a photographic lineup. Additionally
the victim's mother searched MySpace [social-media]
records and located the suspect with a picture and
showed it to M.B. and M.B. became visibly upset. An
artist developed a composite sketch of the
perpetrator with the assistance of the victim and a
person independently identified S.L.F. as the person
depicted in the composite sketch. This information is
obviously exculpatory and was not disclosed and would
be material for a Brady violation. The information
would further be useful for impeachment purposes as
it appears law enforcement ruled out said suspect.
The fact that the victim wrongfully identified
another person would be material.

"[Findings]

"This court is aware that there is not a
constitutional right to discovery in a criminal case.
Discovery is governed by Rule 16, [Ala. R. Crim. P.]
-- the standing discovery order of this Circuit that
ordered the State to comply with Rule 16, and to
provide any exculpatory or impeachable evidence
pursuant to Brady.

"Suppression by the prosecution of evidence
favorable to the defendant violates due process where
the evidence is material to guilt. The truthfulness
or reliability of a witness's testimony may well be
determination of guilt. Evidence favorable to the
defendant which would tend to exculpate him helps
shape a trial and bears heavily on the defendant.

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"This court in determining a materiality inquiry
under Brady is not to consider whether, after
discounting the exculpatory [evidence] in light of
the undisclosed evidence, the remaining evidence
would be sufficient to support the jury's conclusion.
Rather, the question is whether the favorable
evidence could reasonably be taken to put the whole
case in such a different light as to undermine the
confidence in the verdict. Strickler v. Greene, 527
U.S. 263, 290, 119 S. Ct. 1936, 144 L. Ed. 2d 286
(1999).

"This court is mindful of the impact granting a
new trial may have on the victims; however this court
is bound by the facts and applicable law in this
matter. The court must weigh and consider the
nondisclosed evidence and determine if evidence was
suppressed, whether the suppressed evidence would be
favorable to the defense, and whether the evidence
was material or, stated otherwise, whether there is
a reasonable probability the nondisclosed evidence
undermined the verdicts.

"This court finds as follows:

"1. The evidence, including the statements
of M.B., J.H., K.H., that victim, M.B.,
identified another person in a photo
lineup, that the time-line log shows that
M.B. was texting at 4:45 p.m. that she was
about to get in the tub and her statement
that she had not gotten in the tub prior to
the rape was suppressed by the State and
the evidence is exculpatory and
impeachable.

"2. The court further finds that, since
there was no forensic evidence or physical
evidence tying [Ellis] to the rapes and
burglary other than witness testimony, the
credibility, truthfulness, and reliability
of the testimony of such witnesses may well

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have been a determining factor of guilt.
The court finds the suppressed evidence is
material and if the evidence had not been
suppressed that there is a 'reasonable
probability' that the results of the
proceeding would have been different and a
reasonable probability is sufficient to
undermine the confidence in the outcome.

"3. Much of the suppressed/nondisclosed
evidence would have provided the defense
with an opportunity to impeach the
credibility of the witnesses and the
credibility [of the] investigation.
Portions of the suppressed evidence would
have tended to exculpate [Ellis]. Such
evidence would include the fact that M.B.
had identified another person in a photo
lineup, J.H.'s testimony about calls to
M.B. which could attack the time line, and
the text messages and call log of M.B.
showing text at 4:45 p.m.

"4. That exculpatory and impeach[ment]
evidence was suppressed, that the
suppressed evidence was favorable to the
defense, and that the suppressed evidence
was material and there is a reasonable
probability that nondisclosure of the
favorable evidence could have undermined
the confidence of the verdicts.

"5. That the suppressed evidence along with
the fact that the mother of M.B. cleaned up
the blood from the scene, that M.B. and
J.H. deliberately deleted text messages
while M.B. was headed to the hospital and
the fact that M.B. initially told the
doctor she fell on something (instead of
being raped); the fact that M.B. was not
truthful and candid on direct about her
actions prior the alleged rape, all that

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cumulatively would have led the court to
find that [Ellis] is entitled to a new
trial based on the suppression of evidence
in violation of Brady and the standing
discovery order of this court.

"[Conclusion]

"It is ORDERED that [Ellis's] motion for a new
trial on the two (2) convictions of rape in the first
degree and burglary in the first degree is granted.
The convictions are hereby set aside and vacated due
to Brady violations.

"The court further finds that the suppression or
nondisclosure was not intentional or malicious on the
part of the State; however, this court continues to
have much concern regarding the State's search for
the truth as the evidence disclosed in camera makes
reference to other interviews and statements--
specifically Q.C., the other rape victim, which have
never been provided in camera to the court as
specifically ordered by this court.

"Any other relief sought by [Ellis] on other
grounds will not be addressed as [it is] moot since
the court has granted the motion for new trials based
on the 'Brady Rule' violations and violations of the
standing discovery order of the 12th Judicial
Circuit.

"It is ORDERED that a scheduling conference is
scheduled for the 1st day August, 2013, to address
any pending matters and to set a date for a new
trial."

The State argues in its petition for a writ of mandamus

that the trial court exceeded its discretion and its judicial

authority in granting Ellis a new trial because, it says, the

21
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trial court improperly combed the prosecutor's files and

incorrectly and improperly analyzed the contents in those

files. In support of its argument, the State provides an

item-by-item analysis of each piece of evidence considered by

the trial court, much of which the State claims has no bearing

on the motion for a new trial. However, it is well settled

that the evidence the State failed to disclose to Ellis must

be considered collectively, not item-by-item, in determining

whether the "materiality" requirement of a Brady v. Maryland,

373 U.S. 83 (1963), violation has been satisfied. Kyles v.

Whitley, 514 U.S. 419 (1995). The collective effect of the

nondisclosed evidence in this case -- the fact that M.B. had

identified S.L.F. in a police photographic lineup as being the

perpetrator; the fact that M.B.'s prior statements during the

tape-recorded interviews were inconsistent with her testimony

at trial regarding the time line of events and how those

events occurred; the fact that J.H., M.B.'s boyfriend, stated

in his recorded interview that he had not had sexual relations

with M.B. on the day of the alleged rape; the fact that J.H.'s

statements in the interview regarding his telephone calls to

M.B. could have been used to attack the time line of 4:41 p.m.

22
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to 4:46 p.m.; and the fact that K.H.'s testimony was

inconsistent regarding the time she and M.B.'s mother went to

M.B.'s mobile home to clean up the blood -- is to support the

trial court's conclusion that there was a "reasonable

probability" that the State's nondisclosure of this evidence

would have resulted in a different verdict. The trial court

noted that "since there was no forensic evidence or physical

evidence tying [Ellis] to the rapes and burglary other than

witness testimony, the credibility, truthfulness, and

reliability of the testimony of such witnesses may well have

been a determining factor of guilt." "The question is not

whether the defendant would more likely than not have received

a different verdict with the evidence, but whether in its

absence he received a fair trial, understood as a trial

resulting in a verdict worthy of confidence." Kyles, 514 U.S.

at 434. "[A] constitutional error occurs, and the conviction

must be reversed, only if the evidence is material in the

sense that its suppression undermines confidence in the

outcome of the trial." United States v. Bagley, 473 U.S. 667,

678 (1985). We find no error in the trial court's order

analyzing the collective effect of the nondisclosed evidence

23
1121390

and determining that the "materiality" requirement of a Brady

violation had been satisfied. Kyles.

The State also argues that the trial court exceeded its

discretion in granting a new trial because, it says, Ellis

never laid the proper predicate to compel the State to

disclose the statements of M.B., K.H., or J.H., as required by

Ex parte Pate, 415 So. 2d 1140 (Ala. 1981), and Ex parte Key,

890 So. 2d 1056 (Ala. 2003). More specifically, the State

asserts that Ex parte Pate and Ex parte Key required Ellis to

make specific requests during the trial for any pretrial

statements made by any witnesses during the course of the

trial. We find Key and Pate to be inapplicable to the facts

of this case.

In Ex parte Pate, this Court granted certiorari to review

the question "whether or when the defendant in a criminal case

is entitled to inspection of a statement of a prosecution

witness for the purpose of cross-examining or impeaching the

witness." 415 So. 2d at 1140-41 (emphasis added). Ex parte

Pate confirmed the general rule that an accused is not

entitled to discover statements of government witnesses before

trial. In Ex parte Key, this Court held that "[o]nce a

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1121390

prosecution witness has testified on direct examination,

however, a defendant, upon laying a proper predicate, is

entitled to inspect a prior statement of the witness for the

purpose of cross-examining or impeaching the witness." 890

So. 2d at 1064. Ex parte Key established a two-step process

for determining when a trial court should conduct an in camera

inspection. A defendant must first lay a proper predicate for

an in camera inspection by providing evidence that a statement

exists, then the trial court determines, during the in camera

inspection, "(1) whether the witness's statement differed in

any respect from the witness's testimony at trial, and (2)

whether the statement requested was of such a nature that

without it the defendant's trial would be fundamentally

unfair." Ex parte Key, 890 So. 2d at 1064.

Ellis's case presents a different fact scenario: Ellis was

not seeking during the trial to inspect a prior statement of

a witness for the purpose of cross-examining or impeaching the

witness. In other words, Ellis learned for the first time

during the trial at a sidebar conference that J.H. and M.B.

had had sexual relations just hours before the alleged rape;

Ellis was not aware that J.H. had been interviewed by law

25
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enforcement. Because J.H. did not testify at trial, Ellis

could not have requested during the trial to use J.H.'s

statement for cross-examination or impeachment purposes. It

was not until after the verdict that Ellis, during further

investigation, learned that J.H. had been interviewed by law

enforcement. At this point, Ellis filed a motion for a new

trial, alleging that the State had withheld crucial evidence

in violation of Brady v. Maryland:

"That during the course of trial at sidebar, the
State revealed that the alleged victim, M.B., had
entered into sexual relations with her boyfriend at
the time of the alleged offense the afternoon she
claimed she had been raped. M.B. had already given
testimony at this point of the trial that she had
[gone] to school and then had come home without
mentioning she had entered into sexual relations with
her boyfriend, herein referred to as J.H. The State
had not disclosed this information prior to trial and
therefore no investigation of the same was conducted
by the defense.

"Since the trial, the defense has through
further investigation discovered that J.H. has
disclosed that he had sex with M.B. the day of the
alleged rape. J.H. has further stated that yes they
did have sex[;] however[,] when asked if there were
any 'toys' he stated no but only after a significant
pause. J.H. has further disclosed that there was a
police interview/interrogations of him and he was
interviewed by Brian McClendon of the Troy P.D.
[Police Department] and another detective that he did
not know. ... J.H. further disclosed he had only one
formal interview at the P.D. and that he was there
for quite a long time. After that he only spoke with

26
1121390

Det. McClendon by phone. J.H. also remembers the
interview being recorded. J.H. stated that he did in
fact say he did not believe that M.B. had been raped
during the P.D. interview but has since come to
believe that she had. When ask[ed] ... why he had
originally not believed her J.H. stated there were
little things going on in their relationship that
made him doubt her sometimes and primarily he did not
believe her because the Police led him through their
questioning of him to believe that they doubted her
story as well. Since the interview of J.H. was not
disclosed to the defense prior to trial, all of the
aforementioned information was unavailable to the
defense prior to trial and therefore no further
investigation on these issues were investigated at
the time. The State never called J.H. at trial.

"....

"Trial counsel was not provided with crucial
evidence in violation of Brady v. Maryland ....

"Further, due to the State's failure to disclose
information regarding M.B.'s sexual conduct the day
of the alleged rape, the defense was further unable
to properly cross-examine the State's expert on other
possible hypotheses for the alleged injuries nor was
the defense afforded the opportunity to evaluate the
need for independent defense witnesses to refute the
State's experts."

The trial court thereafter ordered the State to determine

if there were any interviews or statements taken by law

enforcement regarding the investigation that had not been

previously disclosed and to provide the court with copies

under seal of all such interviews or statements. See Duncan

v. State, 575 So. 2d 1198 (Ala. Crim. App. 1990) (holding that

27
1121390

the knowledge of law-enforcement agents regarding favorable

evidence is imputed to the prosecutor). The State thereafter

produced in camera the interviews of M.B., J.H., and K.H. The

State also provided additional in camera information for the

court's review, including a search warrant for telephone

records of S.L.F., another person M.B. had identified in a

police photographic lineup as being the perpetrator. After

reviewing the State's evidence, the trial court concluded that

some of the evidence should have been disclosed, and it

ordered the State to provide Ellis with copies of that

evidence before the hearing on the motion for a new trial.

Following the hearing, the trial court entered its order,

granting Ellis's motion for a new trial based on the State's

failure to turn over evidence in violation of Rule 16, Ala. R.

Crim. P., and in violation of Brady v. Maryland. See Ex parte

Brown, 548 So. 2d 993, 994 (Ala. 1989)("We have further held

that exculpatory evidence, regardless of its trustworthiness

or admissibility, should be disclosed, and, if it is not

disclosed, that defendant's motion for a new trial should be

granted."). Moreover, pursuant to Rule 16, Ala. R. Crim. P.,

the trial court is authorized to inspect the State's evidence

28
1121390

at any time during the proceedings when it is brought to the

court's attention that a party has failed to comply with the

court's standing discovery order. Rule 16.5, Ala. R. Crim.

P., states:

"If at any time during the course of the proceedings
it is brought to the attention of the court that a
party has failed to comply with this rule or with an
order issued pursuant to this rule, the court may
order such party to permit the discovery or
inspection; may grant a continuance if requested by
the aggrieved party; may prohibit the party from
introducing evidence not disclosed; or may enter such
other order as the court deems just under the
circumstances. The court may specify the time, place,
and manner of making the discovery and inspection and
may prescribe such terms and conditions as are just."

(Emphasis added.)

Because the holdings of Ex parte Pate and Ex parte Key

do not apply under the facts of this case, and because the

trial court was authorized to order the State to provide the

court with copies under seal of all interviews or statements

taken by law enforcement during its investigation that had not

been previously disclosed, the State has failed to demonstrate

that the trial court exceeded its discretion in this regard.

Stated differently, under the circumstances presented, the

trial court's method of handling the situation was proper.

29
1121390

Lastly, the State argues that the trial court exceeded its

discretion in entering its order granting a new trial with

regard to the rape charge involving Q.C. because, it says,

Ellis made no allegation in his motion for a new trial

regarding a discovery violation in the case in which Q.C. is

the named victim nor did the trial court make any findings as

to any alleged discovery violation pertaining to that case.

In support of its argument, the State cites Dunn v. United

States, 284 U.S. 390, 393 (1932)("[E]ach count of an

indictment is regarded as if it was a separate indictment."),

and Murphy v. State, 108 So. 3d 531, 546 (Ala. Crim. App.

2012)("'A jury verdict on each count [of a multi-count

indictment] is independent; a verdict of either conviction or

acquittal of one has no effect or bearing on another.'"

(quoting Hammonds v. State, 7 So. 3d 1055, 1061 (Ala. 2008))).

Specifically, the State asserts that "just because the trial

court is erroneously convinced that a new trial is appropriate

in one count of a multi-count indictment does not

automatically give rise to the summary granting of a new trial

in any other count of the same indictment." The State's

argument in this regard is without merit. It is irrelevant

30
1121390

that Ellis made no allegation in his motion for a new trial of

any discovery violation regarding Q.C., because Ellis was

concerned only with the fact that the State had failed to

disclose the recorded interview between J.H. and law

enforcement. As previously stated, Ellis alerted the trial

court in his motion for a new trial of the alleged Brady

violation. The court at that point ordered the State to

provide copies under seal of all notes, files, or summaries of

any interviews or statements taken by law enforcement that had

not been previously disclosed during the course of the

investigation; this information would include any information

pertaining to Q.C. as well as to M.B. More importantly,

however, is the fact that the trial court clearly stated in

its order that the State had violated the discovery order

regarding information pertaining to Q.C.:

"The court further finds that the suppression or
nondisclosure was not intentional or malicious on the
part of the State; however, this court continues to
have much concern regarding the State's search for
the truth as the evidence disclosed in camera makes
reference to other interviews and statements
specifically [regarding] Q.C., the other rape victim,
which have never been provided in camera to the court
as specifically ordered by this court.

"Any other relief sought by [Ellis] on other
grounds will not be addressed as they are moot since

31
1121390

this court has granted the motion for new trials
based on the 'Brady Rule' violations and violations
of the standing discovery order of the 12th Judicial
Circuit."

(Emphasis added.) Rule 16, Ala. R. Crim. P., which provides

for discovery in criminal cases, expressly authorizes a trial

court to impose sanctions against a party that fails to comply

with a discovery order. See Rule 16.5, quoted supra. "Brady

v. Maryland ..., requires the government to disclose

exculpatory evidence or risk sanctions." State v. Hall, 991

So. 2d 775, 778 (Ala. Crim. App. 2007). "The imposition of

sanctions upon noncompliance with a court's discovery order is

within the sound discretion of the court." McCrory v. State,

505 So. 2d 1272, 1279 (Ala. Crim. App. 1986). "[S]anctions

imposed for a Brady violation are reviewed to see if the trial

court exceeded its discretion." Ex parte Hall, 991 So. 2d 782,

784-84 (Ala. 2008) (citing State v. Moore, 969 So. 2d 169,

181–82 (Ala. Crim. App. 2006) (recognizing that dismissal of

an indictment is an available sanction for a Brady violation

under the supervisory powers granted trial courts by Rule

16.5, Ala. R. Crim. P.)). Because the State violated the

trial court's discovery order by failing to produce any and

all interviews and statements regarding Q.C., we find no error

32
1121390

in the trial court's ruling granting Ellis's motion for a new

trial as to count one of the indictment charging Ellis with

rape in the first degree of Q.C. The State has simply failed

to provide this Court with any caselaw demonstrating error on

the part of a trial court granting a new trial based on a

party's failure to comply with the discovery provisions of

Rule 16, Ala. R. Crim. P. It is well settled that the

"[f]ailure to comply with [Rule 16] is viewed with disfavor

and is condemned." Smith v. State, 698 So. 2d 189, 206 (Ala.

Crim. App. 1996).

IV. Conclusion

Based on the foregoing, the State has failed to present

this Court with exceptional circumstances justifying the

issuance of a writ directing the trial court to set aside its

order granting Ellis's motion for a new trial. Unlike this

Court's holding in Ex parte Nice that the Court of Criminal

Appeals was justified in finding exceptional circumstances

justifying the issuance of a writ where the trial judge had

granted a new trial solely because he felt the witness's

testimony was "dubious," which, we said, amounted to a

usurpation of power, there are no circumstances, much less

33
1121390

exceptional circumstances, presented in this case justifying

a writ directing the trial court to vacate its order granting

Ellis a new trial. The trial court in this case was clothed

with the discretion to grant a new trial and, in fact, had a

duty to do so upon its finding of a Brady violation, Ex parte

Brown; the trial court is also clothed with discretion in

imposing the appropriate sanctions, i.e., the grant of a new

trial, based on its findings of discovery violations. Ex

parte Moore, supra. Accordingly, the State has failed to

demonstrate a clear legal right to the order sought, Ex parte

Sharp, and its petition is due to be denied. See also State

v. Waters, 453 So. 2d 1067, 1067-68 (Ala. Crim. App. 1984),

holding that "[t]he petition for writ of mandamus seeking to

require a Montgomery Circuit Court judge to vacate and hold

for naught his order granting a new trial is hereby denied on

authority of Ex parte Hooper, 453 So. 2d 1066 (Ala. 1984),

holding that mandamus will not lie to compel the trial court's

exercise of discretion in a particular manner."

PETITION DENIED.

Moore, C.J., and Stuart, Parker, Murdock, Shaw, Main,

Wise, and Bryan, JJ., concur.

34