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 , Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter

. 

# SUPRE ME CO URT O F ALA BAMA

SPECI AL TE RM, 2 014

_____ _____ _____ _____ 11213 90

_____ _____ _____ _____ Ex pa rte S tate of Al abama

PETIT ION F OR WR IT Of MAND AMUS (In r e: St ate o f Ala bama

v.
Andre Lamo n Ell is) (Pike Circ uit C ourt, CV-1 2-238 )
BOLIN , Jus tice.
The State of Alaba ma peti t i ons this Court for a writ of
manda mus direc ting Judge Jeffr ey W. Kelle y of the Pike Circu it11213 90

Court to vacat e his May 1 7 , 2 0 1 3 , order grant ing Andre Lamon
Ellis 's mo tion for a new trial . We deny the p etiti on.

I. F acts and P roced ural Histo ry
On March 26 , 2012, M.B. was alleg edly raped in her
resid ence locat ed in Hunte r's Mou n t a i n Mobil e Estat es. M.B.
ident ified Ellis in a polic e photo graph i c lineu p as the
p e r petra tor. Altho ugh there was no foren sic or physi c a l
evide nce linki n g E l l i s to the alleg ed rape, a video from a

secur ity camer a l o cated at Hunte r's Mount ain on that day
showe d Ellis 's vehic le enter ing Hunte r's Mount ain at 4:41 p.m.
and leavi ng at 4 : 4 6 p . m. Ellis , in fact, lived in Hunte r's
Mo u n tain. Follo wing the alleg ed rape, M.B. went to the hospi tal with vagin al injur ies requi ring multi ple surge ries.

M.B. initi ally repor ted to her docto r tha t s h e h ad falle n on

a "door stop" in her bathr oom but later state d that s h e had
been raped
. On Janu a r y 18, 2013, Ellis was convi cted of rape in the
first deg r e e r egard ing Q.C., rape in the first degre e 1

Q.C. also lived in Hunte r's Mount ain and claim ed to have 1 been raped by Ellis on the same day M.B. alleg ed that she was raped
. Altho ugh there were sepa r ate indic tment s charg ing Ellis with the rapes of both M.B. a n d Q
. C ., the cases were tried join tly.
211213 90

regar ding M.B., and burgl ary in the secon d degre e r e g a r ding
the resid ence of M.B. Ellis was sente nced t o 85 years in priso n. On March 25, 2013, Ellis moved for a n e w t rial, alleg ing, among o t h e r thing s, that the State had faile d to
discl ose cruci al evide nce in viola tion of Brady v. Ma r y l a n d,
373 U.S. 83 (1963 ). The trial court order ed the State to
discl ose in camer a certa i n e v i d ence and, after condu cting a heari ng, enter ed an order dated May 17, 2013, grant ing Ellis 's
motio n for a new t r i al based on the State 's failu re to turn

over evide nce i n viola tion of Rule 16, Ala. R. Crim. P., and
in viola t i o n of the princ iples of law set forth in Brady v. Maryl a n d
. The State filed a motio n for recon sider ation , on which the trial cour t did not rule.
On June 2 4 , 2 0 1 3 , the 38th day after the trial court
order ed a new trial , the State filed a petit ion for a writ of
manda mus with the Court o f Crimi nal Appea ls pursu ant to Rule 21, Ala. R. App. P
. In its petit ion, the State sough t a writ
d i recti ng the trial court to set aside its order gr a n t i n g Ellis 's motio n for a new trial

. The State had relie d on Rule 4(b)( 1), Ala. R
. App. P., to deter mine that it had 42 days
from the d ate o f the orde r to file its p etiti on.

311213 90

On Augus t 20, 2013, the Court of Crimi nal Appea ls enter ed

an order dismi ssing the State 's petit ion after concl uding that
it was not filed withi n a presu mptiv ely r e a s onabl e time and
that the State had faile d to inclu de a "stat ement of
circu mstan ces const ituti ng good cause " as to why the petit ion
had been filed outsi de the presu mptiv ely reaso nable time. See
Rule 21(a) (3), Ala. R. App. P. The Court of Crimi nal Appea ls
deter mined t hat the presu mptiv ely reaso nable time for the
State to file its petit ion was seven days from the date of the
trial court 's r u l i n g that was subje ct to the petit ion. See
Rule 1 5
. 7 , A la. R. Crim. P. The State did not file an appli catio n for rehea ring with the Court of Crimi nal Appea ls.
State v. Ellis (No. CR-12 -1514 , Aug. 20, 2013) , ___ So. 3d

___ (Ala. Crim . App . 201 3) (t able)
. On Augus t 30, 2 0 1 3 , t h e State filed its petit ion for a writ of manda mus in this Court pursu ant to Rule 21(e) , Ala. R. App. P., seeki ng de novo r e v i e w of the Court of Crimi nal Appea ls' dismi ssal of its origi nal petit ion, as well as a writ
direc ting the trial judge to vacat e its order grant ing Ellis 's
motio n for a new trial

. The State inclu ded in its pet i t i o n a
manda tory state ment of circu mstan ces const itu t ing good cause

411213 90

for this Court 's consi derat ion. This Court issue d a n order
dismi ssing the State 's pe titio n as untim ely.
On Janua ry 27, 2014, the State filed an appli catio n for

a rehea ring compl ainin g that this Court 's order dismi ssing its petit ion for a writ of manda mus faile d to "addr ess wheth er the
State 's petit ion was untim ely filed with the Supre me Court or
if the State 's origi nal P e t i tion for Writ of Manda mus filed
with the Al abama Court of Crimi nal Appea ls was untim ely." Speci fical ly, t h e State argue d that its origi nal petit ion
filed with the Cour t o f C r imina l Appea ls was not untim ely
becau se, it claim ed, it d id not seek revie w of a pretr ial
order pursu ant to Rule 15.7 , Ala. R. Crim. P., but rathe r sough t relie f from a postt rial order grant ing Ell i s ' s motio n
for a new trial

. On March 3 1 , 2014, this Court grant ed the State 's appli catio n for a rehea ri n g , a n d on June 9, 2014, we order ed
the parti es to fi l e a nswer s and brief s. We also order ed the parti es to inclu de in their brief s a discu ssion as to "whet her [this ] Court is veste d with juris dicti on a nd wheth er the
prope r time stand ard for submi tting [the State 's peti t i o n to

511213 90

the Court of Crimi nal Appea ls] is pursu ant to Rule 4(b), Ala. R. Ap p. P. , or Rule 15.7( b), A la. R . Cri m. P. "
II. S tanda rd of Revi ew
"Mand amus is an extra ordin ary remed y and will be issue d only when there is '(1) a clear legal right in the petit ioner to the order sough t; (2) an imper ative duty upon the respo ndent to perfo rm, accom panie d by a refus al to do so; (3) the lack of anoth er adequ ate remed y; and (4) prope rly invok ed juris dicti on of the court .' Ex parte Alfab , Inc., 586 So. 2d 889, 891 (Ala. 1991)

. 'A decis ion of a court of appea ls on an origi nal petit ion for writ of manda mus or prohi bitio n or other extra ordin ary writ (i.e. , a decis ion on a petit ion filed in the court of ap p e a ls) may be revie wed de novo in the s u preme court ....' Rule 21(e) (1), Ala. R. Ap p. P. " Ex pa rte S harp, 893 So. 2 d 571 , 573 (Ala . 200 3).

III. Disc ussio n
A. A pplic able Time: Rul e 15. 7, Al a. R. Crim . P., or R ule 4(b), Ala. R. A pp. P .?
Rule 21(a) (3), Ala. R
. App. P., provi des that "[t]h e
presu mptiv ely reaso nable time for filin g a petit ion [for a writ of manda mus] seeki ng revie w of an order of a trial court

or of a lower appel late court shall be the s a m e as the time
for takin g an appea l." The State maint ains that, in dismi ssing
its origi nal petit ion for a writ of manda mus as untim ely, the
Court of Crimi nal Appea ls assum ed that the State was takin g an
appea l from a pretr ial order pursu ant to Rule 15.7( b), Ala. R.

611213 90

Crim. P., and that the court there fore impro perly h e ld that
the 7-day perio d in Rule 15.7 for filin g its petit ion appli ed
inste ad of the 42-da y perio d in Rule 4(b), Ala. R. App. P. We
agree . Rule 15.7, Ala. R. C rim. P., g overn s pre trial appeals by
the S tate; it p rovid es, i n per tinen t par t:

"(a) Gener ally. In any case invol ving a felon y, a misde meano r, or a viola tion, an appea l may be taken by the state to the Court of Crimi nal Appea ls from a pre-t rial order of the circu it court (1) suppr essin g a confe ssion or admis sion or other evide nce, (2) dismi ssing an i n dictm ent, infor matio n, or compl aint (or any part of an indic tment , info r m a t ion, or compl aint) , or (3) qu a s hing an arres t or searc h warra nt. Such an a p peal may be taken only if the prose cutor certi fies to the Court of Crimi nal Appea ls that the appea l is not broug ht for the purpo se of delay and that the order , if not rever sed on appea l, will be fa tal t o the pros ecuti on of the charg e." (Emph asis added .)
Rule 15.7( b) provi des that the State 's n o t i c e of appea l
from such a pretr ial order shall be filed "with i n seven (7) days after the order has been enter ed, but in any case befor e
the defen dant has been place d in jeopa rd y u n d e r estab lishe d
rules of law." It is clear that the S t a t e i n t his case was

no t t a k i n g an appea l from a pretr ial order "supp ressi ng a
confe ssion or admis sion or other evide nce"; "dism issin g an

711213 90

indic tment , infor matio n, or compl aint" ; or quash ing an arres t

or searc h warra nt" –- any of which would requi re the State to
certi fy t h at the order appea led from, if not rever sed, would
be fatal to the prose cutio n of the charg e. Rathe r, the State

w as seeki ng revie w of a postt rial order grant ing a ne w t r i a l
follo wing a jury verdi ct; accor dingl y, the State could not
have certi fied that the " o r d er, if not rever sed on appea l,"
would be fatal to the prose cutio n of the charg e. Becau se the
State did not seek re v i e w of a pretr ial order , but rathe r of

a postt rial order , we con c lude that the State 's manda mus petit i o n i n the Court of Crimi nal Appea ls, filed on the 38th day after the trial c o u r t 's rulin g, was filed withi n a

reaso nable time pursu ant to Rule 21, Ala. R. App. P., and Rule 4(b), Ala. R. App. P. There fore, its pet i tion for a writ of
manda mus filed in this Court with i n 1 4 days of the denia l of
the State 's appli catio n for rehea ring by the Court of Crimi nal Appea ls is time ly.
Rule 4(b), Ala. R. App. P., conte mplat es appea ls by the
State when auth orize d by statu te or rule :
"When an appea l by the st a t e as of right is autho rized by st a t u t e or rule, the notic e of appea l shall be filed in the trial co u r t withi n 42 days (6 w eeks) after the decis ion, order , or judg m e n t

811213 90

appea led from; e x c ept that any pre-t rial appea l by the state shall be taken withi n the time allo w e d by [Rule 15.7 , Ala . R. Crim. P.]. " 2 (Emph asis a d d ed.) The State does not dispu te that it has no right to a ppeal from an o rder grant ing a new trial

.

B. G round s for Issu ance of th e Wri t
The State maint ains that, in the a b s e n c e of a right to
appea l, a writ of manda mus is the appro priat e vehic le by which

to chall enge the tria l c ourt' s rulin g grant ing a new trial

. Speci fical ly, the Sta t e a s serts that this Court shoul d grant
manda mus revi e w b e c a use, it says, in grant ing a new trial in
this case the trial court excee ded its discr etion and usurp ed
the factf indin g provi nce of the jury. In Ex parte Nice, 407
So. 2d 874, 879 (Ala. 1981) , this Court held that "[m]a ndamu s

canno t be used as a subst itute for appea l , w h en no appea l is
autho rized by law or court rule, b u t manda mus can be used to
preve nt a gross disru ptio n i n the admin istra tion of crimi nal

The State 's power to appea l from an adver se rulin g of the 2 trial court is autho rized by § 12-12 -70(c ), Ala. Code 1975 (an appea l from a judgm ent holdi ng a s t a t ute or ordin ance inval id); § 12-22 -90(b ), Ala. Cod e 1 975 (an appea l from an order grant ing a petit ion for a writ of habea s corpu s); § 12- 22-91 , Ala. Code 1975 (an a p p e al when an act of the legis latur e u n der which an indic tment or infor matio n is profe rred is held by a lower court to be uncon s titut ional ); and by Rule 15.7, Ala. R. Crim. P. (prov iding that appea ls may be ta ken f rom c ertai n pre trial orde rs).
911213 90

justi ce." (Emph a s i s omitt ed.) This Court in Ex parte Nice
concl uded that the Court of Crimi nal Appea ls was prese nted
with excep tiona l circu mstan ces justi fying i t s issua nce of a writ of manda mus where the trial court had grant ed a new trial
b a s e d s olely on its belie f that a witne ss's testi mony wa s "dubi ous," which , the Court held, amoun ted to a usurp ation of
power . This Court cauti oned, howev er, that "[o]u r holdi ng
that manda mus is appro priat e . . . i s not an invit ation to the
State to invok e s u p e r v isory writs to seek revie w of lower
court rulin gs which are adver se. We state again that only the

rares t of circu mstan ces merit inter venti on by manda mus." 407
So. 2 d at 882 ( empha sis o mitte d).
The thres hold issue for our revie w in this case is wheth er
the State has prese nted this Court with rare a n d / o r
excep tiona l circu mstan ces justi fying the issua nce of a w rit
direc ting the trial court to set aside its o r d e r g ranti ng Ellis 's motio n for a new trial

. We concl ude that it has not.
It is well sett led t hat

"[i]n cases such as this one, where the court grant s a motio n for new trial for groun ds other than, or in addit ion to, a findi ng t hat the verdi ct is a gains t the great weigh t or prepo ndera nce of the evide nce, our r eview is l imite d:

1011213 90
"'It is well estab lishe d that a rulin g on a motio n for a new trial rests withi n the sound discr etion of the trial judge

. The exerc ise of that discr etion carri es with it a presu mp t i on of corre ctnes s, which will not be distu rbed by this Court unles s som e legal right is abuse d and the recor d plain ly and palpa bly s hows the trial judge to be in e rror. '
"Kane v. Edwar d J. Woern e r & Sons, Inc., 543 So. 2d 693, 694 (Ala. 1989) (cita tion omitt ed). S e e also, Land & Assoc ., Inc. v. Simmo ns, 562 So. 2d 140 , 148 (Ala. 1989 )."
Curti s v. Faulk ner U niv., 575 So. 2 d 106 4, 10 65 (A la. 1 991). Being m i n d ful of the presu mptio n of corre ctnes s that
attac hes to a trial court 's r uling on a motio n for a new trial , we quote in its en t i rety the trial court 's May 17, 2013, order , which is clear ly the produ ct of caref ul t hough t
and c onsid erati on:

"Prio r to the heari ng [on Ellis 's motio n for a new trial ,] this court on March 27, 2013, enter ed an order for the State to deter mine if there are any in t e rview s or state ments taken by law enfor cemen t regar ding the inves tigat ion and to provi de the court copie s und er se al [o f] th e fol lowin g:
"1. Copy of a trans cript of any inter v i e w or state ment that was recor ded as a part of law enfor cemen t's inves tigat ion into this case that has not pre v i ously been discl osed.
"2. Copy of all notes , files or summa r i es of any inter views or state ments taken by

1111213 90
law enfor cemen t tha t has not been previ ously disc losed
. "3. Any excul pator y or impea chabl e evide nce, state ments or inter views not previ ously prod uced.
"In respo nse to said O rder the State produ ced in camer a the foll owing :

" A
. Copie s of trans cript of the March 27, 2012, and May 23, 2012, recor ded inter views with victi m M.B
. "B. Copy of the trans cript of the inter view with witne ss M. M. ma de Ma y 15, 2012

. "C. A CD which co n t a ined inter views of M.B., M.M. and J.H.

" T h is court made a findi ng that the two (2) state ments of M.B. an d the state ment of J.H. conta ined excul pator y and/o r impea chabl e evide nce that shoul d have been discl osed and order ed that the State provi de [Elli s] with copie s prior t o t h e heari ng on the motio n for new trial

. "Prio r to the heari ng the State provi ded addit ional info r m a t i on in camer a for the court to revie w. The infor matio n provi ded inclu ded a case summa ry by Inves tigat or Brian McLen don, an affid avit by Lee B a r n e s of the Troy Polic e Depar tment seeki ng a searc h warra nt for telep hone recor ds of S.L.F
. and other docu ments
. "[Cha rges and C onvic tions ] "[Ell is] was indic ted by a Pike Count y Grand Jury in Count I of rape in the first degre e regar ding victi m Q.C., Count II of rape in the first degre e regar ding victi m M.B. and burg l a r y i n the 2d degre e regar ding the r eside nce o f M.B
.

1211213 90
"A jury retur ned verdi cts of guilt y on all three

(3) offen ses. [Elli s] was sente n c e d to eight y five (85) years in priso n on each rape offen se and twent y (20) years on the burg l a r y 2 d degre e. The sente nces were to ru n con curre ntly with each other
. "[App licab le La w]
"The suppr essio n by the prose cutio n of evide nce favor able t o an accus ed viola tes due proce ss where the evide nce is ma t e r i a l to guilt or to punis hment , irres pecti ve of the good faith or bad fai t h o f the prose cutio n. Brady v Maryl and, 373 U.S. 83, 83 S.Ct. 1994, 10 L
. Ed. 2d 215 (1963 ). The Supre me Court in Brady state d that the purpo se o f s a nctio ns for suppr e s s ion of favor able evide nce is not to punis h socie ty for misde eds of a prose cutor , but inste ad is the avoid ance of an unfa i r trial to an accus ed. Socie ty not only wins when t h e g u i lty are convi cted but when crimi nal trial s are fair ; our syste m of admin istra tion of justi ce suffe rs when any accus ed is treat ed unfai rly. T h e court in Brady made refer ence to an inscr iptio n on the walls of t h e Depar tment of Justi ce which rea ds, 'The Unite d State s wins its point when Justi ce is done its citiz ens i n t he court s.'
"The U.S. Supre me Cou r t in Gigli o v. [Unit ed State s], 405 U.S. 150, 92 S. Ct.76 3, 31 L. Ed. 2d 104 (1972 ) rejec ted any disti ncti o n betwe en impea chmen t and excul pator y evide nce and held that impea c h m e nt evide nce as well as excul pator y evide nce falls withi n the ' Brady Rule .'
"Evid ence is favor able to an accus ed if s u c h evide nce, if discl osed and used effec tivel y, may make the diffe rence betwe en convi ction and acqui ttal. Nape v. Illin ois, 360 U.S. 264, 79 S. Ct. 11 73, 3 L. Ed. 2d 12 17 (1 959).
"A jury' s estim a te of the truth fulne ss and relia bilit y o f a given witne ss may well be

1311213 90

deter minat ive of guilt or innoc ence and it is upon subtl e facto rs that a defen dant' s life or liber ty may be depri v e d
. U nited State s v. Bagle y, 473 U.S. 667, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985 ). When the relia bilit y of a witne ss may well deter mine guilt or innoc ence, nondi sclos ure of evide nce affec ting credi bilit y f alls withi n the 'Brad y Rule. ' Gigli o supra ; Bag ley s upra.
"The prose cut i o n has a duty to discl ose impea chmen t and excul pator y (favo rable ) evide nce even if there has been no reque st by the accus ed. [Unit ed State s] v. Agurs , 427 U.S. 97, 96 S. Ct. 2392; 49 L. Ed. 2 d 342 (197 6).
"The 'Brad y Rule' encom passe s evide nce 'Know n only to the polic e and not to the prose cutor .' Kyles v. Whitl ey. 514 U.S. 419, 115. S. Ct. 1 5 5 5 , 131 L. Ed. 2 d 490 1995 ).

" T he U.S. Supre me Court held in Kyles that a Brady viola tion occ u rred by the failu re to discl ose that a witne ss had tenta tivel y picke d at a lineu p someo ne other than the defen dant as the kille r and was told by law enfor cemen t that the wrong perso n was ident ified

. "Brad y requi res the p rosec ution to produ ce evide nce that someo ne else may h a ve commi tted a crime

. Nicks v. State , 783 S o . 2 d 8 95 (Ala. Crim. Ap p . 1 9 99), quoti ng Jarre ll v. Balkc om, 735 F.2d. 1242, (11th Cir. 1984)

. Nondi sclos ure of excul pator y evide nce beari ng on t he ident ity of the perpe trato r has often led court s to hold that t h e princ iples of B r ady were viola ted. See Patto n v State , 530 So. 2 d 886 (Ala. Crim. App. 1988)

. A telep hone call from an alleg ed eyewi tness who impli cated someo ne other than the accus ed that was not di s c l o sed is a Brady viola tion. Hall v. State , 625 So. 2d 1162 (Ala. Crim. App. 1993)

. Pretr ial state ments of witne s s e s impli catin g someo ne else other than accus ed or conta ining detai ls incon siste nt with witne sses' trial

1411213 90

testi mony would be favor able an d a Brady viola tion. Jeffe rson v. State , 645 So. 2d 313 (Ala. Crim

. A p p. 1994) ; Marti n v State , 839 So. 2d 665 (Ala. Crim. App. 200l)

. "Fail ure of prose cutio n to discl ose a 'be on the looko ut' (BOLO ) conta ining a witne ss's descr iptio n of the perpe trato rs viola ted the prose cutio n ' s oblig ation under Brady to infor m defen d a n t of impea chmen t evide nce, whe r e the BOLO descr iptio n diffe red signi fican tly fr o m the Defen dant' s actua l app earan ce. Marti n v. State , 839 So. 2d 665 (Ala. Crim. App. 2001 ).
"To prove a Brady viola tion, a defen dant must show:
"1. Tha t the prose cutio n suppr essed evide nce. "2. That the evide nce was o f a chara cter favor able to th e def ense. "3. That the evid ence was mater ial (or the defen dant was p rejud iced)

. "Jeff erson v. State , 645 So. 2d 313 (Ala. Crim. App. 1994) ; Ex parte Canno n, 578 So. 2d 1089 (Ala. 1991)

.

" For a Brady viola tion, the suppr essio n o f evide nce need not have been made knowi ngly or negli gentl y by the g o v ernme nt. [Unit ed State s] v. Pelis amen, 641 F.3d 399 ( 9th C ir. 2 011).
"In deter minin g wheth er the suppr essed evide nce was mater ia l f o r a Brady viola tion, the court shall consi der the cumul ative effec t of all suppr essed evide nce, and shall not consi der each item of e v idenc e indiv idual ly. Kyles v. Whitl ey, 514 U.S
. 419, 115 S . Ct. 1555 , 131 L. E d. 2d 490 (1995 ).

1511213 90
"Evid ence is mater ial as to the 'Brad y Rule' if

there is a reaso nable proba bilit y that ha d t h e evide nce been discl osed to the defen se, the resul ts o f the proce eding would have been diffe rent
. A 'reas onabl e proba bilit y' is a proba bilit y suffi cient to under mine confi dence in the outco me. [U nited State s] v. Ba x ley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383 , 87 L. Ed . 2d 481 ( 1985)

. "[Ana lysis ]
"The two (2) recor ded inter views with M.B. that were not discl osed have incon siste ncies and are incon siste nt with certa in trial testi mony of M.B. In one recor ded inter view M.B. state d that her roomm ate had been gone about twent y (20) minut es befor e the alleg ed rape. In the other inter view M.B. state d the roomm ate had been gone about an hour and thirt y (30) minut es. M.B. in one state ment says her telep hone was in the ba t h r o o m and in the other she says the telep hone was in the kitch en at the time of the rape. M.B. gave incon siste nt testi mony as to the type of cloth es the [rapi st] was weari ng. M.B. said in the state ment of March 27, 2012, that the rape laste d like four ( 4 ) or five (5) minut es and this would be incon siste nt with the time line which estab lishe d the truck of [Elli s] enter ed the mobil e home park at 4:41 p . m . and drove by the offic e at 4:46 p.m. M.B. d i d not tell about her and J.H. (boyf riend ) havin g sex short ly prior to the alleg ed rape. At tri a l M.B. testi fied in the State 's case- in-ch ief that she was sick and feeli ng bad on the day of the alleg ed rape. M.B. did not testi fy on direc t about havin g sex with J.H. a coupl e hours prior to the a l l e g ed rape. M.B. did testi fy that she and J.H. had sex when calle d as an adver se witne ss by the d e fense
. Defen se couns el only found out about the fact that M.B. had sex with boyfr iend at a bench side confe rence , j u s t p r ior to the Stat e r e sting its case and after M.B. had testi fied. M.B. in the March 27, 2012, state ment said she did not see the penis of the rapis t. She said she close d her eyes. Howev er at trial M.B. testi fied that

1611213 90

she could see he had on a condo m and could see the erect penis

. In the March 27, 2012, state ment M.B. when ask e d a bout the rapis t she said, 'I was reall y scare d to look at him in the face' ; howev er, at trial M.B. testi fied she would not forge t t h e eyes of the rapis t. At trial M.B. testi fied she was bent out with her legs stra i g h t at the time of the rape; howev er, in one of the nondi sclos ed state ments she said her knees were bent the whole time of t he ra pe.
"K.H. , the roomm ate, testi fied at trial that she and M.B.' s mothe r left the hospi t a l and went to the mobil e home at about 8:00 p.m. and clean ed up the blood
. In t h e r ecord ed state ment she said they went to th e mob ile h ome a bout 10:00 p.m.
"J.H. , the boyfr iend of M.B., gave a recor ded inter view to law enfor cemen t, which was not discl osed to defen se couns el. J.H. was not calle d as a witne ss at trial , and defen se couns el was not aware that J.H. was the boyfr iend of M.B. until M.B. was calle d as an adver se witne ss. J .H. in his recor ded inter view state d that he an d M
. B
. did not have sexua l inter cours e the day of the rape. J.H. state d they were toget her and then he had to go to a b a sebal l meeti ng eithe r at 4 o r 4 :30 p.m. and after the meeti ng, which laste d no more than five (5) minut es, he calle d M.B
. a n d s he was on the way to the hospi tal. The evide nc e would have been usefu l to attac k the time line of 4 :41 p .m. t o 4:4 6 p.m

. "The text messa ges an d call log of M.B. which was produ ced in camer a notes that at 4:45 p.m. K.H. sent a text messa ge to M.B. that state d 'How are you feeli ng?' M.B. respo nded at 4:45 p.m. 'terr ible about to sit in the tub.' M.B. has provi ded infor matio n in the state ments that she was about to take a bath when she heard a knock at the door and the rape occur red. This evide nce is excul pator y and would be usefu l for impea chmen t purpo ses, speci fical ly if t h e rape had not occur red at 4:45 p.m. and [Elli s's] truck was on the video passi ng the offic e at 4:46 p.m., t h e n the

1711213 90

rape had to have occur red betwe en 4:45 p.m. and 4:46 p.m. "Addi tiona lly , t h e State did not discl ose the affid avit of Lee Barne s of the Troy Polic e Depar tment which was utili zed to obtai n a searc h warr ant for cellu lar te l e p hone recor ds of a suspe ct other than [Elli s], namel y [S.L. F.]. T he affid avit state d the i n v e stiga tion had led to the suspe ct, S.L.F ., a n d that the victi m had made a tenta tive ident ifica tion of S.L.F
. throu gh a photo graph ic lineu p. Addit ional ly the victi m's mothe r searc hed MyS p a ce [soci al-me dia] recor ds and locat ed the suspe ct with a pictu re and showe d it t o M.B. and M.B. becam e visib ly upset
. An artis t devel oped a compo site s ketch of the perpe trato r with the assis tance of th e v i c t im and a perso n indep enden tly ident ified S.L.F
. as the perso n depic ted in the compo site sketc h. This infor matio n is obvio usly excul pator y and was not discl osed and would be mater ial for a B r a d y viola tion. The infor matio n would furth er be usefu l for impea chmen t purpo ses as i t a ppear s law enfor cemen t ruled out said suspe ct. The fact that the victi m wrong fully ident ified anoth er pe rson would be m ateri al. "[Fin dings ]

" T h is court is aware that there is no t a const ituti onal right to disco very in a crimi nal case. Disco very is gover ned by Rule 16, [Ala. R. Crim. P.]

-- the stand ing disco very order of this Circu it that order ed the State to compl y with R ule 16, and to provi de any excul pator y o r impea chabl e evide nce pursu ant t o Bra dy. "Supp ressi on by the p r o secut ion of evide nce favor able to the defen dant viola tes due proce ss where the evide nce is mater ial to guilt

. The t ruthf ulnes s or r e l i a bilit y of a witne ss's testi mony may well be deter minat ion of g u ilt. Evide nce favor able to the defen dant which would tend to excul p a t e him helps shape a tr ial a nd be ars h eavil y on the d efend ant.

1811213 90
"This court in deter minin g a mater ialit y inqui ry

under Brady is not to consi der wheth er, after d iscou nting the excul pator y [evid ence] in light o f t h e undis close d evide nce, the remai ning evide nce would be suffi cient to suppo rt the jury' s concl usion

. Rathe r , t he quest ion is wheth er the favor able evide nce coul d r e a s onabl y be taken to put the whole case in such a diffe rent li g h t a s to under mine the confi dence in the verdi ct. Stric kler v. G r eene, 527 U.S. 263, 290, 1 1 9 S
. C t
. 1936, 144 L. Ed. 2d 286 (1999 ).
"This court is mindf ul of the impac t grant ing a new trial may have on the victi ms; howev er this court is bound by the facts and app l icabl e law in this matte r. The court must weigh and consi der the n o n d isclo sed evide nce and deter mine if evide nce was suppr essed , wheth er the suppr essed evide nce would be fav o r a ble to the defen se, and wheth er the evide nce was mater ial or, state d other wise, wheth er there is a reaso nable proba bilit y the nondi s c l osed evide nce under mined the verdi cts.
"This cour t fin ds as foll ows:
"1. The evide nce, inclu ding the state me n t s of M.B., J. H
. , K.H., that victi m, M.B., ident ified an o t her perso n in a photo lineu p, that the time- li ne log shows that M.B. was texti ng at 4:45 p.m. that she was about to g et in the tub and her state ment that she had not gotte n in the tub prior to the rape was supp r e s s ed by the State and the e viden ce is excul pator y and impea chabl e. "2. The court furth er fin d s t hat, since there was no fo r ensic evide nce or physi cal e v i d ence tying [Elli s] to the rapes an d burgl ary other than witne ss testi mony , the credi bilit y, truth fulne ss, a nd relia bilit y of the testi mony of such witne sses may well

1911213 90
have been a deter minin g facto r of guilt

. The court finds the suppr essed evide nce is m a t erial and if the evide nce had not been suppr essed that the r e is a 'reas onabl e proba bili t y ' that the resul ts of the p rocee ding would have been diffe rent and a reaso nable proba bilit y is suffi c i ent to under mine the c onfid ence in th e out come. "3. Much of t h e suppr essed /nond isclo sed evide nce would have provi d e d the defen se with an o p p ortun ity to impea ch the c r e dibil ity of the witne sses and the cre dibil ity [of the] inves tigat ion. P o rtion s of the suppr essed evide nce woul d have t e nded to excul pate [Elli s]. Such evide nce would inclu de the fact that M.B. had ident ified anoth er perso n in a photo lineu p, J.H.' s test i m ony about calls to M.B. which could attac k the time line, and the text messa g e s and call log of M.B. showi ng te xt at 4:45 p.m.
"4. That excul pator y and impea ch[me nt] evide nce was suppr essed , that t he suppr e s sed evide nce was favor able to the defen se, and that the suppr essed evide n c e was mater ial and there is a r e a s onabl e proba bilit y that nondi sclos ure of the favor able evide nce could have under mined the c onfid ence of th e ver dicts

. "5. That the suppr essed evide nce along with the fact that the mothe r of M.B. clean ed up the blood from the scene , that M.B. and J. H
. delib erate ly delet ed text messa ges while M.B
. was heade d to the hospi tal and the fact that M.B. initi ally t o l d the docto r she fell on somet hing (inst ead of being raped ); the fact that M
. B
. was not t r uthfu l and candi d on direc t about h e r actio ns prior the alleg ed rape, all that

2011213 90
cumul ative ly would have led the court to find that [Elli s ] is entit led to a new trial based on the suppr essio n of evide nce in viola tion of Bra d y and the stand ing disco very order of t his c ourt. "[Con clusi on]
"It is ORDER ED that [Elli s's] motio n for a new trial on the two (2) convi ction s of rape in the first degre e and burgl ar y i n t he first degre e is grant ed. The convi ction s are hereb y set aside and vacat ed due to Br ady v iolat ions.
"The court furth er finds that the suppr essio n or nondi sclos ure was not inten tiona l or malic ious on the p a r t o f the State ; howev er, this court conti nues to have much conce rn regar ding the State ' s searc h for the truth as the evide nce di s c l o s e d in camer a makes refer ence to o t her inter views and state ments

-- speci fical ly Q.C., the other rape victi m, which have never been provi d e d in camer a to the court as speci fical ly or dered by t his c ourt. "Any other relie f sough t b y [Elli s] on other groun ds will not be addr e s s e d as [it is] moot since the court has grant ed the motio n for new trial s based on the 'Brad y Rule' viola tions and viola tions of the stand ing disco very o r d er of the 12th Judic ial Circu it.

" I t i s ORDER ED that a sched uling confe rence is sched uled for the 1st day Augus t, 2013, to addre ss a n y pendi ng matte rs and to set a date for a new trial ."
The State argue s in its petit io n for a writ of manda mus
that the trial court excee ded its discr etion and its judic ial
autho rity in grant ing Ellis a new trial becau se, it says, the

2111213 90

trial cou r t impro perly combe d the prose cutor 's files and
incor rectl y and impro perly analy zed the cont e nts in those
files

. In suppo rt of its argum ent, the State pr o v ides an item- by-it em analy sis of each piece of evide nce consi dered by
the trial court , much of which the State claim s has no beari ng

on the motio n for a new trial

. H o w ever, it is well settl ed
that the evide nce the State faile d to d i s c l o se to Ellis must
be consi dered colle ctive ly, n o t item- by-it em, in deter minin g
wheth er the "mate riali ty" requi remen t of a Brady v. Maryl and,
373 U.S. 83 ( 1 9 63), viola tion has been satis fied. Kyles v. Whitl ey, 5 1 4 U.S. 419 (1995 ). The colle ctive effec t of the
nondi sclos ed evide nce in this case -- the fact that M.B. had
ident ified S.L.F
. in a polic e photo graph ic lineu p as being the
perpe trato r; the fact that M.B.' s prior state ments durin g the tape- recor ded inter views were incon siste nt with her testi mony
at trial regar din g t h e t ime line of event s and how those
event s occur red; the fact that J.H., M.B.' s boyfr iend, state d
in his recor ded inter view that he had not had sexua l relat ions
with M.B. on the day of the alleg ed rape; the fact that J.H.' s
state ments in the inter view regar ding his telep hone c a l l s to
M.B. could have been used to attac k the time line of 4:41 p.m.

2211213 90

to 4:46 p.m.; and the fact that K.H.' s testi mony was incon siste nt regar ding the time she and M.B.' s mothe r went to
M.B.' s mobil e home to clean up the blood -- is to suppo rt the
trial court 's concl usion that there was a " reaso nable proba bilit y" that the State 's nondi sclos ure of this e v i dence
would have resul ted in a diffe rent verdi ct. T h e t r i al court
noted that "sinc e there was no foren s i c evide nce or physi cal
evide nce tying [Elli s ] t o the rapes and burgl ary other than
witne ss testi mony, the credi bilit y, t ruthf ulnes s, and
relia bilit y o f the testi mony of such witne sses may well have
been a de t e r minin g facto r of guilt ." "The quest ion is not
wheth er the defen dant would more likel y than not have recei ved

a diffe rent verdi ct with the ev i d e n c e , but wheth er in its
absen ce he recei ved a fair t rial, under stood as a trial
resul ting in a verdi ct worth y of confi dence ." Kyles , 514 U.S.
at 434. "[A] const ituti onal error occur s, and the convi ction

must be rever sed, only if the evide nce is mater i a l in the

sense that its supp r e s s i on under mines confi dence in the
outco me of the trial ." Unite d State s v. Bagle y, 473 U.S. 667,
678 (1985 ). We find no error in the trial court ' s order analy zing the colle ctive effec t of the nondi s c l osed evide nce

2311213 90

and deter minin g that the "mate riali ty" requi remen t of a Brady
viola tion had b een s atisf ied. Kyle s.
The State also argue s that the trial court excee ded its
discr etion in g r a n t i ng a new trial becau se, it says, Ellis

never laid the pr o p e r predi cate to compe l the State to
discl ose the state ments of M.B., K.H., or J.H., as requi red by

Ex parte Pate, 415 So. 2d 1140 (Ala. 1981) , and Ex parte Key,
890 So. 2d 1056 ( A l a . 2003)

. More speci fical ly, the State

asser ts that Ex parte Pate and Ex parte Key requi red Ellis to
make speci fic reque sts du r ing the trial for any pretr ial

state ments made by any w i t n e s s es durin g the cours e of the
trial

. We find Key and Pate to be inapp licab le to the fa c ts
of th is ca se.
In Ex parte Pate, this Court grant ed certi orari to revie w
the quest ion "whet her or when the defen dant in a crimi nal case is entit led to inspe ction of a state ment of a p r o s ecuti on witne ss for the p u r p o s e of cross -exam ining or impea ching the
witne ss." 4 1 5 So. 2d at 1140- 41 (emph asis added ). Ex parte
Pate confi rmed the gener a l r u le that an accus ed is not
entit led to disco ver state ments of gover nment witne sses befor e trial

. In Ex parte Key, this Court held that "[o]n ce a

2411213 90

prose cuti o n witne ss has testi fied on direc t exami natio n,
howev er, a defen d a nt, upon layin g a prope r predi cate, is
entit led t o i n s p ect a prior state ment of the witne ss for the
purpo se of cross -exam ining or impea ch i n g t h e witne ss." 890
So. 2d at 1064. Ex parte Key estab lishe d a two-s tep p r o c ess
for deter minin g when a trial court shoul d condu ct an in camer a inspe ction

. A defen dant must first lay a prope r predi cate for

an in camer a inspe ction by provi ding evide nce that a state ment
exist s, then the trial court deter mines , durin g the in camer a inspe ction , " ( 1 ) wheth er the witne ss's state ment diffe red in
any respe ct fro m t h e witne ss's testi mony at trial , and (2)
wheth er the state ment reque s t e d w a s of such a natur e that
witho ut it the d e f e ndant 's trial would be funda menta lly
unfai r." Ex pa rte Key, 890 S o. 2d at 1 064.
Ellis 's case prese nts a diffe rent fact scena rio: Ellis was
not seeki ng durin g the tr i a l t o inspe ct a prior state ment of

a witne ss for the purpo se of cross -exam ining or impea ching the
witne ss. In ot h e r w o r ds, Ellis learn ed for the first time
durin g the trial at a sideb ar confe r e n ce that J.H. and M.B.
had had sexua l relat ions just hours befor e the alleg e d rape; Ellis w a s not aware that J.H. had been inter viewe d by law

2511213 90

enfor cemen t. B e c a u s e J.H. did not testi fy at trial , Ellis
could not have reque sted durin g the trial to us e J.H.' s
state ment for cross -exam inati on or impea c hment purpo ses. It

was not until a f t e r the verdi ct that Ellis , durin g furth er inves tigat ion, learn ed that J.H. had been inter viewe d b y l aw
enfor cemen t. At this point , E l l is filed a motio n for a new trial , alleg ing that the State had wi t h h e l d cruci al evide nce
in vi olati on of Brad y v. Maryl and:
"That dur i ng the cours e of trial at sideb ar, the State revea le d t h a t the alleg ed victi m, M.B., had enter ed into sexua l relat ion s with her boyfr iend at the time of the alleg ed offen se the after noon she claim e d s he had been raped
. M.B. had alrea dy given testi mony at this point of the trial that she had [gone ] to schoo l and then had come home w i thout menti oning she had enter ed into sexua l relat ions with her boyfr iend, herei n refer red to as J.H. The State had not discl osed this infor matio n prior to trial and there fore no inves tigat ion of the same was condu cted by th e def ense. "Sinc e the trial , the defen se ha s throu gh f u r ther inves tigat ion disco vered that J.H. has discl osed t h a t h e had sex with M.B. the day of the alleg ed rape. J.H. has furth er state d that yes they did have sex[; ] howev er[,] when as k e d i f there were any 'toys ' he state d no but only after a signi fican t pause . J.H
. h a s furth er discl osed that there was a polic e inter v i ew/in terro gatio ns of him and he was inter viewe d by Brian McCle ndon of the Tro y P.D. [Poli ce Depar tment ] and anoth er detec tive that he did not know.
... J.H. furth er discl osed he had only one forma l i n t e rview at the P.D. and that he was there for quite a long time. After that he only spoke with

2611213 90

D et. McCle ndon by phone
. J.H. also remem bers the inter view being recor ded. J.H. state d that he did in fact say he did not belie ve that M.B. had been raped d uring the P.D. inter view but has since come t o belie ve that she had. When a s k [ e d ]
... why he had origi nally not belie ved her J.H. state d there w e re littl e thin g s g o ing on in their relat ionsh ip that made him doubt her somet imes and prima rily he did not belie ve her becau se the Polic e led him throu gh their ques t i o n i n g of him to belie ve that they doubt ed her story as well. Si n c e the inter view of J.H. was not discl osed to the defen se prior t o t r ial, all of the afore menti oned infor m a t ion was unava ilabl e to the defen se prior to trial and the r e fore no furth er inves tigat ion on these issue s were inve s t i gated at the t ime. The State neve r cal led J .H. a t tri al.
"....
"Tria l couns el wa s n ot provi ded with cruci al evide nce i n vio latio n of Brady v. M aryla nd ..
.. "Furt her, due to the State 's failu re to discl ose i nform ation regar ding M.B.' s sexua l condu ct the d a y of the all e g e d r ape, the defen se was furth er unabl e to prope rly cross -exam ine the State 's exper t on other possi ble hypot heses for the alleg ed injur ies nor was the defen se affor ded the oppor tunit y to evalu ate the need for indep enden t defen se witne sses to refut e the State 's ex perts ."
The trial court there after order ed the State to deter mine
if there were a ny inter views or state ments taken by law
enfor cemen t regar ding the inves tigat ion that had not b een previ ously discl osed and to provi de the court with copie s
under seal of all such inter views or state ments
. S e e D u ncan

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

2711213 90

the knowl edge of law-e nforc ement agent s regar ding favor able
evide nce is imput ed to the prose cutor ). The State there after produ ced in camer a the inter views of M.B., J.H., and K.H. The
S t a t e also provi ded addit ional in camer a infor matio n for the
court 's revie w, inclu ding a searc h warra n t f or telep hone

recor ds of S.L. F
. , a nothe r perso n M.B. had ident ified in a polic e photo graph ic lineu p a s b eing the perpe trato r. After
revie wing the State 's evide nce, the trial court concl uded that

some of the evide nce s h ould have been discl osed, and it
order ed the State to provi de Ellis with cop i e s of that
evide nce b efore the heari ng on the motio n for a ne w tri al.
Follo wing the heari ng, the trial court enter ed its order , grant ing Ellis 's motio n for a new trial based on t h e S t a te's
failu re to turn over evide nce in viola tion of Rule 16, Ala. R.
Crim. P., and in viola tion of Brady v. Maryl and. See Ex parte
Brown , 548 So. 2d 993, 99 4 ( A l a . 1989) ("We have furth er held
that excul pator y e viden ce, regar dless of its trust worth iness

or admis sibil ity, shoul d be discl osed, and, if it is not
d i sclos ed, that defen dant' s motio n for a new trial shoul d be grant ed.")
. Moreo ver, pursu ant to Rule 16, Ala. R. Cr i m. P.,
the trial court is autho rized to inspe ct the State 's evide nce

2811213 90

at any time durin g the pr o c e e dings when it is broug ht to the
court 's atten tion t h a t a party has faile d to compl y with the
court 's stand ing disco very order
. Rule 1 6

. 5 , Ala. R. Crim.
P., s tates :
"If at any time durin g the cours e of the proce eding s it is bro u g h t t o the atten tion of the court that a party has faile d to compl y with this rule or with an ord er issue d pursu ant to this rule, the court may order such party t o p ermit the disco very or inspe ctio n ; may grant a conti nuanc e if reque sted by the aggri eved party ; may proh ibit the party from intro ducin g evide nce not discl osed; or may enter such other order as the co u r t deems just under the circu mstan ces. The court may speci fy the time, place , and manne r of makin g the disco very and inspe ction and may presc ribe such terms and condi tions as are just. " (Emph asis added .)
Becau se t h e h o lding s of Ex parte Pate and Ex parte Key
do not apply un d e r the facts of this case, and becau se the
trial court was autho rized to order t h e S t a t e to provi de the
court with copie s under seal o f all inter views or state ments
taken by law enfor cemen t durin g its inves tigat ion that had not
been previ ously discl osed, the State has faile d to demon strat e
that t he trial court excee ded its discr etion in this regar d.
State d diffe rentl y, under the circu mstan ces prese nted, the
trial court 's metho d of handl ing the situa tion wa s p r o p e r.

2911213 90

Lastl y, the State argue s that the trial court excee ded its
discr etion in e n t e r i ng its order grant ing a new trial with
regar d to the r a p e c harge invol ving Q.C. becau se, it says,
E l l i s m a de no alleg ation in his motio n for a new trial

r egard ing a disco very viola tion in the case in which Q
. C
. i s
the named victi m nor did the trial court make any findi ngs as
to any alleg ed disco very v i o l a t ion perta ining to that case.
In suppo rt of i t s a r g u ment, the State cites Dunn v. Unite d
State s, 284 U.S. 390, 393 (1932 )("[E ]ach coun t o f an indic tment is regar ded as if it was a separ ate indic tment ."),
and Murph y v. State , 10 8 So. 3d 531, 546 (Ala. Crim. App. 2012) ("'A jury verdi c t o n each count [of a multi -coun t
indic tment ] is indep enden t; a verdi ct of eithe r convi ction or acqui ttal of one has no ef f e ct or beari ng on anoth er.'" (quot ing Hammo nds v. State , 7 So. 3d 1055, 1061 (Ala. 2008) )). Speci fical ly, the State a s s e r t s that "just becau se the trial

court is erron eousl y convi nced that a new trial is appro priat e
in one count of a m ulti- count indic tment does not
autom atica lly give rise to the summa ry grant ing of a new trial
i n any other count of the same indic tment ." The S t a t e ' s
argum ent in this regar d is w i t hout merit

. It is irrel evant

3011213 90

that Ellis made no alleg ation in his motio n for a new trial of
any disco very viola tion regar ding Q.C., beca u se Ellis was

conce rned only with the fact that the State had f a iled to
discl ose the recor ded inter vi e w b etwee n J.H. and law
enfor cemen t. As previ ously state d , E l l is alert ed the trial

court in his motio n for a new trial of the alleg e d Brady

v i o l a t i o n. The court at that point order ed the State to provi de copie s under seal of all notes , files , or summa ries of
any inter views or state ments taken by law enfor cemen t that had
not been previ ously discl osed durin g the co u r s e of the
inves tigat ion; this infor matio n would inclu de any infor matio n perta ining to Q.C. as well as to M.B. Mo r e i m p o rtant ly,
h o w ever, is the fact that the trial court clear ly state d in
its order that the State had viola t e d t h e disco very order
regar ding infor matio n per taini ng to Q.C. :

"The court furth er finds that the suppr essio n or nondi sclos ure was not inten tiona l or malic ious on the part of the State ; h o w e v e r , this court conti nues to have much conce rn regar ding the State 's sea r c h for t h e truth as the evide nce discl osed in camer a ma k e s refer ence to othe r inter views and state ments speci fical ly [rega rding ] Q.C., the other rape victi m, which have never been provi ded in camer a to the court as sp ecifi cally orde red b y thi s cou rt. "Any other relie f sough t by [Elli s ] on other groun ds will not be addre ssed as they are moot since

3111213 90

this court has grant ed the motio n for new trial s based on the 'Brad y Rule' viola tions and viol a tions of the stand ing disco very order of the 12th Judic ial Circu it." (Emph asis added .) Rule 16, Ala. R. Crim

. P ., which provi des
for disco very in crimi nal cases , expre ssly autho rizes a trial

court to impos e sanct ions again st a party that fails to compl y with a disco very order
. See Rule 16.5, q u o t e d s upra. "Brad y

v. Maryl a n d
. .., requi res the gover nment to discl ose
excul pator y evide nce or r i sk sanct ions. " State v. Hall, 991
So. 2d 775, 778 ( A l a . Crim. App. 2007)

. "The impos ition of
sanct ions upon nonco mplia nce with a court 's disco very order is
withi n the sound discr etion of the court ." McCro ry v. State , 505 So. 2d 1272 , 1 2 7 9 (Ala. Crim. App. 1986)

. "[S]a nctio ns impos ed for a Brady viola tion are revie wed to see if the trial

court excee ded its discr etion ." Ex parte Hall, 991 So. 2d 782,
784-8 4 (Ala. 20 0 8 ) ( c i ting State v. Moore , 969 So. 2d 169,
181–8 2 (Ala. Crim. Ap p . 2 0 06) (reco gnizi ng that dismi ssal of

an indic tment is an avail able sanct ion for a Brady viola tion
under the super visor y power s grant ed trial court s by Rule
1 6 .5, Ala. R. Crim. P.)). Becau se the State viola ted the
trial court 's disco very order b y faili ng to produ ce any and
all inter views and state ments regar ding Q.C., we find no error

3211213 90

in the trial court 's rulin g grant ing Ellis 's motio n for a new trial as to count one of the indic tment charg i n g Ellis with
rape in the first degre e of Q.C. The State has simpl y faile d
to provi de this Court with any casel aw demon strat ing error on
t h e part of a trial court grant ing a new trial based on a party 's failu re to compl y with the disco very provi sions of

R u l e 16, Ala. R. Crim. P. It is well settl ed tha t t h e "[f]a ilure to compl y w i t h [Rule 16] is viewe d with disfa vor
and is conde mned. " Smith v. State , 698 So. 2d 189, 206 (Ala.
Crim. App. 1996 ).
IV. C onclu sion
Based on the foreg oing, the State has faile d to prese nt
this Court with excep tiona l circu mstan ces justi fy i n g the
issua nce of a writ direc ting the trial court to set aside its
order grant ing E l l i s 's motio n for a new trial

. Unlik e this
Court 's holdi ng in Ex parte Nice that the Court o f Crimi nal Appea ls was justi fied in findi ng excep tiona l circu mstan ces justi fying the issua nce of a writ where t h e trial judge had grant ed a new trial solel y becau se he fel t the witne ss's
testi mony was "dubi ous," which , we said, a m o unted to a
usurp ation of power , there are no circu mstan ces, much less

3311213 90

excep tiona l circu mstan ces , prese nted in this case justi fying

a writ direc ting the trial court to vacat e its order grant ing
Ellis a n e w trial

. The trial court in this case was cloth ed

w i th the discr etion to grant a new trial and, in fact, had a duty to do so upon its findi ng of a Brady viola tion, Ex parte
Bro w n ; t h e trial court is also cloth ed with discr etion in impos ing the appro priat e sanct ions, i

. e., the grant of a new trial , base d o n i t s findi ngs of disco very viola tions

. Ex parte Moore , su p r a . A ccord ingly , the State has faile d to
demon strat e a clear legal right to the order sough t, Ex parte Sharp , and its petit ion is due to be denie d. See also State

v. Wa t e rs, 453 So. 2d 1067, 1067- 68 (Ala. Crim. App. 1984) , holdi ng that "[t]h e petit ion for writ of manda mus seeki ng to

r equir e a Montg omery Circu it Court judge to vacat e and h o l d
for naugh t his order grant ing a new trial is hereb y denie d on
autho rity of Ex parte Hoope r, 453 So. 2d 1066 ( A l a . 1984) , holdi ng that manda mus will not lie to compe l the trial court 's

exerc ise o f dis creti on in a pa rticu lar m anner ."

PETIT ION D ENIED
. Moore , C.J., and Stuar t, Parke r, Murdo ck, S h a w , Main, Wise, and Bryan , JJ. , con cur.

34