Killough v. State Court Opinion

    LEVEL 1 - 4 OF 5 CASES 

Lee ~illough v State 

No. 3 Div. 400 

Court of Criminal Appeals of Alabama 

438 So.2d 311 

June 29, 1982; Rehearing denied July 27, 1982; As amended 
October 25, 1982 

Appeal from Montgomery Circuit Court 

Before BOWEN, JUDGE. Harris, PJ, Tyson, DeCarlo, JJ, concur; Barron, J, 
recused himself. 

Vaughan H. Robison, David B. Byrne, Jr., and John M. Bolton, III for Robison 
& Belser t Montgomery For Appellant 

-
Charles A. Graddick, Attorney General, and Rivard Melson, Asst. Atty. Gen. 

For Appellee 

438 So. 2d 311 

BOWEN 

BOWEN, JUDGE 

This is a companion case to Toofie Deep v. State, So.2d <Ala.Cr.App., 
3 Div. 391, Ms. January 26, 1982), cert. denied, So.2d <Ala., Ms. May 
21, 1982).. Following Deep's conviction for theft, the defendant in this cause 
was indicted for the theft of the same property, a Morgan portable building, in 
vi olation of Alabama Code 1975 , Section 13A-8- 3. Sentence was three years ' 
imprisonment. Seven issues are raised on appeal. 

I 

The theft of the building occurred while the ~ was the Director of 
Disaster Housing in Mobile following Hurricane Frederic. Wiltiam Foster wa~the 
M_pbile Hom~& Chief cf the Disaster Housing Office from Septe111'1:ler 14, 1979, until 
April 30, 1980. During this time he kept a ¥nrsonal !;liary rela · to the 

· tbe-D-i-5-astsr Hou.s ing-&ffrce. e defendant con ends tha 
failure of the trial judge to order the production of the entire diary 
constitutes reversible error. 
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438 So . 2d 311 

Four days ~efore5 if:~~s the defendant formaliz.ed his request for production 
of the diary by cau ter to be served with a subpoena duces tecum as 
authorized by Alabama Code 1975, Section 12-21-2. 

After a jury had been empaneled but before any witness had taken the stand, a 
hearing was conducted to de term i ne whet he F-t:..O.SL.te.t-l~t±er-GB-I~lU-l..t.e.Jil---100...-fU01l.lbUC~eL...--

s ec the f e Although Foster testified as a State's 
witness at the trial of Toofie Deep, defense counsel stated that did not know 
the contents of the diary, but that its production was essential impeach he 
anticipated testimony Foster would give as a State witness. '\ltte---fftl:l::cwtneg 
co uy is revera 1 

"THE COURT: What, specifically, are you looking for in it, Mr. Byrne ldefense 
counsel>? Can you tell the court that? 

"MR. BYRNE: Your Honor, I don't have any idea. All I know is that the State 
of Alabama has taken a document that is not t hei r work produc t and t hey are 
jumping up and down to prevent it from being brought to light in any fashion. 
And we sui:Hiit, and based upon... I don't know what is in it." 

"MR. BYRNE: Well, we know through the testimony of that witness that there 
were conversations on Januarv the 4th. on January the 7th, and at the Deep 1