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The Supreme Court concluded the Court of Criminal Appeals erred when it affirmed Derek Baker's conviction for trafficking in marijuana. Baker was entitled to production of the seized substance in his case for the purpose of having it independently tested. The denial of the motion for production resulted in prejudice to Baker and violated his right to due process. Additionally, because the record did not indicate that Baker ever requested funds for an expert to conduct the independent testing, he was not required to demonstrate that there was a particularized need for such testing. Accordingly, the trial court exceeded its discretion when it denied Baker's motions seeking independent testing and evaluation of the substance purported to be marijuana. The Court reversed the appellate court and remanded the case for further proceedings.Receive FREE Daily Opinion Summaries by Email
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before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
SPECIAL TERM, 2013
Ex parte Derek Jermaine Baker
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
Derek Jermaine Baker
State of Alabama)
(Morgan Circuit Court, CC-10-504;
Court of Criminal Appeals, CR-11-0267)
This Court granted Derek Jermaine Baker's petition for a
writ of certiorari to review the Court of Criminal Appeals'
sentence for trafficking in marijuana.
See Baker v. State
(No. CR-11-0267, December 17, 2012), ___ So. 3d ___ (Ala.
Crim. App. 2012) (table).
For the reasons set forth below, we
reverse and remand.
Facts and Procedural History
On February 9, 2010, Sgt. Mike Cowart, the supervisor of
conducting surveillance on a house on Blaine Drive Southwest
in Decatur after receiving a citizen's complaint that there
was drug activity at that house.
While Sgt. Cowart was
conducting surveillance, a blue Ford Expedition sport-utility
vehicle arrived at the house.
A black male got out of the
vehicle, retrieved a black object from the vehicle, and then
entered the house with the black object. A few minutes later,
Sgt. Cowart saw the man come out of the house carrying what
appeared to be the same black object.
The man then put the
black object back inside the vehicle and drove away.
subject was driving away, Cowart was able to see the driver of
the vehicle and to obtain a tag number for the vehicle.
Hammons, who were members of the Anti-Crime Unit.
Sloan and Hammons were partners and were both in the same
Sgt. Cowart told Officers Sloan and Hammons
about the activity he had witnessed.
He also asked them to
follow the vehicle and to stop it if the driver committed a
Subsequently, Sgt. Cowart and Officers
Sloan and Hammons followed the vehicle in separate vehicles.
Sgt. Cowart testified that, as the driver was turning off
Tammy Street and onto Sandlin Road, he saw something come out
of the passenger's side window of the vehicle.
also testified that, as the vehicle was turning, he saw what
passenger's side of the vehicle.
Sgt. Cowart stopped and
recovered a black garbage bag from the road.
testified that the black bag had burst open; that there was a
clear plastic bag of marijuana in the roadway; and that there
were four other plastic bags of marijuana inside the black
Baker was the driver of the vehicle and was the only
person in the vehicle.
Sgt. Cowart, who arrived at the scene
after Officers Sloan and Hammons, and Officers Hammons and
Sloan all testified that they could smell marijuana in the
The State also presented evidence indicating that
law-enforcement officers subsequently recovered a small amount
of what appeared to be marijuana from Baker's person and a
small amount of what appeared to be loose marijuana from the
center console of the vehicle.1
Forensic testing indicated
that the material in the plastic bags that were inside the
black garbage bag was marijuana and weighed almost five
Baker denied that he had been to the house on Blaine
Drive Southwest or that he had been anywhere in that area on
the day in question; denied that he had ever had any marijuana
in the vehicle; and denied that he had thrown any marijuana
out of the vehicle.
On February 25 and 28, 2011, Baker filed motions for
discovery in which he requested that the district attorney
make any controlled substance or substances material to the
The material that was obtained from Baker and from the
center console of the vehicle was not submitted for forensic
preparation of the defense available to him for analysis by an
The trial court denied Baker's motions.
violation of § 13A-12-231(1)a., Ala. Code 1975, and the trial
court sentenced him to 10 years in prison.
The Court of
Criminal Appeals affirmed Baker's conviction and sentence in
an unpublished memorandum.
Baker petitioned this Court for a
writ of certiorari, and this Court granted certiorari review
as to the question whether the Court of Criminal Appeals'
holding that the trial court did not exceed its discretion
when it denied Baker's motions seeking independent testing of
the substance purported to be marijuana conflicts with this
Court's previous decision in Ex parte Harwell, 639 So. 2d 1335
Standard of Review
"Discovery matters are within the sound
discretion of the trial court, and this Court will
not reverse a trial court's rulings on discovery
issues unless there has been a clear abuse of
discretion. Home Ins. Co. v. Rice, 585 So. 2d 859
"This Court now phrases the question in terms of whether
a trial court 'exceeded' its discretion, rather than whether
the trial court 'abused' its discretion.
The standard of
review remains the same.
See Classroomdirect.com, LLC v.
Draphix, LLC, 992 So. 2d 692, 701 n.1 (Ala. 2008); Kyser v.
Harrison, 908 So. 2d 914 (Ala. 2005); and Ex parte Family
(Ala. 1991). Further, this Court has held that, to
be entitled to a reversal of a judgment for an abuse
of discretion, the party claiming abuse must
establish that it was prejudiced by the alleged
abuse. See Valley Properties, Inc. v. Strahan, 565
So. 2d 571, 583 (Ala. 1990)."
Ex parte Harwell, 639 So. 2d at 1336.
erroneously held that the trial court did not exceed its
discretion when it denied his motions seeking independent
testing and evaluation of the substance purported to be
Specifically, Baker contends that the Court of
Criminal Appeals' decision conflicts with this Court's prior
holding in Ex parte Harwell, supra.
In its unpublished
memorandum, the Court of Criminal Appeals concluded that Baker
was required to demonstrate that he was prejudiced by the
trial court's denial of his motions for discovery but that he
failed to do so; that, after reviewing the record, it could
not say that Baker was prejudiced by the denial of his
discovery motions; and that Baker did not establish that
Dollar Stores of Alabama, Inc., 906 So. 2d 892, 899 (Ala.
2005)." CIT Commc'n Fin. Corp. v. McFadden, & Rouse, L.L.C.,
37 So. 3d 114, 121 n.5 (Ala. 2009).
independent testing was necessary for him to present an
Rule 16.1(c), Ala. R. Crim. P., provides, in pertinent
"Upon written request of the defendant, the
prosecutor shall, within fourteen (14) days after
the request has been filed in court as required by
Rule 16.4(c), or within such shorter or longer
period as may be ordered by the court, on motion,
for good cause shown, permit the defendant to
analyze, inspect, and copy or photograph books,
papers, documents, photographs, tangible objects,
controlled substances, buildings or places, or
portions of any of these things, which are within
the possession, custody, or control of the
"(1) Which are material to the preparation of
defendant's defense ....
"(2) Which are intended for use by the
state/municipality as evidence at the trial; or
"(3) Which were obtained from or belong to the
"Upon motion of the state/municipality, the
court shall impose such conditions or qualifications
as may be necessary to protect the chain of custody
of evidence, or the prosecutor's, law enforcement
officer's, or investigator's work product, or to
prevent loss or destruction of such documents or
In Ex parte Harwell, Harwell was indicted for reckless
murder and first-degree assault based on a motor-vehicle
Both indictments alleged that, at the time Harwell
caused the death of Judy B. Goodwin and caused injuries to
Kenneth J. Goodwin, he was driving a motor vehicle while he
was under the influence of alcohol.
On October 10, 1991,
Harwell sought production of a sample of his blood that was
independently tested. On November 15, 1991, the State had not
yet complied with Harwell's request for production, so he
filed a second motion to obtain a sample of his blood.
also sought the State's records regarding the analysis of his
The trial court denied the part of Harwell's motion
that related to the production of his blood sample. After the
Court of Criminal Appeals affirmed Harwell's convictions in an
unpublished memorandum, this Court granted Harwell's petition
for certiorari review. In addressing Harwell's argument, this
"Harwell argues that the trial court abused its
discretion by denying his motions to obtain a sample
of his blood so that he could have it independently
He also argues that the trial court's
denial of his request prejudiced his rights to due
process. He notes that this Court has held that a
defendant has a right to obtain independent testing
of controlled substances that were obtained from the
defendant and that are in the custody and control of
the State. Warren v. State, 292 Ala. 71, 288 So. 2d
826 (1973). See also Sawyer v. State, 598 So. 2d
1035 (Ala. Crim. App.), cert. denied, 506 U.S. 943,
113 S. Ct. 386, 121 L. Ed. 2d 295 (1992); Gayle v.
State, 591 So. 2d 153 (Ala. Crim. App. 1991);
Jackson v. State, 560 So. 2d 1100 (Ala. Crim. App.
1989); Moton v. State, 524 So. 2d 381 (Ala. Crim.
App. 1988); Ware v. State, 472 So. 2d 447 (Ala.
Crim. App. 1985); Blair v. State, 453 So. 2d 1092
(Ala. Crim. App. 1984).
"In Warren, holding that due process requires
that a defendant be allowed to obtain a sample of
the controlled substances obtained from him, this
"'Impartiality and fairness require that
the defendant be aided by all available
processes of the court, when invoked, to
enable him to test and question the
authenticity of the State's evidence
against him. So where the contents of an
allegedly prohibited substance [are] in
issue and [are] to be offered against him,
is it asking too much for the defendant,
that he be allowed as much opportunity to
determine the nature of the substance and
its characteristics as has been afforded
the State? We think not, and it is no
answer to the question that the State's
expert witness is a skillful scientist and
a creditable witness.
To enable one to
present his defense fully and effectively,
the right of cross-examination, thorough
and sifting, must remain inviolate, and to
enable the defendant to invoke this right,
on motion, he should be furnished a sample
of the allegedly prohibited substance that
will be offered against him in the trial so
that he can have its qualities researched
by scientists of his choosing. We think
that to deny him this right is to deny him
due process, especially where his motion to
produce was made well in advance of the
trial so that it could have been ruled on
by the court without causing any undue
delay in the trial.'
"292 Ala. at 75, 288 So. 2d at 830. (Emphasis
added.) Harwell argues that where, as here, his
blood alcohol content is a critical element in the
prosecution's case against him, he has a right,
similar to that of the defendant in Warren, to
production of a sample of his blood for independent
testing by a scientist of his choice.
"The State argues that the blood alcohol content
of his blood sample is not a material element of the
crime of reckless murder.
However, it is well
established that one's blood alcohol content is a
material element of the prosecution's case for
reckless murder based on a fatal motor vehicle wreck
involving a drunk driver. See Nixon v. State, 268
Ala. 101, 105 So. 2d 349 (1958) (noting that a
defendant's intoxication at the time of a fatal car
wreck has been considered a significant, if not
controlling, factor in a prosecution for reckless
murder); Hyde v. State, 230 Ala. 243, 160 So. 237
(1935). Cf. Gwin v. State, 425 So. 2d 500 (Ala.
Crim. App. 1982) (holding that the trial court did
not err in refusing to require the State to produce
the weapons and bullets for independent expert
examination because that evidence was not critical
to the defendant's defense of self-defense), writ
quashed, Ex parte Gwin, 425 So. 2d 510 (Ala. 1983).
Blood alcohol content is also material to Harwell's
assault conviction based on Ala. Code 1975, §
"The record reveals that when Harwell requested
production of a blood sample the sample was in the
custody and control of the State and was available
for further testing. The technician who conducted
the State's analysis of the blood sample testified
at trial that a sufficient amount of the blood
sample was left to conduct an accurate blood alcohol
test and that it had not yet spoiled. It follows
that the State's refusal to provide Harwell with the
sample deprived him of any means of challenging the
results of the State's test through his own
We believe the defendant's
analogy to testing controlled substances is well
taken under these facts. Where a defendant makes a
timely request, where the blood alcohol content of
that sample is a material element of the charge, and
where the defendant would be prejudiced by the
denial of his motion for production of the blood
sample for independent testing, due process requires
that the State produce a sample of his blood for
independent testing of its blood alcohol content.
"In Gibson v. City of Troy, [481 So. 2d 463
(Ala. Crim. App. 1985),] the court noted that '[t]he
purpose of allowing an accused to obtain an
additional test is to provide him a means of "cross
checking" the state's test.'
481 So. 2d at 467.
Harwell was not allowed to 'cross check' the state's
Accordingly, the judgment of the Court of Criminal
Appeals is due to be reversed as to both convictions
and the case remanded for proceedings consistent
with this opinion."
639 So. 2d 1336-38.
Further, in Warren v. State, 292 Ala. 71, 75, 288 So. 2d
826, 829-31 (1973), this Court stated:
"When a defendant pleads not guilty in a
criminal case, the State carries a heavy burden of
proof to establish his guilt by the evidence before
the jury, and the State's burden should in no manner
diminish the defendant's right to test and question,
credibility of the State's evidence against him at
all stages of the trial. Impartiality and fairness
require that the defendant be aided by all available
processes of the court, when invoked, to enable him
to test and question the authenticity of the State's
evidence against him. So where the contents of an
allegedly prohibited substance [are] in issue and
[are] to be offered against him, is it asking too
much for the defendant, that he be allowed as much
opportunity to determine the nature of the substance
and its characteristics as has been afforded the
We think not, and it is no answer to the
question that the State's expert witness is a
skillful scientist and a creditable witness.
enable one to present his defense fully and
thorough and sifting, must remain inviolate, and to
enable the defendant to invoke this right, on
motion, he should be furnished a sample of the
allegedly prohibited substance that will be offered
against him in the trial so that he can have its
qualities researched by scientists of his choosing.
We think that to deny him this right is to deny him
due process, especially where his motion to produce
was made well in advance of the trial so that it
could have been ruled on by the court without
causing any undue delay in the trial.
"The truth vel non of the qualities of the
substance is put in issue by the defendant's plea of
not guilty. All evidence as to that truth is the
very essence of determining the guilt or innocence
of the accused and should be sought. We think that
the court erred in denying the defendant's motions.
"The trial court may consider prescribing
reasonable safeguards to protect the sample against
any violation of its integrity during the course of
its examination, if such is deemed necessary, by
having the analysis conducted in the presence of the
court's representative or in any other reasonable
The State relies upon this Court's previous decision in
Dubose v. State, 662 So. 2d 1189 (Ala. 1995), and the Court of
Criminal Appeals' decision in Dill v. State, 600 So. 2d 343
(Ala. Crim. App. 1991), to support its contention that Baker
was required to show that there was a particularized need for
expert testing of the seized substance.
this Court addressed the trial court's denial of Dubose's
requests for funds to hire an expert witness.
Dill dealt with a situation where Dill argued that the trial
court erred in not appointing a psychiatric expert.
of those cases addressed the issue whether the State should
have produced a controlled substance for independent testing
in a case where the defendant is charged with a controlledsubstance offense.
However, in McLeod v. State, 581 So. 2d 1144 (Ala. Crim.
App. 1990), the Court of Criminal Appeals addressed McLeod's
denial of a request for funds to obtain independent testing of
a controlled substance as follows:
"McLeod asserts that he was denied due process
of law by the trial court's denial of his request
for funds to obtain independent testing of the
"A 'Motion for Independent Testing' was filed by
defense counsel Motley on March 27, 1989.
motion, which requested both a sample for testing
and funds for such testing, was originally denied on
April 14, 1989, as untimely. On April 17, 1989, the
trial court entered an order directing the State to
furnish McLeod with a sample for independent testing
to be conducted at McLeod's expense. McLeod then
filed a pro se request for funds for the testing.
This request was denied on April 21, 1989.
"A defendant charged with a drug-related offense
is entitled, under Rule 18.1(c), A. R. Cr. P. Temp.,
and upon proper motion, to a sample of the alleged
controlled substance in order that he may obtain
independent testing of the substance. See Moton
v. State, 524 So. 2d 381 (Ala. Cr. App. 1988); Ware
v. State, 472 So. 2d 447 (Ala. Cr. App. 1985).
However, neither Moton nor Ware stands for the
automatically entitled to funds for such testing.
The defendant must demonstrate that there is a need
for such testing in order to obtain funds therefor.
See Tarver v. State, 500 So. 2d 1232, 1245 (Ala. Cr.
App.), affirmed, 500 So. 2d 1256 (Ala. 1986), cert.
denied, 482 U.S. 920, 107 S. Ct. 3197, 96 L. Ed. 2d
685 (1987) (where defendant made no 'showing of the
need for a forensic expert' to examine fingerprints
on a beer can, he 'was not unconstitutionally denied
the assistance of experts'); Hold v. State, 485 So.
Rule 18.1(c), Ala. R. Crim. P. Temp., is
16.1(c), Ala. R. Crim. P.
2d 801, 803 (Ala. Cr. App. 1986) (where defendant
failed to make a showing of need for private
investigator, trial court's denial of defendant's
request for funds to hire same did not violate
defendant's due process rights).
Cf. Caldwell v.
Mississippi, 472 U.S. 320, 323 n.1, 105 S. Ct. 2633,
2637 n.1, 86 L. Ed. 2d 231 (1985) (where defendant's
request for appointment of a criminal investigator,
fingerprint expert, and ballistics expert 'offered
little more than undeveloped assertions that the
requested assistance would be beneficial,' the
Supreme Court found 'no deprivation of due process'
in the trial court's denial of the request)."
581 So. 2d at 1149-50 (emphasis other than on "funds" added).
In his discovery motions, Baker requested that the seized
substance in this case be made available for expert analysis.
Additionally, Baker's plea of not guilty put "[t]he truth vel
non of the qualities of the substance" in issue.
Ala. at 77, 288 So. 2d at 831.
Therefore, pursuant to Rule
16.1(c), Ala. R. Crim. P., this Court's holdings in Ex parte
Harwell and Ex parte Warren, and the Alabama Court of Criminal
Appeals' holdings in McLeod; Gayle v. State, 591 So. 2d 153,
155 (Ala. Crim. App. 1991); Jackson v. State, 560 So. 2d 1100
(Ala. Crim. App. 1989); Moton v. State, 524 So. 2d 381 (Ala.
Crim. App. 1988); and Ware v. State, 472 So. 2d 447 (Ala.
Crim. App. 1985), Baker was entitled to production of the
seized substance in this case for the purpose of having it
Further, based on these cases, the
denial of the motion for production resulted in prejudice to
Baker and violated his right to due process.
the record does not indicate that Baker ever requested funds
for an expert to conduct the independent testing.
particularized need for such testing.
Cf. McLeod, supra.
Accordingly, the trial court exceeded its discretion when it
evaluation of the substance purported to be marijuana.
For these reasons, the Court of Criminal Appeals erred
Accordingly, we reverse the Court of Criminal
consistent with this opinion.
REVERSED AND REMANDED.
Moore, C.J., and Stuart, Bolin, Parker, Main, and Bryan,