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01/31/84 GARY WADE WILLIAMS v. STATE ALABAMA

January 31, 1984;

GARY WADE WILLIAMS
v.
STATE OF ALABAMA



Appeal from Madison Circuit Court

Rehearing denied March 20, 1984

Before Tyson, Judge. All the Judges concur.

The opinion of the court was delivered by: Tyson

TYSON, JUDGE

Gary Wade Williams was indicted for the murder of one Sandra Sisk Phillips in violation of § 13A-6-2, Code of Alabama 1975. The jury found the appellant guilty as charged in the indictment and the trial Judge sentenced him to life imprisonment in the penitentiary.

On June 24, 1982, the body of Sandra Sisk Phillips was found in a shallow grave in a field off Riverton Road in Madison County. The body was located with the assistance of Terry Metler. In the search for the body, the skull of the victim was accidently struck by a pick axe.

Brenda Phillips, the wife of the victim's ex-husband, stated she was a bartender at the Red Lobster on March 4, 1981. That afternoon, she served several drinks to the victim and Beverly Metzler. The two of them left the Red Lobster together around dark.

Teresa Sisk, the victim's sister, testified she last saw her sister at approximately 11:30 a.m. on March 4, 1981 at Cher's Lounge in Huntsville. She admitted that her sister used drugs and was a prostitute at that time.

A few days before Sisk last saw the victim the appellant told her he needed to see her sister because she owed him $110 for drugs.

Barney Bynum, the appellant's nephew, stated that he and the appellant went to Buster's Lounge and met two girls. One of the girls was named Beverly whom he assumed was the appellant's girlfriend. He did not know the other girl's name. The four of them left Buster's and the two girls rode together in Metzler's car and he and the appellant rode together in his grandfather's car. Before they left, the appellant gave the girls some money to get some wine and cheese. They then met at the Barclay Motel. There were no vacancies so the four of them got into the car Bynum was driving and went to the Travel Inn Motel where they rented Room 410.

At the room, they all drank some wine and the girls took some pills. A short time later, Bynum and the girl whose name he did not know, engaged in sexual intercourse while the appellant and Metzler lay in the other bed.

When they started to leave, the girl became upset. The appellant told Bynum to take Metzler to her car because the girl wanted to talk to him. Bynum then took Metzler back to the Barclay Motel to pick up her car. They both then returned to the Travel Inn. He and Metzler went to Room 410 and the appellant said to give him a few more minutes. At this time, Bynum saw the girl sitting on one of the beds in the room. Bynum returned to his car and Metzler got in her car and left.

A short time later, a pickup truck drove up to the motel and a man got out and went into Room 410. Then the man, the girl and the appellant emerged from the room.

Bynum stated the girl was walking under her own power, but was being supported by the two men. The two men helped her into the truck and she and the man left. The last time Bynum saw the girl she was sitting upright in the cab of the truck. The appellant then got in the car with Bynum and they went home.

Dr. Josefino Aguilar testified he performed the autopsy on the body of Sandra Sisk Phillips on June 24, 1982. He stated that because of the length of time the body had been buried, he could not make a determination as to the cause of her death. He did not find any foreign missile inside the body and stated there was no evidence of blunt force trauma to the head. In his opinion, the victim could have been strangled, her throat could have been cut, she could have died of an overdose, or any number of things could have caused her death.

Beverly Metzler testified that she met the victim because both of them were dancers at a local club. On March 4, 1981, she met the victim at Cher's Lounge around 11:30 a.m. The two then left Cher's and went to the Red Lobster and began drinking.

While they were at the Red Lobster, she received a call from the appellant. Metzler admitted she had been a prostitute at this time and she knew the appellant because he was one of her customers. The appellant asked her to set Bynum up with a girl. The victim agreed to this plan so they left the Red Lobster and met the appellant and Bynum at Buster's Lounge.

The four then went to the Travel Inn Motel. Once there, she, the appellant and the victim all took demerol. Then the appellant injected Metzler and the victim with additional drugs.

After the victim and Bynum had sex, the appellant asked Metzler and Bynum to leave because he wanted to talk to the victim. They went outside and waited in the car. A short time later, Metzler went back to the room. The appellant appeared at the door with his gun holstered. Metzler then went into the room to get her keys. She did not see the victim and the appellant told her she was in the bathroom.

The appellant then told Bynum and Metzler to go home because Bynum would be in trouble for being late. He said he had some friends coming to help him. Bynum then took her to her car and she went home.

Sometime before March 4, 1981, the appellant told Metzler that he wished to kill the victim because she owed him money for drugs. He asked her to set the victim up. Sometime after March 4, 1981, the appellant told Metzler that the victim was gone and he was not worried about the body being found. He threatened to kill her and her daughter if she said anything.

Metzler admitted she was the appellant's mistress for a period of time. She stated she did not tell the authorities about the night of March 4 because she was scared of the appellant. She said she hated the appellant and wished he was dead or in prison and confessed she had had him shot.

John Hindman, III testified he was at his home on the night of March 4, 1981, when he received a call from the appellant. The appellant asked him to come to the Travel Inn Motel. When he arrived at the motel, the appellant emerged from the room with his gun holstered. Hindman went into the room and saw a body lying across the bed. He noticed blood around the nose area and saw track marks on the arm. When Hindman attempted to look at the body which was covered by a sheet, the appellant told him not to look because the body was too messed up.

Hindman and the appellant carried the body outside and placed it on the floorboard of Hindman's truck. The appellant then got into Bynum's car and Hindman followed them to the appellant's home.

The appellant then got in the truck with Hindman and they drove to Hindman's house. There they picked up Terry Metler and drove out to Riverton Road and buried the body. On the way to the area where the body was buried, the appellant threw a plastic bag off the bridge.

Hindman admitted he had made a deal with the district attorney in exchange for his testimony.

Terry Metler testified he was Hindman's roommate during March of 1981. On the night of March 4, 1981, he and Hindman were watching television when Hindman received a telephone call. After the call, Hindman left and later returned with the appellant. The three of them went and buried the body.

On the way to the area where they buried the victim, the appellant told Metler he had killed the girl by hitting her on the nose because she had messed up a drug deal and he had gotten even with her.

Metler admitted he received Youthful Offender treatment in other cases in exchange for his testimony in this case.

The first defense witness was James Buttram, a toxicologist for the Department of Forensic Sciences. He received specimens of certain organs removed from the body of the victim and tested them for the presence of various drugs. He found methaqualone was present in several of the organs. In his opinion, the amount of the drug present in the body would probably be a lethal dose to a normal person. Buttram stated that if the drug was taken along with alcohol, the effect of the drug would be even greater. However, he did not test for the presence of alcohol in the body.

The appellant testified that on March 4, 1981, he called Metzler at her home and asked her to set up Bynum with a girl. He said he did not specifically request the victim.

He and Bynum met the girls around 7:30 p.m. at Buster's Lounge. From there, the girls left in a separate car to pick up some wine and cheese and he and Bynum drove to the Barclay Motel. When the girls arrived, he told them there were no rooms available so they all got in Bynum's car and went to the Travel Inn Motel and rented a room.

There, the girls took some pills and they all drank wine. After the victim and Bynum had sex, they decided to leave. The victim became ill and asked the appellant to take care of her. The appellant then told Bynum to take Metzler to her car. After they left, the victim began vomiting, so he called Hindman to pick up the victim and take her home.

When Hindman arrived, he helped the victim to Hindman's truck and she and Hindman left. At this time, the victim was alive and that was the last time he saw her. Then the appellant and Bynum went home.

The State put several witnesses on the stand who testified that the appellant had a bad reputation in the community.

The defense likewise put on several witnesses who testified to the appellant's good reputation and to the poor reputation of Metler and Hindman.

I

The first issue which the appellant raises on appeal concerns several questions with reference discovery.

A

Initially, the appellant asserts that he was entitled to examine the statements of three of the State's witnesses, Beverly Metzler, Terry Metler and John Hindman, III, for purposes of impeachment during cross-examination of these witnesses.

"In Cooks v. State, 50 Ala.App. 49, 276 So.2d 634, cert. den. 290 Ala. 363, 276 So.2d 640, it was held;

'The first requisite necessary to secure for inspection production of a 'statement' of a witness for use on cross-examination of the witness is that the statement must be one in writing prepared by him or prepared by another at his instance and signed by him or otherwise authenticated by him.'"

Beard v. State, 337 So.2d 1372 (Ala.Crim.App. 1976). See also Palerno v. United States, 360 U.S. 343, 76 S.Ct. 1217, L.Ed.2d (1959).

"A statement, memoranda, or notes, not read by the witness interviewed and not signed or authenticated by the witness cannot be considered evidence. Mabry v. State, 40 Ala.App. 129, 110 So.2d 250. In this case, Harwood, J., writing for the court quoted with approval:

'Perhaps the answer is best summarized in a statement by Cardozo, C.J., in People ex rel. Lemon v. Supreme Court of State of New York, 245 N.Y. 24, 156 N.E. 84, 85, 52 A.L.R. 200, wherein he observed:

'Documents are not the subject to inspection for the mere reason that they will be useful in supplying a clew whereby evidence can be gathered. Documents to be subject to inspection must be evidence themselves.'"

Cooks v. State, 50 Ala.App. 49, 276 So.2d 634, cert. den. 290 Ala. 363, 276 So.2d 640 (1973).

During a recess in the trial, the trial Judge allowed the appellant to examine the statements of these witnesses and to look at the notes of one of the detectives in the case concerning an interview he had with Beverly Metzler. Following the recess, defense counsel stated he had not had an opportunity to look at Hindman's statement. At this point, the trial Judge learned these statements had not been signed or otherwise authenticated by the witnesses and refused appellant further access to these statements. (R. 140).

In light of the fact that these statements were not properly authenticated by the witnesses, we do not find error in the trial Judge's ruling, not to allow the appellant to further examine these statements. Further, since the appellant had an opportunity to review these statements for a period of time, even though he was not entitled to the inspection of them, as a matter of right, we see no reason to assign error.

B

Secondly, the appellant contends the trial Judge erred because he failed to conduct an in camera inspection, as required by Ex Parte Pate, 415 So.2d 1140 (Ala. 1981), to determine if the statements made by Metzler, Metler and Hindman were inconsistent with their testimonies during trial, and whether the appellant's trial would be fundamentally unfair unless these statements were provided to defense counsel.

The most important aspect we must point out that distinguishes the Pate case from the one at bar, is that in Pate, the Alabama Supreme Court specifically states that the statements involved had been authenticated by the witnesses. As we have previously stated, the statements in this case were not signed or otherwise authenticated by the witnesses.

While in Cooks, supra, we recommended that an in camera inspection be held when doubt exists whether there was a "statement", such was not the case here.

From our examination of this record, we can find no evidence that these statements had been properly authenticated. Therefore, we find no error in the trial Judge's refusal to conduct an in camera inspection of the statements.

C

The appellant maintains the trial Judge should have allowed discovery of the criminal histories of Metzler, Metler, and Hindman. This issue has previously been decided by this court. In Wright v. State, 424 So.2d 684 (Ala.Crim.App. 1982), cert. den. 424 So.2d 684 (Ala. 1983), we stated:

"There is also no absolute right to disclosure of the criminal records of the State's witnesses, see Mack v. State, 375 So.2d 476, 486 (Ala.Cr.App. 1978), affirmed, 375 So.2d 504 (Ala. 1979), vacated on other grounds, 448 U.S. 903, 100 S.Ct. 3044, 65 L.Ed.2d 700 (Ala.), reversed on other grounds, 405 So.2d 701 (Ala.Cr.App. 1981), and authorities cited therein."

The trial Judge did not abuse his discretion in denying the appellant's request for the ...


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