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09/30/94 DAVID NILES HOLLEY v. STATE

September 30, 1994

DAVID NILES HOLLEY
v.
STATE



Appeal from Crenshaw Circuit Court. CC-93-85. Edward McFerrin, TRIAL JUDGE.

Released for Publication February 10, 1995.

Bowen

The opinion of the court was delivered by: Bowen

BOWEN, PRESIDING JUDGE

The appellant, David Niles Holley, was convicted of kidnapping in the first degree and was sentenced to 20 years' imprisonment. On this appeal of that conviction, he raises five issues.

I

Jackie Staton testified that the appellant abducted her from her place of employment and forced her at gunpoint into a car. Ms. Staton said that she and the appellant wrestled over the gun and that she tried to escape from the car, but that the appellant "grabbed [her] hair with both hands," R. 46, and she "lost a lot of . . . hair in a hair barrette," R. 48.

The appellant claims that he is entitled to a new trial because the State lost a hair sample that had been removed from his automobile during a search of that vehicle after he was arrested and after the vehicle was impounded. Citing Gurley v. State, 639 So.2d 557 (Ala.Cr.App. 1993), he argues that the loss of the hair sample, which he says could have proved his innocence, rendered his trial fundamentally unfair.

This case is different from Gurley and from Ex parte Gingo, 605 So.2d 1237 (Ala. 1992), cert. denied, ___ U.S. ___, 113 S.Ct. 967 (1993), upon which Gurley relied, because in this case the State did not use or allude to the hair sample in its case-in-chief. In Gurley, the State presented oral testimony about a charred object alleged to have been the victim's wallet, which had been lost by the time of trial, to establish the theft component of a capital indictment. In Gingo, the prosecution used the results from tests conducted on allegedly hazardous waste materials, which had been destroyed by the time of trial, to establish a crucial element of the State's case. Both Gurley and Gingo involved the State's use, at trial, of evidence that was unavailable for examination or testing by the defense. In this case, the hair sample was apparently lost before it could be subjected to forensic testing. It was not available to the defense, but it was also not available to or used by the State.

The lost evidence in the appellant's trial is analogous to the missing evidence in Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988).

In Youngblood, the police failed to preserve a sodomy victim's semen-stained clothing, but the State did not introduce any evidence pertaining to the clothing in its case-in-chief. The Supreme Court held that "unless a criminal defendant can show bad faith on the part of the police, the failure to preserve potentially useful evidence does not constitute a denial of due process of law." 488 U.S. at 58, 109 S.Ct. at 337. The appellant's case falls squarely within the rule of Youngblood.

The appellant did not claim at trial and he does not claim on appeal that the State's loss of the hair sample was the result of bad faith. Therefore, the trial court did not err by failing to order an investigation into the disappearance of the evidence. See Youngblood, supra. Furthermore, even if it had been determined that the hair sample did not match Ms. Staton's hair, that fact would not have precluded the appellant's guilt as Ms. Staton's kidnapper. The appellant was not entitled to a new trial on this ground.

II

The appellant argues that the trial court erroneously prevented him from fully exercising his right to cross-examine State's witness Jackie Staton.

Ms. Staton, who was 26 years old at the time of trial, testified that prior to the incident for which the appellant was charged, she did not know the appellant. In contrast, the appellant, who was also 26 years old, testified that he had known Ms. Staton since the two of them were children.

The appellant presented testimony from three of his family members that Ms. Staton's grandmother had babysat for the appellant, his two brothers, and his two sisters, along with Ms. Staton and her two stepbrothers, when the appellant and Ms. Staton were 8 or 9 years old. The appellant's family members testified that because all of the children played together, they felt sure that Ms. Staton knew the appellant.

Ms. Staton testified that she knew that her grandmother had babysat for the Holley children and she admitted that she recognized the appellant's brother Paul, but she insisted that she did not recall the appellant. The court sustained the prosecutor's objections to the following questions, addressed to Ms. Staton by defense counsel:

"Have they [Ms. Staton's stepbrothers] been involved in cases in this court?" R. 55-56.

"And your stepbrothers . . . weren't they arrested and weren't they prosecuted for . . . ?" R. 57-58.

When defense counsel asked Ms. Staton, "Are you going to tell the court that there's no feelings about [the appellant] that have something to do with [the appellant's] involvement with your stepbrothers?" (R. 73), the court instructed the defense to "discuss this out of the presence of the jury." R. 73.

Defense counsel was then given the opportunity to make an offer of proof demonstrating that the appellant's involvement with the witness's stepbrothers was relevant. The appellant's counsel offered to prove that Ms. Staton had gone to Draper Correctional Facility to visit one of her brothers who was incarcerated there at the same time that the appellant's family went to Draper to visit the appellant's brother, and ...


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