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11/10/94 MICHAEL BURTON v. STATE

November 10, 1994

MICHAEL BURTON
v.
STATE



Appeal from Madison Circuit Court. (CC-93-2328). Thomas Younger, TRIAL JUDGE.

Rule 39(k) Motion Denied December 29, 1994. Rehearing Denied December 29, 1994. Released For Publication December 14, 1995.

Taylor

The opinion of the court was delivered by: Taylor

TAYLOR, JUDGE

The appellant, Michael Burton, was convicted of selling cocaine in violation of § 13A-12-211, Code of Alabama 1975. He was sentenced to 15 years in the penitentiary.

I

The appellant initially contends that the state violated Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), by failing to disclose a photograph allegedly used by police in identifying the appellant as the person who sold drugs to an undercover police officer.

"'To establish a Brady violation, the appellant must demonstrate that: (1) the prosecutor suppressed evidence, (2) the evidence was favorable to the appellant or was exculpatory, and (3) the evidence was material.' Edwards v. State, 574 So. 2d 864, 868 (Ala. Cr. App. 1990).... '"The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome."' McMillian v. State, 616 So. 2d 933, 942 (Ala. Cr. App. 1993) (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383, 87 L. Ed. 2d 481 (1985))."

Powell v. State, 624 So. 2d 220, 225 (Ala. Cr. App. 1993). See also Ex parte Cammon, 578 So. 2d 1089 (Ala. 1991); Hall v. State, 625 So. 2d 1162 (Ala. Cr. App. 1993); Limbaugh v. State, 581 So. 2d 5 (Ala. Cr. App. 1991).

Investigator Vickie Higgins with the Huntsville Police Department was the undercover officer who allegedly made the "buy" of cocaine from the appellant. She testified that she had a photograph of the appellant but said she was unable to locate it to bring it to court. She testified that another investigator had taken a series of photographs, which included the photograph of the appellant to use in another investigation, but she was unable to locate the photograph. Higgins further testified that she did not believe that a photograph had been used to identify the appellant initially. She testified that she was absolutely positive, without any reference to photographs, that the appellant was the person who had sold her drugs.

The appellant did not prove that any violation of Brady occurred here. He did not show that the photograph was exculpatory, that the prosecutor had suppressed evidence of the photograph, or that the photograph was in any way material to his case.

II

The appellant next contends that the court erred in denying his motion for a judgment of acquittal. Specifically, the appellant contends that Higgins's testimony was not credible and that, therefore, the jury erred in finding him guilty.

The appellant's contention concerns the weight of the evidence -- not the sufficiency of the evidence. Weighing the evidence is within the exclusive province of the jury. Cunningham v. State, 630 So. 2d 154 (Ala. Cr. App. 1993).

"Any conflict in the evidence presented at trial was for the jury to resolve. Bennett v. State, 584 So. 2d 869, 871 (Ala. Cr. App. 1990). 'The role of appellate courts is not to say what the facts are. Our role ... is to Judge whether the evidence is legally sufficient to allow submission of an issue ...


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