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January 13, 1995


Appeal from Marshall Circuit Court. (CC-91-38). William Jetton, TRIAL JUDGE.

Rehearing Overruled May 5, 1995, . Certiorari Denied August 11, 1995. Released For Publication February 5, 1996.

Montiel, Judge. All the Judges concur. Taylor, J., concurs specially with opinion.

The opinion of the court was delivered by: Montiel


The appellant, Larry Randall Padgett, was convicted of capital murder for the intentional killing of his wife, Cathy Padgett, during her rape. § 13A-5-40(a)(3), Code of Alabama 1975. The jury, by a nine to three vote, recommended Padgett be sentenced to life in prison without parole, but the trial court overrode the jury's recommendation and sentenced the appellant to death.

The following facts are taken from the record. Padgett and his wife, Cathy, were separated but not divorced at the time of her murder. Cathy was living in the couple's home with their two children, and Randall was living in a mobile home near his chicken houses. It is undisputed that Randall was having an affair with a neighbor, Judy Bagwell, and that Cathy knew of the affair.

Cathy Padgett was last seen alive at a church revival service Thursday evening, August 17, 1990. She did not arrive for work Friday morning, nor did she respond to several telephone calls placed to her home that day. Randall Padgett kept the children at his house Thursday night, and took them to his aunt's house Friday morning when he went to work. Friday afternoon, apparently without telling anyone that he was going or without asking anyone to watch his children, Padgett went to Destin, Fla., with Judy Bagwell. Friday evening, Padgett's cousin took the children home to change clothes for that night's revival service and discovered Cathy Padgett's body. The ensuing investigation showed Cathy had been stabbed about 46 times. The evidence showed the appellant had sex with her either as she was dying, or within the 15 minutes following her death.

Police reached Randall Padgett in Florida on Friday night to tell him his wife had been killed. He returned home early Saturday morning and went to the Arab police department. Law enforcement officials questioned Padgett, who then voluntarily gave blood samples. Serologists with the Alabama Department of Forensic Sciences determined that the semen taken from Cathy's body matched Padgett's blood type, and a subsequent DNA test, performed by Cellmark Diagnostics, confirmed that Padgett was the person who had had sex with Cathy at her death. He was then arrested and charged with his wife's murder and rape.


The appellant contends that because the state withheld exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed. 2d 215 (1963), his conviction is due to be reversed. According to the record, near the close of the State's evidence in the appellant's trial, the prosecutor told the defense attorney during a recess that a week before the trial, the State's serologist had conducted a second test on what was supposed to be the appellant's blood. That test showed the blood sample had a different PGM type than the appellant's PGM type. Under cross examination by the appellant's counsel, serologist Rodger Morrison testified as follows:

APPELLANT'S COUNSEL: Rodger, would a person with a PGM type 1/1, would that be the same blood %as a person with the blood type PGM 2/1?

WITNESS: Not generally.

APPELLANT'S COUNSEL: They would be different people, wouldn't they?


APPELLANT'S COUNSEL: Different blood?

WITNESS: Yes sir. The second test on the blood sample was made Tuesday, April 7, 1992. Two days later, on Thursday, the second day of trial, prosecutors were made aware that the second test showed a different PGM type than the appellant's. This information was not given to the appellant until Monday afternoon, April 13. By that time, the record shows, the State's DNA experts had already testified. Therefore, as the appellant points out in his brief, the only witness subject to cross examination on the ramifications of the different PGM types was the serologist. Even then, appellant's counsel had a short time to prepare for that cross examination in light of the new, exculpatory evidence. The appellant moved for a mistrial based on the prosecution's delay in providing him with the information despite his requests for discovery and a discovery order issued by the trial court.

The trial court denied the motion.

In Brady, the United States Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland, 373 U.S. at 87. To establish a Brady violation, and thus be entitled to a new trial, the appellant must show: 1) that the prosecution suppressed the evidence (here, the different PGM type derived from the blood sample that was supposed to have been taken from the appellant); 2) that the evidence was of a character favorable to his defense; and 3) that the evidence was material. Ex parte Cammon, 578 So. 2d 1089, 1091 (Ala. 1991), citing Ex parte Brown, 548 So. 2d 993, 994 (Ala. 1989).

In this case, the record shows the prosecution knew the results of the second test four days before telling the appellant. Because the trial was already in progress when the state became aware of the test results, each day the prosecution delayed in telling the appellant was critical. Also, the State's case hinged on the results of the DNA tests conducted earlier. The DNA evidence against the appellant would only be valid if the blood sample used to match the DNA from the semen found in the victim actually came from the appellant. If the appellant could show that the blood used in the DNA analysis to make that match was not his blood, he would be exonerated. Therefore, results from the second test were both favorable and material to the appellant.

The State argues that because the appellant's counsel was able to extensively cross-examine the serologist who conducted the second test, the new evidence did not change the result of the proceedings. However, as the appellant points out, in Ex parte Williams, [Ms. 1911197, April 16, 1993], ___ So. 2d ___ (Ala. 1993), the Alabama Supreme Court said:

"The State counters by asserting that [the

appellant] had the opportunity to cross-examine

[the witness] at trial regarding these items of

evidence; it also argues that nondisclosure that

merely hampers the defendant's preparation for

trial is an insufficient quantum of prejudice to

constitute reversible error. . . . Here, however,

the failure to disclose the evidence totally prevented

[appellant's] counsel from preparing portions of the

defense. . . . Furthermore, this Court has previously

rejected the argument now made by the State, that a

defendant who has engaged in 'thorough and sifting'

cross-examination with respect to items not disclosed

has suffered no prejudice."

In this case, the State's failure to timely disclose the exculpatory evidence denied the appellant the opportunity to prepare what would have been a key portion of his defense, that is, that the blood sample used to get the DNA match might not have been his. Cross-examining the serologist did nothing to allow the appellant to determine what the different PGM types would mean to the DNA experts, whose testimony was key in convicting the appellant. The reliability of the DNA tests would be dependent upon the integrity of the samples tested. Therefore, as appellant contends, the DNA experts were entitled to know about the possibility of a mix up or a tainted sample before giving their Conclusions to the jury.

We find that the State suppressed evidence that was both material and exculpatory to the appellant in violation of Brady. The appellant's opportunity to cross examine the serologist the afternoon he found out about the second test result was inadequate to cure the violation. Therefore, the appellant's conviction for capital murder is reversed and remanded to the Circuit Court of Marshall County for a new trial.

Because this cause is reversed, we address only those issues that are likely to reoccur at the appellant's new trial.


The appellant contends that in addition to instructing the jury on capital murder during a rape, the trial court also should have instructed the jury on the lesser included offense of rape. Failure to do so, the appellant says, constitutes reversible error.

According to the record, the appellant did not request a charge for a lesser included offense of rape, nor was there an objection made at trial that such a charge was not given. In death penalty cases, failure to object does not preclude appellate courts from reviewing the issue under the plain error doctrine, but it does weigh against any claim of prejudice. Stewart v. State, 601 So. 2d 491 (Ala. Crim. App. 1992). The plain error doctrine is only to be used to correct particularly egregious errors in those circumstances in which a miscarriage of Justice would result. Stewart, supra; Dill v. State, 600 So. 2d 343, 351 (Ala. Crim. App. 1991), aff'd, 600 So. 2d 372 (Ala. 1992).

"A lesser included offense is generally defined as an offense the elements of which must necessarily be proven in order to convict for the specific higher offense." Holladay v. State, 549 So. 2d 122, 128 (Ala. Crim. App. 1988), (quoting Ex parte Washington, 448 So. 2d 404 (Ala. 1984)). In this case, the appellant was indicted on a charge of murder during the commission of a rape. Because the elements of rape must be proven to convict the appellant of capital murder, rape would necessarily be a lesser-included offense. However, the appellant is only entitled to an instruction on a lesser-included offense if that offense is supported by a reasonable theory from the evidence. Holladay, (supra) at 129; Jones v. State, 514 So. 2d 1060, 1063 (Ala. Crim. App.); cert. denied, 514 So. 2d 1068 (Ala. 1987). "A lesser-included offense charge should only be refused in a death case when the evidence adduced at trial could only support a conviction of the crime charged in the indictment." Holladay, (supra) (emphasis in the original). Therefore this court must determine whether there is a reasonable theory from the evidence that would support a charge on the lesser-included offense of rape. See Holladay, (supra) at 130.

Intentional murder becomes capital murder when the killing occurs during a rape. Section 13A-5-40, Code of Alabama 1975. "During" is defined in the Code as meaning "in the course of or in connection with the commission of, or in immediate flight from the commission of the underlying felony or attempt thereof." Section 13A-5-39(2), Code of Alabama 1975. An accused is not guilty of a capital offense where the intent to commit the accompanying felony, in this case rape, was formed only after the victim was killed. Connolly v. State, 500 So. 2d 57, 62 (Ala. Crim. App. 1985), aff'd, 500 So. 2d 68 (Ala. 1986). An accompanying felony committed as a "mere afterthought" and unrelated to the murder will not sustain a conviction of capital murder; the question of the defendant's intent at the time of the commission of the crime is usually a jury question. See Smelley v. State, 564 So. 2d 74, 86-87 (Ala. Crim. App. 1990), cert. denied, Ex parte Green, 564 So. 2d 89 (Ala. 1990); Connolly, (supra) at 63.

In his charge to the jury in this case, the trial Judge instructed, "You may not find the defendant guilty of any offense other than the one charged in the indictment, that of capital murder, or of the lesser included offense, that of murder." He also ...

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