REL:09/30/2014




Notice: This opinion is subject to formal revision before publication in the advance
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         SUPREME COURT OF ALABAMA
                              SPECIAL TERM, 2014
                             ____________________

                                    1121390
                             ____________________

                         Ex parte State of Alabama

                      PETITION FOR WRIT Of MANDAMUS

                          (In re: State of Alabama

                                          v.

                              Andre Lamon Ellis)

                     (Pike Circuit Court, CV-12-238)

BOLIN, Justice.

     The State of Alabama petitions this Court for a writ of

mandamus directing Judge Jeffrey W. Kelley of the Pike Circuit
1121390

Court to vacate his May 17, 2013, order granting Andre Lamon

Ellis's motion for a new trial. We deny the petition.

                     I.   Facts and Procedural History

    On       March    26,    2012,     M.B.      was    allegedly       raped    in   her

residence located in Hunter's Mountain Mobile Estates. M.B.

identified      Ellis       in   a    police     photographic          lineup    as   the

perpetrator.         Although        there    was      no   forensic     or     physical

evidence linking Ellis to the alleged rape, a video from a

security camera located at Hunter's Mountain on that day

showed Ellis's vehicle entering Hunter's Mountain at 4:41 p.m.

and leaving at 4:46 p.m. Ellis, in fact, lived in Hunter's

Mountain.        Following the alleged rape, M.B. went to the

hospital with vaginal injuries requiring multiple surgeries.

M.B. initially reported to her doctor that she had fallen on

a "door stop" in her bathroom but later stated that she had

been raped.

    On January 18, 2013, Ellis was convicted of rape in the

first       degree   regarding         Q.C.,1     rape      in   the    first     degree


        1
     Q.C. also lived in Hunter's Mountain and claimed to have
been raped by Ellis on the same day M.B. alleged that she was
raped .   Although there were separate indictments charging
Ellis with the rapes of both M.B. and Q.C., the cases were
tried jointly.
                                             2
1121390

regarding M.B., and burglary in the second degree regarding

the residence of M.B.     Ellis was sentenced to 85 years in

prison.     On March 25, 2013,       Ellis moved for a new trial,

alleging, among other things, that the State had failed to

disclose crucial evidence in violation of Brady v. Maryland,

373 U.S. 83 (1963).     The trial court ordered the State to

disclose in camera certain evidence and, after conducting a

hearing, entered an order dated May 17, 2013, granting Ellis's

motion for a new trial based on the State's failure to turn

over evidence in violation of Rule 16, Ala. R. Crim. P., and

in violation of the principles of law set forth in Brady v.

Maryland.    The State filed a motion for reconsideration, on

which the trial court did not rule.

    On June 24, 2013, the 38th day after the trial court

ordered a new trial, the State filed a petition for a writ of

mandamus with the Court of Criminal Appeals pursuant to Rule

21, Ala. R. App. P. In its petition, the State sought a writ

directing the trial court to set aside its order granting

Ellis's motion for a new trial.       The State had relied on Rule

4(b)(1), Ala. R. App. P., to determine that it had 42 days

from the date of the order to file its petition.


                                 3
1121390

       On August 20, 2013, the Court of Criminal Appeals entered

an order dismissing the State's petition after concluding that

it was not filed within a presumptively reasonable time and

that    the   State   had   failed   to    include   a   "statement   of

circumstances constituting good cause" as to why the petition

had been filed outside the presumptively reasonable time. See

Rule 21(a)(3), Ala. R. App. P.           The Court of Criminal Appeals

determined that the presumptively reasonable time for the

State to file its petition was seven days from the date of the

trial court's ruling that was subject to the petition. See

Rule 15.7, Ala. R. Crim. P.               The State did not file an

application for rehearing with the Court of Criminal Appeals.

State v. Ellis (No. CR-12-1514, Aug. 20, 2013), ___ So. 3d ___

(Ala. Crim. App. 2013) (table).

       On August 30, 2013, the State filed its petition for a

writ of mandamus in this Court pursuant to Rule 21(e), Ala. R.

App. P., seeking de novo review of the Court of Criminal

Appeals' dismissal of its original petition, as well as a writ

directing the trial judge to vacate its order granting Ellis's

motion for a new trial. The State included in its petition a

mandatory statement of circumstances constituting good cause


                                     4
1121390

for this Court's consideration.        This Court issued an order

dismissing the State's petition as untimely.

    On January 27, 2014, the State filed an application for

a rehearing complaining that this Court's order dismissing its

petition for a writ of mandamus failed to "address whether the

State's petition was untimely filed with the Supreme Court or

if the State's original Petition for Writ of Mandamus filed

with the Alabama Court of Criminal Appeals was untimely."

Specifically, the State argued that its original petition

filed with the Court of Criminal Appeals was not untimely

because, it claimed, it did not seek review of a pretrial

order pursuant to Rule 15.7, Ala. R. Crim. P., but rather

sought relief from a posttrial order granting Ellis's motion

for a new trial.

    On    March   31,   2014,   this   Court   granted   the   State's

application for a rehearing, and on June 9, 2014, we ordered

the parties to file answers and briefs.         We also ordered the

parties to include in their briefs a discussion as to "whether

[this] Court is vested with jurisdiction and whether the

proper time standard for submitting [the State's petition to




                                  5
1121390

the Court of Criminal Appeals] is pursuant to Rule 4(b), Ala.

R. App. P., or Rule 15.7(b), Ala. R. Crim. P."

                     II. Standard of Review

           "Mandamus is an extraordinary remedy and will be
      issued only when there is '(1) a clear legal right in
      the petitioner to the order sought; (2) an imperative
      duty upon the respondent to perform, accompanied by
      a refusal to do so; (3) the lack of another adequate
      remedy; and (4) properly invoked jurisdiction of the
      court.' Ex parte Alfab, Inc., 586 So. 2d 889, 891
      (Ala. 1991). 'A decision of a court of appeals on an
      original petition for writ of mandamus or prohibition
      or other extraordinary writ (i.e., a decision on a
      petition filed in the court of appeals) may be
      reviewed de novo in the supreme court....' Rule
      21(e)(1), Ala. R. App. P."

Ex parte Sharp, 893 So. 2d 571, 573 (Ala. 2003).

                        III.   Discussion

 A.   Applicable Time: Rule 15.7, Ala. R. Crim. P., or Rule
                    4(b), Ala. R. App. P.?

      Rule 21(a)(3), Ala. R. App. P., provides that "[t]he

presumptively reasonable time for filing a petition [for a

writ of mandamus] seeking review of an order of a trial court

or of a lower appellate court shall be the same as the time

for taking an appeal." The State maintains that, in dismissing

its original petition for a writ of   mandamus as untimely, the

Court of Criminal Appeals assumed that the State was taking an

appeal from a pretrial order pursuant to Rule 15.7(b), Ala. R.

                                6
1121390

Crim. P., and that the court therefore improperly held that

the 7-day period in Rule 15.7 for filing its petition applied

instead of the 42-day period in Rule 4(b), Ala. R. App. P.   We

agree.

    Rule 15.7, Ala. R. Crim. P., governs pretrial appeals by

the State; it provides, in pertinent part:

         "(a) Generally. In any case involving a felony,
    a misdemeanor, or a violation, an appeal may be taken
    by the state to the Court of Criminal Appeals from a
    pre-trial order of the circuit court (1) suppressing
    a confession or admission or other evidence, (2)
    dismissing an indictment, information, or complaint
    (or any part of an indictment, information, or
    complaint), or (3) quashing an arrest or search
    warrant. Such an appeal may be taken only if the
    prosecutor certifies to the Court of Criminal Appeals
    that the appeal is not brought for the purpose of
    delay and that the order, if not reversed on appeal,
    will be fatal to the prosecution of the charge."

(Emphasis added.)

    Rule 15.7(b) provides that the State's notice of appeal

from such a pretrial order shall be filed "within seven (7)

days after the order has been entered, but in any case before

the defendant has been placed in jeopardy under established

rules of law."   It is clear that the State in this case was

not taking an appeal from a pretrial order "suppressing a

confession or admission or other evidence"; "dismissing an


                              7
1121390

indictment, information, or complaint"; or quashing an arrest

or search warrant" –- any of which would require the State to

certify that the order appealed from, if not reversed, would

be fatal to the prosecution of the charge.            Rather, the State

was seeking review of a posttrial order granting a new trial

following a jury verdict; accordingly, the State could not

have certified that the "order, if not reversed on appeal,"

would be fatal to the prosecution of the charge.            Because the

State did not seek review of a pretrial order, but rather of

a posttrial order, we conclude that the State's mandamus

petition in the Court of Criminal Appeals, filed on the 38th

day   after   the   trial   court's   ruling,   was    filed   within   a

reasonable time pursuant to Rule 21, Ala. R. App. P., and Rule

4(b), Ala. R. App. P.       Therefore, its petition for a writ of

mandamus filed in this Court within 14 days of the denial of

the State's application for rehearing by the Court of Criminal

Appeals is timely.

      Rule 4(b), Ala. R. App. P., contemplates appeals by the

State when authorized by statute or rule:

      "When an appeal by the state as of right is
      authorized by statute or rule, the notice of appeal
      shall be filed in the trial court within 42 days (6
      weeks) after the decision, order, or judgment

                                  8
1121390

    appealed from; except that any pre-trial appeal by
    the state shall be taken within the time allowed by
    [Rule 15.7, Ala. R. Crim. P.]."2

(Emphasis added.)   The State does not dispute that it has no

right to appeal from an order granting a new trial.

            B.   Grounds for Issuance of the Writ

    The State maintains that, in the absence of a right to

appeal, a writ of mandamus is the appropriate vehicle by which

to challenge the trial court's ruling granting a new trial.

Specifically, the State asserts that this Court should grant

mandamus review because, it says, in granting a new trial in

this case the trial court exceeded its discretion and usurped

the factfinding province of the jury.   In Ex parte Nice, 407

So. 2d 874, 879 (Ala. 1981), this Court held that "[m]andamus

cannot be used as a substitute for appeal, when no appeal is

authorized by law or court rule, but mandamus can be used to

prevent a gross disruption in the administration of criminal

     2
     The State's power to appeal from an adverse ruling of the
trial court is authorized by § 12-12-70(c), Ala. Code 1975 (an
appeal from a judgment holding a statute or ordinance
invalid); § 12-22-90(b), Ala. Code 1975 (an appeal from an
order granting a petition for a writ of habeas corpus); § 12-
22-91, Ala. Code 1975 (an appeal when an act of the
legislature under which an indictment or information is
proferred is held by a lower court to be unconstitutional);
and by Rule 15.7, Ala. R. Crim. P. (providing that appeals may
be taken from certain pretrial orders).
                              9
1121390

justice." (Emphasis omitted.)        This Court in Ex parte Nice

concluded that the Court of Criminal Appeals was presented

with exceptional circumstances justifying its issuance of a

writ of mandamus where the trial court had granted a new trial

based solely on its belief that a witness's testimony was

"dubious," which, the Court held,       amounted to a usurpation of

power.    This Court cautioned, however, that "[o]ur holding

that mandamus is appropriate ... is not an invitation to the

State to invoke supervisory writs to seek review of lower

court rulings which are adverse.       We state again that only the

rarest of circumstances merit intervention by mandamus."          407

So. 2d at 882 (emphasis omitted).

      The threshold issue for our review in this case is whether

the   State   has   presented   this     Court   with   rare   and/or

exceptional circumstances justifying the issuance of a writ

directing the trial court to set aside its order granting

Ellis's motion for a new trial.        We conclude that it has not.

It is well settled that

           "[i]n cases such as this one, where the court
      grants a motion for new trial for grounds other than,
      or in addition to, a finding that the verdict is
      against the great weight or preponderance of the
      evidence, our review is limited:


                                10
1121390

          "'It is well established that a ruling on a
          motion for a new trial rests within the
          sound discretion of the trial judge. The
          exercise of that discretion carries with it
          a presumption of correctness, which will
          not be disturbed by this Court unless some
          legal right is abused and the record
          plainly and palpably shows the trial judge
          to be in error.'

    "Kane v. Edward J. Woerner & Sons, Inc., 543 So. 2d
    693, 694 (Ala. 1989) (citation omitted). See also,
    Land & Assoc., Inc. v. Simmons, 562 So. 2d 140, 148
    (Ala. 1989)."

Curtis v. Faulkner Univ., 575 So. 2d 1064, 1065 (Ala. 1991).

    Being mindful of the presumption of correctness that

attaches to a trial court's ruling on a motion for a new

trial, we quote in its entirety the trial court's May 17,

2013, order, which is clearly the product of careful thought

and consideration:

         "Prior to the hearing [on Ellis's motion for a
    new trial,] this court on March 27, 2013, entered an
    order for the State to determine if there are any
    interviews or statements taken by law enforcement
    regarding the investigation and to provide the court
    copies under seal [of] the following:

          "1. Copy of a transcript of any interview
          or statement that was recorded as a part of
          law enforcement's investigation into this
          case   that   has   not   previously   been
          disclosed.

          "2. Copy of all notes, files or summaries
          of any interviews or statements taken by

                              11
1121390

          law   enforcement   that     has   not   been
          previously disclosed.

          "3.   Any   exculpatory or  impeachable
          evidence, statements or interviews not
          previously produced.

    "In response to said Order the State produced in
    camera the following:

          "A. Copies of transcript of the March 27,
          2012, and May 23, 2012, recorded interviews
          with victim M.B.

          "B. Copy of the transcript of the interview
          with witness M.M. made May 15, 2012.

          "C. A CD which contained      interviews    of
          M.B., M.M. and J.H.

         "This court made a finding that the          two (2)
    statements of M.B. and the statement             of J.H.
    contained exculpatory and/or impeachable         evidence
    that should have been disclosed and ordered      that the
    State provide [Ellis] with copies prior            to the
    hearing on the motion for new trial.

         "Prior to the hearing the State provided
    additional information in camera for the court to
    review. The information provided included a case
    summary by Investigator Brian McLendon, an affidavit
    by Lee Barnes of the Troy Police Department seeking
    a search warrant for telephone records of S.L.F. and
    other documents.

          "[Charges and Convictions]

         "[Ellis] was indicted by a Pike County Grand
    Jury in Count I of rape in the first degree regarding
    victim Q.C., Count II of rape in the first degree
    regarding victim M.B. and burglary in the 2d degree
    regarding the residence of M.B.

                              12
1121390

         "A jury returned verdicts of guilty on all three
    (3) offenses. [Ellis] was sentenced to eighty five
    (85) years in prison on each rape offense and twenty
    (20) years on the burglary 2d degree. The sentences
    were to run concurrently with each other.

          "[Applicable Law]

         "The suppression by the prosecution of evidence
    favorable to an accused violates due process where
    the evidence is material to guilt or to punishment,
    irrespective of the good faith or bad faith of the
    prosecution. Brady v Maryland, 373 U.S. 83, 83 S.Ct.
    1994, 10 L. Ed. 2d 215 (1963). The Supreme Court in
    Brady stated that the purpose of sanctions for
    suppression of favorable evidence is not to punish
    society for misdeeds of a prosecutor, but instead is
    the avoidance of an unfair trial to an accused.
    Society not only wins when the guilty are convicted
    but when criminal trials are fair; our system of
    administration of justice suffers when any accused is
    treated unfairly. The court in Brady made reference
    to an inscription on the walls of the Department of
    Justice which reads, 'The United States wins its
    point when Justice is done its citizens in the
    courts.'

         "The U.S. Supreme Court in Giglio v. [United
    States], 405 U.S. 150, 92 S. Ct.763, 31 L. Ed. 2d 104
    (1972) rejected any distinction between impeachment
    and exculpatory evidence and held that impeachment
    evidence as well as exculpatory evidence falls within
    the 'Brady Rule.'

         "Evidence is favorable to an accused if such
    evidence, if disclosed and used effectively, may make
    the difference between conviction and acquittal. Nape
    v. Illinois, 360 U.S. 264, 79 S. Ct. 1173, 3 L. Ed.
    2d 1217 (1959).

         "A jury's estimate of the truthfulness and
    reliability of a given witness may well be

                              13
1121390

    determinative of guilt or innocence and it is upon
    subtle factors that a defendant's life or liberty may
    be deprived. United States v. Bagley, 473 U.S. 667,
    105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985). When the
    reliability of a witness may well determine guilt or
    innocence, nondisclosure of evidence affecting
    credibility falls within the 'Brady Rule.' Giglio
    supra; Bagley supra.

         "The prosecution has a duty to disclose
    impeachment and exculpatory (favorable) evidence even
    if there has been no request by the accused. [United
    States] v. Agurs, 427 U.S. 97, 96 S. Ct. 2392; 49 L.
    Ed. 2d 342 (1976).

         "The 'Brady Rule' encompasses evidence 'Known
    only to the police and not to the prosecutor.' Kyles
    v. Whitley. 514 U.S. 419, 115. S. Ct. 1555, 131 L.
    Ed. 2d 490 1995).

         "The U.S. Supreme Court held in Kyles that a
    Brady violation occurred by the failure to disclose
    that a witness had tentatively picked at a lineup
    someone other than the defendant as the killer and
    was told by law enforcement that the wrong person was
    identified.

         "Brady requires the prosecution to produce
    evidence that someone else may have committed a
    crime. Nicks v. State, 783 So. 2d 895 (Ala. Crim.
    App. 1999), quoting Jarrell v. Balkcom, 735 F.2d.
    1242, (11th Cir. 1984). Nondisclosure of exculpatory
    evidence bearing on the identity of the perpetrator
    has often led courts to hold that the principles of
    Brady were violated. See Patton v State, 530 So. 2d
    886 (Ala. Crim. App. 1988). A telephone call from an
    alleged eyewitness who implicated someone other than
    the accused that was not disclosed is a Brady
    violation. Hall v. State, 625 So. 2d 1162 (Ala. Crim.
    App. 1993). Pretrial statements of witnesses
    implicating someone else other than accused or
    containing details inconsistent with witnesses' trial

                             14
1121390

    testimony would be favorable and a Brady violation.
    Jefferson v. State, 645 So. 2d 313 (Ala. Crim. App.
    1994); Martin v State, 839 So. 2d 665 (Ala. Crim.
    App. 200l).

         "Failure of prosecution to disclose a 'be on the
    lookout' (BOLO) containing a witness's description of
    the   perpetrators    violated   the    prosecution's
    obligation under Brady to inform defendant of
    impeachment evidence, where the BOLO description
    differed significantly from the Defendant's actual
    appearance. Martin v. State, 839 So. 2d 665 (Ala.
    Crim. App. 2001).

         "To prove a Brady violation, a defendant must
    show:

          "1.   That   the   prosecution   suppressed
          evidence.

          "2. That the evidence was of a character
          favorable to the defense.

          "3. That the evidence was material (or the
          defendant was prejudiced).

    "Jefferson v. State, 645 So. 2d 313 (Ala. Crim. App.
    1994); Ex parte Cannon, 578 So. 2d 1089 (Ala. 1991).

         "For a Brady violation, the suppression of
    evidence need not have been made knowingly or
    negligently by the government. [United States] v.
    Pelisamen, 641 F.3d 399 (9th Cir. 2011).

         "In determining whether the suppressed evidence
    was material for a Brady violation, the court shall
    consider the cumulative effect of all suppressed
    evidence, and shall not consider each item of
    evidence individually. Kyles v. Whitley, 514 U.S.
    419, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995).




                              15
1121390

         "Evidence is material as to the 'Brady Rule' if
    there is a reasonable probability that had the
    evidence been disclosed to the defense, the results
    of the proceeding would have been different. A
    'reasonable probability' is a probability sufficient
    to undermine confidence in the outcome. [United
    States] v. Baxley, 473 U.S. 667, 682, 105 S. Ct.
    3375, 3383, 87 L. Ed. 2d 481 (1985).

          "[Analysis]

         "The two (2) recorded interviews with M.B. that
    were not disclosed have inconsistencies and are
    inconsistent with certain trial testimony of M.B. In
    one recorded interview M.B. stated that her roommate
    had been gone about twenty (20) minutes before the
    alleged rape. In the other interview M.B. stated the
    roommate had been gone about an hour and thirty (30)
    minutes. M.B. in one statement says her telephone was
    in the bathroom and in the other she says the
    telephone was in the kitchen at the time of the rape.
    M.B. gave inconsistent testimony as to the type of
    clothes the [rapist] was wearing. M.B. said in the
    statement of March 27, 2012, that the rape lasted
    like four (4) or five (5) minutes and this would be
    inconsistent with the time line which established the
    truck of [Ellis] entered the mobile home park at 4:41
    p.m. and drove by the office at 4:46 p.m. M.B. did
    not tell about her and J.H. (boyfriend) having sex
    shortly prior to the alleged rape. At trial M.B.
    testified in the State's case-in-chief that she was
    sick and feeling bad on the day of the alleged rape.
    M.B. did not testify on direct about having sex with
    J.H. a couple hours prior to the alleged rape. M.B.
    did testify that she and J.H. had sex when called as
    an adverse witness by the defense. Defense counsel
    only found out about the fact that M.B. had sex with
    boyfriend at a bench side conference, just prior to
    the State resting its case and after M.B. had
    testified. M.B. in the March 27, 2012, statement said
    she did not see the penis of the rapist. She said she
    closed her eyes. However at trial M.B. testified that

                             16
1121390

    she could see he had on a condom and could see the
    erect penis. In the March 27, 2012, statement M.B.
    when asked about the rapist she said, 'I was really
    scared to look at him in the face'; however, at trial
    M.B. testified she would not forget the eyes of the
    rapist. At trial M.B. testified she was bent out with
    her legs straight at the time of the rape; however,
    in one of the nondisclosed statements she said her
    knees were bent the whole time of the rape.

         "K.H., the roommate, testified at trial that she
    and M.B.'s mother left the hospital and went to the
    mobile home at about 8:00 p.m. and cleaned up the
    blood. In the recorded statement she said they went
    to the mobile home about 10:00 p.m.

         "J.H., the boyfriend of M.B., gave a recorded
    interview to law enforcement, which was not disclosed
    to defense counsel. J.H. was not called as a witness
    at trial, and defense counsel was not aware that J.H.
    was the boyfriend of M.B. until M.B. was called as an
    adverse witness. J.H. in his recorded interview
    stated that he and M.B. did not have sexual
    intercourse the day of the rape. J.H. stated they
    were together and then he had to go to a baseball
    meeting either at 4 or 4:30 p.m. and after the
    meeting, which lasted no more than five (5) minutes,
    he called M.B. and she was on the way to the
    hospital. The evidence would have been useful to
    attack the time line of 4:41 p.m. to 4:46 p.m.

         "The text messages and call log of M.B. which
    was produced in camera notes that at 4:45 p.m. K.H.
    sent a text message to M.B. that stated 'How are you
    feeling?' M.B. responded at 4:45 p.m. 'terrible about
    to sit in the tub.' M.B. has provided information in
    the statements that she was about to take a bath when
    she heard a knock at the door and the rape occurred.
    This evidence is exculpatory and would be useful for
    impeachment purposes, specifically if the rape had
    not occurred at 4:45 p.m. and [Ellis's] truck was on
    the video passing the office at 4:46 p.m., then the

                             17
1121390

    rape had to have occurred between 4:45 p.m. and 4:46
    p.m.

         "Additionally, the State did not disclose the
    affidavit of Lee Barnes of the Troy Police Department
    which was utilized to obtain a search warrant for
    cellular telephone records of a suspect other than
    [Ellis], namely [S.L.F.]. The affidavit stated the
    investigation had led to the suspect, S.L.F., and
    that the victim had made a tentative identification
    of S.L.F. through a photographic lineup. Additionally
    the victim's mother searched MySpace [social-media]
    records and located the suspect with a picture and
    showed it to M.B. and M.B. became visibly upset. An
    artist   developed   a   composite   sketch  of   the
    perpetrator with the assistance of the victim and a
    person independently identified S.L.F. as the person
    depicted in the composite sketch. This information is
    obviously exculpatory and was not disclosed and would
    be material for a Brady violation. The information
    would further be useful for impeachment purposes as
    it appears law enforcement ruled out said suspect.
    The fact that the victim wrongfully identified
    another person would be material.

          "[Findings]

         "This court is aware that there is not a
    constitutional right to discovery in a criminal case.
    Discovery is governed by Rule 16, [Ala. R. Crim. P.]
    -- the standing discovery order of this Circuit that
    ordered the State to comply with Rule 16, and to
    provide any exculpatory or impeachable evidence
    pursuant to Brady.

         "Suppression by the prosecution of evidence
    favorable to the defendant violates due process where
    the evidence is material to guilt. The truthfulness
    or reliability of a witness's testimony may well be
    determination of guilt. Evidence favorable to the
    defendant which would tend to exculpate him helps
    shape a trial and bears heavily on the defendant.

                             18
1121390

         "This court in determining a materiality inquiry
    under Brady is not to consider whether, after
    discounting the exculpatory [evidence] in light of
    the undisclosed evidence, the remaining evidence
    would be sufficient to support the jury's conclusion.
    Rather, the question is whether the favorable
    evidence could reasonably be taken to put the whole
    case in such a different light as to undermine the
    confidence in the verdict. Strickler v. Greene, 527
    U.S. 263, 290, 119 S. Ct. 1936, 144 L. Ed. 2d 286
    (1999).

         "This court is mindful of the impact granting a
    new trial may have on the victims; however this court
    is bound by the facts and applicable law in this
    matter. The court must weigh and consider the
    nondisclosed evidence and determine if evidence was
    suppressed, whether the suppressed evidence would be
    favorable to the defense, and whether the evidence
    was material or, stated otherwise, whether there is
    a reasonable probability the nondisclosed evidence
    undermined the verdicts.

          "This court finds as follows:

          "1. The evidence, including the statements
          of M.B., J.H., K.H., that victim, M.B.,
          identified another person in a photo
          lineup, that the time-line log shows that
          M.B. was texting at 4:45 p.m. that she was
          about to get in the tub and her statement
          that she had not gotten in the tub prior to
          the rape was suppressed by the State and
          the    evidence    is    exculpatory    and
          impeachable.

          "2. The court further finds that, since
          there was no forensic evidence or physical
          evidence tying [Ellis] to the rapes and
          burglary other than witness testimony, the
          credibility, truthfulness, and reliability
          of the testimony of such witnesses may well

                              19
1121390

          have been a determining factor of guilt.
          The court finds the suppressed evidence is
          material and if the evidence had not been
          suppressed that there is a 'reasonable
          probability' that the results of the
          proceeding would have been different and a
          reasonable probability is sufficient to
          undermine the confidence in the outcome.

          "3. Much of the suppressed/nondisclosed
          evidence would have provided the defense
          with   an   opportunity   to  impeach   the
          credibility of the witnesses and the
          credibility    [of   the]    investigation.
          Portions of the suppressed evidence would
          have tended to exculpate [Ellis]. Such
          evidence would include the fact that M.B.
          had identified another person in a photo
          lineup, J.H.'s testimony about calls to
          M.B. which could attack the time line, and
          the text messages and call log of M.B.
          showing text at 4:45 p.m.

          "4. That exculpatory and impeach[ment]
          evidence   was    suppressed,   that  the
          suppressed evidence was favorable to the
          defense, and that the suppressed evidence
          was material and there is a reasonable
          probability that nondisclosure of the
          favorable evidence could have undermined
          the confidence of the verdicts.

          "5. That the suppressed evidence along with
          the fact that the mother of M.B. cleaned up
          the blood from the scene, that M.B. and
          J.H. deliberately deleted text messages
          while M.B. was headed to the hospital and
          the fact that M.B. initially told the
          doctor she fell on something (instead of
          being raped); the fact that M.B. was not
          truthful and candid on direct about her
          actions prior the alleged rape, all that

                              20
1121390

          cumulatively would have led the court to
          find that [Ellis] is entitled to a new
          trial based on the suppression of evidence
          in violation of Brady and the standing
          discovery order of this court.

          "[Conclusion]

         "It is ORDERED that [Ellis's] motion for a new
    trial on the two (2) convictions of rape in the first
    degree and burglary in the first degree is granted.
    The convictions are hereby set aside and vacated due
    to Brady violations.

         "The court further finds that the suppression or
    nondisclosure was not intentional or malicious on the
    part of the State; however, this court continues to
    have much concern regarding the State's search for
    the truth as the evidence disclosed in camera makes
    reference to other interviews and statements--
    specifically Q.C., the other rape victim, which have
    never been provided in camera to the court as
    specifically ordered by this court.

         "Any other relief sought by [Ellis] on other
    grounds will not be addressed as [it is] moot since
    the court has granted the motion for new trials based
    on the 'Brady Rule' violations and violations of the
    standing discovery order of the 12th Judicial
    Circuit.

         "It is ORDERED that a scheduling conference is
    scheduled for the 1st day August, 2013, to address
    any pending matters and to set a date for a new
    trial."

    The State argues in its petition for a writ of mandamus

that the trial court exceeded its discretion and its judicial

authority in granting Ellis a new trial because, it says, the


                              21
1121390

trial    court   improperly combed the prosecutor's files    and

incorrectly and improperly analyzed the contents in those

files.     In support of its argument, the State provides an

item-by-item analysis of each piece of evidence considered by

the trial court, much of which the State claims has no bearing

on the motion for a new trial.       However, it is well settled

that the evidence the State failed to disclose to Ellis must

be considered collectively, not item-by-item, in determining

whether the "materiality" requirement of a Brady v. Maryland,

373 U.S. 83 (1963), violation has been satisfied.       Kyles v.

Whitley, 514 U.S. 419 (1995).       The collective effect of the

nondisclosed evidence in this case --     the fact that M.B. had

identified S.L.F. in a police photographic lineup as being the

perpetrator; the fact that M.B.'s prior statements during the

tape-recorded interviews were inconsistent with her testimony

at trial regarding the time line of events and how those

events occurred; the fact that J.H., M.B.'s boyfriend, stated

in his recorded interview that he had not had sexual relations

with M.B. on the day of the alleged rape; the fact that J.H.'s

statements in the interview regarding his telephone calls to

M.B. could have been used to attack the time line of 4:41 p.m.


                               22
1121390

to   4:46    p.m.;    and   the   fact    that   K.H.'s    testimony    was

inconsistent regarding the time she and M.B.'s mother went to

M.B.'s mobile home to clean up the blood -- is to support the

trial     court's    conclusion    that    there    was    a   "reasonable

probability" that the State's nondisclosure of this evidence

would have resulted in a different verdict.               The trial court

noted that "since there was no forensic evidence or physical

evidence tying [Ellis] to the rapes and burglary other than

witness     testimony,      the   credibility,      truthfulness,       and

reliability of the testimony of such witnesses may well have

been a determining factor of guilt."               "The question is not

whether the defendant would more likely than not have received

a different verdict with the evidence, but whether in its

absence he received a fair trial, understood as a trial

resulting in a verdict worthy of confidence." Kyles, 514 U.S.

at 434.     "[A] constitutional error occurs, and the conviction

must be reversed, only if the evidence is material in the

sense   that   its    suppression    undermines     confidence     in   the

outcome of the trial." United States v. Bagley, 473 U.S. 667,

678 (1985).         We find no error in the trial court's order

analyzing the collective effect of the nondisclosed evidence


                                    23
1121390

and determining that the "materiality" requirement of a Brady

violation had been satisfied.           Kyles.

       The State also argues that the trial court exceeded its

discretion in granting a new trial because, it says, Ellis

never    laid    the   proper   predicate      to   compel   the   State    to

disclose the statements of M.B., K.H., or J.H., as required by

Ex parte Pate, 415 So. 2d 1140 (Ala. 1981), and Ex parte Key,

890 So. 2d 1056 (Ala. 2003).                More specifically, the State

asserts that Ex parte Pate and Ex parte Key required Ellis to

make specific requests during the trial for any pretrial

statements made by any witnesses during the course of the

trial.    We find Key and Pate to be inapplicable to the facts

of this case.

       In Ex parte Pate, this Court granted certiorari to review

the question "whether or when the defendant in a criminal case

is entitled to inspection of a statement of a prosecution

witness for the purpose of cross-examining or impeaching the

witness."       415 So. 2d at 1140-41 (emphasis added).              Ex parte

Pate    confirmed      the   general   rule    that   an   accused    is   not

entitled to discover statements of government witnesses before

trial.      In Ex parte Key, this Court held that "[o]nce a


                                       24
1121390

prosecution     witness    has   testified   on   direct    examination,

however, a defendant, upon laying a proper predicate, is

entitled to inspect a prior statement of the witness for the

purpose of cross-examining or impeaching the witness."               890

So. 2d at 1064.       Ex parte Key established a two-step process

for determining when a trial court should conduct an in camera

inspection.     A defendant must first lay a proper predicate for

an in camera inspection by providing evidence that a statement

exists, then the trial court determines, during the in camera

inspection, "(1) whether the witness's statement differed in

any respect from the witness's testimony at trial, and (2)

whether the statement requested was of such a nature that

without    it   the   defendant's   trial    would   be    fundamentally

unfair."    Ex parte      Key, 890 So. 2d at 1064.

    Ellis's case presents a different fact scenario: Ellis was

not seeking during the trial to inspect a prior statement of

a witness for the purpose of cross-examining or impeaching the

witness.    In other words, Ellis learned for the first time

during the trial at a sidebar conference that J.H. and M.B.

had had sexual relations just hours before the alleged rape;

Ellis was not aware that J.H. had been interviewed by law


                                    25
1121390

enforcement.   Because J.H. did not testify at trial, Ellis

could not have requested during the trial to use J.H.'s

statement for cross-examination or impeachment purposes. It

was not until after the verdict that Ellis, during further

investigation, learned that J.H. had been interviewed by law

enforcement.   At this point, Ellis filed a motion for a new

trial, alleging that the State had withheld crucial evidence

in violation of Brady v. Maryland:

    "That during the course of trial at sidebar, the
    State revealed that the alleged victim, M.B., had
    entered into sexual relations with her boyfriend at
    the time of the alleged offense the afternoon she
    claimed she had been raped. M.B. had already given
    testimony at this point of the trial that she had
    [gone] to school and then had come home without
    mentioning she had entered into sexual relations with
    her boyfriend, herein referred to as J.H. The State
    had not disclosed this information prior to trial and
    therefore no investigation of the same was conducted
    by the defense.

         "Since the trial, the defense has through
    further investigation discovered that J.H. has
    disclosed that he had sex with M.B. the day of the
    alleged rape. J.H. has further stated that yes they
    did have sex[;] however[,] when asked if there were
    any 'toys' he stated no but only after a significant
    pause. J.H. has further disclosed that there was a
    police interview/interrogations of him and he was
    interviewed by Brian McClendon of the Troy P.D.
    [Police Department] and another detective that he did
    not know. ... J.H. further disclosed he had only one
    formal interview at the P.D. and that he was there
    for quite a long time. After that he only spoke with

                             26
1121390

    Det. McClendon by phone.    J.H. also remembers the
    interview being recorded. J.H. stated that he did in
    fact say he did not believe that M.B. had been raped
    during the P.D. interview but has since come to
    believe that she had. When ask[ed] ... why he had
    originally not believed her J.H. stated there were
    little things going on in their relationship that
    made him doubt her sometimes and primarily he did not
    believe her because the Police led him through their
    questioning of him to believe that they doubted her
    story as well. Since the interview of J.H. was not
    disclosed to the defense prior to trial, all of the
    aforementioned information was unavailable to the
    defense prior to trial and therefore no further
    investigation on these issues were investigated at
    the time. The State never called J.H. at trial.

          "....

         "Trial counsel was not provided with crucial
    evidence in violation of Brady v. Maryland ....

         "Further, due to the State's failure to disclose
    information regarding M.B.'s sexual conduct the day
    of the alleged rape, the defense was further unable
    to properly cross-examine the State's expert on other
    possible hypotheses for the alleged injuries nor was
    the defense afforded the opportunity to evaluate the
    need for independent defense witnesses to refute the
    State's experts."

    The trial court thereafter ordered the State to determine

if there were any interviews or statements taken by law

enforcement regarding the investigation that had not been

previously disclosed and to provide the court with copies

under seal of all such interviews or statements.   See Duncan

v. State, 575 So. 2d 1198 (Ala. Crim. App. 1990) (holding that

                             27
1121390

the knowledge of law-enforcement agents regarding favorable

evidence is imputed to the prosecutor).         The State thereafter

produced in camera the interviews of M.B., J.H., and K.H.             The

State also provided additional in camera information for the

court's review, including a search warrant             for telephone

records of S.L.F., another person M.B. had identified in a

police photographic lineup as being the perpetrator.                After

reviewing the State's evidence, the trial court concluded that

some of the evidence should have been disclosed, and it

ordered   the   State   to   provide   Ellis   with   copies   of    that

evidence before the hearing on the motion for a new trial.

    Following the hearing, the trial court entered its order,

granting Ellis's motion for a new trial based on the State's

failure to turn over evidence in violation of Rule 16, Ala. R.

Crim. P., and in violation of Brady v. Maryland.         See Ex parte

Brown, 548 So. 2d 993, 994 (Ala. 1989)("We have further held

that exculpatory evidence, regardless of its trustworthiness

or admissibility, should be disclosed, and, if it is not

disclosed, that defendant's motion for a new trial should be

granted."). Moreover, pursuant to Rule 16, Ala. R. Crim. P.,

the trial court is authorized to inspect the State's evidence


                                  28
1121390

at any time during the proceedings when it is brought to the

court's attention that a party has failed to comply with the

court's standing discovery order.   Rule 16.5, Ala. R. Crim.

P., states:

    "If at any time during the course of the proceedings
    it is brought to the attention of the court that a
    party has failed to comply with this rule or with an
    order issued pursuant to this rule, the court may
    order such party to permit the discovery or
    inspection; may grant a continuance if requested by
    the aggrieved party; may prohibit the party from
    introducing evidence not disclosed; or may enter such
    other order as the court deems just under the
    circumstances. The court may specify the time, place,
    and manner of making the discovery and inspection and
    may prescribe such terms and conditions as are just."

(Emphasis added.)

     Because the holdings of Ex parte Pate and Ex parte Key

do not apply under the facts of this case, and because the

trial court was authorized to order the State to provide the

court with copies under seal of all interviews or statements

taken by law enforcement during its investigation that had not

been previously disclosed, the State has failed to demonstrate

that the trial court exceeded its discretion in this regard.

Stated differently, under the circumstances presented, the

trial court's method of handling the situation was proper.




                             29
1121390

     Lastly, the State argues that the trial court exceeded its

discretion in entering its order granting a new trial with

regard to the rape charge involving Q.C. because, it says,

Ellis   made no allegation in his motion for a new trial

regarding a discovery violation in the case in which Q.C. is

the named victim nor did the trial court make any findings as

to any alleged discovery violation pertaining to that case.

In support of its argument, the State cites Dunn v. United

States,     284   U.S.    390,    393        (1932)("[E]ach   count    of    an

indictment is regarded as if it was a separate indictment."),

and Murphy v. State, 108 So. 3d 531, 546 (Ala. Crim. App.

2012)("'A    jury   verdict      on     each    count   [of   a   multi-count

indictment] is independent; a verdict of either conviction or

acquittal of one has no effect or bearing on another.'"

(quoting Hammonds v. State, 7 So. 3d 1055, 1061 (Ala. 2008))).

Specifically, the State asserts that "just because the trial

court is erroneously convinced that a new trial is appropriate

in   one    count    of    a     multi-count        indictment     does     not

automatically give rise to the summary granting of a new trial

in any other count of the same indictment."                       The State's

argument in this regard is without merit.                 It is irrelevant


                                        30
1121390

that Ellis made no allegation in his motion for a new trial of

any discovery violation regarding Q.C., because Ellis was

concerned only with the fact that the State had failed to

disclose     the    recorded   interview   between    J.H.     and   law

enforcement.       As previously stated, Ellis alerted the trial

court in his motion for a new trial of the alleged Brady

violation.     The court at that point ordered the State to

provide copies under seal of all notes, files, or summaries of

any interviews or statements taken by law enforcement that had

not   been   previously    disclosed   during   the   course    of   the

investigation; this information would include any information

pertaining to Q.C. as well as to M.B.            More importantly,

however, is the fact that the trial court clearly stated in

its order that the State had violated the discovery order

regarding information pertaining to Q.C.:

           "The court further finds that the suppression or
      nondisclosure was not intentional or malicious on the
      part of the State; however, this court continues to
      have much concern regarding the State's search for
      the truth as the evidence disclosed in camera makes
      reference to other      interviews and statements
      specifically [regarding] Q.C., the other rape victim,
      which have never been provided in camera to the court
      as specifically ordered by this court.

           "Any other relief sought by [Ellis] on other
      grounds will not be addressed as they are moot since

                                  31
1121390

     this court has granted the motion for new trials
     based on the 'Brady Rule' violations and violations
     of the standing discovery order of the 12th Judicial
     Circuit."

(Emphasis added.) Rule 16, Ala. R. Crim. P., which provides

for discovery in criminal cases, expressly authorizes a trial

court to impose sanctions against a party that fails to comply

with a discovery order.    See Rule 16.5, quoted supra. "Brady

v.   Maryland   ...,   requires    the   government   to   disclose

exculpatory evidence or risk sanctions."       State v. Hall, 991

So. 2d 775, 778 (Ala. Crim. App. 2007). "The imposition of

sanctions upon noncompliance with a court's discovery order is

within the sound discretion of the court."      McCrory v. State,

505 So. 2d 1272, 1279 (Ala. Crim. App. 1986). "[S]anctions

imposed for a Brady violation are reviewed to see if the trial

court exceeded its discretion." Ex parte Hall, 991 So. 2d 782,

784-84 (Ala. 2008) (citing State v. Moore, 969 So. 2d 169,

181–82 (Ala. Crim. App. 2006) (recognizing that dismissal of

an indictment is an available sanction for a Brady violation

under the supervisory powers granted trial courts by Rule

16.5, Ala. R. Crim. P.)).         Because the State violated the

trial court's discovery order by failing to produce any and

all interviews and statements regarding Q.C., we find no error

                                  32
1121390

in the trial court's ruling granting Ellis's motion for a new

trial as to count one of the indictment charging Ellis with

rape in the first degree of Q.C.            The State has simply failed

to provide this Court with any caselaw demonstrating error on

the part of a trial court granting a new trial based on a

party's failure to comply with the discovery provisions of

Rule 16, Ala. R. Crim. P.              It is well settled that the

"[f]ailure to comply with [Rule 16] is viewed with disfavor

and is condemned."        Smith v. State, 698 So. 2d 189, 206 (Ala.

Crim. App. 1996).

                             IV. Conclusion

       Based on the foregoing, the State has failed to present

this    Court    with   exceptional    circumstances      justifying   the

issuance of a writ directing the trial court to set aside its

order granting Ellis's motion for a new trial. Unlike this

Court's holding in Ex parte Nice that the Court of Criminal

Appeals was justified in finding exceptional circumstances

justifying the issuance of a writ where the trial judge had

granted a new trial solely because he felt the witness's

testimony       was   "dubious,"   which,    we   said,   amounted   to   a

usurpation of power, there are no circumstances, much less


                                      33
1121390

exceptional circumstances, presented in this case justifying

a writ directing the trial court to vacate its order granting

Ellis a new trial.    The trial court in this case was clothed

with the discretion to grant a new trial and, in fact, had a

duty to do so upon its finding of a Brady violation, Ex parte

Brown; the trial court is also clothed with discretion in

imposing the appropriate sanctions, i.e., the grant of a new

trial, based on its findings of discovery violations.        Ex

parte Moore, supra.     Accordingly, the State has failed to

demonstrate a clear legal right to the order sought, Ex parte

Sharp, and its petition is due to be denied.   See also   State

v. Waters, 453 So. 2d 1067, 1067-68 (Ala. Crim. App. 1984),

holding that "[t]he petition for writ of mandamus seeking to

require a Montgomery Circuit Court judge to vacate and hold

for naught his order granting a new trial is hereby denied on

authority of Ex parte    Hooper, 453 So. 2d 1066 (Ala. 1984),

holding that mandamus will not lie to compel the trial court's

exercise of discretion in a particular manner."

    PETITION DENIED.

    Moore, C.J., and Stuart, Parker, Murdock, Shaw, Main,

Wise, and Bryan, JJ., concur.


                                34
