Brief - Appellant's Brief (Blakely)
Brief - Appellant's Brief (Blakely)
Appellant,
v.
STATE OF ALABAMA,
Appellee.
Nick Lough
The Lough Firm, LLC
223 East Side Square
Huntsville, AL 35801 Attorneys for the Appellant
Office: (256) 333-1191
[email protected]
STATEMENT REGARDING ORAL ARGUMENT
i
TABLE OF CONTENTS
Argument ................................................................................................. 15
II. The circuit court erred in denying Mr. Blakely’s motion for judg-
ment of acquittal as to Count 13 .................................................... 25
Conclusion ............................................................................................... 30
Cases Page(s)
Collier v. State, 293 So. 3d 961 (Ala. Crim. App. 2019) ..................... 25-26
Hardy v. State, 804 So. 2d 247 (Ala. Crim. App. 1999) ..................... 18-19
Jefferson v. State, 645 So. 2d 313 (Ala. Crim. App. 1994) ...................... 21
Keaton v. State, No. CR-14-1570, 2021 WL 5984951 (Ala. Crim. App. Dec.
Reid v. State, 131 So. 3d 635 (Ala. Crim. App. 2012) ........................ 13,26
Reynolds v. State, 236 So. 3d 189 (Ala. Crim. App. 2015) ................. 20-21
§ 13A-8-3 .................................................................................................... 1
iii
§ 13A-8-4 .................................................................................................... 1
§ 13A-8-4.1 ................................................................................................. 1
§ 13A-8-5 .................................................................................................... 1
§ 36-25-27 ................................................................................................ 27
Rules of Court
iv
STATEMENT OF THE CASE
This appeal stems from allegations that the appellant, Sheriff Michael
counts:
1
Count 13: Use of official position or office for personal gain.
(C. 13-16.)1 Due to the nature of the case and Mr. Blakely’s role as the
sheriff of Limestone County, the warrant was issued to the Attorney Gen-
eral’s Office and the local judges recused themselves from the case. (C.
18; 23-27.)
Pride Tompkins, a retired circuit court judge from Colbert County, to pre-
side over the case. (C. 37.) In February 2021, however, Judge Tompkins
recused from the case due to his high-risk status with the ongoing
COVID-19 pandemic. (C. 293.) The Alabama Supreme Court then ap-
Mr. Blakely’s case was called for jury trial on July 16, 2021. During
trial, the State called Trent Willis as a witness to present testimony re-
garding count 2 of the indictment against Mr. Blakely. During the midst
1 Prior to trial, the State filed a motion to dismiss counts 6 and 7 of the
indictment. (C. 261.) During trial, the State also made an oral motion to
dismiss count 5 of the indictment. (R. 1557.) Both of those orders were
granted. (C. 270; 547; R. 1563.) As a result, only counts 1-4 and 8-13 were
ultimately submitted to the jury.
2
to discuss issues with the circuit court and the defense. (R. 278.) At that
point, the State informed the circuit court that Willis was under investi-
Id. This was after M. Blakely filed a pre-trial motion for the State to re-
veal the identity of any informants and/or witnesses and reveal any deals,
(C. 233.) The State acknowledged that the motions had demonstrated
garding investigations. (R. 280; 284.) But as the circuit court pointed out,
the State knew that Willis was under investigation and never informed
the circuit court until direct had already begun. (R. 285.) As a result of
testimony struck, and count 2 of the indictment dismissed. (R. 282; 299-
304.) The circuit court ultimately denied the motion to dismiss Count 2
and strike Willis’s testimony after it was determined that the State had
guilty of counts 2 and 13 of the indictment but not guilty of counts 1, 3-4,
and 8-12. (C. 423-432.) Count 2 concerned a check from Red Brick
3
Systems and centered around the testimony of Willis. Count 13 con-
cerned purported interest-free loans taken by Mr. Blakely from the Lime-
for a new trial. (C. 444.) The basis of this motion was that a member of
the jury had come forward to say that she had been voted guilty under
duress and that she lied when polled by the circuit court following the
exhibit to this motion. (C. 446-47.) The State responded to this motion by
saying that the motion was both untimely and meritless. (C. 448-52.) The
On August 20, 2021, the circuit court sentenced Mr. Blakely to concur-
rent terms of 3 years’ imprisonment in the county jail with two years of
supervised probation as to each count. (R. 2205.) On August 30, 2021, Mr.
Blakely filed a motion for new trial raising numerous issues regarding
Mr. Blakely’s trial. (C. 560-64.)2 Mr. Blakely filed a supplement to this
motion on August 31, 2021. (C. 567-68.) Following the State’s response,
2This citation is to the amended motion for new trial that was filed the
same day.
4
the circuit court entered an order denying Mr. Blakely’s motion for new
5
STATEMENT OF THE ISSUES
the defense that Trent Willis, a critical State’s witness, was un-
II. The circuit court erred in denying Mr. Blakely’s motion for judg-
6
STATEMENT OF THE FACTS
County from January 1983 until his conviction at the present trial. (R.
1884.) Ultimately, the jury at trial only convicted Mr. Blakely of two of-
Mr. Blakely was convicted of a felony ethics violation for allegedly taking
interest-free loans from the Limestone County jail inmate fund. Because
he was acquitted of other counts, Mr. Blakely will focus this section on
In 2014, Mr. Blakely once again was running for re-election for the
Plunk, introduced him to Trent Willis, the owner of Red Brick Strategies.
(R. 249.) At the time, Red Brick Strategies helped run political cam-
paigns, and Willis was interested in helping Mr. Blakely during his pre-
sent campaign. (R. 250.) Mr. Blakely and Willis discussed the arrange-
7
beginning in June 2014. (R. 261, 264.) Red Brick Strategies was involved
252.) Since Mr. Blakely was a Democratic candidate, they decided to en-
Red Brick Strategies directly. Id. Instead, the retainer would be paid by
John Plunk, or one of the businesses associated with Plunk. (R. 250.)
That way, both Red Brick Strategies and Mr. Blakely could avoid a direct
connect that might subject them to criticism or attack from the other po-
Willis explained that the billing went as planned for the next few
months as the campaign unfolded: Plunk was invoiced for $3,500.00 and
the bill would be paid. (R. 264-266.) Willis testified that the standard
$3,500.00 invoice for November 2014 was populated and sent out on No-
vember 11, 2014. (R. 267-268.) However, Red Brick Strategies later re-
ceived a check for $7,500.00 made out by the “Friends of Mike Blakely,”
270; see also R. 134.) Willis did not know where that figure came from
since it wasn’t an amount they had discussed for Red Brick Strategies’
services. Id. According to Willis, Mr. Blakely contacted him and told him
8
that he needed Willis to sign a blank check for Blakely. (R. 272.) Willis
couldn’t recall Blakely’s explanation for the signed check other than he
needed a refund for some reason. Id. That check was ultimately cashed
in the amount of $4,000.00. (R. 272.) This was the first time that the cam-
1999 and served in that capacity in Mr. Blakely’s next 5 campaigns. (R.
135.) Watkins controlled the accounts for the campaign and helped pre-
gies. (R. 167.) Watkins testified that he would have reported the contri-
butions had he known about them. Id. Watkins recognized the $7,500
check written from the Friends of Mike Blakely campaign account to Red
Brick Strategies, but he explained that he only signed the check and that
Mr. Blakely filled out the rest of the information. (R. 171.) Watkins re-
called Mr. Blakely telling him that they had to pay Red Brick Strategies
$7,500.00 for their services. (R. 171.) Watkins explained that he never
had a conversation with Mr. Blakely about the $4,000.00 refund check
9
from Red Brick Strategies. (R. 175.) According to Watkins, any refund
due from Red Brick Strategies should have gone back to the campaign
John Plunk explained that he was good friends with Mr. Blakely and
couldn’t remember details until refresh by the State’s exhibits. (R. 396.)
ics Commission. (R. 394.) During the course of the campaign, Plunk spoke
with Watkins and Mr. Blakely about refunds coming from a source paid
in connection with the campaign. (R. 411.) Plunk explained that he told
date. Id.
Mr. Blakely testified that they in no way overpaid Red Brick Strate-
gies in order to get a rebate from them. (R. 1897.) According to Blakely,
Willis called him before the election and told him that the final invoice
would be for $7,500.00. (R. 1894.) Willis later called Blakely after the
election and told them they’d be due a refund out of that $7,500.00 be-
10
anticipated. Id. Mr. Blakely explained he deposited the check in his per-
sonal account because he wasn’t going to see Watkins for a while and
Watkins was the one who managed all the deposits. (R. 1895-96.) Mr.
Blakely testified that he told Watkins that’s what he was going to do with
Ramona Robinson testified that she formerly served as a clerk for the
inmate accounts at the Limestone County jail from 2011 until September
2016. (R. 439.) Robinson explained that the prison had a safe and sepa-
rate accounting system to track the money inmates had on their accounts
that they could use to purchase items from vending machines in the cell
blocks or from the commissary. (R. 443.) Family members could bring in
cash or money orders to put on an inmates’ account. (R. 445.) This money
was the inmates that they would get back. (R. 444.) The accounts had
anywhere between $3,000.00 and $12,000.00 at any given time. (R. 442.)
Robinson would travel to the bank at least twice a week to make trans-
would frequently write checks to the inmate fund account in exchange for
11
the cash readily available in the inmate fund. (R. 447.) Mr. Blakely wrote
several checks to the inmate fund. Id. Robinson wouldn’t ask Mr. Blakely
why he needed the money. (R. 449.) According to Robinson, Mr. Blakely
didn’t always immediately give her a check for the cash he’d borrow, but
instead would give her an IOU which he would later replace with a check.
(R. 452.) When questioned about a specific check that wasn’t cashed for
a month, Robinson explained that Mr. Blakely had asked her to hold the
Mr. Blakely testified that the office had long had a policy of allowing
employees to write checks to the inmate funds to get cash. (R. 1943.) It
wasn’t standard policy to have checks written to the account held up for
any amount of time. (R. 1944.) Mr. Blakely admitted on one occasion he
paid his salary before the check was cashed. (R. 1945.) With respect to
the check the State asked Robinson about, Mr. Blakely explained that he
didn’t realize Robinson was holding it so long after he wrote it to the in-
mate fund. Id. If he had known it was outstanding, he would have told
12
STANDARD OF REVIEW
I.
This Court reviews the denial of a motion for mistrial for an abuse of
II.
State, accord the State all legitimate inferences therefrom, and consider
131 So. 3d 635, 639 (Ala. Crim. App. 2012) (internal citations omitted).
13
SUMMARY OF THE ARGUMENT
The circuit court abused its discretion in denying Mr. Blakely motion
its investigation of Trent Willis. Mr. Blakely made repeated requests for
State’s investigation of Willis. The State failed to disclose that Willis was
under investigation until right up until the point that it was Mr.
mation regarding the investigation. Willis was a critical witness for the
State, yet it failed to inform the defense that Willis was being investi-
gated for other crimes. The State’s failure here denied Mr. Blakely due
process under federal and state law. The circuit court should have or-
dered a mistrial. Because it did not, this Court must reverse Mr. Blakely’s
Additionally, the circuit court should have granted Mr. Blakely’s mo-
tion for judgment of acquittal as to Count 13. The State failed to produce
evidence demonstrating that Mr. Blakely acted with the requisite intent.
14
ARGUMENT
the State of Alabama under Brady v. Maryland, 373 U.S. 83 (1963); Gi-
glio v. United States, 405 U.S. 150 (1972); and Rule 16, Ala. R. Crim. P.,
the State learned that Trent Willis—its lynchpin witness for Count 2 of
it waited until it was almost done with Willis’ direct examination to bring
this information to the Court and the defense’s attention. Mr. Blakely
objected and moved for a mistrial on account of this Due Process and dis-
covery violation, but the circuit court denied the request. Mr. Blakely was
due a mistrial. Accordingly, this Court should reverse Mr. Blakely’s con-
15
Count 2 of Mr. Blakely’s indictment alleged that Mr. Blakely stolen
Red Brick Strategies. Testimony at trial later revealed that Red Brick
Strategies was a business that helped Mr. Blakely in his 2014 re-election
campaign for Limestone County sheriff. Red Brick Strategies was run by
Trent Willis, who, at the time of trial, was under investigation by the
asked Willis to give Mr. Blakely a signed blank check at the time that a
$7,500.00 check was tendered from the campaign to Red Brick Strategies
for its November 2014 invoice. The State had argued throughout trial
that Willis and Mr. Blakely had conspired to defraud the campaign of
this money.
Mr. Blakely repeatedly asked the State for basic discovery information
under Brady and its progeny as well as Rule 16, Ala. R. Crim. P. More
specifically, on February 24, 2020, Mr. Blakely moved for the circuit court
to require the State to turn over any information in the vein of a “reveal
16
confidential informant, has engaged in criminal activity but has not been
charged with such misconduct, (i.e., drug activities, entrapped other de-
fendants, etc.) (C. 234.) The State didn’t turn over any information of the
Instead, the State waited until Trent Willis was almost finished testi-
fying before telling the circuit court (out of the presence of the jury) that
Mr. Willis was under investigation about their office. (R. 280.) The State
that the State believed that the court needed to advise Willis of his Fifth
The State offered that it had no idea that an investigation was going
on into Willis at the time that the defense filed its February 24, 2020,
request for discovery about witnesses and uncharged conduct. (R. 280.)
The State had informed the defense that they didn’t know of any investi-
gations around that time. Id. While the defense asked the State about
news articles involving Willis and possible investigations, the State never
17
While the State claimed through another attorney in the same unit
investigation into Willis, this witness couldn’t remember who on the de-
fense team he talked to about the investigation. (R. 321.) The defense
argued that no one on the defense team knew officially that Willis was
under investigation. The defense further argued that they were entitled
Brady, Giglio, and Rule 16 placed the State of Alabama under an on-
Process required the State to turn over this powerful impeachment evi-
“In Brady, 373 U.S. at 87[, 83 S.Ct. 1194], the 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.’ A Brady violation occurs
where: (1) the prosecution suppresses evidence; (2) the evidence is
18
favorable to the defendant; and (3) material to the issues at trial.
The Supreme Court of the United States in United States v. Bagley,
473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) (plurality
opinion by Blackmun, J.), defined the standard of materiality re-
quired to show a Brady violation as follows: ‘The evidence is mate-
rial only if there is a reasonable probability that, had the evidence
been disclosed to the defense, the result of the proceeding would
have been different. A “reasonable probability” is a probability suf-
ficient to undermine confidence in the outcome.’”
Hardy v. State, 804 So. 2d 247, 285 (Ala. Crim. App. 1999) (quoting Wil-
liams v. State, 710 So. 2d 1276, 1296-97 (Ala. Crim. App. 1996)) (Internal
citations omitted).
Reynolds v. State, 236 So. 3d 189, 201 (Ala. Crim. App. 2015) (quoting
Williams v. State, 710 So. 2d 1276, 1296–97 (Ala. Crim. App. 1996)); see
also Jefferson v. State, 645 So. 2d 313, 316 (Ala. Crim. App. 1994)
So. 2d 993, 994 (Ala. 1989) (“We have further held that exculpatory evi-
closed...”)
“Peoples v. State, 951 So. 2d 755, 763 (Ala. Crim. App. 2006).”
Chambers v. State, 181 So. 3d 429, 441 (Ala. Crim. App. 2015).
The State of Alabama was under an on-going duty to inform the de-
fense about its investigation to Willis. It never did so. While the assistant
defense about the investigation, he could not recall who he talked to and
the defense’s continued protestations that they didn’t know should have
caused the circuit court to conclude that this information was not fully
over to the defense concerning its investigation into Willis. There was no
State purportedly told the defense about. Had the State lived up to its
22
investigation. Yet, no such paper trail was provided to the court—only a
bare allegation that the slightest disclosure was made to the defense.
indictment were allegations that Mr. Blakely abused his position of the
sheriff of Limestone County to steal money from his own campaign ac-
count, misuse office funds, and otherwise carryout various improper fi-
nancial activities during his time in office. With this specific allegation,
Mr. Blakely explained to the jury that Willis had told him that he was
due a refund because Red Brick Strategies had not had to spend the
Willis, on the other hand, testified that Mr. Blakely made the odd request
for Willis to return to him a signed, blank check. Willis’ credibility was
clearly in the crosshair at trial. Whether the jury believed Willis’ story or
not would determine whether Mr. Blakely would be convicted of this first-
degree theft charge. Despite knowing how critical Willis would be to its
case, the State of Alabama made no effort to ensure the fairness of the
informed the defense about the investigation. There is clear evidence that
23
the State didn’t turn over anything connected to the investigation. As
such, the circuit court abused its discretion in denying a mistrial once
“It is the State that tries a man, and it is the State that must insure
that the trial is fair.” Moore v. Illinois, 408 U.S. 786, 809–810 (1972)
(Marshall, J., concurring in part and dissenting in part). “The State's ob-
emerges.” Giles v. Maryland, 386 U.S. 66, 98 (1967) (Fortas, J., concur-
ring in judgment). The State of Alabama did not insure fairness in Mr.
Blakely’s trial. The record demonstrates that the State failed to live up
was under investigation by its office and in failing to turn over any infor-
mation in connection with its investigation. The circuit court should have
would not grant Mr. Blakely the relief to which he’s entitled, this Court
must now reverse Mr. Blakely’s convictions and remand the matter for a
new trial.
24
II. The circuit court erred in denying Mr. Blakely’s motion for
judgment of acquittal as to Count 13.
At no point did the State present legally sufficient evidence upon which
a jury could conclude that Mr. Blakely intentionally used his office for
personal gain in the form of obtaining interest-free loans from the Lime-
stone County jail inmate fund. Because the State failed to make this re-
quired showing, the circuit court should have granted a judgment of ac-
quittal as to this count. Because it didn’t, this Court must now reverse
25
462, 464 (Ala. Crim. App. 1992). ‘ “When there is legal evi-
dence from which the jury could, by fair inference, find the
defendant guilty, the trial court should submit [the case] to
the jury, and, in such a case, this court will not disturb the
trial court's decision.”’ Farrior v. State, 728 So.2d 691, 696
(Ala. Crim. App. 1998), quoting Ward v. State, 557 So. 2d 848,
850 (Ala. Crim. 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 is-
sue for decision [by] the jury.’ Ex parte Bankston, 358 So. 2d
1040, 1042 (Ala. 1978).
Gavin v. State, 891 So. 2d 907, 974 (Ala. Crim. App. 2003), cert.
denied, 891 So. 2d 998 (Ala. 2004) (quoting Ward v. State, 610 So.
2d 1190, 1191 (Ala. Crim. App. 1992) ).
Collier v. State, 293 So. 3d 961, 966 (Ala. Crim. App. 2019); see also Reid
v. State, 131 So. 3d 635, 639 (Ala. Crim. App. 2012) (“In determining the
accept as true all evidence introduced by the State, accord the State all
26
legitimate inferences therefrom, and consider all evidence in a light most
(C. 16.)
The Ethics Code subsection under which Mr. Blakely was convicted
provides:
§ 36-25-5(a). Thus, on Count 13, the State was required to prove (1) that
Mr. Blakely was a public official or public employee (2) who used or
caused to be used his official position or office (3) to obtain personal gain
(4) for himself, a family member, or a business with which he was asso-
27
The State of Alabama presented no evidence tending to show that Mr.
the jail inmate fund. If anything, the State’s evidence showed that Mr.
Blakely like many other employees at the sheriff’s office could use the
inmate fund to exchange a personal check for cash for whatever reason
cash was needed. Mr. Blakely never had cash drawn from the jail inmate
fund without presenting a check to cover the amount taken. The evidence
clearly demonstrated that no inmate was ever deprived of his money and
that no money was ever missing from the inmate fund. At worst, the ev-
the administrator of the jail inmate fund about the cashing of a check of
Mr. Blakely’s.
intent on Mr. Blakely’s part either in using his office to receive some sort
payment. The money from the inmate account was accounted for at all
times. Mr. Blakely never deprived any inmate of his or her money. As
such, the State has failed to meet its burden of presenting evidence to
28
The circuit court should have granted Mr. Blakely’s motion for a judge-
ment of acquittal on Count 13. (R. 1552.) Because it wouldn’t, this Court
29
CONCLUSION
Based on the foregoing, Mr. Blakely asks this Court to reverse his con-
viction for Count 2 and reverse and render his conviction for Count 13.
/s Robert Tuten
Robert Tuten
/s J.D. Lloyd
J.D. Lloyd
/s Nick Lough
Nick Lough
30
CERTIFICATE OF COMPLIANCE
I certify that this brief contains 6,060 words and is written in 14-point
of Rule 28(j)(1).
/s J.D. Lloyd
J.D. Lloyd
CERTIFICATE OF SERVICE
I hereby certify the foregoing was electronically filed with the Alabama
Attorney General of Alabama via email on this the 11th day of July, 2022.
/s Robert Tuten
Robert Tuten
/s J.D. Lloyd
J.D. Lloyd
/s Nick Lough
Nick Lough
31
TABLE OF OBJECTIONS
Objection Page(s)
32