CR-20-0904

IN THE ALABAMA COURT OF CRIMINAL APPEALS

MICHAEL ANTHONY BLAKELY,

Appellant,

v.

STATE OF ALABAMA,

Appellee.

On Appeal from the Limestone Circuit Court

CC-19-0476

Brief of the Appellant

Robert B. Tuten J.D. Lloyd

Tuten Law Offices The Law Office of J.D. Lloyd
223 East Side Square 1914 4th Ave. N., Ste. 100
Huntsville, AL 35801 Birmingham, AL 35203
Office: (256) 536-6009 Office: (205) 538-3340
[email protected] [email protected]

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

Mr. Blakely does not request oral arguments in this matter.

i
 TABLE OF CONTENTS

Statement Regarding Oral Argument ....................................................... i

Table of Authorities ..................................................................................iii

Statement of the Case ............................................................................... 1

Statement of the Issues ............................................................................. 6

Statement of the Facts .............................................................................. 7

A. The Red Brick Strategies charge – Count 2 .................................... 7

B. The inmate fund loan charge – Count 13 ...................................... 11

Standard of Review ................................................................................. 13

Summary of the Argument ..................................................................... 14

Argument ................................................................................................. 15

I. The circuit court abused its discretion by failing to declare a mis-

trial on account of the State of Alabama’s failure to disclose to the
defense that Trent Willis, a critical State’s witness, was under in-
vestigation despite repeated requests by the defense for disclosure
of any pending investigations ........................................................ 15

II. The circuit court erred in denying Mr. Blakely’s motion for judg-
ment of acquittal as to Count 13 .................................................... 25

Conclusion ............................................................................................... 30

Certificate of Compliance ........................................................................ 31

Certificate of Service ............................................................................... 31

Table of Objections .................................................................................. 32

ii
 TABLE OF AUTHORITIES

Cases Page(s)

Brady v. Maryland, 373 U.S. 83 (1963) ........................................ 15,16,18

Collier v. State, 293 So. 3d 961 (Ala. Crim. App. 2019) ..................... 25-26

Ex parte Brown, 548 So. 2d 993 (Ala. 1989) ........................................... 21

Giglio v. United States, 405 U.S. 150 (1972) ..................................... 15,18

Giles v. Maryland, 386 U.S. 66 (1967) .................................................... 23

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.

17, 2021) ........................................................................................ 13,21-22

Kyles v. Whitley, 514 U.S. 419 (1995) ..................................................... 19

Moore v. Illinois, 408 U.S. 786 (1972) ..................................................... 23

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

United States v. Bagley, 473 U.S. 667 (1985) .................................... 19-20

Code of Alabama, 1975

§ 13A-8-3 .................................................................................................... 1

iii
§ 13A-8-4 .................................................................................................... 1

§ 13A-8-4.1 ................................................................................................. 1

§ 13A-8-5 .................................................................................................... 1

§ 36-25-5 .......................................................................................... 1,26-27

§ 36-25-27 ................................................................................................ 27

Rules of Court

Rule 16, Ala. R. Crim. P. ............................................................... 15,16,18

iv
 STATEMENT OF THE CASE

This appeal stems from allegations that the appellant, Sheriff Michael

Blakely, committed various violations of Alabama law. In August 2019,

Mr. Blakely was indicted by the Limestone Grand Jury on thirteen

counts:

Count 1: Theft of property in the second degree in violation of § 13A-

8-4;

Count 2: Theft of property in the first degree in violation of § 13A-

8-3;

Count 3: Theft of property in the second degree;

Count 4: Theft of property in the first degree;

Count 5: Theft of property in the third degree in violation of § 13A-

8-4.1;

Count 6: Theft of property in the third degree;

Count 7: Use of official position or office for personal gain in viola-

tion of § 36-25-5(a);

Count 8: Use of official position or office for personal gain;

Count 9: Theft of property in the fourth degree in violation of § 13A-

8-5;

Count 10: Use of official position or office for personal gain;

Count 11: Soliciting a thing of value from a subordinate in violation

of § 36-25-5(c);

Count 12: Use of official position or office for personal gain;

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.)

Due to these recusals, the Alabama Supreme Court appointed Hon. N.

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-

pointed former appellate judge Hon. Pamela W. Baschab to preside over

the case. (C. 295.)

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

of the State’s direct examination of Willis, the State requested a sidebar

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-

gation by the State of Alabama and needed to be informed of his rights.

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,

promises, or inducements made for their testimony in the present matter.

(C. 233.) The State acknowledged that the motions had demonstrated

structural issues in the organization of the Attorney General’s Office re-

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

this, Mr. Blakely requested that Willis be disqualified as a witness, his

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

not finished its direct examination of Willis. (R. 328; 331.)

Following the presentation of evidence, the jury found Mr. Blakely

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-

stone County Jail’s inmate fund money.

Following trial—but prior to sentencing—Mr. Blakely filed a motion

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

verdict. Id. Mr. Blakely also submitted an affidavit by the juror as an

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

circuit court dismissed the motion. (C. 454.)

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

trial. (C. 569-80; 581.)

This timely appeal followed.

5
 STATEMENT OF THE ISSUES

I. The circuit court abused its discretion by failing to declare a mis-

trial on account of the State of Alabama’s failure to disclose to

the defense that Trent Willis, a critical State’s witness, was un-

der investigation despite repeated requests by the defense for

disclosure of any pending investigations.

II. The circuit court erred in denying Mr. Blakely’s motion for judg-

ment of acquittal as to Count 13.

6
 STATEMENT OF THE FACTS

The appellant, Michael Blakely, was formerly the sheriff of Limestone

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-

fenses. In Count 2, Mr. Blakely was convicted of first-degree theft con-

nected to a check written to him by Red Brick Strategies. In Count 13,

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

the facts attendant to Counts 2 and 13.

A. The Red Brick Strategies charge – Count 2

In 2014, Mr. Blakely once again was running for re-election for the

position of sheriff of Limestone Count. A friend of Mr. Blakely, John

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-

ments and settled on an agreement in which Red Brick Strategies would

provide its campaign services for a retainer of $3,500.00 per month

7
beginning in June 2014. (R. 261, 264.) Red Brick Strategies was involved

with a number of campaigns for Republican candidates at the time. (R.

252.) Since Mr. Blakely was a Democratic candidate, they decided to en-

gage in an alternate payment structure where the campaign wouldn’t pay

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-

litical party. (R. 252.)

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,”

a campaign account associated with Mr. Blakely’s re-election efforts. (R.

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-

paign had paid Red Brick Strategies directly. (R. 274.)

Thomas Watkins took over as Mr. Blakely’s campaign treasurer in

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-

pare the campaign reporting as required by law. (R. 141.) In looking at

campaign disclosure reports from 2014, Watkins admitted that there

were no in-kind contributions listed in connection to Red Brick Strate-

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

accounts, not Mr. Blakely personally. (R. 175-176.)

John Plunk explained that he was good friends with Mr. Blakely and

likely connected Blakely to Red Brick Strategies in 2014, although he

couldn’t remember details until refresh by the State’s exhibits. (R. 396.)

At the time of trial, Plunk served as Vice-Chairman of the Alabama Eth-

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

them that refunds could be donated to charity, used to reimburse cam-

paign expenses, or could be used in connection to the office of the candi-

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-

cause Red Brick Strategies did not have to do as much work as

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

the check. Id.

B. The inmate fund loan charge – Count 13

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-

actions related to the account. (R. 442-443.)

Robinson explained that staff at the Limestone County sheriff’s office

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

check. (R. 457.) She didn’t ask him why. Id.

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

asked Robinson to hold a check written on a Thursday so he could get

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

her cash it. Id.

12
 STANDARD OF REVIEW

I.

This Court reviews the denial of a motion for mistrial for an abuse of

discretion. See Keaton v. State, No. CR-14-1570, 2021 WL 5984951, at *16

(Ala. Crim. App. Dec. 17, 2021)

II.

“In determining the sufficiency of the evidence to sustain a conviction,

a reviewing court must accept as true all evidence introduced by the

State, accord the State all legitimate inferences therefrom, and consider

all evidence in a light most favorable to the prosecution.” Reid v. State,

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

for a mistrial due to the State’s failure to disclose information regarding

its investigation of Trent Willis. Mr. Blakely made repeated requests for

discovery that would necessarily implicate information regarding the

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.

Blakely’s turn to cross-examine Willis. The State produced no infor-

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

convictions and remand for a new trial.

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.

As such, this Count should be reversed and rendered.

14
 ARGUMENT

I. The circuit court abused its discretion by failing to declare

a mistrial on account of the State of Alabama’s failure to
disclose to the defense that Trent Willis, a critical State’s
witness, was under investigation despite repeated requests
by the defense for disclosure of any pending investigations.

Mr. Blakely’s defense team repeatedly requested any information from

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.,

about any evidence or statements made by potential co-defendants or ac-

complices to the charged conduct, as well as any information about un-

charged potential wrongdoing by any witness. At some point prior to trial,

the State learned that Trent Willis—its lynchpin witness for Count 2 of

Mr. Blakely’s indictment—was under investigation by its own office, yet

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-

victions and remand for new proceedings.

15
 Count 2 of Mr. Blakely’s indictment alleged that Mr. Blakely stolen

money from his campaign account in the form of a $4,000.00 written by

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

State of Alabama. As discussed above, Willis testified that Mr. Blakely

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

the deal” request as it pertains to any informants or witnesses. (C. 233.)

In Paragraph 1(G), the defense requested the following information: “Un-

charged Misconduct: Any information showing that any witness, or

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

sorts to the defense prior to the trial.

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

had interrupted their direct examination of Willis to inform the court

that the State believed that the court needed to advise Willis of his Fifth

Amendment rights before allowing examination to proceed. (R. 278.)

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

disclosed the existence of an investigation or any information from that

investigation until it was almost time for Mr. Blakely to cross-examine

Willis about his allegations.

17
 While the State claimed through another attorney in the same unit

that it had eventually talked to someone on the defense team about an

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

to a mistrial or to having Willis’ testimony struck because the State’s ac-

tions had denied Mr. Blakely a meaningful opportunity to subpoena wit-

nesses or fully prepare a defense as it related to Willis’ allegations. (R.

329.) The court denied relief. (R. 331.)

Brady, Giglio, and Rule 16 placed the State of Alabama under an on-

going duty to disclose material, exculpatory evidence, to the defense. Due

Process required the State to turn over this powerful impeachment evi-

dence to the defense. Because the State suppressed critical information

regarding an investigation in Trent Willis, Mr. Blakely should have been

granted a mistrial when evidence of the suppression came to light at trial.

“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).

Although the constitutional duty is triggered by the potential im-

pact of favorable but undisclosed evidence, a showing of materiality
does not require demonstration by a preponderance that disclosure
of the suppressed evidence would have resulted ultimately in the
defendant's acquittal (whether based on the presence of reasonable
doubt or acceptance of an explanation for the crime that does not
inculpate the defendant).... [United States v. Bagley, 473 U.S. 667
(1985)]’s touchstone of materiality is a “reasonable probability” of a
different result, and the adjective is important. 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 wor-
thy of confidence. A “reasonable probability” of a different result is
accordingly shown when the government’s evidentiary suppression
“undermines confidence in the outcome of the trial.” Bagley, 473
U.S., at 678, 105 S.Ct., at 3381.

Kyles v. Whitley, 514 U.S. 419, 434 (1995).

The Brady rule is based on the requirement of due process. Its

purpose is not to displace the adversary system as the primary
means by which truth is uncovered, but to ensure that a
19
 miscarriage of justice does not occur. [Footnote 6] Thus, the prose-
cutor is not required to deliver his entire file to defense counsel, but
only to disclose evidence favorable to the accused that, if sup-
pressed, would deprive the defendant of a fair trial:

“For unless the omission deprived the defendant of a fair trial,

there was no constitutional violation requiring that the ver-
dict be set aside; and absent a constitutional violation, there
was no breach of the prosecutor's constitutional duty to dis-
close....

“... But to reiterate a critical point, the prosecutor will

not have violated his constitutional duty of disclosure
unless his omission is of sufficient significance to result
in the denial of the defendant's right to a fair trial.” 427
U.S., at 108, 96 S.Ct., at 2399.
---
[Footnote 6] By requiring the prosecutor to assist the defense
in making its case, the Brady rule represents a limited depar-
ture from a pure adversary model. The Court has recognized,
however, that the prosecutor's role transcends that of an ad-
versary: he “is the representative not of an ordinary party to
a controversy, but of a sovereignty ... whose interest ... in a
criminal prosecution is not that it shall win a case, but that
justice shall be done.” Berger v. United States, 295 U.S. 78, 88,
55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935). See Brady v. Mary-
land, 373 U.S., at 87–88, 83 S.Ct., at 1196–1197.

United States v. Bagley, 473 U.S. 667, 675-76 (1985).

“The same standard of materiality and due process requirements

apply whether the evidence is exculpatory or for impeachment pur-
poses. United States v. Bagley; Giglio v. United States, 405 U.S. 150,
92 S.Ct. 763, 31 L.Ed.2d 104 (1972); Ex parte Womack [, 435 So.2d
766 (Ala.1983)]. ‘When the “reliability of a given witness may well
be determinative of guilt or innocence,” nondisclosure of evidence
affecting credibility falls within the general rule.’ Giglio, 405 U.S.
at 154, 92 S.Ct. at 766 (quoting Napue v. Illinois, 360 U.S. 264, 269,
20
 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217 (1959)). In short, due process
requires the prosecution to disclose material evidence, upon request
by the defense, when that evidence would tend to exculpate the ac-
cused or to impeach the veracity of a critical state's witness.”

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)

(“[I]mpeachment evidence is favorable evidence.”); Ex parte Brown, 548

So. 2d 993, 994 (Ala. 1989) (“We have further held that exculpatory evi-

dence, regardless of its trustworthiness or admissibility, should be dis-

closed...”)

Regarding the remedy of a mistrial, this Court has stated:

“ ‘A mistrial is an extreme measure that should be

taken only when the prejudice cannot be eradicated by
instructions or other curative actions of the trial
court. Nix v. State, 370 So. 2d 1115, 1117 (Ala. Crim.
App.), cert. denied, 370 So. 2d 1119 (Ala. 1979). If an er-
ror can be effectively cured by an instruction, a mis-
trial is too drastic a remedy and is properly de-
nied. Thompson v. State, 503 So. 2d 871, 877 (Ala. Crim.
App. 1986).’

“Ex parte Lawrence, 776 So. 2d 50, 55 (Ala. 2000).

“ ‘Alabama courts have repeatedly held that a mis-

trial is a drastic remedy, to be used sparingly and only
to prevent manifest injustice. The decision whether to
grant a mistrial rests within the sound discretion of the
trial court and the court's ruling on a motion for
21
 a mistrial will not be overturned absent a manifest
abuse of that discretion.’

“Peoples v. State, 951 So. 2d 755, 763 (Ala. Crim. App. 2006).”

Chambers v. State, 181 So. 3d 429, 441 (Ala. Crim. App. 2015).

Keaton v. State, No. CR-14-1570, 2021 WL 5984951, at *16 (Ala. Crim.

App. Dec. 17, 2021)

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

attorney general stated that he ultimately talked to someone from the

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

turned over in compliance with the court’s discovery orders.

Moreover, the record is devoid of any information the State turned

over to the defense concerning its investigation into Willis. There was no

discovery provided to the defense regarding this investigation that the

State purportedly told the defense about. Had the State lived up to its

discovery obligations, there would have been a paper trail of discovery

materials turned over to the defense in connection to the Willis

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.

The State’s denial of critical information and discovery completely un-

dermined the fairness of these proceedings. At the heart of the State’s

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

amount of money they anticipated for Mr. Blakely’s re-election campaign.

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

examination of Willis. There is a real question as to whether the State

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

this violation came to light.

“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-

ligation is not to convict, but to see that, so far as possible, truth

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

to its discovery obligations in disclosing to the defense that Trent Willis

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

granted a mistrial once it learned of the State’s missteps. Because it

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.

The State of Alabama completely failed to present evidence that Mr.

Blakely intended to take interest-free loans in violation of § 36-25-5(a).

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

and render Count 13 of Mr. Blakely’s indictment.

In considering a claim challenging the sufficiency of the State’s evi-

dence, this Court recently restated the following principles:

“‘“In determining the sufficiency of the evidence to sustain a

conviction, a reviewing court must accept as true all evidence
introduced by the State, accord the State all legitimate infer-
ences therefrom, and consider all evidence in a light most fa-
vorable to the prosecution.”’ Ballenger v. State, 720 So.2d
1033, 1034 (Ala. Crim. App. 1998), quoting Faircloth v. State,
471 So. 2d 485, 488 (Ala. Crim. App. 1984), aff'd, 471 So. 2d
493 (Ala. 1985). ‘ “The test used in determining the suffi-
ciency of evidence to sustain a conviction is whether, viewing
the evidence in the light most favorable to the prosecution, a
rational finder of fact could have found the defendant guilty
beyond a reasonable doubt.” ’ Nunn v. State, 697 So.2d 497,
498 (Ala. Crim. App. 1997), quoting O'Neal v. State, 602 So.2d

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).

“‘The trial court's denial of a motion for judgment of acquittal

must be reviewed by determining whether there was legal ev-
idence before the jury at the time the motion was made from
which the jury by fair inference could find the defendant
guilty. Thomas v. State, 363 So.2d 1020 (Ala. Cr. App. 1978).
In applying this standard, this court will determine only if le-
gal evidence was presented from which the jury could have
found the defendant guilty beyond a reasonable doubt. Willis
v. State, 447 So.2d 199 (Ala. Cr. App. 1983). When the evi-
dence raises questions of fact for the jury and such evidence,
if believed, is sufficient to sustain a conviction, the denial of a
motion for judgment of acquittal does not constitute er-
ror. McConnell v. State, 429 So.2d 662 (Ala. Cr. App. 1983).’ ”

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

sufficiency of the evidence to sustain a conviction, a reviewing court must

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

favorable to the prosecution.”) (internal citations omitted).

Count 13 of Mr. Blakely’s indictments charged that Mr. Blakely:

[D]id intentionally use or cause to be used his official position or

office, to wit: the Sheriff of Limestone County, to obtain personal
gain, to wit: an interest-free loan and /or loans from a safe that held
money belonging to the Limestone County inmates, for himself, a
family member, or a business with which he is associated, and such
use and gain were not otherwise specifically authorized by law, in
violation of 36-25-5(a).

(C. 16.)

The Ethics Code subsection under which Mr. Blakely was convicted

provides:

“No public official or public employee shall use or cause to be

used his or her official position or office to obtain personal gain for
himself or herself, or family member of the public employee or fam-
ily member of the public official, or any business with which the
person is associated unless the use and gain are otherwise specifi-
cally authorized by law.”

§ 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-

ciated, and (5) that he did so intentionally. See § 36-25-27(a)(1).

27
 The State of Alabama presented no evidence tending to show that Mr.

Blakely intentionally used his office to obtain an interest-free loan from

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-

idence showed there was a miscommunication between Mr. Blakely and

the administrator of the jail inmate fund about the cashing of a check of

Mr. Blakely’s.

There was simply nothing before the jury to demonstrate a criminal

intent on Mr. Blakely’s part either in using his office to receive some sort

of gain, or an intent to receive a loan that wouldn’t require an interest

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

support each and every element of a criminal charge.

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

must now reverse and render Count 13 of Mr. Blakely’s indictment.

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

Counsel for Appellant

30
 CERTIFICATE OF COMPLIANCE

I certify that this brief contains 6,060 words and is written in 14-point

Century Schoolbook in compliance with the requirements and limitations

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

Court of Criminal Appeals and electronically served on the Office of the

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

[email protected]

31
 TABLE OF OBJECTIONS

Objection Page(s)

Denial of motion for mistrial R. 297

Denial of motion for judgment of acquittal R. 1567

32