CR-200904

IN THE ALABAMA COURT OF CRIMINAL APPEALS

MICHAEL ANTHONY BLAKELY,

Appellant,

v.

STATE OF ALABAMA,

Appellee.

On Appeal from the Limestone Circuit Court

Application for Rehearing

Robert B. Tuten J.D. Lloyd

Nick Lough
The Lough Firm, LLC
223 East Side Square
Huntsville, AL 35801 Attorneys for the Appellant
Office: (256) 333-1191
[email protected]
 TABLE OF CONTENTS

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

Application for Rehearing ......................................................................... 1

Statement of Facts Pursuant to Rule 40(e), Ala. R. App. P. .................... 1

Argument in Support of Application for Rehearing ................................. 2

This Court must revisit its previous opinion and grant Mr. Blakely the
relief he now seeks ................................................................................ 2

A. The circuit court abused its discretion in denying Mr. Blakely’s mo-
tion for mistrial based on the State’s failure to disclose that a State’s
witness was under investigation ..................................................... 2

B. The circuit court abused its discretion in denying Mr. Blakely’s mo-
tion for judgment of acquittal based on the State’s failure to present
sufficient evidence ............................................................................ 5

Conclusion ................................................................................................. 7

Certificate of Compliance .......................................................................... 8

Certificate of Service ................................................................................. 8

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 TABLE OF AUTHORITIES

Cases Page(s)

Brady v. Maryland, 373 U.S. 83 (1963) .................................................... 3

Ex parte Thomas, 625 So. 2d 1156 (Ala. 1993). ........................................ 4

Giglio v. United States, 405 U.S. 150 (1972) ............................................ 3

Reynolds v. State, 236 So. 3d 189 (Ala. Crim. App. 2015) ........................ 3

United States v. Bagley, 473 U.S. 667 (1985) ........................................... 3

Rules of Court

Rule 16, Ala. R. Crim. P. ........................................................................... 3

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 APPLICATION FOR REHEARING

Comes now, the Appellant, Michael Anthony Blakely, and files this his

application for rehearing of this Court’s memorandum decision in Blakely

v. State, CR-20-0904 (Ala. Crim. App. September 30, 2022).

STATEMENT OF FACTS PURSUANT TO RULE 40(e), ALA. R.

Mr. Blakely is satisfied with the facts contained in the Court of Crim-

inal Appeals’ memorandum opinion of September 30, 2022.

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 IN SUPPORT OF APPLICATION FOR REHEARING

This Court must revisit its previous opinion and grant Mr.
Blakely the relief he now seeks.

In its opinion, this Court held that the circuit court did not abuse its

discretion during Mr. Blakely’s trial proceedings in two ways. First, this

Court determined the circuit court did not abuse its discretion in denying

Mr. Blakely’s motion for a mistrial after the State failed to provide Mr.

Blakely with critical evidence regarding one of the State’s witnesses. Sec-

ondly, this Court also determined that the circuit court did not abuse its

discretion in denying Mr. Blakely’s motion for a judgment of acquittal

based on the state’s failure to present sufficient evidence to sustain Mr.

Blakely’s conviction for use of public office for personal gain. These con-

clusions were, however, in error. Therefore, this Court should withdraw

its previous opinion and reconsider Mr. Blakely’s convictions.

A. The circuit court abused its discretion in denying Mr.

Throughout the pendency of his trial, Mr. Blakely repeatedly asserted

his right to discovery under both Alabama law and the United States

Constitution. As part of those discovery requests, Mr. Blakely requested

any evidence or statements made by potential co-defendants or

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accomplices and any information regarding potential criminal activity by

any of the State’s witnesses.

Both Alabama law and the United States Constitution place an ongo-

ing duty on the State to disclose material, exculpatory evidence to a crim-

inal defendant upon request. 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.

This duty is based in the fundamental requirements of due process im-

posed by the Fifth and Fourteenth Amendments. United States v. Bagley,

473 U.S. 667, 675 (1985) (‘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 miscar-

riage of justice does not occur.”). Moreover, this duty applies regardless

of whether the evidence is material for exculpatory or impeachment pur-

poses. Reynolds v. State, 236 So. 3d 189, 201 (Ala. Crim. App. 2015).

In Mr. Blakely’s case, the State waited until it had almost finished

cross-examining a critical witness—Trent Willis—to bring up the fact

that the State was investigating Mr. Willis for other crimes. The State

waited to do so despite Mr. Blakely’s repeated requests for discovery of

such information.

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 While a mistrial is a drastic remedy, it is warranted when the error at

issue cannot be resolved by other means. Ex parte Thomas, 625 So. 2d

1156, 1157 (Ala. 1993). The State’s withholding of this information fatally

undermined the fairness of the proceedings against Mr. Blakely by deny-

ing him critical information regarding a key witness to the charges

against him. Willis’s credibility as a witness was a fundamental question

for the jury’s determination of Mr. Blakely’s guilty.

While Mr. Blakely may have known of the investigation into Willis

prior to trial, this bare knowledge did not provide Mr. Blakely with the

sort of detailed knowledge necessary to properly prepare for and chal-

lenge Willis’s credibility as a witness. This is akin to asking someone to

build a working jet and saying he has enough information because he

knows that a jet flies. The man knows what a jet is and what it does, but

not how it works—the sort of detailed and critical information needed to

build a working jet.

The impact of the State’s withholding of the information about Willis

cannot be overstated. Willis served as the key component in convicting

Mr. Blakely of the charge of first-degree theft and the State’s withholding

of critical information—information to which Mr. Blakely was entitled—

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fundamentally undermined Mr. Blakely’s trial. As a result, the circuit

court erred in denying the motion for mistrial. To correct this error, this

Court should withdraw its previous opinion and reverse Mr. Blakely’s

convictions.

B. The circuit court abused its discretion in denying Mr.

At trial, the State failed to present sufficient evidence that Mr. Blakely

had any intent—a material element—to use his public office for personal

gain. Despite this failure, the circuit court denied Mr. Blakely’s motion

for judgment of acquittal.

The State’s evidence at trial demonstrated that, like many employees,

Mr. Blakely borrowed money from the inmate fund at times. Just like

other employees, however, Mr. Blakely paid back that borrowed money

with a signed check. While Mr. Blakely, at times, had the administrator

hold the check for a period of time before cashing, all money was returned

to the inmate fund.

Nothing but supposition and fantasy allow the inference that Mr.

Blakely borrowed money from the inmate fund with any intent to benefit

himself. While the practice may be problematic and questionable, there

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was no evidence presented—circumstantial or direct—that showed Mr.

Blakely used this practice as a means to benefit himself.

Without such evidence, the State failed to present sufficient evidence

to satisfy each of the material elements of criminal use of public position

for personal gain. As a result, the circuit court’s denial of Mr. Blakely’s

motion for judgment of acquittal was in error. Therefore, this Court

should reverse its previous opinion and render Mr. Blakely’s conviction.

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 CONCLUSION

For these reasons, this Court should revisit its previous opinion and

reverse Mr. Blakely’s conviction.

Respectfully submitted, this the 28th day of October, 2022.

/s Robert Tuten
Robert Tuten

/s J.D. Lloyd
J.D. Lloyd

/s Nick Lough
Nick Lough

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 CERTIFICATE OF COMPLIANCE

I certify that this brief contains 966 words and is written in 14-point

Century Schoolbook in compliance with the requirements and limitations

of Rule 32(d)(12), Ala. R. App. P.

/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 at the address below on this the

28th day of October, 2022.

[email protected]

/s Robert Tuten
Robert Tuten

/s J.D. Lloyd
J.D. Lloyd

/s Nick Lough
Nick Lough