author: COBB, Judge. BASCHAB, Judge, WISE, Judge,

text:
    Antywan Develle WILSON v. STATE of Alabama.
    CR-00-1003.
    Court of Criminal Appeals of Alabama.
    April 26, 2002.
    Rehearing Denied Sept. 20, 2002.

      Henry L. Penick, Birmingham, for appellant.
    William H. Pryor, Jr., atty. gen., and Sandra J. Stewart and Michael B. Billings-ley, asst, attys. gen., for appellee.
   COBB, Judge.

On August 7, 1998, Antywan Develle Wilson was indicted by a Jefferson County grand jury for first-degree robbery, a violation of § 13A-8-41, Ala.Code 1975, and for attempted murder, a violation of §§ 13A-4-2 and 13A-6-2, Ala.Code 1975. Wilson’s case was consolidated with that of Trumaine Arrington, who was charged with the same crimes against the same victim. On November 11, 1998, Wilson served the Jefferson County district attorney with a motion to produce or disclose any information and documents exculpatory to this case. On March 4, 2000, the district attorney responded to Wilson’s discovery request, but did not produce statements from the victim, the defendants, or witnesses. On March 15, 2000, Wilson communicated to the district attorney’s office that the production “conspicuously lacked statements from the victim, the defendants, or any witnesses.” (C. 111.) The district attorney did not produce the additional exculpatory material requested by Wilson. The case was tried on April 18, 2000, but ended in a mistrial when the jury was unable to reach a verdict.

Wilson’s second trial, also consolidated with Arrington’s, began on November 6, 2000. During this trial, Wilson made a motion for a mistrial when he discovered that the district attorney had failed to produce certain exculpatory material that indicated that three witnesses had identified someone other than Wilson and Ar-rington as the perpetrators. Although his motion for a mistrial was denied, the trial judge agreed that the evidence was exculpatory and that it should have been produced, and allowed Wilson to question Detective Cory Hardiman about the witnesses’ identifications of two other men as the perpetrators.

On November 8, 2000, Wilson was convicted of first-degree robbery and attempted murder. On January 26, 2001, Wilson was sentenced to 30 years in prison for the robbery conviction, and to 30 years in prison for the attempted-murder conviction. Those sentences were to run concurrently. Wilson filed a notice of appeal as to both convictions that same day. On February 26, 2001, Wilson filed a “motion for judgment of acquittal or in the alternative for new trial or arrest of judgment” for both convictions. (C. 80-81.) The trial court denied the motion on April 12, 2001. This appeal followed.

On January 20, 1998, between 9:00 p.m. and 11:00 p.m., Willie Hamilton was walking in the Gate City housing project in Birmingham. Hamilton was a resident of the housing project. Hamilton had with him a box of children’s clothes he was trying to sell. Hamilton approached two men and asked if they were interested in purchasing the clothes. One of the men asked to see the clothes, and then put the box in the trunk of his car. Hamilton demanded that the men either return the clothes or pay for them. One of the men, using a profane phrase, told Hamilton to go away. When Hamilton refused to leave without the clothes, the two men huddled together for a brief period, and then one of the men shot Hamilton five times.

Wilson and Arrington were apprehended within an hour of the shooting, approximately one block from the scene, driving a car matching a description of the suspects’ car. Arrington was taken into custody at that time for unrelated offenses, but Wilson was released at the scene. Wilson later went to the police station and answered additional questions. Approximately two weeks after this questioning, Wilson was taken into custody. In a pretrial photographic lineup, and in open court, Hamilton identified Wilson as the shooter and Arrington as the man who was with Wilson on the date of the incident.

On appeal, Wilson argues that the trial court erroneously denied his motion for a mistrial when the prosecutor failed to produce exculpatory evidence. Specifically, Wilson contends that he was entitled to a mistrial because, he says, the prosecutor failed to produce Detective Hardiman’s case notes that contained statements given by three witnesses,, in which the three witnesses ■ identified someone other than the defendants as the assailants. We agree.

“A mistrial is a drastic remedy that should be used sparingly and only to prevent manifest injustice.” Hammonds v. State, 111 So.2d 750, 767 (Ala.Crim.App.1999). A mistrial is the appropriate remedy .when a fundamental error in a trial vitiates its result. Levett v. State, 593 So.2d 130, 135 (Ala.Crim.App.1991). The granting of a mistrial is addressed to the broad discretion of the trial judge, and his ruling in that regard will not be reversed on appeal unless it clearly appears that the court abused its discretion. Grimsley v. State, 678 So.2d 1197, 1206 (Ala.Crim.App.1996), citing Chillous v. State, 405 So.2d 58 (Ala.Crim.App.1981).

The principles announced in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), are violated when the prosecutor suppresses material evidence favorable to the defendant. Hardy v. State, 804 So.2d 247, 285 (Ala.Crim.App.1999), aff'd, 804 So.2d 298 (Ala.2000). Evidence is material if there is a reasonable probability that the outcome of the trial would have been different if the evidence had been disclosed prior to trial. Id.

At Wilson’s first trial, Detective Hardi-man testified that three witnesses he interviewed at the scene of the shooting did- not identify anyone. Because we do not have the transcript from the first trial, it is unclear exactly what Detective Hardiman was testifying to in the first trial. The State contends that the detective was testifying that the three witnesses did not identify anyone from a photographic lineup, while Wilson contends that the statement meant they did not identify anyone at any time.

Regardless of what Detective Hardiman was testifying to in the first trial, nothing in the record before us gives any indication that his testimony should have lead a reasonable person to believe that the three witnesses had identified “B” and “Bouty Bouty” as the assailants. The first trial resulted in a hung jury, and the trial court declared a mistrial and ordered a second trial.

On November 11, 1998, Wilson, in his discovery motion, requested that the State produce any Brady material and any exculpatory evidence. On March 4, 2000, the prosecutor provided Wilson with some discovery material, but did not include any witness statements or any incident reports or notes made by investigating officers. On March 15, 2000, Wilson again requested any police reports or statements from the defendants, victim, or witnesses. Wilson did receive a police report that contained the names of the three witnesses. The prosecutor also provided a copy of the incident report to Arrington, but not to Wilson. However, nothing in the incident report offered any indication that any of the three witnesses had identified someone other than Wilson and Arrington as the perpetrators.

At Wilson’s second trial, Officer Michael Johnson testified that Hamilton indicated that the two black males who had shot and robbed him had come from a building later identified as 6822 Kimberley Avenue. Officer Johnson identified Wilson’s exhibit 1 as a standard police incident report that he had written following this incident. That report contained the following summary of statements given by witnesses and the victim:

“Officers received a call on a signal T3’ with a person shot at the listed location. Officers arrived at the scene and found the victim lying in the middle of the street. The victim was coherent and told officers that two black males exited the residence of 6822 Kimberly Ave. Victim further stated that the two black males approached him and shot him for reasons unknown. B’ham Fire and Rescue # 12 arrived on the scene. Fire and Rescue told ^officers that the victim had gunshot wounds to his left thigh and ankle; and a gunshot wound to the left side of his abdomen with an exit wound on the right side of his buttocks. The victim was transferred to University Hospital where he is listed in critical condition.
‘Witnesses stated that they were present inside the residence of 6822 Kimberly Ave. when two black males started knocking on the door of the residence. The two black males were demanding to use the phone inside of the residence. Witnesses told the two black males that they could not use the phone. The two black males left the residence and confronted the victim in the street.”

(CR. 106-08; CR. 153-55.) Officer Johnson testified that he spoke with Dalanda Bryant, Akia Julius, and Telisha Hickman, and other individuals whose names he was unable to ascertain. Bryant, Julius, and Hickman were inside the residence at 6822 Kimberly Avenue when the shooting occurred.

Officer Anthony Wallace testified that he also questioned three females at 6822 Kimberly Avenue and that he joined in Officer Johnson’s incident report. Officer Wallace stated that he went back to 6822 Kimberly Avenue approximately one hour later to obtain additional information from the three females, but there was no answer when he knocked on the door.

Detective Cory Hardiman testified that Hamilton identified Wilson as the man who shot him. Detective Hardiman also testified that Richard Shields,- another witness, identified Arrington.

During cross-examination of Detective Hardiman, the following exchange occurred:

“Mr. Penick [Wilson’s counsel]: Did you take notes when you interviewed the three ladies, Dalanda Bryant, Akia Julius and Telisha Hickman? Did you take notes when you interviewed them?
“[Detective Hardiman]: Yes, sir.
“[Mr. Penick]: Do you have those notes here with you today?
“[Detective Hardiman]: Yes,-sir.
“Mr. Penick: Could you produce those notes?
“[Detective Hardiman]: Yes, sir.
“Mr. Penick: Judge, we would ask that those notes be produced pursuant to our request for production.
“The Court: We’ll take that up later. Let’s move on.”

(R. 297.)

Detective Hardiman testified that three witnesses told him “B” and “Bouty Bouty” from Bessemer were involved in the shooting. Hamilton told him “Coon Dog” was involved, and another person told him “Twan” was involved. Detective Hardi-man was unable to locate anyone who went by the street names “B” or “Bouty Bouty.”

“The names that I was given, Coon Dog and Twan, I followed up and was given the names of individuals that went by those street names. The names of B and Bouty Bouty, I was never able to find anybody who said they knew those two people, let alone what their names were. The names I was given belonging to Coon Dog and Twan, I identified as being one of the two defendant, or I did a lineup and showed Mr. Hamilton.”

(R. 307.) Detective Hardiman later stated that it could have been another police officer who told him about “Twan.”

The trial court then excused the jury, and the following exchange occurred:

“The Court: Mr. Penick, what is it about the notes you wanted?
“Mr. Penick: Judge, we sent a request for production in this case, the standard request, and asked that they produce all written records and notes that might be exculpatory in this case, certainly exculpatory relating to Mr. Wilson. And if Detective Hardiman interviewed witnesses, and he was writing down what they said, and taking notes of their statements, and those two or three people told him that the shooter, or the guys involved in the shooting were B and Bouty Bouty, we should have had access to that as part of our discovery. That definitely would be exculpatory. “The Court: Let’s look and see what the notes say. Do you have those notes?
“The Court: I read hers. No, I didn’t. Let’s see. I don’t see anything in those notes that’s not already in front of this jury. You are welcome to look at them.”

(R. 313-15.)

According to the notes, on the night of the shooting, Dalanda Bryant made the following statement:

“The two people at her house were ‘B’ and ‘Bowdy Bowdy’ from Bessemer. They were driving a burgundy Grand Prix. As they were leaving her house the [victim] was walking up. They had been at the house twenty minutes.”

(CR.104.) Telisha Hickman gave the following statement:

“The guy who walked up [was] trying to sell something. That guy was shot. ‘B’ shot him. Bowdy-Bowdy was just looking. Bowdy-Bowdy drove. They took clothes from the man as they left.”

(CR.104.) Detective Hardiman’s notes indicate that Akia Julius was upstairs looking out the window when the men left the apartment, and she gave the following statement:

“‘B’ and ‘Bowdy-Bowdy’ were at the house for about 20 minutes. The man approached them as they walked out the door. The man was acting smart with them. On the way downstairs she heard the gunshots. They drove away in a burgundy ear.”

(CR.104.)

The in camera discussion continued after the trial judge reviewed Detective Har-diman’s notes.

“Mr. Spencer [Arrington’s counsel]: Judge, we made a discovery request as well some time ago, and the only thing we got was information regarding the photo lineups, which we talked about.
“The Court: Let me ask you this. You got that police report with those three names in it; didn’t you?
“Mr. Penick: Those three ladies’ names, yes.
“The Court: That’s the three ladies that’s contained in the notes.
“Mr. Penick: Your Honor,—
“The Court: Let me finish. We’ve been through this once, a trial, none of those three ladies came in and testified and identified anybody. As far as I know, neither side has subpoenaed them. According to the records, neither side has subpoenaed them. I assume you’ve known since the first trial that these ladies haven’t identified this defendant. Now, it’s come out that they say some persons by the name of B and Bouty Bouty did the shooting. Have you subpoenaed any of those three ladies, Mr. Spencer, Mr. Penick?
“Mr. Penick: Yes.
“The Court: Do you intend to call them, ask them and put them on the witness stand?
“Mr. Penick: If we can get them here, Judge, we will.
“The Court: You’ve known since the first trial these three women haven’t identified these defendants, right?
“Mr. Penick: No.
“The Court: Well, their names are on there. They didn’t testify in the first trial. It’s pretty obvious to me that you had to know they have not identified these defendants or they would be on the witness stand, or else they are unable—
“Mr. Peniek: Well, Judge, I think they are unable.
“The Court: I don’t know if they are or not. I’m just saying I don’t think there is anything in those notes that hasn’t already come out in front of this jury. “Mr. Peniek: Judge, let me say this.
“The Court: Make them a copy of those notes, [Bailiff], and give them a copy of those notes that deals with those three people. I’ll let you ask Mr. Hardiman anything you want to that you haven’t already asked him.
“Mr. Peniek: I want to say on the record, Judge, that those witnesses certainly are no longer at 6822 Kimberly Avenue where they were.
“Mr. Peniek: Just so my representation to the Court will be entirely correct, yes, sir, I did talk to Dalanda Smith — her name is Smith instead of Bryant. That’s another reason we couldn’t find her.
“Mr. Peniek: So yeah, Judge, I talked to Dalanda Smith and we are trying to get her here to trial. That’s all I can say. “The Court: Well, I don’t see anything exculpatory there that you didn’t already know.
“Mr. Peniek: I would like to see what it says.
“The Court: We are going to give it to you and you can certainly ask Detective Hardiman anything you want. I’m telling you, that information you’ve already asked him about, the jury has already heard that, but you can ask him as many times as you want to.
“The Court: Give Detective Hardiman his original notes and give Mr. Peniek and Mr. Spencer a copy of those notes, please. We’ll give you a moment to look over those. Have you seen them, Mr. Felton?
“Mr. Felton: No, sir.
“The Court: You can look at the originals since we’ve given them back to Mr. Hardiman.
“Mr. Felton: I know what they said based on the summary I gave to them, so.
“The Court: Based on the summary, what do you mean ‘the summary’?
“Mr. Felton: Detective Hardiman was kind enough to give us a summary of everybody he talked to, and I gave it to the defense attorneys.
“Mr. Peniek: I don’t think we have a summary, do we?
“Mr. Felton: You should have it. I guess now he’s saying he lost it.
“Mr. Peniek: No. Judge, we’ve got a list of everything he gave us, and I don’t see anything about a summary on it. This is under the signature of Mr. Brad Fel-ton, Your Honor.
“Mr. Felton: I don’t want that.
“Mr. Peniek: I’ll show it to His Honor, then.
“The Court: Let me see it.
“(Documents passed.)
“Mr. Peniek: While we are at it, Judge, let me show you a couple of other letters. That’s a list of what he produced. I would like to have these two letters marked as exhibits in the trial.
“The Court: Have you looked at these, Mr. Felton?
“Mr. Felton: Yes, sir. I sent them.
“The Court: Do you wish to look at them is what I’m asking?
“Mr. Felton: No, sir.
“The Court: Well, I don’t see in your list of discovery provided any summaries of anything. The only thing listed is 19 items, and every one of them basically says copy of photographic lineups or admonitions about lineups. There is nothing — there is a copy of the Birmingham Police Department Miranda rights form signed by Trumaine Arrington and Antywan Wilson, and a copy of the Birmingham Police Department incident offense report, three pages, in your letter dated March 20, 1999. That’s the only thing listed by you as those items furnished to the defendants.
“Then we have a letter from Mr. Pen-ick dated March 15, 2000 apparently in response — , well, his letter is dated prior to your letter.
“Mr. Spencer: One is my request that Mr. Felton responded to and sent the basic photo lineup information that I think Mr. Penick has.
“The Court: Right. The first letter is addressed to Mr. Spencer. Then there is a letter dated March 15th from Mr. Penick, apparently, I guess, in response to something sent to you. Did you get a letter similar to this, Mr. Penick?
“Mr. Penick: Yeah. I got a letter itemizing what was being sent.
“The Court: Let me see your letter that you got.
“Mr. Penick: March 4. It’s the same letter.
“The Court: Well, it appears to be basically the same letter except it lists 18 instead of 19 like Mr. Spencer’s. The only thing missing from yours is apparently the Birmingham police report incident offense report of three pages. So the letters are the same.
“Then we have a letter from Mr. Pen-ick back to Mr. Felton saying the response didn’t include any statements from the victim, the defendants or any witnesses to this case. ‘Please review your file and provide copies of all statements, requests 3, 4, and 11, as well as any police reports, request 9, and any other documents or photographs which you intend to use at trial.’
“Then we have a letter back from Mr. Felton basically saying, Please come see me. I don’t know whether either of you went to see him or not.
“Mr. Felton: I met with Mr. Spencer, I know. I’ve tried to meet with Mr. Pen-ick before and he never comes to my office. I know I met with Mr. Spencer and showed him my whole file and everything we had, which I do on every case.
“The Court: Is that true, Mr. Spencer? “Mr. Spencer: Judge, I don’t recall hearing about these notes from Detective Hardiman. Now, what I have in my file is regarding the photo lineups and police reports. In actuality regarding the questioning earlier about the leads, that was based on the information from his background.
“The Court: I mean obviously they are exculpatory because they say somebody else did the shooting, whoever B and Bouty Bouty happen to be, and they should have been disclosed to the defendant. However, that information is before this jury.
“The Court: Your letters certainly don’t indicate that that information was turned over to them because your letter simply lists the photographic lineups, the admonitions that were signed by the witnesses that did the identification, or were shown to, and on one letter you indicate a three-page incident offense report was provided, and that’s it. Now, I have to assume from that that it was not provided.
“The Court: Haven’t you got the best of both worlds at this point, Mr. Penick and Mr. Spencer? You’ve gotten out that these people identified B and Bouty Bouty as the people that did the shooting, but yet you don’t have to have them up here to be cross-examined by the state? Don’t you have the best of both worlds at this point?
“Mr. Penick: I will say this, Judge. I only learned about the B and Bouty Bouty thing today.
“The Court: You didn’t answer my question, though. Don’t you—
“Mr. Spencer: I don’t know if that’s the best of both worlds or not, Your Honor. I think — it’s whose perspective you are in and the outcome of this case.
“The Court: What do y’all expect me to do? What are you asking me to do? “Mr. Spencer: Well, if the Court so finds that the information is — if the Court deems that as exculpatory, then I would ask the Court — and that information wasn’t provided as it should have been, then I would ask the Court to dismiss this case.
“The Court: That is not going to happen.
“Mr. Penick: We would ask the Court for a mistral then.”

(R. 315-24.)

The trial court took a recess to read caselaw on the subject. After the recess, the following occurred:

“The Court: [C. Gamble, McElroy’s Alabama Evidence § 290.05(1)] says that in order to be reversible error it must appear that the defense, first of all, made a request for the undisclosed evidence. I assume that’s been done. Is there any dispute about that, Mr. Fel-ton?
“Mr. Felton: I don’t remember what they requested. I made available my file.
“The Court: I assume they asked for any exculpatory evidence in their discovery request. Whether they — Roman Numeral II, Brady material, any and all material which is in the possession of or known to the prosecution, police or governmental agency which would negate the charge against the defendant, lead to a reasonable doubt, etc. and it goes on and on and lists a whole string of things considered exculpatory. So it’s apparent they made the request.
“ ‘The evidence suppressed must have been material, probative, vital and exculpatory to the accused.’
“The fact that two witnesses have identified someone other than the accused in this case as being the perpetrators is obviously exculpatory. I don’t know how you could view it in any other way.
“Then the next element is that if the evidence undisclosed could have in any reasonable likelihood have affected the judgment of the jury — •that’s citing Brady v. Maryland — and that has to be evaluated in the light of the entire record.
“So it’s reversible error for me — you know, if there is a conviction in this case, it’s very likely it could be held to be reversible error.
“The only question I have is whether having this information in advance would have substantially affected the judgment of the jury in this case. I’m not sure that it would. The jury has already heard testimony that these two people were at least identified by three witnesses as the perpetrators. They’ve heard that evidence.
“I’m going to allow the defendants to cross-examine Detective Hardiman about those notes he was given because I think not to do so puts me in a position of having to declare a mistrial, quite frankly.
“The Court: My question is if Mr. Fel-ton didn’t tell you about it, how did you find out about it because you certainly were aware of it — or at least Mr. Penick did.
“Mr. Penick: I’m saying I learned about that an hour before I asked the detective that information. I learned that from talking to Ms. Smith. Her name is not Dalanda Bryant, as it shows on all the paperwork I had, or that I had gotten from whatever source.
“Only thing I’m saying is, we didn’t know anything about B and Bouty Bouty until one hour ago. This is the second trial and we are halfway through the second trial.
“My letter to Mr. Felton was to try and clear up that because it was so obvious that we had no statements from any of the witnesses.
“The Court: Mr. Felton, even though you feel like you may have given this information to them, it would seem to me — I don’t remember any of this information coming up in the first trial— about B or Bouty Bouty, which would tend to corroborate what Mr. Penick says that he only learned of it a very, very short time ago. Otherwise, I’m sure as good a lawyer as Mr. Penick is, he would be up here jumping up and down wanting to know, you know, where are these notes and why haven’t I been given them before now.
“I’m not — the issue, and you have to understand the caselaw in this case, is very explicit. The subjective intent of the prosecutor is irrelevant, whether it was intentional or unintentional, an honest mistake or an oversight is irrelevant under the caselaw. In fact, they specifically say that the prosecutor — the prosecutor’s subjective intent is irrelevant, if I can find it real quick.
“ ‘A conviction obtained when such evidence has been suppressed is to be overturned irrespective of the good or bad faith of the prosecution as long as the evidence was exculpatory to the accused. It has been said that the question of whether the defendant’s rights protected by due process are violated by denial of the accused’s motion for pretrial production of the prosecutor’s evidence should be determined in camera by the court.’ Which I’ve done. It is exculpatory in my opinion. I don’t know how you can get around that.
“The Court: But the term ‘B’ and ‘Bouty Bouty’ never came up in the first trial. I do recall that.
“Here’s what I am going to do. I’m going to deny your motion for a mistrial. I’m going to allow you to cross-examine Detective Hardiman about these notes and what-these witness — who they identified. I still have the power to grant a new trial if there is a conviction this case. I will rule on that at the appropriate time.
“Mr. Felton: That’s not the summary I’m talking about. I’m talking about the summary he has on the very front. There’s an investigative report that Detective Hardiman wrote down that I gave to Mr. Spencer. It’s right here. “The Court: I’m just looking at the summary of what the three witnesses said.
“Mr. Felton: This is what I have in my file and this is what I showed to Mr. Spencer.
“(Documents passed to the Court.)
“The Court: Well, you see, this says that three Usted witnesses — I assume that’s the three people on the police report — were in the residence at 6822 Kimberly Avenue at the time of the shooting. They stated that the two people that had left the apartment were B and Bouty Bouty.
“That’s a far cry from what they say in there. They say B pulled the gun and shot the man. One of them says Bouty Bouty took the clothes and ran. That’s a far cry from saying they came out of an apartment. That’s a whole different ballgame.
“Here is what these witnesses say in Detective Hardiman’s notes is that B and/or Bouty, are the ones, or the two people that shot the man.
“Mr. Felton: That’s what I thought they said.
“The Court: That’s not what is in the summary. If you want to look at it, you step right up here and look at it all you want, because it’s not in there. There is a big difference.
“Mr. Penick: May I look at it, Judge?
“The Court: Yes. You may, I guess, since we are all looking at it. It’s on the second page. I can take you to several cases including a capital murder case tried in this circuit where [a prosecutor] didn’t disclose such information and the Supreme Court of this state reversed the case. Said it should have been given.
“Mr. Felton: That’s what I thought that they said and that’s why—
“The Court: That’s not what it says. I want you to look at it and you make your own determination. From what I read, it just says they came out of the apartment. It doesn’t say anything about them doing the shooting.
“The Court: All right. We are going to do what I said we were going to do to begin with. I’m going to allow you to cross-examine Detective Hardiman about it. I’m going to overrule your request for a mistrial.”

(R. 326-36.) The jury was brought back in, and Wilson continued to cross-examine Detective Hardiman.

It is undisputed that the prosecutor did not disclose Detective Hardiman’s notes to Wilson until after the second trial had begun. There is no question, as the trial judge recognized, that testimony from three eyewitnesses, indicating that someone other than Wilson had committed the crimes, would have been favorable to Wilson and material to the defense. The trial judge determined that the State should have produced Detective Hardiman’s notes, and ordered that a copy be furnished to Wilson.

In denying Wilson’s motion for a mistrial, the trial judge stated that it was apparent that Wilson made the discovery request and that the evidence was “obviously exculpatory.” (R. 325.) The trial judge correctly noted that exculpatory evidence was not provided to Wilson and that, if he had not allowed Wilson to elicit testimony from Detective Hardiman that would have otherwise been inadmissible hearsay, a mistrial would have been the appropriate remedy. In allowing Wilson to question Detective Hardiman about the three witnesses’ identifications of “B” and “Bouty Bouty” as the perpetrators, the trial judge fashioned the remedy he felt best cured the prosecution’s failure to timely produce the evidence. Rule 16.2, Ala. R.Crim. P., provides the trial court the discretion to fashion a remedy he feels best suited to cure the failure to produce.

The corrective action taken by the trial court was to allow Wilson to elicit otherwise inadmissible hearsay testimony that the three witnesses had implicated “B” and “Bouty Bouty” as being involved in the robbery and shooting, and not Wilson or Arrington.

However, the prosecutor then was allowed, on redirect examination, to question Detective Hardiman about the fact that one of the witnesses had recanted her statement.

“[Mr. Felton]: Well, did they change their stories?
“[Detective Hardiman]: One of them did, yes, sir.
“[Mr. Felton]: And the other two said they didn’t see the shooting?
“[Detective Hardiman]: No, sir. They said they did not see the shooting.
“Mr. Penick: Objection to the hearsay part.
“The Court: Overruled. If we’re going to let it in, we’re going to let it all in.
“[Mr. Felton]: So one person first said they saw the shooting and then recanted that statement to you and said they didn’t see the shooting, right?
“[Detective Hardiman]: Yes, sir.
“[Mr. Felton]: And the other two said they didn’t see it at all?
“[Detective Hardiman]: Yes, sir.”

(R. 339.)

Thus, the trial court’s corrective action, though well-intentioned, was inadequate in that it did not have the effect of correcting the prosecutor’s failure to produce the exculpatory evidence.

This Court, in Jefferson v. State, 645 So.2d 313 (Ala.Crim.App.1994), stated that “ ‘the existence of any small piece of evidence favorable to the defense may, in a particular case, create just the doubt that prevents the jury from returning a verdict of guilty.’ ” Jefferson v. State, 645 So.2d at 316-17(quoting United States v. Bagley, 473 U.S. 667, 692-93, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)(Marshall, J., dissenting)). Had Wilson known of the content of Detective Hardiman’s notes, he would certainly have made a greater attempt to locate the three witnesses and secure their testimony for trial.

Wilson was able to locate one of the witnesses, Dalanda Smith, who testified at the second trial that, on the night of the shooting, “B” and “Bouty Bouty” had been at her house. She testified that after “B” and “Bouty Bouty” left, she looked out the window and saw them arguing with Hamilton, and then she looked away. When she heard the gunshots, she looked out the door and saw “B” and “Bouty Bouty” driving away in a burgundy Grand Prix automobile. She saw Hamilton lying on the ground. She testified that she went by the name Dalanda Byrum at the time of the incident.

We find it important to note that although Wilson was able to get Dalanda Smith to testify, she did not actually see the shooting. Hickman, the only witness who saw the shooting, apparently later recanted her statement. The State was allowed to present that fact over Wilson’s objection. Thus, the evidence before the jury was that Hamilton had identified Wilson and Arrington from photographic lineups. Shields identified Arrington, but testified that he picked him only because he was asked if he “recognized” anyone in the lineup, not if he saw anyone in the lineup who was involved in the offense. Hickman gave a statement to the police that “B” shot Hamilton, that “Bouty Bouty” took the clothes, and “B” and “Bouty Bouty” then left in a burgundy Grand Prix. Julius gave a statement to the police that “B” and “Bouty Bouty” from Bessemer left the apartment and were talking to Hamilton immediately before the shooting. As she walked downstairs, she heard the gunshots, looked out the window, and saw “B” and “Bouty Bouty” driving away. Smith’s statement to the police and her testimony was that “B” and “Bouty Bouty” left the apartment immediately before the shooting and that they fled in a burgundy Grand Prix. Wilson and Arrington denied any involvement.

We note that, based on their statements, the testimony of these three witnesses would not have been cumulative, as each of them observed different details about the confrontation and alleged getaway car.

While we cannot state with certainty that Wilson would have been acquitted if the other two witnesses had testified and been subjected to cross-examination, that is not for this Court to decide. “ ‘The credibility of witnesses and the weight or probative force of testimony is for the jury to judge and determine.’ ” Daniels v. State, 762 So.2d 864, 866 (Ala.Crim.App.1999) (quoting Zumbado v. State, 615 So.2d 1223, 1241 (Ala.Crim.App.1993)). The fact remains that, because the prosecution failed to produce Detective Hardiman’s notes before trial, Wilson was not afforded the opportunity to present a full and complete defense.

The State, in its brief, points out that the three witnesses were listed on the police report, and that Wilson had had ample time to locate them if he planned to present their testimony at trial. Based on our review of the record, we cannot say that Wilson did, in fact, even know the correct names of two of the three witnesses, since the police report apparently lists incorrect names for two of the witnesses. These are two of the three witnesses who identified “B” and “Bouty Bouty” as being involved, and not Wilson or Arrington, including the one eyewitness other than the victim who said she saw the actual shooting. Additionally, because Wilson did not know the substance of their testimony, he had no reason to expend the time or resources to locate them.

Any benefit Wilson received from his cross-examination of Detective Hardiman was negated by the prosecutor’s redirect examination where he elicited testimony that Hickman had recanted her statement. Because of the prosecutor’s failure to produce the statements in a timely fashion, Wilson was deprived of the opportunity to locate Hickman, and question her about what she observed, her statements to the police, and her reasons, if any, for the conflicting statements. This Court cannot even ascertain whether her name is Hickman, as the police incident report lists, or Hinkley, as the prosecutor referenced while he was questioning Dalanda Smith.

For better or for worse, Wilson was denied the opportunity to properly locate, prepare, and present three witnesses who told police, the night of the shooting, that they saw “B” and “Bouty Bouty” confronting Hamilton. Wilson was denied the opportunity to pursue those witnesses who would best suit his version of the facts, and the jury was deprived of the opportunity to render its verdict based upon the complete evidence. In light of the fact that the first trial ended in a hung jury, there is a reasonable probability that the additional witnesses would have swayed the jury so that it might have acquitted him. Because of the facts and circumstances presented in the record and because the prosecutor failed to produce the notes, we cannot say that Wilson received a fair trial. Therefore, we hold that the trial judge’s corrective action, though well-intentioned, was not sufficient to cure the error caused by the prosecutor’s failure to provide material exculpatory evidence, i.e., Detective Hardiman’s notes, to the defendant. Therefore, we have no alternative but to remand this cause for a new trial.

Because we are reversing Wilson’s convictions, we need not address the remaining issues he raised on appeal.

For the above-stated reasons, Wilson’s convictions for robbery and attempted murder are reversed and this cause is remanded with directions for the trial court to conduct a new trial.

REVERSED AND REMANDED.

McMILLAN, P.J., and SHAW, J., concur. BASCHAB and WISE, JJ., dissent, with opinions.

BASCHAB, Judge,

dissenting.

Under the specific facts of this case, I believe that error, if any, in the State’s nondisclosure was harmless. Therefore, I respectfully dissent.

WISE, Judge,

dissenting.

I dissent from the majority opinion reversing Wilson’s attempted-murder and robbery convictions on the ground that the State failed to produce Detective Hardi-man’s notes before trial. Although I do not condone the State’s failure to comply with court-ordered discovery, not every discovery violation requires a new trial. “Rule 16.5 [Ala.R.Crim.P.] ‘gives a trial judge a number of options to consider in imposing sanctions on a party who has failed to comply with the court’s discovery order.’ ” Pettway v. State, 607 So.2d 325, 330 (Ala.Crim.App.1992) (quoting Clifton v. State, 545 So.2d 173, 178 (Ala.Crim.App.1988)). As this Court stated in McCrory v. State, 505 So.2d 1272, 1279 (Ala.Crim.App.1986):

“The imposition of sanctions upon noncompliance with a court’s discovery order is within the sound discretion of the court. United States v. Koopmans, 757 F.2d 901, 906 (7th Cir.1985); United States v. Saitta, 443 F.2d 830, 831 (5th Cir.1971); Hansen v. United States, 393 F.2d 763, 770 (8th Cir.1968). Moreover, the trial court should not impose a sanction which is harsher than necessary to accomplish the goals of the discovery rules. United States v. Gee, 695 F.2d 1165, 1169 (9th Cir.1983).”

Accord Wilson v. State, 777 So.2d 856, 918 (Ala.Crim.App.1999), aff'd, 777 So.2d 935 (Ala.2000).

Based upon my review of the record, it appears that the nondisclosed evidence, i.e., the fact that three witnesses had identified two men other than Wilson and his cohort Arrington as the persons who shot Hamilton, had already been put before the jury, even before the contents of Detective Hardiman’s notes were made known to the court. After the existence of the notes was disclosed, the court determined that by failing to disclose the notes, the State had, in fact, violated the court’s discovery order. However, the court determined that an appropriate remedy would be to allow Wilson to introduce the substance of Hardiman’s notes to the jury, despite the fact that the notes constituted uncorroborated, untested hearsay evidence that three unavailable witnesses had identified two other men as Hamilton’s assailants. In my opinion, the circuit court did not abuse its discretion in fashioning what it determined was an appropriate remedy for the State’s nondisclosure of exculpatory evidence.

Moreover, after reviewing the record, I believe that any error in the State’s failure to disclose Detective Hardiman’s notes constituted nothing more than harmless error. Rule 45, AIa.R.App.P., states in pertinent part:

“No judgment may be reversed or set aside, nor new trial granted in any ... criminal case on the ground of ... the improper admission or rejection of evidence ... unless in the opinion of the court to which the appeal is taken or application is made, after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties.”

I do not agree with the majority’s conclusion that the State’s failure to disclose these notes deprived Wilson of the opportunity to present a full and complete defense because it denied him the opportunity to present the testimony of the unavailable witnesses. At the time of Wilson’s second trial, neither the State nor Wilson was able to locate more than one of the three witnesses interviewed by Hardiman. Thus, there is no guarantee that yet another trial would allow Wilson to locate these witnesses. Here, the jury had the opportunity to hear the testimony of Dalanda Smith, the only one of the three witnesses that either party was able to locate. Ms. Smith testified that on the night Hamilton was shot, she heard gunshots, looked outside her window, and saw “B” and “Bouty Bouty” driving away from where Hamilton lay on the ground. The jury also had the opportunity to hear Hamilton testify that Wilson had shot him. Additionally, other witnesses pointed out the automobile carrying Hamilton’s assailants as it sped away from the scene. Police followed the car from the scene and, upon stopping it, discovered Wilson inside. I do not believe that Detective Hardiman’s notes were material, nor do I believe that it is reasonably probable that the outcome of the trial would have been different had the evidence been disclosed to the defense. See Minnis v. State, 690 So.2d 521, 527 (Ala.Crim.App.1996) (citing Kinder v. State, 515 So.2d 55, 64 (Ala.Crim.App.1986)). Accordingly, I would affirm Wilson’s conviction.

      . Wilson's codefendant, Trumaine Arrington, was also convicted of first-degree robbery and attempted murder. Arrington was sentenced to 30 years' imprisonment in each case, with the sentences to run concurrently.

      . The night of the shooting, three witnesses gave statements to the police that individuals named "B" and "Bouty Bouty'' from Bessemer had robbed and shot Hamilton. Wilson and Arrington do not go by the names "B” or "Bouty Bouty.” This nickname was also spelled “Boudy-Boudy” and "Bowdy-Bow-dy” in the police reports and the trial transcript. Because we are unsure which is the correct spelling of the nickname, this Court has adopted the trial court reporter's version "Bouty Bouty,” except for those instances where we have quoted from a police report that spelled the name differently.

      . This three-page Incident/Offense Report was provided to Arrington on March 25, 1999, but apparently was never provided to Wilson.

      . Shields testified as a witness for the trial court. Shields testified that he did not identify Arrington as being involved in the incident. Rather, according to Shields, he knew Arring-ton from the community, and picked him because Detective Hardiman asked "do you know anybody in this lineup?” (R. 217.) Shields testified that he was never asked if he saw anyone in the lineup who was involved in the shooting.

      . Hamilton testified that he knew Arrington as "Coon Dog.” The record does not indicate who "Twan” is, but the implication is that "Twan” is Wilson's nickname or street name.

      . In addition to this statement, Detective Har-diman's notes indicate that, on the following day, Hickman gave a second statement to the effect that she did not see the shooting, and did not know who shot Hamilton. In this second statement, Hickman said that she knew B and Bouty Bouty were in the group of boys outside when the shooting occurred.

      . There was conflicting evidence presented at trial as to whether the automobile used in the robbery and shooting was a Grand Prix or a Ford Thunderbird.

      . “Telisa” Hickman is listed on the police report, rather than Telisha Hinkley, as the prosecutor and Smith referred to her at trial. Also, Dalanda "Bryan” is listed on the report. Smith testified that she went by Dalanda By-rum at the time of the shooting. Smith is also referred to in the record as Dalanda "Bryant.”


source: Caselaw Access Project

author: MOORE, Chief Justice. LYONS, Justice JOHNSTONE, Justice

license: Public Domain

text:
    Ex parte State of Alabama. (In re Antywan Develle WILSON v. STATE of Alabama).
    1020014.
    Supreme Court of Alabama.
    June 13, 2003.

      William H. Pryor, Jr., atty. gen., and Michael B. Billingsley, asst. atty. gen., for petitioner.
    Henry L. Penick of Penick & Associates, P.C., Birmingham, for respondent.
   MOORE, Chief Justice.

The State petitioned for a writ of certio-rari to challenge the Court of Criminal Appeals’ reversal of Antywan Develle Wilson’s convictions for first-degree robbery and attempted murder based on an alleged discovery violation by the State. Wilson v. State, 874 So.2d 1131 (Ala.Crim.App.2002). We granted the petition to determine whether the State’s failure to disclose potentially exculpatory evidence constitutes reversible error. We reverse and remand.

I. Facts

On January 20, 1998, between 9:00 p.m. and 11:00 p.m., Willie Hamilton was walking in the Gate City housing project where he lived. Hamilton was carrying a box of children’s clothes he was trying to sell. Hamilton approached two men who had just emerged from the apartment building at 6822 Kimberly Avenue and asked if they were interested in purchasing the. clothes. One of the men asked to see the clothes, took the box, and put it in the trunk of his car. Hamilton demanded that the men either pay for the clothes or give him back the box. The men told Hamilton to go away, and when he refused, the two men huddled together for a brief period. One of the men then pulled a gun and shot Hamilton five times. The two men jumped in a car and sped away.

Antywan Wilson and Trumane Arring-ton were picked up within an hour of the shooting approximately one block from the scene of the shooting, driving a car matching a description a witness had given of the suspects’ car. In a pretrial photographic lineup, and again at trial, Hamilton identified Wilson as the shooter and Ar-rington as the man who was with Wilson on the day of the shooting. A grand jury indicted Wilson for robbery and attempted murder on August 7, 1998, and his case was consolidated with Arrington’s case, who was charged with the same offenses against the same victim.

On November 11, 1998, Wilson served the Jefferson County district attorney with a motion to produce or disclose any information and documents exculpatory to his case. On March 4, 2000, the district attorney responded to Wilson’s request with a number of documents, including a police report that contained the names of the three witnesses to the shooting. The prosecution provided Arrington’s counsel with a copy of the incident report as well, but did not provide the report to Wilson. However, the district attorney’s response did not include statements from the victim, defendants, or witnesses. Wilson’s counsel wrote the prosecution requesting additional information; he received no new information in response to that inquiry.

The case went to trial on April 18, 2000; it ended in a mistrial when the jury was unable to reach a verdict. Wilson’s second trial, also consolidated with Arrington’s, began on November 6, 2000. Hamilton again identified Wilson as the man who had shot him, stating that he was “sure” it was Wilson because “I was looking dead at him when he shot me.”

Wilson’s counsel asked the investigating officer, Detective Corey Hardiman, if he had interviewed the three witnesses listed in the police report: Dalanda Smith, Akia Julius, and Telisa Hickman. The report listed Smith’s address as the apartment at 6822 Kimberly Avenue in Birmingham, approximately the same location as the shooting. Det. Hardiman testified that he had interviewed the witnesses and that he had taken notes of the interviews. Wilson’s attorney then moved to have those notes made available to the defense. Under further questioning from Wilson’s counsel, Det. Hardiman testified that the three witnesses had identified two men named “B” and “Bouty Bouty” as the perpetrators of the shooting. Det. Hardi-man testified that he attempted to track down those individuals but that he was unable to do so because the names given by the .witnesses were nicknames.

After the examination of Det. Hardiman, Wilson’s counsel argued that Det. Hardi-man’s notes of the interviews constituted exculpatory evidence and, therefore, that the notes should have been disclosed to the defense before trial. Subsequently, both Wilson and Arrington moved for a mistrial based on the prosecution’s failure to timely disclose allegedly exculpatory evidence. The trial court denied the motion. The trial court ruled that the evidence was exculpatory, but in an effort to avoid a mistrial and to ensure that the failure to disclose the evidence would not affect the jury’s judgnient, he permitted the defendants to cross-examine Det. Hardiman about the contents of his notes. Following that examination, the defense also put one of the witnesses, Dalanda Smith, on the stand and questioned her about, her recollection of the robbery/attempted murder.

At the conclusion of the trial, Wilson and Arrington made a motion for a new trial based upon the State’s failure to disclose allegedly exculpatory evidence. The trial court ruled:

“I deny the motion for new trial and make the following finding of facts:
“First of all, the three witnesses who are at issue here, the names were provided to the defendant before the first trial.
“At the trial of this case the detective was allowed to testify about their failure to identify anybody from the lineups presented to them. I’m not sure that it’s exculpatory information. Even if it is — let’s say that it is exculpatory information for purposes of this motion, the witnesses’ names were provided to the defendants well before the trial of this case. In fact, they were provided before the first trial which ended in a mistrial or hung jury. So it’s been available to the defendants for several years, apparently from the time the discovery was first provided. The information contained in the supplemental report that the defendants became' aware of, quite frankly if that information attributed to those people had been provided to the defendants, I don’t think the outcome of this trial would have been any different.
“Apparently the defendants could not locate the witnesses before the trial— other than Ms. Smith whom they did locate and who did testify in front of the jury in this case. Apparently her testimony did not help the defendants in any significant way. So even though the defendants maintain it’s exculpatory, even if it is, I don’t think the outcome of this trial would have been one bit different than it was.”

On appeal, the Court of Criminal Appeals, in a 3-2 decision, reversed Wilson’s conviction, holding:

“Wilson was denied the opportunity to pursue those witnesses who would best suit his version of the facts, and the jury was deprived of the opportunity to render its verdict based upon the complete evidence.... [W]e cannot say that Wilson received a fair trial.... Therefore, we have no alternative but to remand this cause for a new trial.”

Wilson v. State, 874 So.2d at 1143-44.

II. Analysis

In Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the United States Supreme Court ruled 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.” Evidence is material “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). Thus, “[t]here are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999).

As mentioned above, the evidence in question involves the contents of notes taken by Det. Hardiman when he interviewed three witnesses concerning the crimes. Det. Hardiman testified that he interviewed the witnesses because they were listed on the incident report prepared by police officers Michael Johnson and Anthony Wallace, the officers first on the scene after the shooting. That report, which Wilson and Arrington had in their possession before trial, summarized the testimony of the three witnesses as follows:

‘Witnesses stated that they were present inside the residence of 6822 Kimberly Ave. when two black males started knocking on the door of the residence. The two black males were demanding to use the phone inside of the residence. Witnesses told the two black males that they could not use the phone. The two black males left the residence and confronted the victim in the street.”

Officers Johnson and Wallace testified that they returned to 6822 Kimberly Avenue approximately an hour after they apprehended Wilson and Arrington, in an effort to get the women to identify whether Wilson and Arrington had committed the shooting, but no one answered the door.

Det. Hardiman testified that he went to the residence and interviewed the three women approximately two days after the shooting. The Court of Criminal Appeals summarized Det. Hardiman’s testimony as follows:

“According to [Det. Hardiman’s] notes [of the interviews], on the night of the shooting, Dalanda Bryant made the following statement: •
“ ‘The two people at her house were “B” and “Bowdy-Bowdy” from Bessemer. They were driving a burgundy Grand Prix [automobile]. As they were leaving her house the [victim] was walking up. They had been at the house twenty minutes.’
“(CR.104.) Telisha Hickman gave the following statement:
“ ‘The guy who walked up [was] trying to sell something. That guy was shot. “B” shot him. Bowdy-Bowdy was just looking. Bowdy-Bowdy drove. They took clothes from the man as they left.’
“(CR.104.) Detective Hardiman’s notes indicate that Akia Julius was upstairs looking out the window when the men left the apartment, and she gave the following statement:
“ ‘ “B” and “Bowdy-Bowdy” were at the house for about 20 minutes. The man approached them as they walked out the door. The man was acting smart with them. On the way downstairs she heard the gunshots. They drove away in a burgundy car.’
“(CR.104.)”

Wilson, 874 So.2d at 1136 (footnote omitted). Additionally, Det. Hardiman’s notes of the interviews indicated that a day later, Det. Hardiman showed Smith, Hickman, and Julius photographic lineups containing pictures of Wilson and Arrington, and none of them picked Wilson or Arrington out of the lineups. Det. Hardiman also re-interviewed Hickman, and “she stated that there were 5 or more guys out back when the man got shot. She does not know who shot [Hamilton]. She knows ‘B’ and ‘Bow-dy-Bowdy’ were among the group of boys out back.”

In summary, Det. Hardiman’s notes relate that the witnesses attributed the shooting to two individuals known as “B” and “Bouty Bouty,” not Wilson and Ar-rington, information the police incident report did not provide concerning the witnesses’ testimony. There is no dispute that Wilson and Arrington were not given Det. Hardiman’s notes until midway through the second trial. Thus, as the trial court stated during the in camera discussion after the notes came to light, “obviously [the notes] are exculpatory because they say somebody else did the shooting, whoever B and Bouty Bouty happen to be, and they should have been disclosed to [Wilson].”

It is clear, then, that the failure by the State to disclose Det. Hardiman’s notes meets the first two components of a Brady violation, because the evidence was potentially exculpatory and the prosecution suppressed the evidence, regardless of whether it did so intentionally or inadvertently. See Stridden 527 U.S. at 281-82, 119 S.Ct. 1936. The only remaining question, and the point at which this Court departs from the conclusion of the Court of Criminal Appeals, is whether that error prejudiced Wilson, or more specifically, whether “there is a reasonable probability that his conviction ... would have been different had these materials been disclosed.” 527 U.S. at 296, 119 S.Ct. 1936.

The testimony of Officers Johnson and Wallace, as well as the contents of the police report, made apparent to the jury— before Det. Hardiman’s notes came to light — that, in their initial interviews, witnesses Smith, Hickman, and Julius did not name the persons they thought had committed the crimes. Yet, as the trial court noted in the in camera discussion when the notes were disclosed, “[t]he jury has already heard testimony that these two people [‘B’ and ‘Bouty Bouty’] were at least identified by three witnesses as the perpetrators. They’ve heard that evidence.” This was because before counsel was shown the contents of Det. Hardi-man’s notes, Wilson’s counsel asked Det. Hardiman whether in the course of his investigation he had been given “two leads,” the names “B” and “Bouty Bouty,” as possible suspects. Det. Hardiman answered that he had been given those names, but that he “could not find anybody other than the people that gave me those names originally that even said there were two people who existed named B and Bouty Bouty.” He added that the names were nicknames and “[t]here was no way for me to follow up on a nickname if I don’t have the real name.”

During the in camera discussion, Wilson’s counsel related to the trial court that he knew about “B” and “Bouty Bouty” because he had located Dalanda Smith and had talked to her on the telephone, discovering that she had told Det. Hardiman about the two alleged suspects. Thus, though it took more effort than it would have if the State had turned over to the defense Det. Hardiman’s notes when it was supposed to, even without the notes, Wilson was aware of the potentially exculpatory evidence and, in fact, presented it to the jury. This reduced any likelihood that the jury’s determination would have changed had the evidence been disclosed earlier.

Furthermore, the trial court’s ruling, allowing Wilson to cross-examine Det. Hardiman about the contents of the notes, enabled Wilson to place the substance of the notes before the jury, despite the fact that Det. Hardiman’s testimony as to what other people had told him constituted hearsay. Thus, Wilson was able to present to the jury the information that three witnesses had named two other men as the perpetrators of the crime, and the witnesses who were not located were not subject to cross-examination by the State. The trial court’s ruling helped eliminate any prejudice that could have resulted from the State’s failure to disclose the evidence because the key substance of that evidence — the naming of “B” and “Bouty Bouty” as the parties responsible for the crimes — was presented for the jury’s consideration.

The Court of Criminal Appeals found that “[a]ny benefit Wilson received from his cross-examination of Detective Hardi-man [about his notes] was negated by the prosecutor’s redirect examination where he elicited testimony that Hickman had recanted her statement.” Wilson, 874 So.2d at 1148.

The remedy offered by redirect examination should not be dismissed so cavalierly for two reasons. First, as quoted above, the very notes used as a basis for Hickman’s testimony state that Det. Hardiman interviewed Hickman a second time the day after his initial interview with her and that in the subsequent interview she denied that she saw who shot Hamilton. For the trial court not to have allowed the prosecution to bring out that fact would have meant misleading the jury regarding the contents of Det. Hardiman’s notes.

Second, during Wilson’s counsel’s cross-examination of Det. Hardiman regarding the notes, Det. Hardiman had already stated that Hickman had recanted her testimony.

“Q. [Wilson’s counsel]: And did these witnesses indicate they had seen the shooting?
“A. [Det. Hardiman]: Well, originally on speaking to the three women, one of them told me she had seen the shooting. In a subsequent conversation I had with her she changed her story and said that she had not seen the shooting.
“Q. [Wilson’s counsel]: Were you informed by one of the witnesses that B had shot Mr. Hamilton?
“A. [Det. Hardiman]: Yes, sir. That was the woman that indicated first she had seen the shooting, and later stated that she had not.”

Thus, when the prosecution questioned Det. Hardiman on redirect about the notes and asked him whether Hickman had recanted her testimony, it did nothing more than reemphasize what Det. Hardiman had already related to the jury about Hickman’s testimony. The prosecution’s redirect could not have negated the trial court’s cure because Wilson’s counsel had already elicited from Det. Hardiman the information about Hickman’s change in testimony.

Finally, because Wilson’s counsel was able to locate Dalanda Smith, he was able to put her on the witness stand to present live testimony from one of the three witnesses naming “B” and “Bouty Bouty” as the perpetrators of the crime. Smith testified that “B” and “Bouty Bouty” asked to use the telephone in her apartment but that she did not know them; she testified that Hickman and Julius knew them. Smith stated that the two men stayed in the apartment for about 20 minutes. She testified that she saw the men engage Hamilton in conversation outside. She said that a few minutes later She ■ heard gunshots and looked outside again, and that she saw “B” and “Bouty Bouty” jump into a car and drive away. Thus, Wilson was able to present live testimony from one of the three witnesses concerning the exculpatory evidence.

The Court of Criminal Appeals discounted the effect of this testimony in curing the prosecution’s discovery error because, according to Det. Hardiman’s notes, it was Hickman, not Smith, who actually observed who shot Hamilton. The Court of Criminal Appeals expressed the belief that it would have been better if Hickman could also have testified, as well as Julius, because each observed different details about the confrontation between the men and Hamilton. Wilson, 874 So.2d at 1143. The Court of Criminal Appeals stated that Wilson was not able to put Hickman and Julius on the stand “because the prosecution failed to produce Detective Hardi-man’s notes before trial[; therefore,] Wilson was not afforded the opportunity to present a full and complete defense.” Wilson, 874 So.2d at 1143.

This statement ignores two key facts: First, as already discussed, Hickman later retracted her claim that she actually saw the shooting, so it is doubtful whether having an opportunity to put her on the stand would have benefited Wilson. Secondly, and most importantly, while it may have been ideal to have all of those witnesses available, the difficulty in locating them and getting them to testify yvas precisely the reason the trial court chose to fashion the remedy it did. The trial court stated repeatedly that the defense possessed the names of those witnesses even before Wilson’s, first trial, yet neither the defense nor the police were able to locate Hickman and Julius. The trial court justifiably believed that it was highly unlikely that those witnesses would have been located even if the prosecution had provided the defense with Det. Hardiman’s notes before trial. Consequently, the trial court did what it viewed as the next best thing: it allowed the defense to question Det. Hardiman about what the witnesses had told him. This situation is precisely the reason a trial court is granted .wide discretion to remedy discovery violations. See, e.g., Rule 16.5, Ala. R.Crim. P., and Morrison v. State, 601 So.2d 165, 173 (Ala.Crim.App.1992).

In concluding that Wilson “was not afforded the opportunity to present a full and complete defense,” 874 So.2d at 1143, the Court of Criminal Appeals simply assumed that the defense would have been able to locate Hickman and Julius in time for trial had it been given Det. Hardiman’s notes before trial. Indeed, the Court of Criminal Appeals goes so far as to. claim that “[h]ad Wilson known of the content of Detective Hardiman’s notes, he would certainly have made a greater attempt to locate the three witnesses and secure their testimony for trial.” Wilson, 874 So.2d at 1142.

All of the evidence, however, is to the contrary. The defense had the police report, which contained the names of the witnesses, before trial, and Arrington’s counsel had a copy of the incident report, which listed the known addresses for each of the witnesses. Det. Hardiman used the police report to locate the witnesses, and his notes do not list any different contact information than does the incident report, so the notes would not have helped in that regard. In the abstract, it is at least questionable whether Wilson would have tried harder to locate those witnesses had he known that they named two other men as the perpetrators of the crimes. Smith, Hickman, and Julius were the only witnesses listed on the police report. The police officers first on the scene of the crime, Officers Johnson and Wallace, both testified that they talked to these women. Det. Hardiman testified at the first trial that he interviewed the three witnesses during his investigation. The incident report relates that those witnesses stated that “two black” men tried to use the telephone in the residence they occupied and that these men “confronted the victim in the street.” Given that Wilson’s counsel knew all of this before trial, it stands to reason that even without Det. Hardiman’s notes, he would have expended a great deal of effort to try and locate those witnesses to obtain the full content of their testimony.

But speculation in the abstract is not even necessary, because Wilson’s counsel stated during the in camera discussion concerning Det. Hardiman’s notes:

“We [Wilson’s counsel and Arrington’s counsel] kept searching for Delanda Bryant and through a lot of searching we found out that her name was Delan-da Smith. We tracked her down ... [and] I’ve talked to her on the phone. I tried to get her to come up here. The address that I talked to her on the phone, I’m led to believe she doesn’t live there and she won’t tell me where she lives.”

(Emphasis added.) Thus, without Det. Hardiman’s notes and without the correct name, Wilson’s counsel already had been searching “a lot” for Smith, and he eventually found her. Indeed, he was able to convince Smith to take the stand later in the trial. Wilson’s counsel also made it clear to the trial court in that discussion that the defense had also been searching for the other two witnesses, but “we can’t find any of the other witnesses.” The actual efforts of the defense to locate these witnesses belies the assumption of the Court of Criminal Appeals that Wilson’s counsel would have “made a greater attempt” to locate them had he possessed Det. Hardiman’s notes before the trial.

In the end, the most important point is whether any effort, even with the notes, would have yielded those witnesses for trial. As has been shown, Det. Hardi-man’s notes did not substantively provide anything more than the incident report that would have helped the defense to locate the witnesses, beyond the supposed psychological motivation, assumed by the Court of Criminal Appeals, of learning that the witnesses had named two men other than Wilson and Arrington as the perpetrators. By the time of the second trial, neither the State nor Wilson’s counsel was able to locate more than one of the three witnesses interviewed by Det. Hardiman. Wilson’s counsel hired an investigator in February 2001 after the second trial to help locate those witnesses, and he was unable to locate any of them other than Smith, despite looking for . at least two months. Thus, it is highly unlikely that these witnesses would have been located in time for trial had the State turned over Det. Hardiman’s notes before trial.

Considering that the nondisclosed evidence was presented to the jury even before the contents of Det. Hardiman’s notes were revealed to the defense; that the contents of' the' notes were presented to the jury in their entirety despite their hearsay nature; that live testimony of one of the three witnesses was also presented to the jury; that Wilson’s counsel expended a great deal of effort to find those witnesses even without Det. Hardiman’s notes; and that the defense was unable to locate those witnesses even after possessing the notes, this Court finds that there was not a “reasonable probability that, had [Det. Hardiman’s notes] been disclosed to the defense [earlier], the result of the proceeding would have been different.” Bagley, 473 U.S. at 682, 105 S.Ct. 3375. Consequently, there was no Brady violation, and Wilson’s convictions should not have been overturned on this basis. The judgment of the Court of Criminal Appeals is reversed and the cause is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

HOUSTON, SEE, BROWN, HARWOOD, and STUART, JJ., concur.

LYONS, J., concurs in the judgment only and dissents from the directions on remand.

JOHNSTONE and WOODALL, JJ., dissent.

LYONS, Justice

(concurring in the judgment only and dissenting from the directions on remand).

I would reverse the judgment of the Court of Criminal Appeals and direct that court to remand this case for further proceedings at which Wilson would be given an opportunity to demonstrate to the trial court that he has located the witnesses who were not disclosed to him in a timely fashion and that they indeed possess exculpatory evidence. If Wilson makes such a showing, then he should be entitled to a new trial with the benefit of the testimony of the heretofore missing witnesses. If he fails to make such' a showing, the trial court should deny the motion for a new trial.

JOHNSTONE, Justice

(dissenting).

I respectfully dissent. I agree with the opinion of the Court of Criminal Appeals, except that I agree with the remedy proposed by Justice Lyons in his special writing. The thorough statement of facts by the Court of Criminal Appeals supports its holdings.

Two particular mistakes in the main opinion invalidate its conclusions. First, the main opinion assumes as true the testimony by Detective Hardiman that the eyewitness residents of 6822 Kimberly Avenue had recanted their exculpatory statements. This testimony by Detective Hardiman was entirely self-serving. What better way could the State eliminate not only its Brady problem but also any benefit Wilson had received from the trial judge’s remedy of allowing Wilson to introduce the exculpatory statements themselves? After Detective Hardiman’s testimony that the 6822 Kimberly residents had recanted, only their live appearance and testimony to the contrary would have cured the Brady violation by the State.

Second, the main opinion mistakenly argues that timely disclosure of the exculpatory statements would not have resulted in Wilson’s finding the two missing 6822 Kimberly residents and presenting them as witnesses. Defense counsel, of practical and professional necessity, must decide what leads to pursue according to the apparent defensive value of the leads. The names available to Wilson on the police report, none accurate, did not provide the same incentive and therefore did not suggest the same priority as the exculpatory statements would have provided had they been timely disclosed as required by Brady.

      . This witness was listed in the police report as “Delanda Bryan.” At trial, "Bryan” testified that she now goes by the name "Dalanda Smith,” but that she went by the name "Bryan at the time of the shooting.” Smith's name was further confused at trial because while at first Smith indicated that she previously used the name "Bryant,” under cross-examination she stated that her name was "Byrum.” For the sake of consistency, we refer to Ms. Bryan/Bryant/Byrum/Smith in this opinion as "Smith,” because that is the name used in the Court of Criminal Appeals’ opinion.

      . At trial, Smith stated that this friend’s name was "Telisha Hinkley,” not "Telisa Hickman” as it is listed in the police report. But "Hickman” is the name listed in the police report, identified in Det. Hardiman’s notes, used throughout the trial in the record, and referred to by the Court of Criminal Appeals. Moreover, later testimony by Smith seems to indicate that perhaps "Hickman” is the right last name. Consequently, "Hickman" is the name we use in this opinion.

      3. This name is spelled different ways by different sources. To be consistent, this opinion elects, as did the Court of Criminal Appeals, to use the trial court’s spelling, “Bouty Bouty,” except when we quote directly from the record.

      . The trial court was perfectly within its authority to allow such evidence because " ‘the remedy for violations of discovery rules [rests] within the sound discretion of the trial court.' ” Morrison v. State, 601 So.2d 165, 173 (Ala.Crim.App.1992)(quoting Buchannon v. State, 554 So.2d 477, 486 (Ala.Crim.App.1989)).

      . The Court of Criminal Appeals discounts the fact that the names of the witnesses were listed in the police report by observing that Dalanda Smith was listed as "Dalanda Bryan” in the police report and Telisha Hink-ley was listed as "Telisa Hickman” in the police report, making any attempt to locate those witnesses using the report difficult. Wilson, 874 So.2d at 1143 n. 8. However, as was noted in notes 1 and 2 to this opinion, Det. Hardiman’s notes also list Smith as "Da-landa Bryan” and Hickman as "Telisa Hickman,” so his notes would not have made locating those witnesses any easier than the police report.

      . Wilson contends that Det. Hardiman testified at the first trial that the witnesses did not identify anyone as the perpetrators of the crimes. The State contends, however, that Det. Hardiman had testified that the three witnesses did not identify anyone from the photographic lineup, a fact confirmed by his notes. We do not have a transcript of the first trial, so no conclusions should be drawn from this testimony other than the fact that Det. Hardiman stated that he interviewed the witnesses.

      . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. li 94, 10 L.Ed.2d 215 (1963).