ELECTRONICALLY FILED 8/30/2013 3:13 PM 28-CC-2013-000077.

00 CIRCUIT COURT OF DeKALB COUNTY, ALABAMA PAM SIMPSON, CLERK

IN THE CIRCUIT COURT OF DEKALB COUNTY. ALABAMA

STATE OF

ALABAMA,

) ) )

VS.

)
) ) ) ) ) )

CASE NO. CC 2013-77

LOWELL RAY

BARRON,

DEFENDANT.
STATE OF

ALABAMA,

vs.
RHONDA JILL

) ) )

)
) ) ) ) ) )

CASE NO. CC 20t3-78

JOHNSON,

DEFENDANT.

STATE'S RESPONSE TO COURT ORDER AND MOTION FOR LIMITED DISCLOSURE OF MATERIAL The State of Alabama, by and through Attorney General Luther Strange,
submits its Response to this Court's August 21, 2013 Order and Motion for

Limited Disclosure of Material. In support of its Motion, the Attorney General

states as follows:

1.

On August 21, 2013, this Court found that "any evidence held by the

State tending the show the relationship fbetween the defendants] was other than

personal is exculpatory in nature" and ordered the State to "submit to the court for

in camera inspection all witness

statements procured

by the State in connection

the

with the charges against the defendants obtained both before and after
indictment was returned." (Order, at p. 3).

2.

In accordance with this Order, the State is providing the following

materials to the Court for

in camera inspection: (a) Copies of recorded audio

interviews; (b) Special Agent Tom Coram's investigative notes of these interviews;

(c) Excerpts of certain Grand Jury testimony;' (d) a Summary Memorandum,

which sets forth a synopsis of the portions of the interviews and testimony
regarding the relationship between Barron and Johnson; and (e) a Disclosure Memorandum, which sets forth the information discoverable under this Court's
August 21" Order.2

3.

The State moves this Court to not disclose the materials listed above
because these materials do not contain exculpatory evidence.

to the defendants

t Although the Court's Order specifically "reserve[d] for further consideration the issue relating to grand jury testimony", the State has submitted these materials for the Court's in camera ..ri"* because it contains information similar to the information contained in the statements. (Order, atp.4). 2 B""u,rr"-the Court ordered that the materials be submitted for in camera review, the items described have not been submitted to defense counsel pending further order of the Court. At the time of this filing, the State sent the items described to the Court by Federal Express, next business day delivery.

Alternatively, the State requests that the court limit disclosure to the defense of
only the Disclosure Memorandum and not disclose the entire interviews and grand

jury transcripts.

4. In support of its request, the State asserts that (l) Brady and its
progeny do not apply pre-trial; and (2) the submitted materials are not exculpatory.

As such, the materials should not be disclosed to the defense, or, alternatively, the

disclosure should limited

Memorandum.

to the information contained in the Disclosure

5.

As the State argued at the hearing on this issue, "fn]either Brady nor

Agurs requires disclosure of exculpatory evidence, before trial, as a matter of

course." Ex parte Duncan,456 So. 2d 362,364 (Ala. 1984) (emphasis added); see

also Bates v. State,549 So. 2d 60I,609 (Ala. Cr. App. 1989) ("Furthermore, the

rule of Brady applies only in situations which involve discovery after trial of
information which had been known to the prosecution but unknown
defense.") (internal citations and quotations omitted) (emphasis in original).3

to the

6.
stage

Accordingly, Brady and its progeny have no application to this early

of litigation and the State moves this Court to not disclose the submitted

The practical basis for this rule is based on the fact that materiality cannot be determined until the end of trial. See United States v. Agurs, 427 U.S. 97, ll2 (1976) (stating that the materiality of undisclosed evidence "must be evaluated in the context of the entire recort') (ernphasis added). And evidence cannot be exculpatory unless it is also material. See Nicl<s,783 So. 2d at
3 91 5.

materials to the defense.a In the alternative, the State requests that the Court only
produce the Disclosure Memorandum to the defense.

7.

Even

if

Brady applies here, the submitted materials are not

exculpatory in nature. "Evidence is exculpatory

if it tends to disprove a fact in

issue which is material to guilt or punishment." Nicks v. State,783 So. 2d 895,915

(Ala. Cr. App. 1999) (internal citation omitted).

8.
personal

The relationship between Barron and Johnson

- whether business or

- is simply not an element of the charges in this case. That is, the State is

not required to prove that the defendants had a personal relationship in order to convict them of violating the State's Ethics Law or the Fair Campaign Practices

Act. To be sure, the State is only required to prove that Barron and Johnson had a
criminal relationship (i.e., principal and accomplice).

9.

Although the defense argued at the hearing that the State has to prove

that the defendants had a "personal relationship"s to show that the campaign funds

were converted to "personal use," this is not an element of the offenses charged. See $36-25-6 ("Contributions

to an office holder, a candidate, or to a public

official's inaugural or transitional fund shall not be converted to personal use.");

The State also asserted at the hearing that it has complied with Rule 16.1, Ala. R. Crim. P., by disclosing over 12,000 pages of documents and the statements of defendant Johnson to law enforcement. s Defense counsel argued that "personal relationship" means it was of a "romantic" nature. ("[T]he people that we have interviewed have said no romantic, no dating...."). (August 9, 2013 Hearing Transcript, p. 11).
a

o'use" of 'ocampaign contributions" for 'oexpenditures" 517-5-7 (a) (forbidding the

that are not 'hecessary and ordinary" or "reasonably related to performing the
duties of the office held").

10.

As charged in the Indictment, Counts

through 4 allege Barron routed

552,000.00 in campaign fundsto himself for his own personal use with Johnson

acting as his accomplice. That is, Johnson's "relationship" to Barron in these

crimes is simply that she aided and abetted. Likewise, Counts 5 and 6 allege that

Johnson received, per Barron's instructions, $6,000.00 from the "Barron For
Senate" campaign account and a Toyota Camry (paid for with campaign funds)
and that such transfers were not authonzed under the Fair Campaign Practices Act.

Accordingly, the type of relationship between the two

personal

whether business or

- is plainly not an element of the offenses charged in this case.

Nor is a "personal relationship" the only possible means to prove the

11.

motive of the defendants to convert $52,000.00 in campaign funds for the personal

use of Barron (through sham payments to Johnson) or as simply unauthorized expenditures

Camry).

for the benefit of Johnson (e.g., the $6,000.00 and the

Toyota

12.

To be sure, the State intends to offer evidence that will prove that

Barron and Johnson's relationship was personal in nature and not simply "business

and professional." Specifically, the evidence

will

show that: (1) Barron and

Johnson had extensive, afterhours telephone contact; (2) Barron gave a substantial

monetary

gift (from his personal funds) to one of Johnson's family members; (3)

Johnson received a $100,000.00 interest free loan from Barron; (4) Barron and
Johnson had overnight travel

- both out-of-state and foreign - where they shared a

a

hotel room; and (5) witnesses observed Barron and Johnson to be engaged in
relationship which was more than businesslike or professional in nature.

13. Moreover, even if some witnesses stated to law enforcement that they
had no knowledge of the kind of relationship between Barron and Johnson, that
does not tend to prove or disprove any fact of consequence

- except that it shows

that the witnesses are unaware of the nature of the defendants' relationship. In
other words, a witness's statement that he or she does not know the precise details

of the defendants' relationship cannot be exculpatory.

14.

Alternatively,

if

this Court finds the submitted materials to contain

exculpatory evidence, the State respectfully requests that only the Disclosure
Memorandum (not the actual recorded interviews or grand jury transcripts) be disclosed to the defense. Again, for the reasons stated above, Brady and its
progeny do not require disclosure of these materials at the pre-trial stage and any
such disclosure should therefore be limited to only the evidence actually found by

the Court to be exculpatory. Additionally, although the court has reserved ruling
on the disclosure of grand jury testimony, the defendants have failed to satis$r "the

threshold test of showing a 'particulanzed need' for breaching the secrecy of those

proceedings" and therefore the State opposes any such disclosure. State
Blaclcrnon, T So. 3d397,409 (Ala. Cr. App.2005), cert. denied, 129 S. (200e).

v.

Ct.2052

In accordance with the foregoing, the State respectfully requests this Court
enter an Order finding that the materials submitted for

in camera review do not

contain exculpatory evidence and that materials should therefore not be disclosed

to the defense. Alternatively, the State respectfully requests this Court limit the
disclosure

of the materials to the information set forth in the Disclosure

Memorandum.

Respectfully submitted this 30th day of August,2013.

LUTHER STRANGE ATTORNEY GENERAL

/s/ Miles M. Hart

Miles M. Hart Chief, Special Prosecutions
mhart@ago. state.al.us

OF COUNSEL:

Bill Lisenby, h.
Assistant Attorney General wlisenby@ago. state.al.us Peter J. Smyczek Assistant Attorney General psmyczek@aeo. state.al.us Oprrcp oF TrrE ArronNgY GENERAL 501 Washington Avenue P.O. Box 300152 Montgomery, AL 36130-0152 (334) 242-7300 (334) 242-4890 - FAx

CERTIFICATE OF SERVICE

I hereby certifii that I have, this the 30th day of August2Ol3, electronically filed the foregoing using the AlaFile system which will send notification of such
filing to the following registered persons, and that those persons not registered with the AlaFile system were served-a copy of the foregoing by U. S. mail:
Attorneys for Defendant Lowell Rav Barron:
Joe Espy,

III

Benjamin J. Espy William M. Espy MELTON, ESPY & WILLIAMS, P.C. P.O. Drawer 5130 Montgomery, AL 36103
Telephon e: 33 4 -263 -6621 Facsimile : 33 4-263 -7 252

jespy@mewlegal.com bespy@mewlegal.com wesp)r@mewlegal.com

Winfred 'Rocky" Watson Watson & Neeley,LLC

305 Grand Avenue, SW Fort Payne, AL 35967 Telephone: 256-845-04 1 0

Attornevs for Defendant Rhonda Jill Johnson:

Tony Jennings 304 Alabama Avenue South Fort Payne, Alabama 35967

/s/ Miles M. Hart

OF COUNSEL