State of Alabama v. M.D.D. (Appeal from Blount Circuit Court: CC-10-112.60, CC-10-112.61, CC-10-112.80, and CC-10-112.81)

Rel: January 17, 2025

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections
may be made before the opinion is published in Southern Reporter.

Alabama Court of Criminal Appeals
OCTOBER TERM, 2024-2025
_________________________

CR-2023-0303
_________________________

State of Alabama

v.

M.D.D.

Appeal from Blount Circuit Court
(CC-10-112.60, CC-10-112.61, CC-10-112.80, and CC-10-112.81)

McCOOL, Judge.

The State of Alabama has appealed a judgment of the Blount

Circuit Court that granted relief to M.D.D. on his Rule 32, Ala. R. Crim.

P., petition for postconviction relief. For the reasons set forth herein, we

reverse the judgment.
CR-2023-0303

Facts and Procedural History

In 2011, M.D.D. was convicted of committing first-degree sodomy

against his daughter, E.D. See § 13A-6-63, Ala. Code 1975. On August

10, 2012, this Court affirmed M.D.D.'s conviction in an unpublished

memorandum. See M.D.D. v. State, 152 So. 3d 456 (Ala. Crim. App. 2012)

(table) ("M.D.D. I"). In July 2013, M.D.D. filed a Rule 32 petition that

included two claims of ineffective assistance of counsel and a claim that

the State had withheld exculpatory evidence in violation of Brady v.

Maryland, 373 U.S. 83 (1963). M.D.D.'s Brady claim was related to one

of his ineffective-assistance-of-counsel claims in that both claims

involved a report issued by the Department of Human Resources

("DHR"). Specifically, in 2009 an unidentified individual reported to

DHR that E.D. and her brother, J.D., were being sexually abused by

M.D.D., and Janet Salas, a DHR investigator, conducted an investigation

in which she interviewed E.D., E.D.'s parents, J.D., and employees at

E.D.'s school ("the 2009 investigation"). Salas subsequently issued a

report ("the 2009 DHR report") in which she found the allegation to be

unsubstantiated, based in part on the fact that E.D. and J.D. had both

denied the allegation. Thus, DHR closed the case. M.D.D.'s Brady claim

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alleged that the State had suppressed the 2009 DHR report, and one of

his ineffective-assistance-of-counsel claims alleged that his counsel had

failed to call any witnesses who could testify to the report.

Following an evidentiary hearing, the circuit court granted M.D.D.

relief on his two ineffective-assistance-of-counsel claims but did not

address his Brady claim, which had been rendered moot by the fact that

the court had granted relief on the ineffective-assistance-of-counsel

claims. On appeal, this Court held that the circuit court had erred by

granting relief on M.D.D.'s ineffective-assistance-of-counsel claims,

reversed the judgment, and remanded the case to the circuit court. See

State v. M.D.D., 324 So. 3d 425 (Ala. Crim. App. 2020) ("M.D.D. II").

Judge Minor concurred specially, writing to point out that, because this

Court had reversed the circuit court's judgment, M.D.D.'s Brady claim

was no longer moot and awaited disposition.

On January 20, 2021, the circuit court denied M.D.D.'s Brady claim

but did not provide any findings of fact. M.D.D. filed a notice of appeal,

but the appeal was dismissed because the notice was untimely. M.D.D.

subsequently sought the circuit court's permission to file an out-of-time

appeal. See Rule 32.1(f).

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On June 2, 2021, Judge Steven King, who had presided over the

Rule 32 proceedings to that point, filed a notice of recusal with the

Alabama Supreme Court. Judge Philip Seay was appointed to preside

over the Rule 32 proceedings, and he subsequently granted M.D.D.

permission to file an out-of-time appeal of the denial of his Brady claim.

M.D.D.'s appeal was assigned case number CR-2021-0244. On appeal,

this Court stated that, because the circuit court had held an evidentiary

hearing on M.D.D.'s Rule 32 petition, the court was required to make

specific findings of fact regarding the Brady claim. Thus, this Court

issued an order that remanded the case to the circuit court a second time

with instructions to that effect.

On February 1, 2023, Judge Seay issued a judgment containing

detailed findings of fact regarding M.D.D.'s Brady claim, and, based on

those findings, Judge Seay granted M.D.D. relief on that claim. That

same day, the State filed the instant appeal, which was assigned case

number CR-2023-0303. Because M.D.D. had obtained the relief he

sought, this Court dismissed his appeal in case number CR-2021-0244 as

moot, and the certificate of judgment issued that same day. Thus, we

now turn to the State's appeal.

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CR-2023-0303

Judge Seay's judgment states, in relevant part:

"Findings of Fact

"Upon consideration of all the foregoing, the court finds
the following facts to be supported by a preponderance of the
evidence, as is required by Rule 32.3 of the Alabama Rules of
Criminal Procedure:

"[M.D.D.] was indicted on April 29, 2010, by the Blount
County grand jury for the Class A felony offense of sodomy in
the first degree pursuant to § 13A-6-63(a)(3)[, Ala. Code 1975].
The statute under which [M.D.D.] was charged mandates that
the person charged, being 16 years old or older, engages in
sodomy with a person who is less than 12 years old. The
indictment does not specify the particular date or dates on
which the offense was allegedly committed by [M.D.D.] The
alleged victim in this case attained the age of 12 on July 3,
2009.

"After a trial, [M.D.D.] was convicted of the charged
crime and was sentenced to a term of 55 years' imprisonment,
which is within the sentencing range for a Class A felony such
as that charged in the indictment, but is substantially in
excess of the maximum sentence permissible for the Class B
felony found in § 13A-6-64[, Ala. Code 1975], which would
involve the same acts charged in the indictment, but with the
victim being over the age of 12 but less than 16 years old. See
13A-5-6[, Ala. Code 1975].

"The Brady claim advanced by M.D.D. concerns a report
prepared by the Blount County Department of Human
Resources in May of 2009. That report, which relates to
allegations of child abuse and/or neglect of E.D., the victim in
this case, was admitted into evidence at the hearing held on
the Rule 32 petition as Defendant's Exhibit 3 and is referred
to herein as the 2009 CAN.

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"The first two pages of Defendant's Exhibit 3 are cover
letters dated May 8, 2009, on the letterhead of the Blount
County Department of Human Resources and are signed by
Cheryl Helton, Program Supervisor. The contents of the
letters are the same. Both state that they reference E.D., the
victim in the case, whose date of birth is shown to be July 3,
1997. The letters state that they are enclosing an initial
report on E.D. regarding allegations of sexual abuse. The first
of the cover letters is addressed to Blount County District
Attorney, … and the second is addressed to Ms. Sue
Ashworth, who was an investigator employed by the Blount
County Sheriff's Office at the time.

"At the bottom of page 5 of the 2009 CAN, in an area
designated as 'Allegations,' it appears that an allegation of
'Sexual Abuse: Sexual Molestation' was received by DHR at
11:40 a.m. on May 6, 2009. The 'Person at Risk' was said to
be E.D., and the 'Person Responsible' was identified as
M.D.D., shown as the 'Father (Biological).' The 'Disposition'
was 'Not Indicated.'

"The 'INTAKE NARRATIVE' also begins at the bottom
of page 5 and continues through the middle of page 6.
Although the narrative is redacted on page 6, it appears that
someone claimed to have been 'told by E.D. (age 11) that E.D.
is being touched on her privates in a sexual manner by her
father, M.D.D.'

"The 'ASSESSMENT NARRATIVE,' which begins in the
middle portion of page 6 of the CAN, discloses that a worker
named Janet Salas made DHR's first contact with the alleged
abuse victim at 10:00 a.m. on May 7, 2009, in a face-to-face
visit at E.D.'s school. During that contact, E.D. 'denied that
she has been touched by anyone. She denied that she told
anyone that she had been touched by anyone. She stated that
if someone said that, they made it up, because she did not say
it.' On May 12, 2009, Ms. Salas asked school staff if they had
any concerns about E.D. and was told 'there was nothing that

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had been reported. Attendance is good and participation in
class is good.' Later, the same day, Ms. Salas conducted a
face-to-face interview at the school with J.D., E.D.'s brother.
J.D. told her that 'everything is fine at home.' After the DHR
worker discussed good and bad touches with J.D., he
expressed his understanding of each, and 'denied having any
bad touches.' He denied knowing anyone who had bad
touches. He does not think his sister or brother has had any
bad touches, and that they would have told if they did. The
'ASSESSMENT NARRATIVE' concludes on page 7 with the
allegation of sexual abuse by the father towards his daughter
being not 'substantiated by the assessment,' with 'no potential
for future maltreatment.'

"The following section of the report, entitled
'PROTECTIVE CAPACITIES,' recites 26 strengths of M.D.D.
in taking care of his daughter, the alleged victim, and no
weaknesses or areas of concern.

"As a part of the pretrial discovery process, the Blount
County District Attorney's office had produced to trial counsel
for [M.D.D.] two documents that made reference to a
complaint made to DHR in May of 2009: (1) An incident-
offense report, and (2) a DHR CAN report concerning a sex-
abuse allegation made on February 19, 2010. The produced
documents disclose that the May of 2009 complaint to DHR
was closed 'not indicated' after E.D. denied being sexually
abused. The 2010 DHR CAN states that the last incident of
abuse took place on or about February 2, 2010, when E.D. was
out of school a couple of days with a foot injury. E.D. was over
the age of 12 on February 2, 2010.

"Neither of the documents produced to defense counsel
by the State made specific reference to the existence of a
formal investigation and resulting report by DHR in 2009.
However, before the defendant's trial began in August of 2011,
[M.D.D.'s] counsel served a subpoena duces tecum on the

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Blount County DHR requesting 'Any documents or reports
pertaining to ... E.D.'

"On the date the subpoena was issued, DHR filed a
motion to quash the subpoena or, in the alternative, a motion
for a protective order. Judge King granted the protective
order and directed that DHR produce the requested
documents for an in camera inspection.

"Although DHR apparently did produce some records to
the court pursuant to [M.D.D.'s] subpoena duces tecum, it is
undisputed that the Blount County Department of Human
Resources did not, prior to M.D.D.'s sodomy trial, produce the
2009 CAN in which the abuse allegation was found to be 'not
indicated,' based in part on E.D.'s denial that she had been
sexually abused by her father. In fact, the 2009 CAN was not
produced by DHR until June of 2016, nearly six years after
the 2011 subpoena duces tecum was served in connection with
another case in which M.D.D. is the defendant.

"The 2011 trial testimony of E.D. was summarized by
the Court of Criminal Appeals as follows:

" 'E.D., who was 14 at the time of trial, testified
against M.D.D. E.D. told the jury that M.D.D.
would "take [her] clothes off [her] and [M.D.D.]
would take his clothes off and then M.D.D. would
put his front part in [her] butt." (R. 138.) E.D.
stated that M.D.D. would show her "naked
pictures" on the computer which depicted men
having anal sex with children in order to "make
[E.D.] think it was normal" for that activity to take
place between them. (R. 140.) E.D. also claimed
that M.D.D. would take naked pictures of her, but
that "[M.D.D.] erased them." (R. 144.) E.D.
testified that her mother was initially supportive,
but later "she tried to get me to change my story
and she was not as supportive then." (R. 155.)'

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"State v. M.D.D., 324 So. 3d at 427

"On cross examination at the trial, defense counsel
asked E.D. the following question:

" 'Q: Have you ever told anyone else that your
father did not do this to you?'

"E.D.'s answer was:

" 'A: No, sir, because he did do it to me.'

"No witness from the Blount County Department of
Human Resources testified at the trial, although Blount
County Sheriff's investigator Sue Ashworth was a witness for
the State.

"As far as objective signs possibly indicating abuse of
E.D., the Court of Criminal Appeals summarized the physical
findings of Dr. Joines, a physician who examined E.D. in 2010,
as revealing some thickening and abrasions in E.D.'s rectal
area, which were unusual in her opinion: Unless one is being
treated for chronic constipation or some kind of rectal or anal
abnormality, you should see completely smooth areas with a
little ridging of the skin, according to the doctor. She also
testified that, other than chronic constipation, such
abnormalities could be explained by any kind of penetration
or any kind of object. Dr. Joines further testified that there
was no indication that E.D. had herpes or any other sexually
transmitted disease.

"E.D.'s mother testified that E.D. suffered from frequent
constipation and that both she and M.D.D. had genital herpes.

"In addition to the foregoing findings of fact, the court
agrees with, and adopts, the following findings made by Judge
King in his order granting relief in April of 2020:

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" 'It is also clear that there is additional information
contained in the May 2009 DHR CAN report which the
discovery items produced to [M.D.D.] did not reveal. These
include the circumstances surrounding the reporting of the
suspected abuse and the reporter, school staff having no
concerns about the victim, the victim's mother being
cooperative and being interviewed, [M.D.D.] being
cooperative and being interviewed, and both parents being
given "strength" in every category within the "Protective
Capacities" section of the report.' In addition to those facts
found by Judge King, there are additional facts in the 2009
CAN that were not provided before trial by the State. In
particular, the materials furnished by the State to trial
counsel did not disclose the specific information found in the
actual CAN that DHR investigator Janet Salas made in
DHR's first contact with the alleged abuse victim at 10:00 a.m.
on May 7, 2009, in a face-to-face visit at E.D.'s school. The
discovery materials provided do reveal that E.D. denied being
touched by anyone, but they do not contain the information
that E.D. also 'denied that she told anyone that she had been
touched by anyone or that she stated that if someone said
that, they made it up, because she did not say it.' The
materials produced do not refer to Ms. Salas asking school
staff on May 12, 2009, whether they had any concerns about
E.D. and being told 'there was nothing that had been reported.
Attendance is good and participation in class is good.' The
materials produced by the State do not mention Salas having
interviewed E.D.'s brother, J.D., on May 12, 2009, and being
told by him that everything is fine at home. The discovery
materials produced do disclose that J.D. denied having any
bad touches, but they do not reveal his statements in which
he denied knowing anyone who had bad touches. 'He does not
think his sister or brother has had any bad touches; they
would have told if they did.' The discovery materials produced
also do not specifically mention DHR's conclusion that the
allegation of sexual abuse by father to his daughter was not

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'substantiated by the assessment,' with 'no potential for
future maltreatment.'

"There had been discovery requests made and
subpoenas issued through which the DHR CAN report of the
May 9, 2009, investigation should have been produced.
However, no DHR CAN report regarding the May 9, 2009,
investigation was produced prior to trial. The DHR CAN
report regarding the May 9, 2009, investigation was only
produced to [M.D.D.'s] legal counsel (different from trial
counsel) on or about June 3, 2016 in case CC-11-331, which is
a related case pending against [M.D.D.] The DHR CAN report
which was produced on or about June 3, 2016, contained
redactions. The redacted DHR CAN report regarding the May
9, 2009, investigation was admitted as Defendant's Exhibit 3
to the hearing.

"There is a reasonable probability that actually having
the May 2009 DHR CAN report, as opposed to just knowing of
it, would have made a difference in the outcome.

"Discussion

"… In the opinion of this court, when the Brady claim is
actually considered in view of the findings of fact set out
above, it is due to be granted under the applicable principles
of law.

"Brady v. Maryland, 373 U.S. 83 (1983), held that, under
the Fourteenth Amendment to the U.S. Constitution, '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.' Id. at 87. Non-
disclosure of impeachment evidence that affects the
credibility of a witness is also prohibited under Brady. If the
withheld evidence is deemed to be material: 'A new trial is
required if "the false testimony could … in any reasonable

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likelihood have affected the judgment of the jury." ' Giglio v.
U.S., 405 U.S. 150, 154 (1972) [(citation omitted)]. Strickler
v. Greene, 527 U.S. 265 (1999) summarizes the elements of a
Brady violation in the following manner:

" 'There 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.'

"Id. at 281-282.

"In this case, the evidence in question is the May 2009
DHR CAN in which E.D. denied to a DHR investigator that
she had been inappropriately touched by anyone, less than
two months before she became 12 years of age. It is beyond
question that the facts set out in the 2009 CAN were favorable
to [M.D.D.], in that they are partially exculpatory and are
clearly useful for the purpose of impeaching E.D.'s testimony.
If the jury believed, based upon the 2009 CAN, that E.D. had
not been sexually abused as of May 7, 2009, it would have
been the State's burden at trial to prove beyond a reasonable
doubt that between that date and July 3, 2009, her twelfth
birthday, … she had been sodomized by M.D.D. in order for
him to be found guilty of the charged Class A felony. The
impeaching nature of the undisclosed CAN would have been
particularly favorable to M.D.D.'s defense because of the
damage to the victim's credibility that could have been
inflicted had its contents been known to defense counsel.
Instead of being forced simply to accept E.D.'s answer on
cross-examination that she had never told anyone that
M.D.D. had not abused her because 'he did do it to me,'
defense counsel could have conducted a vigorous interrogation
of the witness if he had had the unproduced CAN in hand at
the trial. He could have specifically asked E.D. via leading
questions whether it was true that she had told DHR worker

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Salas that her father had not touched her inappropriately
during the interview at her school on May 7, 2009; whether it
was true that she told Salas at that time that she had never
told anyone that she had been inappropriately touched by
anyone; and whether it was true that she had said that
anyone who said that she had mentioned being touched was
lying. If E.D. denied making any of those statements,
Investigator Salas could have been called as a defense witness
to contradict E.D.'s testimony. The 2020 decision of the Court
of Criminal Appeals appears to recognize implicitly the value
to M.D.D.'s defense[ ] that actually having the 2009 CAN
would have provided, noting in its opinion that 'trial counsel
did not have a particular statement to use for purposes of
impeachment after the victim denied at trial that she had ever
recanted or denied the allegations.' State v. M.D.D., 324 So.
3d at 445. If the 2009 CAN had in fact been produced,
M.D.D.'s lawyer would have had such a 'particular statement'
with which to impeach E.D., which would undeniably have
been favorable to the defense of the case.

"The second element of a Brady violation is the
government's suppression of evidence favorable to the
defendant. While it is true that the 2009 CAN finally
produced in the 2016 proceeding contained a cover letter
addressed to the District Attorney, it is inferable that,
although the CAN may not have actually been sent to the
D.A.'s office, it seems to be the clear intention of DHR to
transmit it to the prosecutor. Other than that cover letter,
there is no direct evidence found in the record to suggest
actual possession or knowledge on the part of the District
Attorney's Office. Whether or not the District Attorney had
possession of, or even knowledge of, the 2009 CAN ultimately
does not matter on the suppression issue, because at a
minimum, DHR's knowledge of the report is imputed to the
State prosecutors. The Department of Human Resources is
the sole State agency responsible for the investigation of
reports of suspected child abuse committed outside of schools
or state-operated child residential facilities. Section 26-14-

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6.1, [Ala. Code 1975]. The knowledge of persons intimately
connected with the State's case, 'such as police, investigative
agencies and officers, and all law enforcement agencies which
have participated in the investigation or evaluation of the
case and regularly report or have reported to the prosecutor'
is imputed to the State, and that knowledge imposes a duty of
disclosure. E.g., Hill v. State, 651 So. 2d 1128, 1132 (Ala.
Crim. App. 1994); Smith v. State, 698 So. 2d 189, 208 (Ala.
Crim. App. 1996). The State produced a 2010 DHR CAN,
which furnished the basis for the prosecution of M.D.D. It did
not, however, produce the favorable 2009 CAN, either during
discovery or even when that document fell within the purview
of a subpoena duces tecum filed by [M.D.D.] to DHR. The
2009 DHR CAN was therefore clearly suppressed by the State
for the purposes of the Brady decision and its progeny. While
the 2009 DHR CAN was not produced prior to the 2011 trial,
there is no reason in the record, other than the
aforementioned DHR cover letter, for this court to suggest the
Blount County District Attorney's office had possession or
knowledge of the 2009 CAN, wherein E.D. denied any
wrongful touching by [M.D.D.] The bottom line is that while
[M.D.D.'s] counsel used every effort to discover exculpable
evidence, most importantly and directly through a pretrial
subpoena duces tecum to DHR, the 2009 CAN was never
produced to [M.D.D.], thus denying [M.D.D.] and his counsel
the opportunity to use it at trial.

"The final 'prejudice' component of a Brady violation is
the requirement that the suppressed evidence be 'material
either to guilt or to punishment.' 373 U.S. at 87. In the case
at hand, the undisclosed 2009 DHR CAN is, in the opinion of
the court, material both to [M.D.D.'s] guilt and to potential
punishment.

"Favorable evidence is material, and constitutional
error results from its suppression by the State, only if there is
a reasonable probability that, had the evidence been disclosed
to the defense, the result of the proceeding would have been

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different. U.S. v. Bagley, 473 U.S. 667, 682 (1985); see Kyles
v. Whitley, 514 U.S. 419, 433-434 (1995). A 'reasonable
probability' is a probability sufficient to undermine confidence
in the outcome. U.S. v. Bagley, 473 U.S. at 682.

"The case against M.D.D. rests largely on the credibility
of E.D., the victim. The medical evidence that E.D. was
sodomized was not conclusive and was susceptible to other
explanations. As Judge King pointed out in his order, in a
case such as this one, impeachment is certainly an
appropriate method of defense, and perhaps the only method
or manner of defense. Having actual possession of the
suppressed 2009 CAN would have enabled defense counsel to
cast significant doubt on the testimony of E.D. to such an
extent that the outcome of the case reasonably could have
been an outright acquittal. If E.D. had been impeached by the
use of specific statements she had made to a DHR investigator
and the subsequent testimony of that investigator, it is
reasonably probable that E.D.'s entire testimony, or portions
thereof, could have been disregarded by the jury.

"The court also finds that the suppression of the 2009
DHR CAN was material to the issue of punishment in this
case. Only if the charged offense took place before E.D.'s
twelfth birthday, which occurred on July 3, 2009, could
[M.D.D.] have been found guilty of sodomy in the first degree
and sentenced to more than 20 years' imprisonment. The
2009 CAN report indicates that E.D. denied that any abuse
had occurred on or before May 7, 2009. In February of 2010,
after E.D. had become 12 years old, she told a DHR
representative that she had been molested by M.D.D. on
February 2 or February 3 of 2010 while she was home from
school. No other specific instances of alleged abuse were
before the court at the trial. It is the opinion of the court that
there is a reasonable probability that the jury could have
accepted E.D.'s denial of abuse when she was 11 years old in
May of 2009 as true, but have believed the testimony that she
was abused when she was 12 years old in February of 2010.

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Assuming that was the case, the jury could have convicted
[M.D.D.] of sodomy in the second degree, which is a Class B
felony, which carries a maximum sentence of 20 years'
imprisonment, but not of sodomy in the first degree, the Class
A felony that enabled the court to impose a sentence of 55
years.

"Conclusion

"Based on the foregoing findings of fact and discussion
of the application of the law to the facts, it is the opinion of
the court that [M.D.D.] proved by a preponderance of the
evidence that evidence favorable to [him] was suppressed by
the State of Alabama prior to his trial and conviction and that
there is a reasonable probability that, in accordance with
Brady, had the 2009 CAN evidence been disclosed to the
defense, the result of the proceeding would have been
different. Accordingly, [M.D.D.'s] petition for postconviction
relief under Rule 32 … is hereby GRANTED by the court."

(C. 41-55.)

Discussion

The sole issue in this appeal is whether the circuit court erred by

granting M.D.D. relief on his Brady claim.

In Bryant v. State, 181 So. 3d 1087 (Ala. Crim. App. 2011), this

Court stated:

" 'To [establish] a Brady violation, a
defendant must show that " '(1) the prosecution
suppressed evidence; (2) the evidence was
favorable to the defendant; and (3) the evidence
was material to the issues at trial.' " Johnson v.
State, 612 So. 2d 1288, 1293 (Ala. Cr. App. 1992),

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quoting Stano v. Dugger, 901 F.2d 898, 899 (11th
Cir. 1990), cert. denied, Stano v. Singletary, 516
U.S. 1122, 116 S. Ct. 932, 133 L. Ed. 2d 859 (1996).
See Smith v. State, 675 So. 2d 100 (Ala. Cr. App.
1995). " 'The evidence is material only if there is a
reasonable probability that, had the evidence been
disclosed to the defense, the result of the
proceeding would have been different. A
"reasonable probability" is a probability sufficient
to undermine confidence in the outcome.' "
Johnson, 612 So. 2d at 1293, quoting United States
v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383,
87 L. Ed. 2d 481 (1985).'

"Freeman v. State, 722 So. 2d 806, 810 (Ala. Crim. App. 1998).
However, ' "the rule of Brady applies only in situations which
involve 'discovery after trial of information which had been
known to the prosecution but unknown to the defense.' " '
Bates v. State, 549 So. 2d 601, 609 (Ala. Crim. App. 1989)
(quoting Gardner v. State, 530 So. 2d 250, 256 (Ala. Crim.
App. 1987), quoting in turn United States v. Agurs, 427 U.S.
97, 103, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976)) (some
emphasis added)."

181 So. 3d at 1133-34. In addition, " ' "[t]here is no Brady violation where

the information in question could have been obtained by the defense

through its own efforts." ' " Jones v. State, 322 So. 3d 979, 1025 (Ala.

Crim. App. 2019) (citations omitted).

On appeal, the State raises two arguments in support of its claim

that no Brady violation occurred in this case. First, the State argues that

M.D.D. was aware of the 2009 investigation and therefore could have

17
CR-2023-0303

obtained the 2009 DHR report "through his own efforts." (State's brief,

p. 9.) Second, the State argues that, because M.D.D. was aware of the

2009 investigation and knew that E.D. had denied being sexually abused

at that time, he "knew or should have known of the essential facts that

would have allowed him to take advantage of any exculpatory evidence"

in the 2009 DHR report. (Id., pp. 9-10.) Thus, according to the State,

there is not a reasonable probability that the outcome of M.D.D.'s trial

would have been different if he had been able to use the 2009 DHR report

at trial.

There is no merit to the State's first argument. As the circuit court

noted in its judgment, M.D.D.'s counsel served DHR with a subpoena

requesting "[a]ny documents or reports pertaining to … E.D.," and,

although DHR provided "some records" in response to that subpoena, the

2009 DHR report was not included. This is not a case, then, " ' "where the

information in question could have been obtained by the defense through

its own efforts." ' " Jones, 322 So. 3d at 1025 (citations omitted). Instead,

M.D.D.'s counsel made an effort to obtain exculpatory evidence from the

State through a legal process, and the State, i.e., DHR, either refused or

inadvertently failed to provide that evidence.

18
CR-2023-0303

We do find merit, though, in the State's second argument, which is

that M.D.D. was not prejudiced by the fact that he was not able to use

the 2009 DHR report at trial. In its prejudice analysis, the circuit court

found that the 2009 DHR report would have been "clearly useful for

impeaching E.D.'s testimony" because, the court reasoned,

"[i]nstead of being forced simply to accept E.D.'s answer on
cross-examination that she had never told anyone that
M.D.D. had not abused her because 'he did do it to me,'
defense counsel could have conducted a vigorous interrogation
of [E.D.] if he had had the unproduced [2009 DHR report] in
hand at the trial. He could have specifically asked E.D. via
leading questions whether it was true that she had told DHR
worker Salas that her father had not touched her
inappropriately during the interview at her school on May 7,
2009; whether it was true that she told Salas at that time that
she had never told anyone that she had been inappropriately
touched by anyone; and whether it was true that she had said
that anyone who said that she had mentioned being touched
was lying."

However, it is undisputed that M.D.D.'s counsel received a 2010

DHR report in discovery, and that report states: "There was a report in

2009 investigated by Salas that was not indicated for sexual abuse of

[E.D.] by her dad. According to the narrative, [E.D.] denied she was being

touched by anyone."1 (M.D.D. II, C. 443.) The information in that report,

1"This Court may take judicial notice of its own records." T.C.S. v.
State, 386 So. 3d 857, 860 n.2 (Ala. Crim. App. 2023).
19
CR-2023-0303

then, is quite similar to the information in the 2009 DHR report, which

states: "[E.D.] … denied that she has been touched by anyone. She denied

that she told anyone that she had been touched by anyone. She stated

that if someone said that, they made it up, because she did not say it."

(Id., C. 434.) Thus, because M.D.D.'s counsel had the 2010 DHR report,

he did have a basis for confronting E.D. with the types of leading

questions that the circuit court found he could have asked if he had

received the 2009 DHR report. The differences between the two reports

are not sufficient to conclude that the cross-examination of E.D. could

have been more "vigorous" or effective if M.D.D.'s counsel had been able

to confront her with the 2009 DHR report, rather than the 2010 DHR

report. Either report could have provided M.D.D.'s counsel with a basis

for demonstrating to the jury that E.D. had denied being sexually abused

by M.D.D. when she was interviewed by DHR in 2009.

The circuit court also noted in its findings of fact that the 2009 DHR

report contains "additional information" that is favorable to M.D.D.,

including that "school staff ha[d] no concerns about [E.D.]" and had told

Salas that " 'there was nothing that had been reported' "; that DHR had

given M.D.D. " 'strength' in every category within the Protective

20
CR-2023-0303

Capacities section of the report"; that Salas had interviewed J.D., who

"told [her] that everything is fine at home" and that he " 'd[id] not think

[E.D.] … has had any bad touches" and "would have told if [she] did' ";

and that DHR had concluded "that the allegation of sexual abuse … was

not 'substantiated by the assessment,' with 'no potential for future

maltreatment.' " However, the circuit court did not find that M.D.D. had

been prejudiced by the suppression of that "additional information."

Instead, when discussing the prejudice that stemmed from the

suppression of the 2009 DHR report, the circuit court found only that the

State's case against M.D.D. "rests largely on the credibility of E.D." and

that, if M.D.D.'s counsel had received the report, he would have been able

to use E.D.'s statements "to cast significant doubt on [E.D.'s] testimony

… to such an extent that the outcome of the case reasonably could have

been an outright acquittal," or, at the very least, the jury might have

convicted M.D.D. of second-degree sodomy, which would have carried a

maximum sentence of 20 years' imprisonment, rather than first-degree

sodomy. As we have already explained, the 2010 DHR report provided

M.D.D.'s counsel with a basis for casting such doubt on E.D.'s testimony.

21
CR-2023-0303

Furthermore, to prevail on a Brady claim, the claimant has the

burden of showing that suppressed evidence " ' " 'was material to the

issues at trial.' " ' " Bryant, 181 So. 3d at 1133 (citations omitted).

Evidence is material, however, " ' " 'only if there is a reasonable

probability that, had the evidence been disclosed to the defense, the

result of the proceeding would have been different.' " ' " Id. (citations

omitted). Thus, if suppressed evidence is inadmissible, then it cannot be

material because it could not have had any effect on the trial. Therefore,

to establish that he was prejudiced by the suppression of the "additional

information" in the 2009 DHR report, M.D.D. would have to demonstrate

that there is at least a "reasonable probability" that such evidence would

have been admissible at trial. Id. See United States v. Silva, 71 F.3d

667, 670 (7th Cir. 1995) ("While it is true that suppression of evidence …

can … give rise to a Brady violation, evidence that would not have been

admissible at trial is immaterial because it could not have affected the

trial's outcome." (internal citation omitted)); State v. Bullard, 858 So. 2d

1189, 1192 (Fla. Dist. Ct. App. 2003) (holding that, because the allegedly

suppressed evidence would not have been admissible at trial, the

defendant "failed to establish the materiality element of

22
CR-2023-0303

a Brady violation and the trial court abused its discretion in ordering a

new trial"); Wilkins v. State, 286 Kan. 971, 190 P.3d 957 (2008) (holding

that the defendant could not prevail on his Brady claim because the

allegedly suppressed evidence would not have been admissible);

Commonwealth v. Mitchell, 576 Pa. 258, 839 A.2d 202 (2003) (same);

United States v. Willis, 43 F. Supp. 2d 873, 879 (N.D. Ill. 1999) ("To be

deemed 'material' under Brady, evidence must be admissible."); People v.

Olinger, 112 Ill. 2d 324, 342, 493 N.E.2d 579, 588, 97 Ill. Dec. 772, 781

(1986) ("The nondisclosed evidence here could not possibly have affected

the outcome because it is completely hearsay and would not have been

admissible as evidence."); and People v. Smith, 171 A.D.3d 1102, 1104,

98 N.Y.S.3d 313, 316-17 (2019) (holding that no Brady violation occurred

when the allegedly suppressed evidence was inadmissible hearsay).

With that standard in mind, we note that it is quite possible that

the "additional information" in the 2009 DHR report would not have

been admissible at trial. 2 The 2009 DHR report constitutes hearsay,

2E.D.'s statements in the 2009 DHR report would have been
admissible as impeachment evidence. See C.L.A. v. State, [Ms. CR-2022-
0651, June 23, 2023] ___ So. 3d ___, ___ (Ala. Crim. App. 2023) (noting
that, "to the extent that … evidence is offered to impeach or discredit the
witnesses, it is not substantive evidence" and "thus … is not hearsay").
23
CR-2023-0303

which of course is prohibited by Rule 802, Ala. R. Evid., unless one of the

exceptions in Rule 803 or Rule 804, Ala. R. Evid., is applicable. That said,

certain aspects of the 2009 DHR report might have been admissible

under the business-records exception to the rule prohibiting hearsay. See

Rule 803(6). But see T.C. v. Cullman Cnty. Dep't of Human Res., 899 So.

2d 281 (Ala. Civ. App. 2004) (holding that a DHR report was not

admissible under the business-records exception to the rule prohibiting

hearsay but appearing to leave open the possibility that some DHR

reports might be admissible under that rule). However, much of the

"additional information" in the 2009 DHR report, including the

statements by J.D. and the staff at E.D.'s school, is "double hearsay" that

would be prohibited by Rule 805, Ala. R. Evid., unless "each part of the

combined statements conforms with an exception to the hearsay rule

provided in [the Alabama Rules of Evidence]." Id. We find no hearsay

exception in Rule 803 or Rule 804 that would have authorized the

admission of the statements by J.D. and the staff at E.D.'s school, so those

statements likely would not have been admissible at trial even if the 2009

DHR report were to qualify as a business record. See Featherstone v.

State, 849 So. 2d 209, 215 (Ala. Crim. App. 2001) (holding that Rule

24
CR-2023-0303

803(6) does not authorize the admission of hearsay within a business

record unless the declarant of that hearsay was also acting in the

ordinary course of business; otherwise, " '[t]he outsider's statement must

fall within another hearsay exception to be admissible' " (quoting United

States v. Baker, 693 F.2d 183, 188 (D.C. Cir. 1982))), reversed on other

grounds by Ex parte State, 849 So. 2d 217 (Ala. 2002); and James v. State,

723 So. 2d 776 (Ala. Crim. App. 1998) ("[I]t was not sufficient for the state

to prove the [police] reports were created in the normal course of business

of the Birmingham Police Department. The state also had to prove the

statements made to the police by [the victim] and her grandmother fell

within a recognized exception to the hearsay rule.").

To be clear, we are not holding that the "additional information" in

the 2009 DHR report would have unquestionably been inadmissible in

M.D.D.'s trial. That is not the question before us in this appeal. Rather,

for our purposes, the relevant question is whether M.D.D. has satisfied

his burden of demonstrating that the "additional information" in the 2009

DHR report was material, and, as we have explained, to satisfy that

burden, M.D.D. would need to demonstrate that there is at least a

reasonable probability that such evidence would have been admissible at

25
CR-2023-0303

trial. That said, at no point in these proceedings, including in his briefs

to this Court, has M.D.D. attempted to demonstrate that the 2009 DHR

report would have been admissible at trial. 3 Instead, M.D.D. appears to

have simply presumed from the outset that the 2009 DHR report would

have been admissible, and, as we have explained, there are reasons to

doubt the admissibility of the report; more importantly, the circuit court

did not make any finding regarding the admissibility of that evidence.

Thus, without any indication that the 2009 DHR report would have been

admissible at trial, this Court cannot say that M.D.D. was prejudiced by

the suppression of the "additional information" contained therein.

For the foregoing reasons, we hold that no Brady violation occurred

in this case because, although the State either refused or inadvertently

failed to provide the 2009 DHR report to M.D.D., M.D.D. failed to prove

that he was prejudiced by the nondisclosure. Thus, the circuit court erred

by granting relief on M.D.D.'s Brady claim. We therefore reverse the

circuit court's judgment and remand the case for that court to vacate the

judgment.

3We note here that M.D.D.'s counsel did not proffer the 2010 DHR

report for admission into evidence. (M.D.D. I, C. 86.)
26
CR-2023-0303

REVERSED AND REMANDED.

Windom, P.J., concurs. Kellum, Cole, and Minor, JJ., concur in the

result.

27