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Maples v. State3/31/1999
im. App. 1976), and we find no error in the lower court's denial of appellant's request for production and disclosure." 460 So.2d at 290-91.
We have carefully reviewed the appellant's written discovery requests, and we find that the appellant did not specifically request the 12 items listed in Perry. In fact, his first pre-trial discovery motions did not even mention DNA evidence. Furthermore, when discussing DNA evidence and discovery at a pre-trial hearing, the appellant did not specifically request the 12 items listed in Perry. Therefore, because the appellant's pre-trial requests for discovery were not sufficiently specific, he has not shown that the trial court improperly denied his pre-trial discovery requests.
The only time the appellant specifically requested the 12 items listed in Perry was during a hearing on the admissibility of the DNA evidence after the trial had begun. At that point, he objected to the admission of the DNA evidence because the prosecution had produced only 2 of the 12 items listed in Perry. Even assuming that the prosecution should have produced the additional evidence in discovery, reversal is not required. Although we view the failure to comply with Rule 16, Ala. R. Crim. P., "'with particular disfavor and condemnation,'" not every violation of Rule 16 requires the suppression of the undisclosed evidence or reversal. Pettway v. State, 607 So.2d 325, 330 (Ala. Cr. App. 1992) (citations omitted). "Instead, Rule 16.5 '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, 607 So.2d at 330 (quoting Clifton v. State, 545 So.2d 173, 178 (Ala. Cr. App. 1988)). However, to obtain relief based on a discovery violation, the objecting party must make a specific and timely objection.
"Rule 16 does not exist in a vacuum; it is subject to the general principle that objections must be made in a timely fashion. ...
"A trial court should be informed of a party's failure to comply with discovery procedures as soon as the aggrieved party is aware of the non-compliance. ... The requirement of a timely objection simply gives the trial court the opportunity to take corrective action where such action is warranted, see State v. Willis, 438 So.2d 605, 613 (La.App. 1983), and is in keeping with standard trial procedure and evidentiary rules.
"... 'To be timely, an objection must be interposed as soon as the ground for the objection becomes apparent.' Watson v. State, 439 So.2d 762, 769 (Ala. Cr. App. 1983)." Pettway, 607 So.2d at 331.
Approximately three months before the trial began, the prosecution produced the DNA evidence report it intended to use at trial. More than two months before the trial began, the trial court granted the appellant's request for funds for independent testing of the DNA evidence. Nevertheless, during that time, the appellant did not request discovery of any additional DNA evidence. Even assuming he could not have known what specific requests to make before then, he could have used his expert's assistance to make a more specific discovery request before the trial began. As a result, his only specific request for the items was untimely. Because the appellant's previous requests were not specific and because his only specific request was untimely, the trial court properly denied the appellant's mid-trial request for discovery of additional DNA evidence.
Finally, the appellant has not shown that he was prejudiced by the nondisclosure of the additional DNA evidence. "The moral culpability, or the willfulness, of the prosecutor is not a factor in deciding the constitutional issue involved here." McMul
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