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DOCUMENT 33

ELECTRONICALLY FILED
5/4/2016 2:29 PM
37-CC-2014-000349.00
37-CC-2014-000350.00
CIRCUIT COURT OF
HENRY COUNTY, ALABAMA
SHIRLENE B. VICKERS, CLERK
IN THE CIRCUIT COURT OF HENRY COUNTY, ALABAMA

STATE OF ALABAMA,

V.
CASE NO: CC-14-349, CC-14-350

TRENTON ISAAC DRIVER,
DEFENDANT.

SIXTH RENEWED MOTION TO DISMISS

COMES NOW the defendant, Trenton Isaac Driver, and moves this Honorable Court to

grant the Defendant relief under Rule 16.5 of the Alabama Rules of Criminal Procedure for the

States continued and repeated violations of this Courts discovery Order which has caused the

Defendant substantial prejudice. Defendant suggests dismissal of all charges is an appropriate

sanction under the circumstances of this case as set forth herein. This is the Defendants Sixth

motion to Dismiss on the same issue.

FACTS

1. On May 16th, 2014, Trenton Isaac Driver was arrested for electronic solicitation of a
child, in violation of Ala. Code 13A-6-122, along with transmitting obscene
materials, in violation of Ala. Code 13A-6-111, both class B felonies.

2. Pursuant to the States long-standing policy, the Defendant waived his preliminary
hearing on July 8, 2014, in exchange for open file discovery, and Defendants cases
were forwarded to the Grand Jury.

3. The Defendant was subsequently indicted and trial was initially set for February 9,
2015.

4. On September 16, 2014, undersigned filed its first Motion for Discovery, which was
granted by this Court on the same day.

5. After Mr. Driver waived his arraignment and entered a plea of not guilty, this Court
reset the trial date to March 9, 2015.

6. A cursory review of the initial discovery showed that it was lacking substantial portions
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of known items. There was no video or audio provided, despite the fact counsel for
Defendant was aware it existed. Additionally, the text messages giving rise to the
charges were not provided.

7. Between October 20, 2014 and November 19, 2014, multiple arraignments for the State
to provide the discovery were made, but the discovery never arrived.

8. On November 19, 2014, the Defendant picked up a new discovery disc from the District
Attorneys office.

9. The State had still failed to provide meaningful and/or complete discovery. Namely,
the text messages referenced by the arresting officer in the videos given during
discovery and which are the basis of the charges were not provided.

10. On November 20, 2014, William White with our law firm sent Assistant District
Attorney Sam Clenney a letter requesting that discovery be completed.

11. On November 25, 2014, Mr. White spoke with ADA Clenney and again informed him
that we had yet to receive usable discovery and ADA Clenney immediately sent Mr.
White a link to the discovery in the case which was purported to be the entire universe
of discovery on the case, including all text messages.

12. After spending days reviewing this information, it was determined that the State still
failed to provide the most important discovery necessary to provide a defense in this
case the text messages.

13. The Defendants expert confirmed that many emails were missing.

14. On December 3, 2014, undersigned filled another motion for discovery requesting
specific items that either were not disclosed initially or believed to be in existence and
not disclosed at all.

15. On December 4, 2014, this Court entered an order directing the State to respond to the
Defendants Motion for Specific Discovery within 30 days or the Motion would be
deemed granted.

16. The State failed to respond to said motion and therefore on January 4, 2015, that
Motion was deemed granted by operation of law.

17. Numerous attempts were made to call the State in response to the Order on the
Defendants motion for Specific Discovery.

18. On January 14, 2015, this office sent ADA Clenney a letter requesting the State comply
with this Courts order.

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19. The State again failed to respond.

20. On March 5, 2015 the Defendant filed its first motion to Dismiss based on the above
discovery abuses and on the same day, this Court set the matter for a hearing;

21. On May 9, 2015 this Court held a hearing on the Motion to Dismiss and after hearing
arguments for both sides and on May 14, 2015, this Court again issued an order
demanding that the parties resolve the discovery issues within 30 days.

22. After a phone call with the lead investigator on the case, the Defendant received another
discovery disc which was supposed to contain all the discovery, however, the State
again failed to provide the requested emails.

23. Despite repeated phone calls and requests for discovery (as well as numerous court
orders demanding the same) the State yet again failed to provide requested discovery.

24. On June 2, 2015, the Defendant filed a second Motion to Dismiss.

25. On June 6, 2015, this Court entered another order asking the State to respond the
Defendants Second motion to Dismiss.

26. The State, once again, failed to respond to this Courts order and failed to provide
the requested discovery.

27. On October 26, 2015, the Defendant filed his third Renewed Motion to Dismiss based
on the discovery abuses in this case and the repeated failures of the State to respond to
Court orders.

28. This Court, on October 27, 2015, once again directed to Court to respond, this time
within 10 days.

29. The fifth Court order set a deadline that has now come and passed and the State has
failed to respond with the discovery or any explanation as to why there is missing e-
mails and test messages.

30. To date, Defendants attorneys have not been provided the discovery requested and
have wasted many hours and client funds retrieving, reviewing, and having an expert
review, incomplete discovery; and by filing numerous motions meant to address the
failures of disco very in this case.

31. Furthermore, the State has failed to respond to numerous direct orders from this
Court.

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32. The Defendant, Trenton Driver, filed the Fourth Renewed Motion to Dismiss on
November 16, 2015.

33. This Court, on November 18, 2015 issued another Order again requiring the State of
Alabama to provide the Defense the requested discovery, this time within 24 hours for
the date and time of the Order or the information will be barred at trial for failure to
comply with Production Order of this Court. The Defendant responded on November
19, 2015 that barring such evidence prejudices the Defendant.

34. The State has failed to respond again to the Order of this Court.

35. The Defendant, Trenton Driver, filed a fifth Motion to Dismiss once again on
November 19, 2015 and after the 24 hour Court Ordered deadline to comply expired,
the State failed to respond.

36. This Court, on November 23, 2015 ordered the State to produce the required evidence
immediately.

37. To date, the Defendant has not been provided complete discovery and has been given
no reason, justification or excuse for the States repeated failures to perform its
discovery obligations.

38. The Defendant, Trenton Driver, now files this Sixth Motion to Dismiss seeking remedy
for the above violations due to the fact the State wholly failed to respond by failure to
provide this specific discovery requested and by failing to respond to Court orders.

39. The only adequate remedy for the immense prejudice suffered by the Defendant is to
dismiss this case.

ARGUMENT

The Defendant incorporates any and all prior Motion to Dismiss, Motion for Discovery

and Orders of this Court into this Motion. Rule 16 of the Alabama Rules of Criminal Procedure

lays out the State of Alabamas responsibility regarding discovery. In addition, as a means of

facilitating the waiver of lengthy and costly preliminary hearings, the District Attorney of the 20th

Judicial Circuit expands its obligations under Rule 16 by promising open file discovery to any

Defendant that waives their preliminary hearing in the District Court, which the Defendant did in

this case.

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The Alabama Appellate Courts have repeatedly indicated that they view the failure to

comply with [the discovery principles embodied in Rule 16, A.R.Crim.P. (formerly Rule 18,

A.R.Crim.P.),] with particular disfavor and condemnation. Morrison v. State, 601 So.2d 165,

173 (Ala. Crim. App. 1992); McLemore v. State, 562 So.2d 639, 645 (Ala. Crim. App.

1989); Buchannon v. State, 554 So.2d 477, 486 (Ala. Crim. App. 1989) (overruled on other

grounds by Pardue v. State, 571 So.2d 333 (Ala. 1990).

Rule 16.5 of the Alabama Rules of Criminal Procedure 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. Clifton v. State, 545 So.2d 173, 178 (Ala. Crim. App. 1988). Rule 16.5

provides in pertinent part:

If at any time during the course of the proceedings it is brought to the attention of
the court that a party has failed to comply with this rule or with an order issued
pursuant to this rule, the court may order such party to permit the discovery or
inspection; may grant a continuance if requested by the aggrieved party; may
prohibit the party from introducing evidence not disclosed; or may enter such order
as the court deems just under the circumstances.

Ala. R. Crim. Proc. 16.5.

Whether and to what extent a trial court imposes sanctions for non-compliance

with Rule 16 rest within the sound discretion of the court. McCrory v. State, 505 So.2d 1272,

1279 (Ala. Crim. App 1986). Although dismissing the charges is not specifically cited as a

sanction in Rule 16.5, this Rule gives a circuit court wide discretion in considering the manner and

nature of relief it affords a defendant who has been denied discovery. While we are aware of no

reported Alabama case that affirms the dismissal of an indictment based on a

prosecutor's Brady violation, it appears from the wording of Rule 16.5, Ala.R.Crim.P., that this

sanction may be available based on the circuit court's supervisory powers. State v. Moore, 969

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So.2d 169, 181 (Ala. Crim.App. 2005).

The Defendant recognizes that Alabama law provides that The trial court should not

impose a sanction which is harsher than necessary to accomplish the goals of

the discovery rules. McCrory, 505 So.2d at 1279; Pettway, 607 So.2d at 332. See also Jennings

v. State, 965 So.2d 1112, 1123-24 (Ala. Crim. App. 2006). Dismissal is appropriate in this

circumstance due to the repeated attempts made by Defendant to obtain discovery to no avail. The

State would not be prejudiced by such dismissal as they have the same charges pending against

Defendant arising out of the exact same facts and occurrence and the exact same arrest pending in

the Circuit Court of Covington County, Alabama.

This Court has done everything it can possibly due to resolve the discovery issues in this

case short of outright dismissal. This Court has ordered the State on numerous occasions to turn

over all the discovery in this case. Despite repeated assurances that it would do so, the State has

failed to comply. The State has failed to respond to the previous five Motions to Dismiss despite

this Court ordering it to do so. Therefore, dismissal is the only adequate remedy left for this Court.

WHEREFORE, these premises considered the Defendant respectfully requests this

Honorable Court dismiss this case with prejudice for the States failure to comply with its

obligations under Rule 16 of the Alabama Rules of Criminal Procedure. Furthermore, this

Honorable court has issued six previous Orders which none have been complied with by the state

or valid reason submitted for the missing emails and text messages.

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Respectfully submitted this 4th day of May, 2016.

/s/ James W. Parkman, III


JAMES W. PARKMAN, III
PARKMAN WHITE, LLP
1929 3rd Avenue N.; Suite 700
Birmingham, Alabama 35203
(205) 502-2000
parkman@parkmanlawfirm.com

CERTIFICATE OF SERVICE

I hereby certify that I have served a copy of the foregoing to all counsel of record via the
AlaFile system on this the 4th day of May, 2016.

/s/ James W. Parkman, III


OF COUNSEL