Opinion
Case No. 01-40018-01-RDR.
October 9, 2001.
ORDER
This order is issued to record the rulings of the court during a hearing upon pretrial motions.
Defendant is charged: in Count 1 with conspiring from January 1, 1998 to December 31, 2000 to manufacture 50 grams or more of methamphetamine; in Count 2 with possessing a listed chemical on July 17, 2000 having cause to believe it would be used to manufacture methamphetamine; in Count 3 with possessing methamphetamine on July 17, 2000; in Count 4 with attempting to manufacture in excess of 5 grams of methamphetamine on July 18, 2000; in Count 5 with possessing a listed chemical having reasonable cause to believe it would be used to manufacture methamphetamine on July 18, 2000; and finally, in Count 6 with maintaining a place on July 18, 2000 for the purpose of manufacturing methamphetamine.
MOTION FOR NOTICE OF CO-CONSPIRATOR STATEMENTS — Doc. No. 52
This motion asks for the identification of any co-conspirator statements which may be introduced and for a James hearing prior to trial to establish the admissibility of the statements.
This motion shall be granted to the extent that the court will conduct a James hearing in this case on the Monday before jury selection, which will be scheduled on a Tuesday.
MOTION FOR BILL OF PARTICULARS — Doc. No. 53
Defendant asks for a bill of particulars addressing two matters: 1) any "known" but unidentified co-conspirators; and 2) what "role" defendant is alleged to have played in Counts 4, 5 and 6, where the aiding and abetting statute is alleged by the government.
This is a full discovery case and, given the information provided to the defense before and during the hearing, the court does not believe a bill of particulars regarding the identity of co-conspirators is justified. In addition, the court is unconvinced by defendant's rather general argumentation that a bill of particulars is justified regarding defendant's alleged role vis-a-vis Counts 4, 5 and 6. The information already provided appears sufficient for defendant to understand the charge, avoid double jeopardy and prepare a defense.
Accordingly, the motion for bill of particulars was denied.
MOTION TO COMPEL DISCOVERY — Doc. No. 55
Defendant has filed a motion to compel discovery which asks for 12 categories of information. The court ruled as follows as to each part of the motion.
1) Records of all debriefings of Chuck Tunnell. The government is directed to provide for the defense the number of times Mr. Tunnell has been debriefed and the names of the cases that the debriefings concerned.
2) Prior testimony of Chuck Tunnell. The government is directed to provide the number of cases in which Mr. Tunnell has testified and the names of the cases.
3) Chuck Tunnell's probation file. If the government has access to this file, then the government is directed to examine the file and turn over any exculpatory or impeachment information.
4) Records of all times that Tracy Coleman has performed as a government witness or confidential informant. The court will order that the government list the number of times Ms. Coleman has performed as a government witness or a confidential informant and that the government name the cases in which Ms. Coleman has acted as a government witness. The government will not be required to list the cases where Ms. Coleman may have acted as a confidential informant.
5) The reason the forgery case against Tracy Coleman was dismissed. This is unopposed by the government and this request shall be granted.
6) The reason for dismissal of a methamphetamine case against Tracy Coleman. This is unopposed by the government and the request shall be granted.
7) Records of the Child in Need of Care (CINC) case involving Tracy Coleman's daughter. Defendant seeks these records because she believes there is reason to think that Coleman began acting as an informant in order to receive assistance in the CINC case. The government has agreed to investigate whether this was part of any agreement made with Coleman in return for her assistance. Otherwise, the government opposes this request. The court shall not direct the government to provide these records because the records do not appear to be in the custody of the government.
8) Information concerning pills obtained by Tracy Coleman for police on July 17, 2000 prior to relying on her for the search warrant later issued for defendant's house. This request appears to be moot.
9) Information obtained from informants other than Tracy Coleman regarding Coleman or others which may be exculpatory to defendant. The government states that it is not aware of any information of this type bearing on the credibility of Coleman or exculpatory to defendant. Therefore, this part of the motion may be considered moot.
10) Existence of drug and/or mental health treatment of Tracy Coleman in the past. The government states that it will provide the time and place of any drug treatment Coleman may have received in the past. The government does not agree to provide any records of such treatment because it considers them privileged.
If the government has records and those records contain exculpatory or impeachment information, then the government should produce those records or at least submit them for in camera inspection. However, it appears that the government does not have those records. Therefore, the court will not order the government to produce them.
11) All instances in which Tracey Coleman participated in investigations of suspected criminal activity under the supervision of former Deputy Sheriff Roger Wormington. This appears to be information which can be obtained through examination of Coleman and Wormington. Production of the files from other cases would not appear likely to produce impeachment or exculpatory information at this point. Therefore, the court will not expand the scope of discovery already ordered by granting this request.
12) Cherokee County Sheriff Office files which include records made by Roger Wormington regarding the use of confidential informants, especially Tracy Coleman; records including field notes made by Roger Wormington relating to the investigation from which this prosecution is derived, records of any confidential informant agreements with Tracy Coleman. Mr. Wormington is no longer a deputy sheriff at the Cherokee County Sheriff's Office. He may be a defense witness in this case. Based upon Wormington's testimony in the preliminary hearing in a case against defendant's husband, defendant asserts that Wormington may repeatedly claim a loss of memory which cannot be refreshed without access to Cherokee County Sheriff's Office files. Accordingly, defendant seeks production of "all records in the custody of the Cherokee County Sheriff that pertain to Tracy Coleman and Donna Coble." The court is unaware of legal authority requiring the government to produce files for the purpose of refreshing the recollection of a defense witness. Without a better showing of the need and grounds for these items of requested discovery, the court shall deny this request.
13) Miscellaneous. Finally, upon the request of the government, the court shall direct that all records relating to the investigation of this case prepared by any members of any law enforcement agency be released to the prosecuting attorney in this case.
In sum, the motion to compel discovery is granted in part and denied in part.
MOTION TO RECONSIDER DEFENDANT'S MOTION TO COMPEL DISCOVERY — Doc. No. 44.
Reconsideration is not opposed by the government. Therefore, the court shall grant the motion for reconsideration and direct that the KBI report in question be submitted to the court for incamera review. In connection with this action, the court has requested and received from defense counsel a letter detailing defendant's theory of defense in this matter.
IT IS SO ORDERED.