Benford v. State
| Decision Date | 27 October 1981 |
| Docket Number | 6 Div. 496 |
| Citation | 435 So.2d 1327 |
| Parties | Walter Davis BENFORD v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Roderick Beddow, Jr. and Steven R. Garrett, of Beddow, Fullan & Vowell, Birmingham, for appellant.
Charles A. Graddick, Atty. Gen. and Elizabeth Ann Evans, Asst. Atty. Gen., for appellee.
A jury found defendant (appellant) guilty of manslaughter (Code 1975, § 13A-6-3) after a trial on an indictment charging him with murder (Code § 13A-6-2) of David Harris, by shooting him with a pistol. The court sentenced him to imprisonment for ten years.
No issue is raised on appeal as to the sufficiency of the evidence to support the verdict, and we find no reasonable basis for such an issue. We limit our summary of the evidence to portions thereof that have some bearing upon the issues presented.
The evidence shows without dispute that about noon, March 21, 1980, the deceased was killed by a bullet from a pistol in the possession of defendant, while the two were in or about the front yard of 1504--31st Street Ensley, which was residential property owned by the deceased and his fiancee and which at the time was unoccupied as a residence and was undergoing improvements in anticipation of its future occupancy by the engaged couple.
Some of the work had been done by defendant, a general contractor, particularly some tile work in the bathroom, sheetrocking some walls, putting in a window and placing wallpaper on some walls. They came to an agreement as to the work to be done and the price to be paid therefor but had reached a disagreement as to the quality of the work performed by defendant, particularly as to the tile in the bathroom, which disagreement led to the confrontation that resulted in the death of Mr. Harris. The defendant was contending that he was entitled to be paid as agreed upon, and Mr. Harris was contending that the work was not satisfactory and payment should not then be made.
Mr. Harris had discussed what he considered unsatisfactory workmanship with Leroy Dumas, another contractor. Mr. Harris and Mr. Dumas were together a large part of the morning of the alleged homicide, during which time Mr. Dumas inspected the work that had been performed by defendant and was in the process of planning some additional work on the house. They were together at the house when defendant arrived in a truck about 11:00 or 11:30 A.M. With the defendant were Andrew McCall and a man by the name of Ashley.
Leroy Dumas testified on call of the State and Andrew McCall, as well as the defendant, testified on call of the defendant. They and Ashley, who did not testify, were the only living persons who saw and heard what occurred at or about the house until about a half hour later, when Mr. Harris was killed and was left lying in the front yard pending arrival soon thereafter of law enforcement authorities.
A material part of the testimony of the defendant was as follows:
The parties seem to agree that the testimony of Leroy Dumas as a whole was more favorable to the State and less favorable to defendant than was the testimony of Andrew McCall. Some differences in the testimony of the eyewitnesses are attributable, we think, to the fact that they were not all at the same place on the premises at the same time and were therefore not in a position to be in absolute agreement as to all that occurred.
The evidence as a whole, including the testimony of defendant, justified the submission of the issue of guilt vel non as to each of the three kinds of unlawful homicide, murder, manslaughter and criminally negligent homicide ( § 13A-6-4).
A major contention of appellant is that the trial court erred in overruling defendant's motion for a mistrial. As a preface, appellant sets forth the following portion of the transcript occurring during the direct examination by the State of the fiancee of the deceased:
Other portions of the transcript show that the conversation referred to in the portion quoted above was a telephone conversation between defendant and Mr. Harris that occurred early on the morning of Mr. Harris' death and while he and his fiancee were together at a house some distance from 1504--31st Street, Ensley, which the witness did not hear. Immediately after the quoted portion of the transcript, counsel for defendant interposed an objection to further proceedings in the presence of the jury at the time and the jury was then excused for lunch, somewhat prematurely but conveniently, in order that the parties through their counsel could present to the court their respective positions as to what the State proposed to show and as to what special prosecutor for the State had just stated. A discussion ensued in which State's counsel took the position that it should be allowed to show by the witness that Mr. Harris told the witness immediately after the conversation between him and defendant that the defendant had "threatened to burn Mr. Harris' house down." During an early part of the discussion, the following occurred:
Thereupon, counsel for the State commenced a reply in part as follows:
Thereupon, counsel quoted Gamble, McElroy's Alabama Evidence, § 273.02 (1977) as follows:
"If it is material to prove that a person at a specified time had been put on notice about a matter, or entertained a specified belief, acted in good or bad faith, had a specified motive to do or not to do an act or to do an act with a specified motive, or was mentally deranged, proof that a statement was made to him prior to the time in question which was reasonably calculated to create, and which is offered for the...
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