Billingsley v. State, 7 Div. 710

• Decision Date: 22 April 1980
• Docket Number: 7 Div. 710
• Citation: 402 So.2d 1052
• Parties: Douglas BILLINGSLEY v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1052

402 So.2d 1052

Douglas BILLINGSLEY v. STATE.

7 Div. 710.

Court of Criminal Appeals of Alabama.

April 22, 1980.

Rehearing Denied May 27, 1980.

B. Greg Wood, of Love, Love & Lawrence, Talladega, for appellant.

Charles A. Graddick, Atty. Gen., Joseph G. L. Marston, III, Asst. Atty. Gen., for appellee.

BOWEN, Judge.

The defendant was indicted for the first degree murder of Alvin Abrams. A jury convicted him of murder in the second degree and fixed his punishment at twenty years' imprisonment.

For approximately one year, seventy-one year old Alvin Abrams and the defendant had been doing "a lot" of drinking together. On one occasion three months before his death, Abrams and the defendant were drinking, got into an argument and had to be separated.

Around two o'clock on the afternoon of February 20, 1979, Yellow Cab driver Michael Sergeant took Abrams to the defendant's home. Sergeant stated that, before he could leave, Abrams, accompanied by the defendant, returned to his cab and asked him to get a quart of Old Mr. Boston Whiskey.

About four o'clock that afternoon, Yellow Cab driver Virgle Sims delivered the whiskey to Abrams at the defendant's house. Sims testified that he saw the defendant, the defendant's wife, and Abrams in the defendant's house when he delivered the whiskey. They were drinking.

Mrs. Wilma Black was the defendant's neighbor. She testified that at 7:30 on the night of February 20 the defendant knocked on her back door and said, "I've killed a man, and I think it's Bob." "Bob" referred to Mrs. Black's son-in-law, Bob Ostrowski.

Mrs. Black and her daughter, Linda Ostrowski, accompanied the defendant to his house. On the living room floor lay Alvin Abrams, the right side of his face horribly mutilated from a shotgun blast. The body was cold and the blood had begun to coagulate.

The police arrived and a shotgun was found in a bedroom closet. Several witnesses for the State testified that, in their opinion, this weapon had recently been fired.

Expert testimony revealed that Abrams died of a shotgun wound to his head. An expert concluded that the shotgun was within three feet of Abrams' head when the weapon was fired. Abrams had type "O" blood; the defendant, type "A". Drops of type "A" blood were found throughout the house. Dried blood and tissue were removed from the hair of the defendant's wife. An expert concluded that this matter could be either type "A" or type "O" as it contained properties of both types although he could not determine if it were one type to the exclusion of the other.

The defendant gave an exculpatory statement to Detective Glenn Talley and Sheriff Jerry Studdard. In the statement, the defendant claimed that he had not seen Abrams for two or three weeks, that no Yellow Cab had come to his house that day, and that his shotgun had not been fired in a year. He stated that he and his wife had gone to bed about eight o'clock that night and that he was later awakened by a noise. He went into the living room and found a body but did not recognize it until his wife told him who it was. At trial, the defendant's testimony was similar to the substance of this statement.

I

Initially, it is argued that the conviction is due to be reversed for lack of a judgment entry adjudicating the defendant guilty.

The judgment entry signed by the trial judge and appearing in the record recites:

"The Court in accordance with the verdict of the jury, 'We, the jury, find the defendant guilty of Murder in the Second Degree and fix his punishment at 20 years, 0 days imprisonment in the penitentiary of the State of Alabama' then by the Court adjudged guilty accordingly of Murder in the Second Degree as charged in the indictment and the defendant's punishment is fixed at 20 years' imprisonment."

"One of the requirements still obtaining and necessary to a valid judgment is that there must be a solemn adjudication of guilt." Blakely v. State, 28 Ala.App. 574, 190 So. 102 (1939). This "solemn adjudication" need not follow any specific pattern "but there must be some words to show that there has been a judgment upon the verdict." Wright v. State, 103 Ala. 95, 96, 15 So. 506, 507 (1893). While the "judgment entry in all criminal cases where there is conviction should recite in express words that the defendant is adjudged guilty by the court as found by the jury," the language employed in the court's minute entry is to be given a liberal construction. Carmichael v. State, 213 Ala. 264, 104 So. 638 (1925); Driggers v. State, 123 Ala. 46, 48-49, 26 So. 512, 513 (1898). Thus a judgment entry is not "insufficient or void" because of the omission of words which would merely have made the judgment "fuller and more complete" had they been included. Wilkinson v. State, 106 Ala. 23, 28, 17 So. 458 (1894). The omission in the minute entry of the judgment of a formal adjudication of the defendant's guilt upon the verdict rendered will not render the judgment entry insufficient where it recites a judgment of sentence by the court in accordance with the verdict. Talbert v. State, 140 Ala. 96, 99, 37 So. 78 (1903).

Certainly, in this case, the judgment entry could be "more complete" but it is not so insufficient as to be void. The substance and meaning of the judgment entry are definite and sufficient to show that the defendant was adjudged guilty by the court as found by the jury. This is all that is required.

II

The defendant maintains that the trial court committed reversible error by allowing the prosecutor in his closing argument to the jury to draw an adverse inference from the defendant's failure to call his wife to testify as a witness.

From the record:

"MR. YUNG (Assistant Attorney General) (resumed): Now, one of the most important things in this case and I am about through is not what you heard but what you did not hear. The most important thing that you did not hear is the testimony of Mrs. Billingsley.

"MR. WOOD (Defense Counsel): We object to that, Your Honor.

"THE COURT: This will not be charged against your time.

"Set out in Section 191.01, sub. 4, sub. C, a comment may be made on the parties' failure to call a member of his family. They cite three cases, Barnes versus State, Waller versus State and Davis versus State.

"Okay. Now you may make the comment.

"MR. YUNG (resumed): Where was Mrs. Billingsley? Now, the State can't call her. The law is that the State can't call

"MR. WOOD: I object to that, Your Honor. That is an incorrect statement of law. They can call that woman as a witness.

"MR. YUNG: That is not the law.

"THE COURT: I'll instruct the jury that the statement made by Mr. Wood is an incorrect statement of the law.

"MR. WOOD: We except, if it please the Court.

"MR. YUNG (resumed): We can't call his wife up here and make her testify on this. But he can call her to back up his testimony if his testimony is true. He could call her if in fact she were in bed asleep with him like he tells you. He could call her to back him up if in fact he woke up and went in there and found the body and then woke her up and told her to go look. He could call her to testify under oath if in fact she then went in there and looked and said, 'It looks like Alvin Abrams to me.' He could call her to testify that he told her to call the law and she tried to and that she then called Ostrowski and Mrs. Black over there if that were true.

"We can't; he could. And he didn't do it.

"But on the other hand, if she told the sheriff, like the sheriff asked him on that tape, that she was asleep on the couch, not in the bed with him, that she didn't know anything about it until the police came, then the last thing in the world, the last thing in the world that he would do is call that woman, his wife, in here because we would then be able to cross examine her about what she told the sheriff. We would then be able to play the tape for you that the sheriff made when he talked to her. That's the last thing he could afford to do.

"That is why the only other witness in that house didn't testify, because we can't make her and the last thing he wanted was for her to be in here.

"Where was Mrs. Billingsley? I think the answer to that is clear."

The basic rule is:

"Generally, if it happens both (1) that the evidence warrants a finding that a party, at the time of the trial, has one and only one member of his family who has knowledge of a material matter and (2) that such family member is not called as a witness, the opponent may comment on such party's failure to call that family member as a witness." C. Gamble, McElroy's Alabama Evidence, § 191.01(4)(b) (3rd ed. 1977).

This rule is complicated by the fact that the wife is a privileged, but not disqualified, family member.

Despite language in DeBardeleben v. State, 16 Ala.App. 367, 77 So. 979 (1918) ¹ and Holyfield v. State, 365 So.2d 108 (Ala.Cr.App.), cert. denied, 365 So.2d 112 (Ala.1978) ², it is clear that a husband or wife is competent, but not compellable, to give testimony either for or against his or her spouse in a criminal proceeding. Jay v. State, 15 Ala.App. 255, 73 So. 137 (1916). By statute the spouse-witness is competent to testify. Alabama Code 1975, Section 12-21-227. The privilege of refusing to testify belongs only to the spouse-witness. Trammel v. United States, --- U.S. ----, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980). Competency and privilege are not interchangeable terms and must not be confused. McElroy, § 103.01(2) and (3) (3rd ed. 1977). "Under our statute, it is the witness-spouse's privilege, and the defendant-spouse can in no way compel or prevent her from exercising such privilege.

"The defendant-spouse cannot as a matter of law require her to testify in his behalf nor can the State require her to testify against him." Holyfield, 365 So.2d at 112.

This distinction between competency and privilege must be made because, if a witness-spouse were incompetent to testify until that spouse elected to testify, then any comment upon the failure...