Blackmon v. State
Decision Date | 16 November 1990 |
Citation | 574 So.2d 1037 |
Parties | Perry Joe BLACKMON v. STATE. CR 89-1044. |
Court | Alabama Court of Criminal Appeals |
Cada M. Carter, Dothan, for appellant.
Don Siegelman, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., for appellee.
The appellant, Perry Joe Blackmon, was convicted of manslaughter for the shooting death of Michael Bennett, in violation of § 13A-6-3, Code of Alabama 1975. He was sentenced to 16 years in the state penitentiary and was ordered to pay a fine of $5,000, restitution in the amount of $7,120.34, and a $1,000 victim's compensation assessment.
The evidence tended to show that on the evening of September 18, 1988, Christie Rogers called the appellant, her ex-stepfather, to come to her home and pick her up. She stated that her mother and the victim had come home from a party drinking and had gone upstairs to the bedroom and closed the door. Christie told the appellant that she wanted to spend the night with him.
The appellant arrived approximately 30 minutes later. Christie got in the appellant's truck and watched as the appellant got a gun from behind the seat and went inside. Minutes later, the appellant came back outside, jumped in the truck, and threw the gun back behind the seat. As they drove away, the appellant said, "I shot Michael."
The appellant raises four issues on appeal.
The appellant's first contention is that the tape recording of his call for emergency help should not have been played before the jury because, he argues, its prejudicial effect far outweighed its probative value. The following is a transcription of the tape as typed by the Houston County Sheriff's Department:
The test of relevancy sanctioned by the Alabama appellate courts has been described as follows: "Under this liberal test, a fact is admissible if it has any probative value, however slight, upon a matter in the case." C. Gamble, McElroy's Alabama Evidence § 21.01(1) (3d ed. 1977). " Mitchell v. State, 473 So.2d 591, 594 (Ala.Cr.App.1985). However, it is generally recognized that relevant evidence may be excluded where it would serve comparatively little or no purpose except to arouse the passion, prejudice, or sympathy of the jury. C. Gamble, McElroy's Alabama Evidence § 20.01(4) (3d ed. 1977); 1 J. Wigmore, Evidence § 10A (Tillers rev. 1983); Jennings v. State, 513 So.2d 91, 96 (Ala.Cr.App.1987).
Certainly the language used in the conversation between the appellant and his former wife is somewhat inflammatory. However, we cannot say that it was so prejudicial so as to outweigh the probative value of the tape when listened to in its entirety. Not only is the tape relevant to prove the appellant's intent, which was a material and contested issue at trial, but the tape also supports the defense's theories of provocation and accident. Thus, the trial court correctly received the tape into evidence. See State v. Vance, 392 N.W.2d 679 (Minn.App.1986).
The appellant's second contention is that the trial court erred by refusing to allow the use of a treatise in the cross-examination of an expert witness for the State. More specifically, the trial court refused to allow defense counsel to cross-examine Dr. Paredes from a book obtained from Dr. Paredes, in regard to the distance at which a .22 caliber shell would leave "tattooing" on a victim.
The following is the trial court's statement of its reasoning in support of its ruling:
The trial court refused to allow defense counsel to cross-examine Dr. Paredes by using a book obtained from the doctor because of defense counsel's apparent failure to provide the State with the name of the book pursuant to the State's discovery motion. A.R.Crim.P.Temp. 18.5(a) reads, "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 an order issued pursuant to this rule, the court may ... prohibit the party from introducing evidence not disclosed...." The trial court apparently felt that this sanction was appropriate, and it was certainly within his sound discretion to impose such a sanction. Musgrave v. State, 555 So.2d 1190 (Ala.Cr.App.1989). Thus, no error has occurred in this regard.
The appellant's third contention is that the State's closing argument amounts to reversible error. He points to two instances of alleged misconduct to support his assertion.
The following portion of the record reveals what the appellant claims to be the first instance of alleged misconduct:
While it is well established that punishment in noncapital cases is properly left to the discretion of the trial judge and should not be argued to the jury, Fordham v. State, 513 So.2d 31 (Ala.Cr.App.1986), it is not error to make such an argument when it is made in the context of a reply-in-kind comment. Bui v. State, 551 So.2d 1094 (Ala.Cr.App.1988), aff'd, 551 So.2d 1125 (Ala.1989).
In Davis v. State, 494 So.2d 851 (Ala.Cr.App.1986), this court held:
...
To continue reading
Request your trial-
DeBruce v. State
...order to ensure that the appellant would not be prejudiced by the delayed disclosure. See Rule 16.5, A.R.Crim.P.; Blackmon v. State, 574 So.2d 1037, 1040 (Ala.Cr.App.1990); McLemore v. State, 562 So.2d 639, 645-46 The appellant maintains that Larry McCardle's in-court identification of the ......
-
McNair v. State
...remarks of the District Attorney in the rebuttal portion of his argument can be characterized as reply-in-kind. Cf. Blackmon v. State, 574 So.2d 1037, 1040 (Ala.Cr.App.1990) (although punishment in a noncapital case is a matter for the trial judge and "should not be argued to the jury," the......
-
Johnson v. State
...513 U.S. 845, 115 S.Ct. 136, 130 L.Ed.2d 78 (Ala.1994). ‘[W]ide latitude is usually given regarding replies in kind.’ Blackmon v. State, 574 So.2d 1037 (Ala.Cr.App.1990) (citations omitted)." Simmons v. State, 797 So.2d 1134, 1167 (Ala.Crim.App.1999).In the present case, during his penalty-......
-
Simmons v. State
...513 U.S. 845, 115 S.Ct. 136, 130 L.Ed.2d 78 (Ala.1994). "[W]ide latitude is usually given regarding replies in kind." Blackmon v. State, 574 So.2d 1037 (Ala.Cr. App.1990) (citations The defense argued throughout the trial that Simmons suffered from a severe mental illness resulting from a b......