Bone v. State

• Decision Date: 20 June 1997
• Docket Number: CR-95-2144
• Citation: 706 So.2d 1291
• Parties: Charles Earl BONE, Jr. v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1291

706 So.2d 1291

Charles Earl BONE, Jr. v.STATE.

CR-95-2144.

Court of Criminal Appeals of Alabama.

June 20, 1997.

Rehearing Denied Aug. 22, 1997.

Certiorari Denied Nov. 14, 1997

Alabama Supreme Court 1962006.

William P. Burgess, Jr., and Mark McDaniel, Huntsville, for appellant.

Bill Pryor, atty. gen., and Jean A. Therkelsen, asst. atty. gen., for appellee.

BASCHAB, Judge.

The appellant, Charles Earl Bone, Jr., was indicted for capital murder for shooting and killing a minor with a pistol while the victim was seated in a motor vehicle.See§ 13A-5-40(a)(17),Ala.Code 1975.He was found guilty of the lesser included offense of murder on June 14, 1996, and was sentenced to life imprisonment.

The evidence indicated that on May 24, 1994, the appellant and three other juveniles were driving through the Rolling Hills School area in Huntsville, Alabama, while smoking a "blunt"(a cigar filled with marijuana).The appellant was in the front passenger seat.The owner of the vehicle was in the backseat because he had been rolling the blunt.Another vehicle, in which the victim and several other juveniles were riding, passed the vehicle the appellant was in, and began making gang signs ("throwing signs") in the rear window.The appellant and those with him were allegedly members of the FOLK gang (also known as the Disciples), and the victim and those with him were allegedly members of the Bloods gang.The appellant's vehicle followed the victim's vehicle until the victim's vehicle stopped.The occupants of the victim's vehicle got out and began walking toward the appellant's vehicle while signaling for the people in the appellant's vehicle to get out of the car.However, the driver of the appellant's vehicle turned the vehicle around and drove in the other direction.The witnesses in the appellant's vehicle testified that they believed the individuals in the victim's vehicle probably had guns, although they never actually saw any guns.The victim's vehicle started following the appellant's vehicle, and the passengers in the victim's vehicle continued to "throw signs."

The appellant's vehicle slowed down to turn right and merge into traffic on another road.Two witnesses from the victim's vehicle testified that at that point the person in the front passenger seat of the appellant's car (whom they identified in photographs and in court as the appellant) rolled down the window and fired a gun into their car, shooting the victim in the head.Two witnesses from inside the appellant's vehicle also testified that they heard three gunshots and that they saw the appellant come back in the car from leaning out the window with the gun in his hand, but testified that they did not realize at that time that he had actually shot anyone when he fired the gun.The appellant testified that he heard shots outside the vehicle, but that he did not fire the gun and did not know who did.The State's ballistics expert testified that the gun found in the appellant's vehicle was the one that fired the shot that killed the victim.The jury found the appellant not guilty of capital murder, but found him guilty of the lesser included offense of murder.

I.

The appellant argues that the trial court erred in refusing to give a jury instruction on the accomplice status of prosecution witnesses.Relying on Willis v. State, 570 So.2d 760(Ala.Cr.App.1990), the appellant asserts that the jury should have been instructed as to the definition of an accomplice and the "questionable nature" of an accomplice's testimony.

We note that the appellant's written requested jury charge merely defined complicity, and did not address the credibility of an accomplice's testimony.Thus, his written request in itself would not be adequate to preserve this issue for appellate review.However, after the jury was charged by the trial court, the appellant orally stated a specific objection to the jury charges and specifically stated the additional instruction he wished given to the jury.Because the objection and the requested instruction were specifically stated before the jury began its deliberations, the issue has been preserved for appellate review.SeeLee v. State, 562 So.2d 657(Ala.Cr.App.1989).

This court has stated:

" ' An accomplice is defined as "an associate in crime; a partner or partaker in guilt."Darden v. State, 12 Ala.App. 165, 167, 68 So. 550, 551(1915).'Jacks v. State, 364 So.2d 397, 401-02(Ala.Cr.App.), cert. denied, 364 So.2d 406(Ala.1978).See alsoBrownlee v. State, 545 So.2d 151, 159(Ala.Cr.App.1988), aff'd, 545 So.2d 166(Ala.), cert. denied, 493 U.S. 874, 110 S.Ct. 208, 107 L.Ed.2d 161(1989).This term has also been held to include all who are concerned in the crime, whether as principals, as accessories, or as aiders or abetters.23 C.J.S.Criminal Law § 998(1989).

" 'The test for determining whether a witness is an accomplice is whether he or she could have been indicted and convicted for the offense charged, either as principal or accessory.'Ex parte Dial, 387 So.2d 879, 881(Ala.1980), quotingRussell v. State, 365 So.2d 343(Ala.Cr.App.1978).See alsoEx parte Bates, 461 So.2d 5,6(Ala.1984);Brownlee, supra, 545 So.2d at 160;Jacks, supra, 364 So.2d at 401."

Willis, 570 So.2d at 761.

The appellant argues that, because his companions in the vehicle could have been charged in this crime, the jury should have been instructed that their testimony was questionable.However, when a defendant contends that a witness is an accomplice, he has the burden of proving that fact.Cumbo v. State, 368 So.2d 871(Ala.Cr.App.1978), cert. denied, 368 So.2d 877(Ala.1979).Where there is no conflict in the testimony, the issue of whether a witness is an accomplice is a question of law for determination by the trial court.Id.In this case, both alleged accomplices testified that the appellant fired the gun, that they did not know he was going to shoot at the victim's car, and that they did not know that he actually hit anyone when he fired the gun.The appellant denied firing the gun, and testified that he did not think the shots even came from the car.The appellant did not present any evidence to indicate that anyone else in the vehicle fired the gun or that the alleged accomplice witnesses assisted him in committing this crime in any way.Since the appellant did not present evidence that the witnesses in question were accomplices, the trial court did not err in denying his request for jury charges on accomplice testimony.

The State argued that even if the witnesses were accomplices, the two witnesses from the appellant's vehicle presented sufficient corroboration of each other's testimony because their stories were consistent with each other.This is not a correct statement of the law, since the general rule is that the testimony of an accomplice cannot be corroborated by the testimony of another accomplice.Ward v. State, 376 So.2d 1112(Ala.Cr.App.), cert. denied, 376 So.2d 1117(Ala.1979).However, the two witnesses who were in the vehicle with the appellant were not the only witnesses for the State.Two of the State's witnesses were in the other car with the victim when he was shot, and they both identified the appellant as the one who fired the gun.Further, the appellant's own testimony placed him in the vehicle at the time of the shooting and in the seat from which evidence showed that the shots were fired.Thus, unlike the situation in Willis, where there was no corroboration of the testimony of the accomplice, the corroborating evidence against the appellant was more than adequate to support the conviction without the testimony of the two alleged accomplice-witnesses.

II.

The appellant next argues that "the trial court erred in disallowing the full disclosure to the appellant of juvenile records of the state's witnesses to impeach accomplice witness[es] by juvenile adjudication records."The trial court conducted an in-camera review of the juvenile records of the witnesses, and advised the appellant of the few matters from the records which the trial court believed may have been relevant to the defense.However, before the trial, the trial court ruled that the juvenile records were inadmissible into evidence.The substance of the appellant's argument deals with the admissibility of juvenile records to impeach accomplice witnesses rather than the disclosure of those records, so we will focus our discussion on the question of whether the juvenile records were admissible into evidence for purposes of impeachment.

Rule 609(d) of the Alabama Rules of Evidence precludes the use of juvenile or youthful offender adjudications for impeachment of a witness by evidence of conviction of a crime.However, "Rule 609(d) does not disallow impeachment by use of a juvenile or youthful offender adjudication when such impeachment is constitutionally required."C. Gamble, McElroy's Alabama Evidence, § 145.01(4)(5th ed.1996).

The appellant cites Ex parte Lynn, 477 So.2d 1385(Ala.1985), in arguing that the State's witnesses' juvenile records were admissible for impeachment purposes, and that the denial of access to those records was a denial of his Sixth Amendment right to confront witnesses and to have proper assistance of counsel.In Lynn, the Alabama Supreme Court made an exception to the general rule excluding juvenile adjudications from evidence.However, Lynn was limited to situations where the witness was an admitted accomplice of the defendant in the commission of a capital offense.In Loyd v. State, 580 So.2d 1370(Ala.Cr.App.1990), rev'd on other grounds, 580 So.2d 1376(Ala.1991), we addressed the scope of Lynn, stating:

"Appellant cites the case of Ex parte Lynn, 477 So.2d 1385(Ala.1985), for the proposition that in the instant case, the victim's prior juvenile adjudication was admissible.Lynn is factually distinguishable from the present case in that in the Lynn case the witness sought to be impeached by virtue...