Bracewell v. State

• Decision Date: 12 November 1986
• Docket Number: 4 Div. 662
• Citation: Bracewell v. State, 506 So.2d 354 (Ala. Crim. App. 1986)
• Parties: Charles BRACEWELL, alias Charles Howard Bracewell v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 354

506 So.2d 354

Charles BRACEWELL, alias Charles Howard Bracewell v.STATE.

4 Div. 662.

Court of Criminal Appeals of Alabama.

Nov. 12, 1986.

Rehearing Denied Dec. 30, 1986.

Certiorari Denied May 1, 1987

Alabama Supreme Court 86-493.

John B. Givhan of Albrittons, Givhan & Clifton and Griffin Sikes of Sikes, Johnson, Stokes & Taylor, Andalusia, for appellant.

Charles A. Graddick, Atty. Gen., and William D. Little, Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

In 1978, Charles Bracewell was convicted for the capital murder-robbery of Rex Carnley and sentenced to death.That conviction was eventually reversed on appeal after remandment from the United States Supreme Court.Bracewell v. State, 475 So.2d 616(Ala.Cr.App.1984).In 1986, Bracewell was again convicted but was sentenced to life imprisonment without parole.He now appeals from that conviction and presents five issues.

I

Bracewell contends that the trial court erred in not permitting his brother, James Bracewell, to testify that the reason why he did not testify in Bracewell's first trial was because "he had been pressured by the District Attorney's Office not to do so."Appellant's brief, p. 2.

On appeal, Bracewell asserts that he called James to testify in his defense in order to prove that he had not left the state after the crime "as had been contended by the State."Appellant's brief, p. 1.However, the issue of flight was not disputed at trial.

Carnley was murdered sometime during the early morning hours of August 15, 1977.State witness Jimmy "Eddie" Robinson testified that, on the evening of the 15th, Bracewell told him that "that Carnley boy got killed over in Opp and I will be the first one they come after."However, when asked, Bracewell denied "doing it."

The State introduced into evidence a confession Bracewell gave the police after his arrest.In that statement, Bracewell admitted that he told Robinson that he and his wife "were going to have to go to Florida because Rex Carnley had been robbed and killed and the law would be looking for us."Bracewell stated that "we left the next morning [the 16th] and went to Florida and stayed 4 or 5 days."

The defense called Robinson as its first witness and established that Bracewell was not at Robinson's house on August the 14th, as Bracewell had stated in his confession.On cross examination by the District Attorney, Robinson testified that on August 15th, Bracewell "didn't say nothing about going to Florida then" but said "[h]e was going to have to get out of Opp" because "the law would be looking for him."

Nadine Bracewell, Bracewell's sister, testified that she saw Bracewell on August the 15th and the 18th but did not see him for the next two weeks.When asked if Bracewell was "in Florida there in June, July and August; along in there,"she replied, "He was in Florida most of the time."

On direct examination, James Bracewell testified that he saw Bracewell in Opp on August 16th, 21st, and 24th.He stated that he"heard" that Bracewell and his wife went to Florida but did not know that "for a fact."After that testimony, the following occurred:

"CROSS-EXAMINATION

"BY MR. LANIER [district attorney]:

"Q.Mr. Bracewell, you are James' [sic]brother?

"A.Yes, sir.

"Q.Youdidn't testify in the first trial, did you?

"A.No, sir.

"MR. LANIER: No other questions.

"REDIRECT EXAMINATION

"BY MR. SIKES [defense counsel]:

"Q.The District Attorney asked you why you testified in the first trial?

"MR. LANIER: No, sir, I asked him if he testified.I didn't ask him why.

"MR. SIKES: I know you didn't ask him why.I'm going to ask him why.

"MR. LANIER: We object to asking him why he didn't have an opportunity to come up here and testify.

"Q.Did the District Attorney ask you not to testify?

"MR. LANIER: We object.

"THE COURT: I sustain the objection.

"Q.Did you have a conversation with the District Attorney prior to that trial?

"MR. LANIER: Again, Your Honor, we object.

"A.Not directly.

"THE COURT: He said not that he recollected; he answered it.

"MR. BRACEWELL: I said not directly.I received a message from him.

"Q.Youreceived a message from--

"MR. LANIER: We object to all of this conversation or message.

"THE COURT: I sustain.

"MR. SIKES: Judge, I think we have the right to go into whether or not--

"THE COURT: I sustained the objection.You may proceed.

"MR. SIKES: I have nothing further."

Bracewell contends that he was not allowed to rebut the District Attorney's discrediting inference that, because James did not testify at the first trial, his testimony was a recent fabrication.

James Bracewell's failure to testify at the first trial was "a proper circumstance to be considered by the jury in weighing his evidence" and a proper subject of cross examination.Shirley v. State, 144 Ala. 35, 40 So. 269, 271(1906)("The failure of witness to give evidence of this fact on the preliminary trial was a proper circumstance to be considered by the jury in weighing his evidence.Besides, the question fell within the latitude allowed on the cross-examination of a witness.").See also98 C.J.S.Witnesses§ 485(b)(6)(1957).

Generally, a witness cannot testify as to his undisclosed mental state or intent.Pollard v. Rogers, 234 Ala. 92, 99, 173 So. 881(1937).There is an established exception to this rule."The exception allows a witness, who on cross-examination admits making, or is shown to have made, a prior statement inconsistent with that testified on direct examination, to give his own undisclosed intent, motive, or other mental state, as an explanation for having made the prior inconsistent statement."Pollard, 234 Ala. at 99, 173 So. 881;Hubbard v. State, 471 So.2d 497, 499(Ala.Cr.App.1984)(where investigator was asked on cross examination why he did not investigate defendant's allegation of blackmail, he was properly allowed to testify on redirect that he did not believe these allegations);Hall v. State, 19 Ala.App. 229, 230, 96 So. 644(1923)(witness properly permitted to testify on redirect examination that defendant had threatened to kill her if she did not make a statement).

"In order to refute unfavorable inferences and to avoid the effect of the cross-examination, a witness may be asked as to his reasons for his statements on cross-examination or at other times, or for acts, omissions to act, or conduct on his part which have been brought out.This rule, however, does not entirely supersede the rule against the admission of hearsay evidence."98 C.J.S.Witnesses§ 421(1957).

When a party has a witness on redirect examination, "the object is to answer any matters brought out on the cross-examination of the witness by his adversary."C. Gamble, McElroy's Alabama Evidence§ 439.01(1)(3rd ed. 1977).While trial courts are vested with considerable discretion as to the examination of witnesses, "this discretion does not go to the extent of authorizing a denial to a party the right to explain or qualify discrediting facts brought out by the opposite side."Payne v. Roy, 206 Ala. 432, 435, 90 So. 605(1921).

Although defense counsel was entitled to show why James Bracewell did not testify at his brother's first trial, there is no error in the record.In fact, James was never asked why he did not testify at the first trial."As a general rule, in the absence of a showing of propriety, a leading question to one's own witness on redirect examination is objectionable and is properly excluded, and it is erroneously allowed where its effect is harmful.However, as in other matters in reexamination, it is within the discretion of the court to permit or refuse the asking of such a question."98 C.J.S.Witnesses§ 428(1957), citingWhitt v. Forbes, 258 Ala. 580, 587, 64 So.2d 77(1953).See alsoGilliland v. State, 466 So.2d 151, 158(Ala.Cr.App.1984).

James Bracewell stated that he did not have any "direct conversation" with the District Attorney.Defense counsel made no offer of proof to show the substance of the witness's expected testimony.In order to review a ruling sustaining an objection to a question which does not on its face show what is the expected answer, attention must be called to the proposed answer and it must be shown that such answer was relevant and admissible.Davis v. Davis, 474 So.2d 654, 656(Ala.1985);McElroy at§ 425.01(4).

As stated earlier, the issue of flight was not disputed at trial.In fact, it is undisputed that some time after the crime, Bracewell did go to Florida.Neither the district attorney nor defense counsel made any direct reference to flight in their opening statements or closing arguments.The only comment which had any potential for being construed as a reference to flight was the District Attorney's statement: "They[Bracewell's brother and sister] really didn't get up here and tell something that in their minds they didn't think was true.They just told about seeing Charles either the day before or two days afterwards.But, Nadine Bracewell said she saw him on Thursday and then she didn't see him for two or three weeks.He was gone."There was never any argument made that flight indicates a consciousness of guilt.The trial court did not charge the jury on the legal principles of flight.

Considering these facts, and especially in view of the fact that James Bracewell testified that he had "heard" that Bracewell went to Florida, we find that any potential error in the refusal to permit James to answer the particular questions asked was harmless.

II

Bracewell argues that the trial court erred in charging the jury on circumstantial evidence when "there was not a scintilla of circumstantial evidence introduced at trial."Appellant's brief, p. 3.

While the evidence tying Bracewell to the crime was his own confession and admissions, the corpus delicti was established, at least in part, by circumstantial evidence.See Issue V.

Additionally, while Bracewell objected at trial to the court's charging on circumstantial evidence,...