Bracy v. State, 6 Div. 267
Decision Date | 12 February 1985 |
Docket Number | 6 Div. 267 |
Citation | 473 So.2d 1133 |
Parties | Richard BRACY v. STATE. |
Court | Alabama Court of Criminal Appeals |
William E. Friel II, Birmingham, for appellant.
Charles A. Graddick, Atty. Gen., and M. Beth Slate, Asst. Atty. Gen., for appellee.
Richard Bracy was indicted for the murder of Pratt Kindall Sanders in violation of Alabama Code 1975, § 13A-6-2. A jury convicted him of manslaughter. He was sentenced as a habitual offender to 25 years' imprisonment. Two issues are raised on appeal.
The defendant argued that he was denied due process of law by the failure of the State and defense counsel to secure the presence of his brother, a co-defendant, at trial.
The defendant's brother, Larry Bracy, was also indicted for Sanders' murder. He pled guilty on March 11, 1982, and received a 25-year sentence. Initially, he was a state prisoner but "he got shipped up to Leavenworth, Kansas, [as] a state prisoner being boarded in a federal institution." The prosecutor and the trial court made several attempts to secure Larry's presence at the defendant's trial. The trial judge found that delays were encountered "really because of basically an argument over funding, Jefferson County and the State of Alabama." When that was finally worked out, it was learned that "Larry Bracy would not be available as a witness for us because he was charged with killing an inmate in a federal institution, which, of course, is a federal crime and which made him subject to federal custody."
Defense counsel could not stipulate to Larry Bracy's expected testimony because "I'm not certain what he would say" although counsel did state that Larry Bracy would testify that "he did the shooting." Defense counsel specifically stated that he was satisfied that the State had made "a bona fide effort to get him here." Defense counsel had not communicated with Larry by mail or by phone. The defendant had received letters from his brother but they did not "pertain to what he would say if he were here in court."
The trial court found that "everybody has done what they can do under the circumstances" and even offered to accept a stipulation of what Larry's testimony would be. Furthermore, the trial court went even further: "If there is anything that he told you [defense counsel], you being an officer of the court and so forth, if he told you anything that bears on these issues, I'll let you stand up here and tell the jury what he's told you." This offer was not pursued after an off-the-record discussion.
The State's evidence showed that on May 23, 1981, Pratt Kindall Sanders died from "hemorrhage secondary to two small caliber gunshot wounds."
The victim's wife, Elizabeth Sanders, testified that she saw Larry Bracy shoot her husband through the screen door of their home when her husband invited Larry Bracy inside their home. Her husband then went out on the porch and he and Larry "started tussling". While they were tussling, the defendant ran up and grabbed Sanders "from behind" and told his brother "don't let him go ... give it to me, man." Mrs. Sanders then ran out the back door and heard a second gunshot. She ran to a neighbor's and when she returned she saw the defendant and his brother "leaving in the car that they had come in", although she later testified that she did not see the defendant in the car that was leaving. Mrs. Sanders never saw the defendant with a gun in his hand nor did she see him shoot her husband. That concluded the State's case. The defense presented no testimony.
Nowhere in the record or in the defendant's petition for testimony are there disclosed the specific facts intended to be proved by the absent witness. "Denial of a continuance is not palpable abuse of discretion in the absence of a showing as to what the witness would testify to." Fields v. State, 424 So.2d 697, 699 (Ala.Cr.App. 1982). A motion for a continuance because of an absent witness is properly overruled where the court is not informed of the nature and materiality of the evidence sought. Gast v. State, 232 Ala. 307, 310, 167 So. 554 (1936).
In this case, the absent witness was the defendant's brother. The defendant had communicated with his brother after the crime and while the brother was in the federal penitentiary. It is inconceivable to this Court that the defendant had not discussed with his brother "what he would say if he were here in court" after alleging in his petition for testimony that his brother's testimony was "crucial" to his defense. Under these circumstances, we find no error in the refusal to grant a continuance.
The defendant was convicted on December 15, 1982. In July of 1984, he filed a petition for writ of error coram nobis. To that petition he attached an order of the United States District Court for the District of Kansas denying Larry Bracy's petition for a writ of habeas corpus.
All the evidence shows that Larry Bracy shot Sanders at least once. Sanders died "as a result of exsanguination or hemorrhage secondary to two small caliber distant gunshot wounds." Mrs. Sanders, the wife of the deceased, was the only witness to testify to the events surrounding the homicide. She saw Larry Bracy shoot her husband and saw the defendant grab her husband from behind:
Mrs. Sanders then "ran out the back door" and "heard another gunshot." Any testimony from Larry Bracy that he shot Sanders would not conflict with any evidence presented by the prosecution and would not exculpate the defendant. Even if Larry Bracy were to testify that he shot Sanders both times, the defendant would still be guilty as an accomplice.
The defendant's second argument obviously had its inception in the denial of Larry Bracy's petition for writ of federal habeas corpus. In denying the petition, the Federal District Court stated:
The defendant now argues that he was denied his constitutional right to the effective assistance of counsel because his appointed trial counsel did not attempt to secure his brother's presence through a petition for writ of habeas corpus ad testificandum nor did he attempt to secure his testimony by way of deposition pursuant to Alabama Code 1975, § 12-21-260.
The trial judge found that defense counsel's ignorance of the particulars of Larry Bracy's testimony was "through no fault" and that "everybody has done what they can do under the circumstances."
...
To continue reading
Request your trial-
Anderson v. State
...absence of a showing as to what the witness would testify to.' Fields v. State, 424 So.2d 697, 699(Ala.Cr.App.1982)." Bracy v. State, 473 So.2d 1133, 1134 (Ala.Cr.App.1985). See also Dobbins v. State, supra. Furthermore, according to the record, the testimony of Phyllis Johnson would have b......
-
Alleyne v. State, 4 Div. 136
...entrapment defense, the record does not disclose the specific facts intended to be proved by the absent witness. See Bracy v. State, 473 So.2d 1133 (Ala.Crim.App.1985). A motion for continuance is addressed to the sound discretion of the trial court and the denial of such motion will only b......