Brooks v. State

• Decision Date: 21 October 1969
• Docket Number: 4 Div. 7
• Citation: 228 So.2d 24,45 Ala.App. 196
• Parties: S. E. BROOKS, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 24

228 So.2d 24

45 Ala.App. 196

S. E. BROOKS, alias v. STATE.

4 Div. 7.

Court of Criminal Appeals of Alabama.

Oct. 21, 1969.

Rehearing Denied Nov. 11, 1969.

Powell & Sikes, and James M. Prestwood, Andalusia, for appellant.

MacDonald Gallion, Atty. Gen., and John A. Lockett, Jr., Asst. Atty. Gen., for the State.

ALMON, Judge.

This is an appeal from a judgment of conviction of assault with intent to murder. Punishment was fixed at five years in the penitentiary. Appellant claimed self-defense.

The evidence tended to show that appellant was in the cafe business in the City of Andalusia. There was a controversy between him and the City Council over the parking arrangement in front of his cafe. Appellant was irritated at the Council because, according to him, the Council had stopped him from parking in front of his cafe.

The prosecuting witness, Manuel Russo, operated a service station in Andalusia and was on the City Council. Two witnesses testified that on the morning of January 25, 1957, they were in Russo's service station drinking coffee when Brooks entered. According to their testimony he came in the service station where Russo was sitting and said something about the parking situation. He then grabbed Russo by the collar and a struggle ensued. During the struggle, Brooks pulled a pistol from his right front pants pocket and shot Russo in the left plural cavity. The bullet entered from the front, causing hemorrhage and partial collapse of the left lung, and was removed from the back.

For appellant's version of the incident, we quote from the record:

'Q. Now when you went in Russo's place there what, if anything, did you say to Russo?

'A. I asked him why they wanted to stop me from parking down there, and he said that come under the head of their business. I said, well, if you stop me from parking in front of my place, trying to make a living, that comes under the head of my business. So he was standing, leaning up on the cash register. So from there he reached down and grabbed up a tire tool by the handle and struck me on the shoulder with the tire tool and knocked me through the window, and he was up over me with a tire tool and which, like they say, the gun was about to fall out, so I got it and was going to knock him in the head with it, and whether it went off with me or whether he made it go off, I don't know.'

During the trial numerous exceptions were taken to the rulings of the court on the admission and exclusion of evidence. These numerous exceptions do not require treatment and consideration in detail since many of them raise similar questions.

During opening remarks to the jury, defense counsel moved for a mistrial on the ground that the special prosecutor was too familiar with one of the members of the jury. We quote from the record:

'MR. PRESTWOOD: * * * that the special prosecutor, Mr. Tipler, in his opening remarks, and during the course of his opening remarks, pointed to the heart of one of the jurors, almost touching the juror, if not doing so, showing the juror or members of the jury where Mr. Russo was struck by the bullet; and that juror is sitting on the front row at the extreme right end, and his name is Mr. James Goolsby.

'Now before the Court rules on this we would like for the Court to acknowledge that these things did occur--that Mr. Tipler did argue that and the Court saw that he did point his finger at the heart of Mr. Goolsby, almost touching him, if he did not touch him.

'MR. TIPLER: I don't know that he is called on to acknowledge anything. The record shows what it showed. I didn't touch the man.

'MR. PRESTWOOD: We ask to prove it out of the presence of the jury.

'THE COURT: The jury will be at ease just a moment.'

The motion was heard in the side room out of the presence of the jury. The other defense counsel, A. R. Powell, Jr., the only witness, testified about the occurrence of the special prosecutor's conduct toward a member of the jury. At the conclusion of the hearing the following occurred:

'MR. PRESTWOOD: And let the record show that this entire proceeding has been outside the presence of the defendant, S. E. Brooks.

'MR. TIPLER: Hold it. We would like to go through it again if he is going to bring that in.

'MR. PRESTWOOD: We have made our point.

'MR. TIPLER: Before Mr. Prestwood leaves we ask that Mr. Brooks be brought in here where I was asked to come. I was told to come back here, and this was done at the request of the defendant's attorney. We ask that Mr. Brooks be brought back here and the testimony be read to him.

'MR. PRESTWOOD: We say there is nothing the State of Alabama can do to restore the defendant's right to be here when anything concerning his case is transpiring, and that it is beyond a curative point, if the Court please, and the burden is upon the State, as prosecutor, to see that this defendant receives all consideration as a defendant in a criminal case that he is entitled to.

'THE COURT: Let the record reflect that this hearing out of the presence of the jury was done at the request of counsel for the defendant.

'MR. PRESTWOOD: But not included in that request was that the defendant be denied presence at whatever transpired.

'THE COURT: All right.

'MR. TIPLER: I want to ask Mr. Powell: Did you all request that Mr. Brooks be brought in here?

'MR. POWELL: I didn't.

'MR. PRESTWOOD: I didn't either. That is not our burden. The burden is not on us.

'MR. TIPLER: That's argument then.

'MR. PRESTWOOD: We simply asked the Court should this be made outside the presence of the jury, and thought it should be made out of the presence of the jury, and still think so.

'MR. TIPLER: He asked if it should be? Mr. Prestwood asked him to do it outside the presence of the jury. He didn't ask should it be outside the presence of the jury. He requested the Court to do it outside the presence of the jury. I take issue on that.

'MR. PRESTWOOD: I didn't state it in that fashion. I said should we do it?

'THE COURT: Read the record as to what happened before we came back here.

'THE COURT REPORTER (reading from his notes): 'MR. PRESTWOOD: We ask to prove it out of the presence of the jury.'

'MR. TIPLER: Now let the record show that if Mr. Prestwood wants to, we will be glad to go through this same procedure by calling his client in here and doing it all over again, if he wants to.

'MR. PRESTWOOD: And let the record show that as one of the attorneys for the defendant I am not taking the responsibility to do the curative work. It would be on the shoulders of the State in the first offer.

'MR. TIPLER: The same offer is made to Mr. Powell, if he wants to do it over again.

'MR. POWELL: I have the same reply to that as Mr. Prestwood did.

'THE COURT: Again, I deny the motion for a mistrial.

'MR. POWELL: We except.'

Two questions arise from the portion of the record above quoted: (1) the undue familiarity of counsel with a member of the jury and (2) the absence of defendant from the proceedings in the side room.

Matters of undue familiarity of counsel with a member of the jury, unless flagrant, more properly address themselves to the sound discretion of the trial judge and are not generally considered to be reversible error. The trial judge, being present, is in a better position to determine the prejudicial effect than a reviewing court. For a case involving an attorney patting a juror on the knee, see Smith v. State, 36 Ala.App. 646, 62 So.2d 473.

We are aware of the well established rule in this jurisdiction that a defendant on trial for a felony has a right to be present at every stage of his trial. Ex parte Bryan, 44 Ala. 402; Neal v. State, 257 Ala. 496, 59 So.2d 797; Montgomery v. State, 42 Ala.App. 345, 164 So.2d 717.

However, in this situation, we feel that there are several reasons why the general rule is not applicable: (1) this was merely a motion by defense counsel for a mistrial, not in the presence of the jury; (2) the motion was without merit; (3) the only witness who testified on the motion was appellant's own attorney who testified about an occurrence which happened in open court when appellant was present; (4) defense counsel made no effort to apprise the court of appellant's absence; (5) there being no dispute as to the facts of the occurrence, the question was one of law; (6) this was a side issue only and not one going to prove the guilt or innocence of the appellant; and (7) the record does not reflect whether appellant voluntarily absented himself or not. Presumably, he was aware of the side room proceeding because the request for the hearing was made in open court in his presence. No reason appears in the record for his absence.

Most of the cases which have been reversed in this jurisdiction have been situations where the court either instructed the jury or testimony was taken before the jury without the defendant's presence. We have found no cases in this jurisdiction directly in point; however, the case of Carroll v. State, 45 Ala.App. 80, 224 So.2d 917, cert. denied 224 So.2d 920, is persuasive.

The general rule in other jurisdictions is that no claim of error can be based upon the absence of a defendant, pending his trial on a criminal charge, from the courtroom, or from a conference between court and attorneys, during argument on or discussions of a question of law. See 144 A.L.R. 199 and 85 A.L.R.2d 1111.

Appellant argues in brief that he was deprived of a fair trial because the special prosecutor was employed by the prosecuting witness to represent him in a possible civil claim arising out of the same transaction.

In McCain v. City of Montgomery, 38 Ala.App. 568, 92 So.2d 678, cert. denied, 265 Ala. 551, 92 So.2d 682, we find:

'A defendant in a criminal prosecution is entitled to a fair and impartial trial, and nothing more. So long as the conduct of the special prosecutor comports to due and orderly procedure a defendant is in no position to complain as to who conducts the prosecution. Jones v. State, 16 Ala.App. 154...