Burns v. State, 1 Div. 432
Citation | 518 So.2d 860 |
Decision Date | 13 October 1987 |
Docket Number | 1 Div. 432 |
Parties | Doris Jean BURNS v. STATE. |
Court | Alabama Court of Criminal Appeals |
This court's original opinion of July 28, 1987 is hereby withdrawn and held for naught.
The following is substituted for that opinion.
Doris Jean Burns was indicted for first degree assault. The jury found the "appellant guilty of third degree assault." She was sentenced to one year in the county jail and was ordered to make restitution in the amount of $661.00.
A lengthy discussion of the facts of this case is unnecessary because of our decision to reverse and remand this case for a new trial.
The evidence presented at trial showed that on June 8, 1985, Sherry Lynn Moore was at a bar and ran into a table at which the appellant was sitting. The appellant's drink spilled and she demanded Moore buy her another drink. The two struggled for a while until the appellant threw a drink at Moore and hit her on the head with the glass. The appellant also beat Moore's head on the table where the broken glass had fallen. Moore had several cuts on her face.
The appellant stated that Moore tried to hit her with a glass but she blocked it with her hand. The glass broke and cut Moore.
On rebuttal, the State presented the testimony of Donald Gwin. Gwin stated that he was at a bar on January 9, 1986 when the appellant struck him with a glass. As a result, Gwin was completely blind in one eye.
During the cross-examination of Gwin, the following occurred:
The appellant contends that the trial judge, by not allowing defense counsel to question Gwin as to whether his lawyer was present in the courtroom, deprived her of her constitutional right to a thorough and sifting cross-examination of the witness.
Ex parte Brooks, 393 So.2d 486, 487-88 (Ala.1980). See also Calhoun v. State, 487 So.2d 265 (Ala.Crim.App.1986).
Moody v. State, 495 So.2d 104, 109 (Ala.Crim.App.), cert. denied, 495 So.2d 110 (Ala.1986).
Although this civil suit filed by Gwin did not arise from the same facts as this criminal prosecution, it involved the same act or conduct by this appellant as the act committed which formed the basis for this prosecution. The State introduced the testimony of Gwin concerning this same conduct of the appellant. Thus, the appellant should have been allowed to question Gwin concerning the fact that his attorney was present in the courtroom and the reasons for his presence therein.
Furthermore, in her brief, the appellant states that she wanted to ask Gwin if he had discussed the case at bar with his attorney and what effect a conviction of the appellant in this case would have on his civil suit. Although the appellant did not make this showing to the court, it is obvious from the record that she was cut off before she had the chance to do so.
It is clear that a witness can be cross-examined as to "whether he has discussed the facts of the case and, if so, with whom and what was said in the discussions." C. Gamble, McElroy's Alabama Evidence, § 149.01(7) (3rd ed. 1977).
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Ross v. State
...witness' possible bias and prejudice constituted reversible error. Jones v. State, 531 So.2d 1251 (Ala.Crim.App.1988); Burns v. State, 518 So.2d 860 (Ala.Crim.App.1987). Both Burns and Jones, however, are distinguishable from the cause sub judice. In Burns and Jones, the appellants were not......
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Weaver v. State, 1 Div. 741
...witnesses for the prosecution concerning civil suits arising out of the same facts as the criminal proceeding. Burns v. State, 518 So.2d 860, 861-63 (Ala.Cr.App.1987); Reeves v. State 432 So.2d 543, 545-46 (Ala.Cr.App.1983). The rationale for this rule is that such an examination may show t......