Campbell v. State
| Decision Date | 04 May 1976 |
| Docket Number | 1 Div. 643 |
| Parties | Samuel CAMPBELL v. STATE. |
| Court | Alabama Court of Criminal Appeals |
David L. Barnett, Mobile, for appellant.
William J. Baxley, Atty. Gen., and G. Daniel Evans, Asst. Atty. Gen., for the State.
This is an appeal from a conviction of murder in the second degree and a sentence of ten years imprisonment in the penitentiary.
The plea was not guilty, to an indictment charging murder in the first degree. Defendant shot the alleged victim, Willie Bonner, with a shotgun. They were across-the-street neighbors. They had just had a fight at a nearby barbecue stand that resulted in Bonner's shooting defendant in the leg with a pistol. Thereafter each went to his home. Defendant got a shotgun, came out of a door of his house and shot Bonner as he was standing behind a screen door of Bonner's house. Defendant said that he did so as Bonner was sticking his hand, with the gun in it, out of the door. Whether the killing of Bonner was justified by the principle of self-defense, as explained fully by the trial court, was a jury question, and there is no contention on appeal to the contrary.
Four photographs of Bonner were taken at the Mobile General Hospital, after he had expired there on the table while being operated upon for his gunshot wounds. Detective Leslie Nobles, who took pictures of Bonner at the hospital and who observed Bonner both before and after he died and who said he had previously seen from five to ten people who had been blasted with a shotgun and died, was asked by the State, 'And in light of that past experience, do you have an opinion as to the cause of death of this man? ' Thereupon the following occurred:
'A From a gunshot wound to the chest-stomach area.
Whether the objection made sufficiently raised the question of the witness' qualification to give his opinion as to the cause of Bonner's death need not here be decided, for we think under the circumstances, taking into consideration the photographs themselves, as well as the other evidence as to Bonner's injury, the court was correct in allowing the witness to testify as he did. Whether a particular witness is qualified to testify as to the cause of death depends greatly upon the circumstances. Whenever a purely medical question is obvious, one is hardly an expert unless he has had experience in the medical field. In this case, however, the testimony of medical personnel was not necessary. In Jones v. State, 155 Ala. 1, 46 So. 579, it was held that nonexpert witnesses could not testify that a bullet in the abdominal cavity of the alleged victim of homicide was the cause of his death. However, in Birmingham & A. Ry. Co. v. Campbell, 203 Ala. 296, 298, 82 So. 546, in holding that a lay witness could testify as to whether her husband had had 'any other troubles' between the time of his injury and death and in distinguishing Jones, it was said, 'The case of Jones v. State, 155 Ala. 1, 46 South. 579, is not to the contrary. ' In harmonizing Jones, it has been stated:
"To authorize a witness to given an opinion as an expert, it must appear that, by study, practice, experience, or observation as to the particular subject, he has acquired a knowledge beyond that of ordinary witnesses." Clemons v. State, 167 Ala. 20, 52 So. 467, 471.
'' Scott v. State, 34 Ala.App. 18, 37 So.2d 670, cert. denied 251 Ala. 440, 37 So.2d 674.
In the case now before us, there was no controversy as to the cause of death. The whole case revolved around the question whether defendant was acting in self-defense. Defendant objected to the photographs of the victim by reason of their allegedly inflammatory nature, and is, the horrible injury the photographs show that he received. Testimony of Officer Nobles as to the cause of death is not to be equated with the testimony of a nonexpert as to a purely medical question. The witness saw Bonner in his wounded condition, while on the operating table, and soon thereafter he observed his corpse in the morgue. As pointed out by Judge Tyson in Cobb v. State, 50 Ala.App. 707, 282 So.2d 327,
No case in Alabama has been brought to our attention on the question whether an experienced police officer can testify as to the cause of death in a homicide case, and we think that probably testimony by persons other than those mentioned in the quotation from Cobb, supra, or like professionals, should not be encouraged in cases in which there could be reasonable doubt as to the cause of one's death, even though he had been felled, to rise no more, by the load from a shotgun. Where, as here, there could have been no reasonable doubt, and the witness is shown by the testimony to have had more knowledge on the subject than that of an ordinary witness, we are convinced that no error prejudicial to defendant resulted from the court's overruling defendant's objection to the question asked Officer Nobles.
The remaining questions raised by appellant relate to the action of the court in permitting the prosecution to show statements by defendant soon after his arrest, in conflict with his testimony on the trial.
While questioning Detective Nobles on rebuttall, State's counsel interrogated him rather extensively as to two written statements defendant made after he was arrested, one the day of his arrest and the other three days after. Defendant had been questioned by the prosecution on cross-examination of him as a witness, and he had admitted that the written statements were incorrect in two or three particulars. He explained that the first written statement was made after he was advised by some of his fellow prisoners that he had 'better say that (the gun with which defendant shot Bonner) was his (Bonner's) gun,' but that upon talking with his mother, she had persuaded him to tell the truth, and that he had corrected the errors of the first statements in making the second statement some three days thereafter. During this interrogation, it appears that counsel for prosecution was reading from one or the other of said statements, but neither statement was offered in evidence, and we do not have the benefit of either. In rebuttal, while interrogating Officer Nobles, counsel for the prosecution questioned the witness as to the first statement. The court at first sustained defendant's objection as shown by the following:
'Q. Now, could you tell us what he told you concerning that second shooting out there on West Clark Street when Willie Bonner was killed?
'A. You want the first statement he gave me on the 22?
'Q. The one on the 22nd, what he told you that particular . . . the second shooting, if you can . . .
'Q. Officer Nobles, did he make you a statement?
'A Yes, he did.
Immediately thereafter the following occurred.
'Q. Does the statement differ from what he said here on the stand?
'Q. Did it?
'A. Yes, it did.
'Q. Can you tell the jury how it differed from what he said here on the stand.
'Q. Now, did he--is that Samuel Campbell's signature right there?
'A. Yes, it is.
'Q. And when you took the statement from him did you read the statement to him?
'A. Yes, I did.
'Q. Can he read?
'A. Yes.
'Q. Did he read over the statement?
'A. Yes.
'Q. And did he acknowledge to you that it was true and correct at the time he gave it to you?
'A. At the time he did.
'Q. Okay, did he ever tell you that he wished to add anything to that statement?
'MR. BARNETT: Judge, I'm going to object to it . . .
'A. At that time . . .
'A. At the time I asked him the question: 'Is there anything you want to add or take away from this statement?' 'No, that's all.' That's his answer.
'
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