Carden v. State
| Decision Date | 18 September 1992 |
| Docket Number | CR-91-310 |
| Citation | 621 So.2d 342 |
| Parties | Jeffrey CARDEN v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Fulton Hamilton, Huntsville, for appellant.
James H. Evans, Atty. Gen., and Margaret Childers, Montgomery, for appellee.
Jeffrey Carden was indicted for the offense of manslaughter, in violation of § 13A-6-3, Code of Alabama 1975. The jury found Carden guilty of manslaughter, as charged in the indictment, and he was sentenced to a 10-year term of imprisonment. Six issues are raised on appeal.
Carden contends that the trial court erred in denying his application for treatment as a youthful offender. In particular, Carden argues that the trial court denied his petition based solely upon the seriousness of the charge of manslaughter because 1) there is nothing in the record revealing any information made available to the trial court before the court's decision, and 2) no testimony was taken and there is nothing in the record to indicate that any argument of counsel was presented before to the trial court's decision.
The trial court has almost absolute discretion in ruling on applications for youthful offender status, and the actions of the trial judge are presumptively correct in the absence of a showing to the contrary. Morgan v. State, 363 So.2d 1013 (Ala.Cr.App.1978).
A trial judge is not required to recite his reasons for denying an application for youthful offender status in his order denying the application. Arrington v. State, 513 So.2d 40, 41-42 (Ala.Cr.App.1987). It is sufficient if the order of denial reflects that some investigation, examination, or inquiry was conducted before the application for youthful offender status was denied. Talley v. State, 504 So.2d 741, 742-43 (Ala.Cr.App.1987). A formal hearing on an application for youthful offender status is not required. Garrett v. State, 440 So.2d 1151, 1152 (Ala.Cr.App.1983). Where it does not affirmatively appear that the trial court's decision was arbitrary or that it was made without any examination or investigation, there is no basis for overturning the trial court's decision. Wilson v. State, 563 So.2d 11, 12 (Ala.Cr.App.1989).
In the instant case, the record shows that an investigation was ordered on Carden's petition, that a youthful offender investigation report was prepared, that a hearing was held on the petition, and that the petition then was denied, after investigation. Carden has not included in the record on appeal a transcript of this hearing, a copy of the youthful offender report, or any other documents that may have been submitted at the hearing.
Where the appellant fails to include pertinent portions of the proceedings in the record on appeal, this court may not presume a fact not shown by the record and make it a ground for reversal. Montgomery v. State, 504 So.2d 370, 372 (Ala.Cr.App.1987).
Moreover, in Carter v. State, [Ms. CR-90-630, Jan. 31, 1992], (Ala.Cr.App.1992), this court held that the minute entry recitation that a "hearing on a youthful offender application was conducted" had to be accepted as true because there was nothing in the record to substantiate Carter's claim that an appropriate hearing was not held.
We, therefore, hold that because the minute entry recitations in this case reflect that a youthful offender report was ordered, that a hearing was held wherein Carden was present with his attorney, and that the application was denied after investigation, the record in this case does not reveal any error in the denial of Carden's application for youthful offender status.
Carden contends that he was denied his constitutional right to a fair trial by the trial court's decision to allow a State's witness to testify before opening statements.
Prior to opening statements by counsel, the court instructed the jury as follows:
Although the specific constitutional issue presented herein was raised for the first time in Carden's motion for new trial, we nevertheless find the above-quoted objection to the out-of-turn testimony of Easson sufficient to preserve this issue for appeal.
A trial court is vested with discretion in the conduct of a trial, and appellate courts will not interfere with the exercise of that discretion unless it clearly appears that there has been an abuse of discretion. Shelton v. State, 384 So.2d 869, 870 (Ala.Cr.App.), cert. denied, 384 So.2d 871 (Ala.1980). The time and manner of introducing and closing evidence are within the discretion of the trial judge. Shelton v. State, supra, 384 So.2d at 870.
In the case sub judice, Carden was indicted for manslaughter in December 1988, when the car Carden was driving collided head-on with a car driven by the victim, Cephas Wynn. Dr. Joerg Pirl, the toxicologist who performed the analyses and evaluations of Carden's blood-alcohol level at the time of the collision, moved out of state before the case was set for trial, and his absence necessitated numerous continuances until the case was specially set for trial on September 23, 1991, to allow Dr. Pirl to travel to Alabama to testify.
On the day before the trial was to begin, State's witness Officer Lane Easson suffered an injury, and he was scheduled for surgery on the morning of the second day of trial.
On the first day of trial, the jury was not struck until mid- or late afternoon, and it did not appear to the trial court that there would be time for Officer Easson to testify that day if opening statements were then made.
Under these special circumstances, we hold that the trial court did not abuse its discretion in allowing Easson to testify on the first day of trial and in moving opening statements for both parties until the following morning. Easson, who was formerly employed as an emergency medical technician with the Suburban Ambulance Service, treated Carden, the victim, and other persons injured at the scene of the collision. Easson was certainly a key witness for the State, and the trial court prudently rearranged the normal trial order to accommodate this witness's medical problem. The propriety of the trial court's decision is buttressed by the fact that another key witness for the State had flown a great distance to testify at that time, and, the case had been continued on numerous occasions that this witness could testify.
We note, moreover, that Carden has failed to show any prejudice resulting from the trial court's permitting Easson to testify before opening statements. Rule 45, Ala.R.App.P. Defense counsel waived his right to make an opening statement on the morning following Easson's testimony, and there is nothing in the record to indicate that defense counsel ever intended to make an opening statement before the State's presentation of its case.
The trial court's decision to allow Easson to testify before opening statements was therefore proper under the special circumstances of this case.
Carden contends that the trial court erred in admitting four photographs of the victim taken at the funeral home on the day he died. Carden's claim that these photographs should not have been admitted because they contained unexplained incisions and other injuries that were the result of medical procedures performed upon the victim.
The appellant bears the burden of bringing the record before the appellate court. Montgomery v. State, 504 So.2d 370 (Ala.Cr.App.1987). An appellate court may only consider the facts contained in the record on appeal, and it may not presume any facts not shown by that record and make them a ground for reversal. Williams v. State, 412 So.2d 1274 (Ala.Cr.App.1982).
Because Carden has not included the photographic evidence he objects to in the record on appeal, the record does not reflect the factual basis for his argument, and there is nothing for this court to review. Gilbert v. State, 401 So.2d 342 (Ala.Cr.App.1981).
Carden contends that the trial court erred in submitting the victim's death certificate to the jury during its deliberations because that certificate was never formally offered nor admitted into evidence.
This court can review only those matters on which adverse rulings have been invoked in the trial court. Cano v. State, 543 So.2d 724 (Ala.Cr.App.), cert. denied, 493 U.S. 934, 110 S.Ct. 325, 107 L.Ed.2d 315 (1989). Issues may not be raised for the first time on appeal. Johnson v. State...
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