Cork v. State
| Decision Date | 14 August 1973 |
| Docket Number | 6 Div. 260 |
| Citation | 282 So.2d 107,50 Ala.App. 670 |
| Parties | James Vernon CORK v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Rogers, Howard, Redden & Mills, and Robert M. Harper, Birmingham, for appellant.
William J. Baxley, Atty. Gen., and J. Knox Argo, Sp. Asst. Atty. Gen., for the State.
The appellant was tried and convicted of murder in the first degree in the Circuit Court of Jefferson County, and his punishment fixed at death.
The short statement of facts set out in the brief of appellant, and accepted by the State as substantially correct, is hereby adopted for the purpose of this opinion and is herein set out as follows:
On June 10, 1970, Birmingham Police Officer O. W. Steadman, received a call to go to an address on Albany Street in the Wylam Section of Birmingham. He received the call at approximately 12:45 P.M. Upon arriving at the defendant's house at 753 Albany Street, Officer Steadman walked up onto the porch of the house where defendant was sitting. He asked the defendant, 'What happened?' and the defendant replied, 'I done it to her before she done it to me.' The Officer then looked inside the house where he noticed the body of the defendant's wife lying on the kitchen floor. A shotgun was found in one of the bedrooms of the house. An expended shotgun hull was found on the living room floor. The deceased had a wound in her head which appeared to be caused from a gunshot. The appellant was arrested at that time.
One of the Cork's neighbors, Jo Hardin, testified that she had heard the defendant and his wife arguing during the morning hours prior to this shooting.
Evidence was presented by the State as to prior threats by appellant against his wife.
The defendant took the stand and testified in his own behalf. Defendant stated that he and his wife had been arguing during the course of the morning, mainly over money matters. The argument culminated in his wife pointing a shotgun at the defendant and threatening him. The couple scuffled over the gun and it discharged, fatally wounding Mrs. Cork. The defendant denied making threats against his wife.
The State offered the testimony of Kathy Beam, a daughter of the deceased, who testified as to certain threats she had heard appellant make to her mother against her life. On cross-examination the witness testified in substance that she had never told the prosecuting attorney, or anyone connected with the prosecution, about these threats until after the commencement of the trial of appellant in February 1971, although she had been in the court house with relatives several times since her mother's death on June 10, 1970, and apparently had opportunity to apprise the prosecutor of this testimony. Then on redirect examination the State elicited testimony from the witness, over objection of appellant, that she had kept a diary in which she had recorded some of the threats.
Appellant argues that the admission of this evidence with reference to the diary was error as contravening the well known rule that the testimony of a witness may not be bolstered, or corroborated by showing previous statements of the witness to the same effect. In addition to the authority cited by appellant, many cases are collected supporting this rule in Alabama Digest, Volume 19A, Witnesses, k414(2).
However, where a charge, imputation, or inference of falsity may arise from the circumstances surrounding the witness's statement or statements, then proof of similar statements made by the witness is admissible as going to the credibility of the witness and to rebut the inference. Aaron v. State, 273 Ala. 337, 139 So.2d 309; Yarbrough v. State, 105 Ala. 43, 16 So. 758.
We think the long silence of the witness, brought out on cross examination, before apprising the prosecuting attorney of this information at the time of the actual trial may have given grounds for such an inference, above referred to, and made this testimony admissible under the exception to the general rule. Aaron v. State, supra; Yarbrough v. State, supra. No error appears in the ruling of the court in this respect.
Appellant contends that the court erred in inquiring of counsel for both sides in the presence of the jury whether both would consent to have the shotgun, which had been admitted into evidence, tested by the State Toxicologist who was present as a witness in court. Counsel for appellant neither agreed nor disagreed to the court's question or proposal. Counsel for the State made known that it would be agreeable with the prosecution.
Before this occurrence appellant had asked Detective Painter, a State's witness, while cross-examining him, the following question and received the answer as shown by the record:
'Mr. Howard: And since it has been suggested, if somebody should happen to choose to do it, (examination of the shotgun) they could do it to tonight, I guess, couldn't they?
'Mr. McDonald (for the State): We will be happy to turn it over to the toxicologist over the weekend and let him report on it.'
The argument of the appellant was that he was placed in an untenable position in the presence of the jury by the question from the court and that as a result thereof the substantial rights of the appellant were prejudiced. In support of this argument he cites and relies mainly on the case of Kissic v. State, 266 Ala. 71, 94 So.2d 202. In that case the trial court, after both sides had rested in the trial at hand, made the following observation in the presence of the jury:
This statement was held to be reversible error as in contravention of the rule in this State that no unfavorable inference can be drawn and that no unfavorable argument to the jury made because of the failure to call a witness to testify, when that witness is accessible to both parties and can be examined by both parties. The court further observed that, 'It would seem that a comment by the trial judge from which such an inference could be drawn would also constitute reversible error.'
It seems to us that the rationale in Kissic v. State, supra, should not apply to the facts in this case.
In the case of Lang v. State, 279 Ala. 169, 182 So.2d 899, the court stated:
As shown above, it appears that this matter was first suggested by the appellant on cross-examination of Detective Painter and further there was no question but that the deceased died from a shotgun wound caused by a shot from the particular shotgun in question, which had been admitted into evidence, and incidentally identified by the appellant. We do not see how a ballistic of the spent shotgun shell, found in the home of the appellant near the door leading to the kitchen where the body of the deceased was found, could affect the ultimate fact that the deceased was killed by a shot fired from the gun. Even though, the State contends the gun was fired intentionally and the appellant contends that it was fired accidentally, the fact still remains that the deceased came to her death from a shot fired from this gun. We see no injury to the substantial rights of the appellant by the action of the court in propounding this question. The better course would have been to excuse the jury before making the remarks, but even if error, we do not think it reversible. Supreme Court Rule 45.
Officer Steadman of the Birmingham Police force went to the home of appellant in response to a radio call from the police department. On arrival he walked up on the front porch and observed appellant sitting in a chair. The officer immediately asked if appellant had called the police and the appellant replied he had not and was then asked if his wife had called. The response to this question was that she was in the back of the house. At this time the officer looked through the front door towards the kitchen in the rear of the house, saw someone lying on the floor and immediately asked 'What happened?'. The appellant immediately responded, 'I done it to her before she done it to me', or words to that effect. At the time of this occurrence the appellant was not in custody and had not been accused nor does it appear that the officer had any information given to him as to appellant's connection with a crime, other than that given to him by appellant. (The officer was endeavoring to...
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