Diamond v. State

Citation268 So.2d 850,49 Ala.App. 68
Decision Date17 October 1972
Docket Number1 Div. 198
PartiesGlenn DIAMOND v. STATE.
CourtAlabama Court of Criminal Appeals

John L. Lawler, Mobile, for appellant.

William J. Baxley, Atty. Gen., and Richard F. Calhoun, Asst. Atty. Gen., for the State.

DeCARLO, Judge.

Glenn Diamond was tried and convicted of robbery by a Mobile Circuit Court and sentenced to ten years.

An appeal was taken from this judgment, and the first error assigned was the long delay in bringing the case to trial.

The record contained an affidavit dated December 14, 1970, and showed the following facts:

'February 27, 1967, Glenn Diamond was arrested for the crime of robbery. He was indicted, and on May 16, 1967, waived arraignment and pleaded not guilty. His trial was set for September 18, 1967, and on August 29, 1967, reset for September 8, 1967, to notify the defendant.

'On September 8, 1967, Glenn Diamond did not appear in court, and an alias writ of arrest was issued.

'On September 18, 1967, the court was notified that the defendant was in jail in New York City, bond was set at $25,000.00, and the case was passed generally.

'This affiant also stated that in the Circuit Court file, there was a letter from the appellant inquiring into the status of the case, and asking whether or not the case would be tried or dismissed.

'Except for hearings on nisi forfeitures, the docket sheet did not indicate any action on this case until October 22, 1970, when it was set for trial on February 3, 1971.'

On December 15, 1970, appellant's attorney filed a motion to dismiss, complaining of non-action by the State from September 18, 1967, until October 22, 1970, and it is this delay that supports the appellant's contention that he was denied his constitutional right to a speedy trial.

The right to a speedy trial is as fundamental as any of the rights secured by the Sixth Amendment, and is enforceable against the States by virtue of the Fourteenth Amendment. U.S.C.A.Const. Amends. 6, 14. Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1.

On September 8, 1967, this appellant was to have appeared for trial in Mobile Circuit Court on the charge of robbery. Upon his failure to appear, the court issued an alias writ. The affidavit showed that on the trial date, appellant was in jail in New York City.

With the exception of the motion to dismiss filed December 15, 1970, appellant at no time demanded a speedy trial or objected to a delay, and the general rule on this question in Alabama is as stated in Washington v. State, 45 Ala.App. 173, 227 So.2d 805, and later in Moulden v. State, 47 Ala.App. 573, 258 So.2d 915:

'a demand for a trial or objection to postponement of trial, or some other effort to secure a speedy trial on the part of the accused, ordinarily must be affirmatively shown to entitle him to a discharge on the ground of delay.'

A majority of the states have adopted a rule requiring the appellant to demand a trial or resist postponement, and the federal decisions clearly establish that the right to a speedy trial is the defendant's personal right, and is deemed waived if not promptly asserted. United States v. Lustman, 2d Cir., 258 F.2d 475; United States v. Evans, 5th Cir., 436 F.2d 1305.

If appellant had desired an earlier trial date, he could have voiced such request in his letter of inquiry to the court on October 28, 1968. The record before this court supports the determination that appellant made no objection to the postponement, and in fact, acquiesced in the delay. It was his own action of leaving the state before trial which caused his complaint, and it was his lack of action that sustained it.

The appellant contends that the trial court erred in failing to inquire as to the competency of the complaining witness, Everett Gay Cooper, based on the following testimony:

By Mr. Sullivan (Defense Attorney)

'Q. Mr. Cooper, were you intoxicated that night?

'A. No sir.

'Q. Are you intoxicated today?

'A. No sir. I had one drink because I had a toothache.'

We feel that the appellant waived his right to complain of the 'testimonial qualifications' of the complaining witness by his failure to object to the witness's competency. Counsel should have asked the court to inquire into the competency of the witness or ask that he be allowed to question him on voir dire. Segrest v. State, 44 Ala.App. 673, 219 So.2d 890.

The admission of testimony of an allegedly intoxicated witness was not error since the weight to be accorded to the testimony is for the jury to say. Anderson v. State, 30 Ala.App. 124, 2 So.2d 461, writ denied 241 Ala. 381, 2 So.2d 463.

The witness in the instant case was not shown to be drunk or so influenced by drink that he could not testify. His testimony was not objected to by defense counsel nor did he ask that it be excluded. We are of the opinion that the competency of the witness was not affected by the prior drinking, and the judge who saw and heard him, committed no error in allowing him to testify.

While the right to cross examination belongs to every party as to all witnesses called to testify against him, the scope and extent of cross examination rests in the sound discretion of the trial court, and such discretion will not be disturbed on appeal unless shown to be grossly abused. McCain v. State, 46 Ala.App. 627, 247 So.2d 383.

The court below allowed the appellant's attorney to question the complaining witness concerning a conviction for disorderly conduct, but prohibited counsel from making inquiry as to the offenses of vagrancy and driving while intoxicated.

The Code of Alabama 1940, Recompiled 1958, Title 7 § 434 and § 435, permit examination of witnesses concerning conviction of crimes involving moral turpitude for purposes of attacking their credibility as a witness. Love v. State, 36 Ala.App. 693, 63 So.2d 285.

'Moral turpitude signifies an inherent quality of baseness, vileness, depravity.' Gillman v. State, 165 Ala. 135, 51 So. 722. The court below was correct when it did not allow defense counsel to question tie witness concerning the offense of vagrancy. In order for this to be permissible, it is necessary to show that the act characterized as vagrancy under the law would have been such an act as involved moral turpitude. Bryan v. State, 18 Ala.App. 199, 89 So. 894.

Further, the court below prohibited questioning of the witness concerning the offense of driving while intoxicated. It is our holding that this is not the kind of offense which signifies an inherent quality of baseness, vileness, and depravity, denoting moral turpitude. If distilling or otherwise violating the prohibition laws does not involve moral turpitude, Lakey v. State, 206 Ala. 180, 89 So. 605, nor public drunkenness, Grammer v. State, 239 Ala. 633, 196 So. 268, nor bootlegging, Wiggins v. State, 27 Ala.App. 451, 173 So. 890, then we feel that the operation of an automobile while intoxicated does not constitute an offense involving moral turpitude. The trial judge did not abuse the court's discretion in disallowing the foregoing inquiries.

During the cross examination of Detective Hubert Bell, one of the officers who investigated the robbery, defense counsel asked:

'Q. Alright now, let me ask you this, Detective Bell,--at the time you conducted that line-up, did you see that this boy had a lawyer present to see that it was conducted fairly?

Mr. Sims: (District Attorney)

'I object, Your Honor, it's immaterial at this stage of the trial. It was in 1967, and at this time Mr. Sullivan himself has brought out the line-up and asked was it fair,--so it is immaterial to this case.'

The court's action in sustaining this objection is the basis of appellant's contention that it was error for the court to refuse to allow him to inquire about the facts and surrounding circumstances of the pre-trial line-up.

Counsel cites from Moody v. State, 267 Ala. 204, 100 So.2d 733, in support of his argument that wide latitude must be allowed in cross examination to insure the development of all facts. The circumstances of that case, however, are distinguishable, in that the mental condition of defendant was in question, and the court, following the 'wide latitude' rule, quoted from Barbour v. State, 262 Ala. 297, 78 So.2d 328, as follows:

"It has long been held that 'wide latitude' is allowed both the defendant and the state in inquiries into a person's mental state when an issue as to the sanity of such person is presented."

In reference to this contention, we feel it should be noted that while we are not confronted with the rule of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, by virtue of Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, then in-court identification of appellant was based on confrontations other than the line-up. The victim had ample opportunity to view the appellant at close range, and his in-court identification was based on his...

To continue reading

Request your trial
16 cases
  • Montgomery v. State, 6 Div. 211
    • United States
    • Alabama Court of Criminal Appeals
    • November 29, 1983
    ...violated. Pugh has not shown that he was prejudiced by the three month interval between arrest and trial. See, also Diamond v. State, 49 Ala.App. 68, 268 So.2d 850 (1972); Sellers v. State, 48 Ala.App. 178, 263 So.2d 156 (1972); Schillaci v. State, 347 So.2d 552 (Cr.App.) Appellant complain......
  • State v. Hall
    • United States
    • South Carolina Court of Appeals
    • October 8, 1991
    ...A.2d 737 (1977); Matter of Walker, 254 N.W.2d 452 (S.D.1977); Fee v. State, 497 S.W.2d 748 (Tenn.Crim.App.1973); Diamond v. State, 49 Ala.App. 68, 268 So.2d 850 (Crim.App.1972); In re Morris, 74 N.M. 679, 397 P.2d 475 (1964) (Noble, J., dissenting) (characterizing the majority opinion as ag......
  • Oliver, Matter of, 784
    • United States
    • Indiana Supreme Court
    • June 12, 1986
    ...State v. Deer (1955), Ohio Comm.Pl., 57 O.O. 493, 129 N.E.2d 667; Fee v. State (Tenn.Cr.App.1973), 497 S.W.2d 748; Diamond v. State (1972), 49 Ala.App. 68, 268 So.2d 850; Compton v. Jay (Tex.1965), 389 S.W.2d 639. One state has held that driving while intoxicated is not an offense involving......
  • Ex parte Godbolt
    • United States
    • Alabama Supreme Court
    • May 15, 1987
    ...upon by the district attorney, either directly or indirectly. Beecher v. State, 294 Ala. 674, 320 So.2d 727 (1975); Diamond v. State, 49 Ala.App. 68, 268 So.2d 850 (1972); Thompson v. State, 41 Ala.App. 353, 132 So.2d 386 (1961). However, we are not prepared to say that the defendant's test......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT