Edwards v. State, 1 Div. 100

• Decision Date: 25 November 1986
• Docket Number: 1 Div. 100
• Citation: 502 So.2d 846
• Parties: Rozell EDWARDS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 846

502 So.2d 846

Rozell EDWARDS v. STATE.

1 Div. 100.

Court of Criminal Appeals of Alabama.

Nov. 25, 1986.

Rehearing Denied Jan. 27, 1987.

T. Jefferson Deen III, Mobile, for appellant.

Charles A. Graddick, Atty. Gen., and Beatrice Oliver, Asst. Atty. Gen., for appellee.

McMILLAN, Judge.

The appellant, Rozell Edwards, Jr., was convicted of the offense of attempted murder in violation of §§ 13A-6-2 and 13A-4-2 of the Code of Alabama (1975), and sentenced to 25 years in the State penitentiary.

Officer Kenneth Grissett, of the Mobile Police Department, testified that he answered a call to a Mobile residence and spoke with an unidentified man who was standing in the doorway of the house. He and another officer then noticed a trail of blood leading next door and, eventually, to the victim, King John Stanley, who was lying in the backyard of the next door neighbor's house. Officer Grissett also testified that the owner of that house stated that a man had come to the back door screaming for help.

Officer Wesley Sansing, of the Mobile Police Department, also answered the call; he testified that he also observed the "blood tracks" and that he entered the house. He testified that he observed neither blood nor signs of a struggle inside and, therefore, walked back outside and down the sidewalk, where he discovered a .12 gauge shotgun shell and a piece of tissue and a blood spot. He testified that, following the blood trail, he and Officer Grissett came upon the victim lying in the backyard of the house next door. Officer Grissett was recalled by the prosecution and testified as to statements made by the individuals who were in the house when the officers answered the call.

Charles N. Bailey, Jr., an identification officer with the Mobile Police Department, testified that he observed various blood trails, a spent .12 gauge, number 8 shotgun shell in the front of the residence, and a shotgun in a laundry room of the garage of the residence. He further testified that the barrel of the shotgun had been sawed off and that he was unable to lift any fingerprints.

The next door neighbor testified that on the night in question she heard a car horn blow and observed a brown car in the driveway of the house next door and saw a man exit the car and go into the house. She further testified that approximately 45 minutes later, she heard someone yell, "Help! Call the police." Thereupon, she went to her kitchen door and observed a man running toward her house. She identified the man as King John Stanley, the victim. She then heard a gunshot and saw a flash. She testified that she quickly shut her door and locked it, whereupon the victim began beating on her front door. She testified that her husband got up and asked her who was yelling for help. The victim then ran to the den door and began knocking on it, whereupon the victim telephoned the police. She testified that she then observed the victim leave the den door and go into the backyard, where he lay down under a bush. She also testified that she had seen the man and his car on several occasions in the past when he had been visiting the house next door.

The man who lived across the street testified that he heard a gunshot and then someone yell for help. He further testified that he went to his front door and observed a flash of a gun and again heard the screams for help. He then called the police.

The victim, King John Stanley, testified that he works as a "spiritual advisor," which "is a person that people come to when they have different problems, and they want you to spiritually pray for them, in order for that problem to cease to be a problem." In that respect he stated that he sells candles, incense, oils, vitamins, facial stuff and shampoo. He testified that he had been a spiritual advisor to the appellant's wife and sold her between $1,500 and $2,000 worth of spiritual goods for which she had never paid. He further testified that she had revealed to him that she was going to file a lawsuit to obtain some insurance money from her ex-husband's death and that she would then have to get out of Mobile. She also told him that she had been cashing her sister-in-law's allotment checks and government checks mailed to her dead mother. The victim testified that the appellant's wife then told him that she and her daughter had conspired to kill her ex-husband and that she wanted the victim to testify in her behalf if charges were brought against her. She claimed that only through such testimony could the victim ever recover the money which she owed him. She also told him that a ring which she had sold him previously did not belong to her and that she needed it back; however, the victim had pawned the ring but agreed to accompany her to retrieve it. The victim testified that on the night in question, the appellant's wife called him and asked him to come get the money in order to retrieve the pawned ring. The victim then testified that he went to her house, whereupon she began making advances toward him, which he resisted. The victim testified that the appellant and his wife's brother kicked open the bedroom door; the appellant was holding a shotgun and asked what was going on. The victim testified that he was fully dressed and that the appellant stated, "I'm fixing to blow your damn head off." The victim began begging for his life when the appellant's wife allegedly stated, "He know [sic] too much of my business. Shoot him. Kill him." The appellant then ordered the victim to lie across the bed, whereupon he handed the shotgun to his wife's brother and attempted to tie the victim with some cable. However, the victim struggled vigorously and ran for the front door. The appellant grabbed the shotgun and shot the victim in the back. The victim further testified that the shot hurled him into the front door and he ran outside yelling for help. On redirect examination, the victim testified that the appellant's wife had recently been found guilty of murdering her ex-husband.

I.

The appellant contends that the trial court erred in allowing a witness to testify about statements made by a third party to the witness outside the presence of the defendant. Specifically, the appellant refers to two separate occasions at trial. The investigating officers testified as to what several individuals at the scene of the crime told them and the victim testified as to what the appellant's wife told him concerning her past misdeeds and the consequences to him if he did not assist her.

The investigating officer testified that he was told by "the people" at the scene of the crime that no one had been shot. This testimony was not prejudicial to the appellant's case. "Thus, even if the testimony was improper hearsay, the error was harmless because there was no prejudice to the appellant as a result. State v. Hicks, 133 Ariz. 64, 69, 649 P.2d 267, 272 (1982)." Williams v. State, [Ms. 1 Div. 611, July 15, 1986] (Ala.Cr.App.1986).

The State contends that the victim's testimony as to what he was told by the appellant's wife, was admitted to show intent, scheme, and motive. It is clear that the hearsay rule applies only to a statement offered for the truth of its contents. Tillis v. State, 469 So.2d 1367, 1370 (Ala Cr.App.1985); Dent v. State, 423 So.2d 327 (Ala.Cr.App.1982); Epps v. State, 408 So.2d 562, 564 (Ala.Cr.App.1981); Crews v. State, 375 So.2d 1291 (Ala.Cr.App.1979); Meriwether v. Crown Investment Corp., 289 Ala. 504, 268 So.2d 780 (1972). A statement offered for some purpose other than to prove the truth of its factual assertions is not hearsay. Bryant v. Moss, 295 Ala. 339, 342, 329 So.2d 538 (1976). See also Cory v. State, 372 So.2d 394 (Ala.Cr.App.1979); Epps v. State, 408 So.2d 562, 564 (Ala.Cr.App.1981). Thus, "utterances offered for some purpose other than to prove the truth of the out of court declaration fall outside the rule." Ex parte Bryars, 456 So.2d 1136, 1138 (Ala.1984). Where the statement's value does not depend upon its truth, its admission would not violate the hearsay rule. See E. Cleary, McCormick's Handbook on the Law of Evidence (2d ed. 1972), § 249, at page 590. Thus, a statement may be admissible where it is not offered to prove the truth of whatever facts might be stated, "but rather to establish the reason for action or conduct by the witness." Tucker v. State, 474 So.2d 131, 132 (Ala.Cr.App.1984), rev'd on other grounds, 474 So.2d 134 (Ala.1985). See also Tillis v. State, supra.

In the present case, the statements made between the victim and the appellant's wife were admissible, not to show the truth behind these statements, but rather to show the effect they had on the appellant's actions.

The appellant contends that statements of a third person, not made in his presence, are hearsay and inadmissible: "The key to the aforementioned argument and proposition of law is that the appellant should have a chance to cross-examine the witness testifying as to statements he has heard."

As stated in C. Gamble, McElroy's Alabama Evidence, § 242.01(1) (3d ed. 1977):

"The opportunity to cross-examine the witness is one of the major reasons for the hearsay rule. It has been held that the real value of cross-examination of a witness is the opportunity to test his (1) perception, sometimes called knowledge or opportunity to observe; (2) recollection, sometimes called memory; (3) narration, sometimes called accuracy; and (4) sincerity, sometimes called veracity."

Hayes v. State, 395 So.2d 127, 142 (Ala.Cr.App.1980). However, "[h]earsay does not include statements of witnesses in the present trial subject to cross-examination by the party against whom the statements are offered. Gray v. State, 364 So.2d 694 (Ala.Crim.App.1978); Hammock v. State, 401 So.2d 292 (Ala.Crim.App.1981); C. Gamble, McElroy's Alabama Evidence, § 242.01(1) (3rd Ed.1977)." Reeves v. State, 456 So.2d 1156, 1159 (Ala.Cr.App.1984).

"In two recent decisions of this court, the facts reveal that, at the...