Evans v. State

• Decision Date: 05 October 1976
• Docket Number: 3 Div. 426
• Citation: 338 So.2d 1033
• Parties: Calvin EVANS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1033

338 So.2d 1033

Calvin EVANS v. STATE.

3 Div. 426.

Court of Criminal Appeals of Alabama.

Oct. 5, 1976.

Rehearing Denied Oct. 26, 1976.

John L. Carroll, Montgomery, and George W. Harris, Birmingham, for appellant.

William J. Baxley, Atty. Gen., and Larry R. Newman, Asst. Atty. Gen., for the State.

GARDNER F. GOODWYN, Jr., Circuit Judge.

The appellant, defendant below, was charged in a grand jury indictment with committing murder in the first degree, while serving a life sentence in the penitentiary, by stabbing to death Lonnie J. Coe with a knife. Upon a plea of not guilty he was convicted in a jury trial in the Circuit Court on November 7, 1975, of murder in the second degree and sentenced to imprisonment in the penitentiary for 120 years; from which judgment this appeal is prosecuted.

The prosecution was under Section 319, Title 14, Code of Alabama 1940, Recompiled 1958, which reads as follows: 'Any convict sentenced to imprisonment for life, who commits murder in the first degree, while such sentence remains in force against him, shall, on conviction, suffer death.'

Several preliminary motions of the appellant were overruled by the Court. The first was a motion to quash the indictment on the ground that no admissible evidence was presented to the grand jury. Evidence presented to the trial court on the hearing of this motion was to the effect that witnesses were examined by the grand jury, and legal evidence was presented to the grand jury with regard to this indictment. This evidence was sufficient to sustain the indictment as against the motion to quash.

When it appears witnesses were examined by the grand jury, or the jury had before them legal documentary evidence, no inquiry into the sufficiency of the evidence is indulged. Sparrenberger v. State, 53 Ala. 481; Washington v. State, 63 Ala. 189; Loyd v. state, 279 Ala. 447, 186 So.2d 731.

Another preliminary motion of the appellant to quash the indictnent was based on the ground that Section 319, supra, is violative of both the Eighth and Fourteenth Amendments to the Federal Constitution. This motion was overruled by the trial court. It is to be noted that this section calls for a mandatory death sentence for any convict who is convicted of first degree murder while serving a life sentence. But the appellant in the case at bar was not convicted of first degree murder in the trial which is the subject of this appeal, and consequently the death penalty was not imposed. Under these cirumstances we are not called upon to review the trial court's judgment in overruling this motion to quash. The appellant can show no injury or prejudice from the denial of his motion to quash.

Appellate courts do not pass upon constitutional questions unless the rights of litigants are directly involved and the question of constitutionality is directly presented for review. Bray v. State, 140 Ala. 172, 37 So. 250; James v. State, 21 Ala.App. 295, 107 So. 727.

The fact that the indictment and the evidence of the State disclose a prior conviction of a capital felony of the accused does not invalidate an indictment under Section 319, supra, Williams v. State, 239 Ala. 296, 195 So. 213. A ground of a motion to quash the indictment making this point was not well taken by the appellant.

The trial court did not err in denying the appellant's preliminary motion to compel the State to produce for inspection the 'prison jacket,' or file, of the deceased Coe. Appellant's counsel argued to the trial court that, self-defense being one of the defenses to the charge, the file on Coe might reveal evidence of the reputation or character of the deceased, bearing upon the issue of who was the aggressor in the struggle. Appellant's counsel conceded that he had interviewed witnesses in the prison as to the reputation of the deceased Coe for turbulence and violence. The argument was that the file would either verify this evidence or reveal other witnesses to it.

Reputation or character of the deceased cannot be proved by particular acts or traits of the person. Higginbotham v. State, 262 Ala. 236, 78 So.2d 637; Metcalf v. State, 40 Ala.App. 25, 108 So.2d 435.

The 'prison jacket,' or file, of the deceased was not relevant to the issue of reputation of the deceased or to any conceivable issue in the case.

Moreover, the mere fact that the file might be useful to the accused in supplying leads for gathering further evidence is no reason to compel its production. Rogers v. State, 58 Ala.App. 163, 332 So.2d 739, cert. den., Ala., 332 So.2d 746.

Before commencement of the trial the counsel for appellant objected to the fact that appellant 'was brought into the rear of the courtroom through the door to the right side of the courtroom, and the handcuffs were removed from the defendant at that time and that it was possible since the door was open that this removal of the handcuffs was in full view of the venire.' No evidence was submitted that the appellant was seen in handcuffs by any of the venire either before or during the trial, or that any prejudicial action occurred in the presence of the jury. In this state of the record the trial court cannot be placed in error for overruling this objection.

Furthermore, it is not ground for a mistrial that an accused felon appears in the presence of the jury in handcuffs when such appearance is only a part of going to and from the courtroom. This is not the same as keeping an accused in shackles and handcuffs while being tried. Rhodes v. State, 34 Ala.App. 481, 41 So.2d 623.

Prior to the opening statement to the jury the appellant objected to the use in the trial by the State of its two witnesses, both of whom were prison inmates, on the ground that these witnesses had not been subpoenaed in accordance with Section 61, Title 45, Code of Alabama 1940, Recompiled 1958.

Argument to the trial court was that the appellant had used this section to subpoena his witnesses from the penitentiary, thereby revealing to the State their identity prior to trial; and that the failure of the State to subpoena its witnesses under this section denied the appellant 'the right of effectiveness of counsel in accordance with the Sixth Amendment.' It was conceded by counsel for appellant to the trial court that the two State witnesses had been subpoenaed under this section by the State for a prior setting of the case in June, 1975; and that counsel for appellant had talked to other inmates at Fountain Prison concerning these two witnesses, and had interviewed the two witnesses themselves on the day of trial. Counsel for appellant did not contend to the trial court that he had been denied an opportunity to interview the two witnesses in prison or that he was ignorant of their identity. Nor was there any contention that the appellant had been denied an opportunity to exercise compulsory process for witnesses in his own behalf.

The purpose of Section 61, supra, is to provide both the State and accused with compulsory process for the attendance of convicts as witnesses in criminal prosecutions. The use of Section 61 is not mandatory in all events; but a failure to follow its provisions will deprive the defaulting party of the right to compel attendance of the witness. Magee v. State, 43 Ala.App. 218, 187 So.2d 274. The constitutional right to compulsory process for witnesses in a criminal case does not compel pre-trial discovery of the identity of the State's witnesses. Dolvin v. State, 51 Ala.App. 540, 287 So.2d 250; Thigpen v. State, 49 Ala.App. 233, 270 So.2d 666.

The appellant was afforded during the trial an opportunity for thorough cross-examination of the State's witnesses, which was exercised. For these several reasons we find no error in overruling appellant's objection to the use by the State of the two convicts as witnesses.

One witness for the State testified that he awoke early in the morning to the screams of Coe, who occupied the adjoining bunk bed in the cell block. He saw Coe coming out of the end of his bed, which was the bottom bunk, with the appellant standing and swinging at him with a knife in his hand. He further testified that Coe then ran to the back of the cell while the appellant just stood there. Coe had a hole in his stomach from which blood spurted and another on the neck or face. No weapon was seen in the possession of Coe. The bed of the appellant was five or six beds toward the front of the cell from the bed of Coe.

The other State witness testified that he occupied the bunk bed above the bed of Coe, and when he opened his eyes he saw the appellant beside the bed. Coe was hollering 'Why are you doing this to me?' The appellant was crouched over Coe who was trying to get out of the bed through the end and was trying to put stuff between him and appellant. The appellant hit Coe one more time in the face after he got out of the bed. The appellant never said anything. Blood was everywhere, spurting from Coe's stomach. Coe ran to the back of the cell and fell. The appellant turned and walked out of the cell block. He saw a knife about twelve inches long in the appellant's hand, but no weapon on Coe. Coe was dressed in a pair of boxer shorts. The appellant was wearing blue jeans, brogans, a pull over shirt, and a windbreaker.

The appellant called several inmates as witnesses in his defense. The first testified that Coe was the aggressor and held the knife. The second testified that he saw the two struggling in the aisle, trying to get the knife away from one another. He thought he saw more than one knife but he could not find a knife where he thought Coe had thrown it. The appellant had a good reputation and Coe a bad one.

The third witness for the defense testified that he saw Coe lunge at the appellant with a knife as the latter approached the bed; and that he did not see either of the witnesses for the State in the cell block when the incident occurred. The fourth witness said he and the appellant ate breakfast together and...