Ex parte Bayne

• Decision Date: 17 August 1979
• Docket Number: No. 78-188,78-188
• Citation: 375 So.2d 1239
• Parties: Ex parte Roy L. BAYNE. (Re: Roy L. Bayne v. State of Alabama).
• Court: Alabama Supreme Court

Page 1239

375 So.2d 1239

Ex parte Roy L. BAYNE.

(Re: Roy L. Bayne v. State of Alabama).

No. 78-188.

Supreme Court of Alabama.

Aug. 17, 1979.

Rehearing Denied Sept. 28, 1979.

Roderick Beddow, Jr., Birmingham, Powell Lipscomb, Bessemer, for petitioner.

Charles A. Graddick, Atty. Gen. and Jack M. Curtis, Asst. Atty. Gen., for the State.

ALMON, Justice.

The defendant Roy L. Bayne was convicted of assault with intent to murder in the Circuit Court of Jefferson County on September 2, 1976. On August 16, 1977, the Court of Criminal Appeals reversed and remanded the case for failure of the trial court to give a requested charge relative to assertions of counsel. On December 9, 1977, this Court granted certiorari and reversed the Court of Criminal Appeals. On October 31, 1978, the Court of Criminal Appeals affirmed the conviction without an opinion on the authority of the Supreme Court's reversal. This Court granted certiorari for the second time to review certain issues which have heretofore been unaddressed.

Both the facts recited below and the issues presented for our review have been preserved pursuant to Rule 39(k), ARAP.

On the afternoon of July 4, 1974, Mr. Walter Wade and his wife Mildred, their daughter, Sheryl Amerson and her husband, Larry Amerson, went to an establishment called Gilbert's. Gilbert's is a fishing camp in northern Jefferson County selling fishing equipment and sundries; Gilbert's was operated by the defendant Roy Bayne. Mrs. Wade and Mrs. Amerson returned to their home in Walker County, leaving their husbands at Gilbert's. Later in the evening, Mrs. Wade and Mrs. Amerson retired, but they awoke at approximately 2:50 A.M. on July 5 to discover that their husbands had not yet returned home.

The two women went to search for their husbands. Ultimately, they came upon the defendant in the parking lot at Gilbert's. He informed them that their husbands had escorted another woman, Louise McCray, to her home. The defendant attempted to direct Mrs. Wade and Mrs. Amerson to Mrs. McCray's home, but he finally volunteered to lead them to the McCray residence after he expressed doubt as to whether they could follow his directions.

In the meantime (omitting details not pertinent for the purpose of our decision in this case), Mr. Wade had driven Mrs. McCray home in her car and Mr. Amerson followed in his car. There was testimony tending to indicate that Mrs. McCray felt too inebriated to drive home. The three of them arrived at her home at approximately 3:30 A.M. on July 5, whereupon, Mrs. McCray's daughter, Glenda Crowder, permitted them to enter the house. Mrs. Crowder, Mrs. McCray, Mr. Wade and Mr. Amerson were sitting in the living room when they apparently heard a car outside. Glenda and either Mr. Wade or Mr. Amerson stepped to the window and observed another car. At that point, Mr. Wade, Mr. Amerson and Mrs. McCray went into a bedroom, closed the door and locked it. Mrs. Crowder testified that her four year old son, Jerry, was asleep in that bedroom. She also stated that her mother told her that if anyone asked about her (Mrs. McCray), Glenda should tell them that she had not seen her.

Mrs. Wade testified that she and Mrs. Amerson followed the defendant to the McCray residence. When they arrived, the defendant showed them the house and left. Mrs. Wade went to the front door, knocked on it, and after identifying herself, was allowed to enter. It appears that Glenda opened the front door and then left the house. When Mrs. Wade came in, she proceeded to the door of the bedroom where the other three adults were hiding. She began to hit the door, attempting to gain entry. Shortly thereafter, the defendant, who had inexplicably decided to return to the McCray house, pushed Mrs. Wade aside and beat on the door with his fist and shoulder. When his efforts proved fruitless, he pulled a paper sack out of his pocket, extracted a gun from the sack and began to shoot at the door. Mrs. Wade and Mrs. Amerson left the house at this point.

It appears from the testimony that the defendant fired several shots into the door around the doorknob, and that all of these bullets passed through the door and one of the bullets struck Jerry Crowder, who had been awakened during the melee. Mr. Amerson testified that when the bedroom door was finally opened, he stated to the defendant, "You shot the baby." The defendant then turned and fired at him. The bullet struck him in the arm. Mr. Wade eventually subdued the appellant; Mrs. Crowder, Mrs. Wade and Mrs. Amerson returned and the authorities were summoned.

The defendant was charged with assault with intent to murder (AIM) in two separate indictments. One indictment was based on the shooting of Larry Amerson. The defendant was convicted of AIM of Jerry Crowder. It is this latter conviction that is the basis of this appeal.

This Court granted the defendant's second petition for certiorari to resolve two issues.

Did the trial court err in refusing to allow the defendant to show the disposition of the prior AIM prosecution?

Did the trial court err in its oral charge concerning the presumption of malice and intent inferable from the use of a deadly weapon?

The defendant contends that since the State was allowed to introduce evidence of the shooting of Larry Amerson and a subsequent criminal prosecution arising out of that shooting, it was error to refuse to allow the defendant to show that the first prosecution resulted in a conviction for assault and battery. The shooting of Amerson was properly allowed into evidence as a part of the res gestae. Smith v. State, 45 Ala.App. 48, 223 So.2d 289 (1969).

Amerson was called as a witness for the State. He was asked on cross-examination about the outcome of his case. The trial court ruled that the result could not be shown. The defendant contends that after the State showed the commission of another crime the appellant should have been allowed to prove the outcome of that trial.

The defendant contends that the disposition of the prior AIM prosecution was admissible because: a conviction for assault and battery operates as an acquittal of the AIM charge as a matter of law; and alternatively, the conviction for the lesser included offense was admissible to show bias on the part of the State's witness who was the victim in the other shooting.

Defendant relies on the case of Mitchell v. State, 140 Ala. 118, 37 So. 76 (1904). In that case, the defendant was being prosecuted for burning the house of H. The State introduced evidence that another house belonging to M was intentionally burned at about the same time. The State's evidence also showed that prints which were the same size as the defendant's shoes were found leading from M's house.

The court held that

(s)uch evidence having been adduced by the state, the court should not have rejected the offer of defendant, which, according to the bill of exceptions, was "to introduce before the jury the record of the city court showing that at the last term of the city court said defendant had been tried and acquitted of burning (M's) house." The evidence so offered was admissible under the doctrine of Res adjudicata . . . .

140 Ala. at 121, 37 So. at 77.

Thus, Mitchell stands for the proposition that when testimony of another crime is admitted into evidence, the defendant should be allowed to show his acquittal of that crime. See also, Gamble, McElroy's Alabama Evidence, § 69.02(2) at 141 (3d ed. 1977) where it is stated that

(w)hen evidence of a prior crime, for which the accused was prosecuted, is admitted under one of the exceptions to the general exclusionary rule, the door is open for the accused to prove his acquittal of the former crime.

The State claims that Mitchell does not apply to the present case since here, there was a conviction of assault and battery in the earlier prosecution. It is argued that only a prior acquittal may be shown, not a prior conviction.

It is clear that under Alabama law a conviction of a lesser included offense is an acquittal of the higher offense. Clark v. State, 294 Ala. 485, 318 So.2d 805, On remand, 56 Ala.App. 67, 318 So.2d 813, Writ quashed 294 Ala. 493, 318 So.2d 822, Cert. denied 423 U.S. 937, 96 S.Ct. 298, 46 L.Ed.2d 270 (1974). Therefore the appellant, by being convicted of assault and battery, was acquitted of assault with intent to murder as a matter of law. This evidence should have been admitted.

Moreover, as pointed out in Brown v. State, 37 Ala.App. 595, 74 So.2d 521, Cert. denied, 261 Ala. 696, 74 So.2d 524 (1954):

. . . if one party inquires into a matter the other party should be allowed to go into the entire transaction and give evidence, if he can, which would tend to explain the detrimental effects of the initial proof. The justice of this doctrine cannot be denied.

37 Ala.App. at 598, 74 So.2d at 523.

The defendant also claims that the evidence of his acquittal on the AIM charge should have been admitted to show bias on Larry Amerson's part. In Wells v. State, 292 Ala. 256, 292 So.2d 471 (1973), this Court observed that the range and scope of cross-examination with regard to developing the interest and bias of a witness is committed largely to the discretion of the trial court. Moreover, the trial court's rulings will not be disturbed unless it clearly appears that the defendant was prejudiced by the rulings.

In the Wells case, the defendant was involved in an argument. During the argument the defendant fired a .25-caliber pistol at his wife, and the defendant's son fired a shotgun, presumably at the defendant, in the defense of his mother and his sister. These shots resulted in the death of the defendant's wife and the wounding of his daughter.

The defendant was tried and convicted of first degree murder. At the trial, the defendant's daughter testified as a witness for the State. She was asked, apparently on cross-examination, this question:

Q. In fact, I'll ask you this, if it isn't a fact that you...