Ex parte Bell

• Citation: 475 So.2d 609
• Parties: Ex parte Randy Turpin BELL. (In re Randy Turpin Bell, alias v. State). 83-1366.
• Decision Date: 14 June 1985
• Court: Alabama Supreme Court

Page 609

475 So.2d 609

Ex parte Randy Turpin BELL.

(In re Randy Turpin Bell, alias v. State).

83-1366.

Supreme Court of Alabama.

June 14, 1985.

Rehearing Denied Aug. 23, 1985.

Paul M. Harden, Monroeville, for petitioner.

Charles A. Graddick, Atty. Gen., and Helen P. Nelson and William D. Little, Asst. Attys. Gen., for respondent.

SHORES, Justice.

Randy Turpin Bell, alias Randy Cole, was indicted and convicted of the murder of Charles Mims while robbing him, in violation of § 13A-5-40(a)(2), Ala.Code 1975. He was sentenced to death according to the guidelines set out in Beck v. State, 396 So.2d 645 (Ala.1980). The Court of Criminal Appeals affirmed the conviction and later overruled the application for rehearing. We granted certiorari as a matter of right. Rule 39(c), A.R.A.P. We affirm.

The facts are set forth in the opinion of the Court of Criminal Appeals in this case. 475 So.2d 601.

The petitioner argues that the trial court committed reversible error by denying his request for the names of the witnesses expected to testify on behalf of the State. He argues that, as a result, he was denied a fair trial as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and by the Constitution of the State of Alabama, Art. I, § 6.

A defendant has no general constitutional right to discovery in a criminal case, Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977). See, Peoples v. State, 418 So.2d 935 (Ala.Cr.App.1982); Wicker v. State, 433 So.2d 1190 (Ala.Cr.App.1983); Brown v. State, 401 So.2d 213 (Ala.Cr.App.), cert. denied, 401 So.2d 218 (Ala.1981); Deloach v. State, 356 So.2d 222 (Ala.Cr.App.1977), cert. denied, 356 So.2d 230 (Ala.1978). The petitioner does not suggest that he was unduly limited in his right to a broad voir dire of the veniremen. He only argues that he has a right under the Constitutions of the United States and of this State to know the names of the State's witnesses for purposes of qualifying the jury on voir dire. In this, he is incorrect.

The petitioner also argues that the trial court committed reversible error by allowing a lay witness (Hubbard) to give an opinion as to whether the victim (Mims) was alive or dead at the time that the witness and the defendant left him.

A lay witness may not testify as to the cause of death, Jones v. State, 155 Ala. 1, 46 So. 579 (1908); but, a lay witness may testify that another was dead. As noted by C. Gamble, McElroy's Alabama Evidence § 128.10 (3d ed.1977), there are some disorders with which all persons are familiar and which require no special skill to detect. Whether one is dead is a fact which does not require any special skill to detect. Thomason v. State, 451 So.2d 401 (Ala.Cr.App.1984), and Dismukes v. State, 346 So.2d 1170 (Ala.Cr.App.), cert. denied, 346 So.2d 1177 (Ala.1977).

Hubbard's testimony at trial was as follows:

"Q. All right. And you stated that he was shot at a range of approximately a foot, is that right?

"A. That's right.

"Q. How many times?

"A. Twice.

"....

"Q. Did you see him [Mims] when you looked back the other times?

"A. The first time.

"Q. All right. What did you see when you looked back that first time?

"A. I seen him [Mims]--he was still laying down, and Randy was bent over observing.

"Q. Okay. Based on what you saw out there happen to Charles Mims, and based on what you saw Charles Mims do after he was shot, in you opinion, was Charles Mims alive or dead? ...

"A. He had to be....

"Q. Had to be what?

"A. Had to be dead.

"....

"Q. Michael Joe, in your opinion, was Charles Mims alive or dead?

"A. He was dead."

This amounts to no more than the witness's opinion that the victim was dead, and, therefore, it is permissible testimony. It does not express an inadmissible opinion as to the cause of death.

The petitioner contends that his conviction was based upon the uncorroborated testimony of an accomplice, Michael Joe Hubbard, in violation of § 12-21-222, Ala.Code 1975. Therefore, he argues, the State failed to present sufficient evidence to support the guilty verdict and, consequently, the trial court committed reversible error by denying his motion for a judgment of acquittal.

Section 12-21-222 reads as follows:

"A conviction of felony cannot be had on the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense, and such corroborative evidence, if it merely shows the commission of the offense or the circumstances thereof, is not sufficient."

Whether a witness is an accomplice may be a question of law or fact, depending on the circumstances. Where there is a doubt or dispute concerning the complicity of a witness and the testimony is susceptible to different inferences on that point the question is for the jury. See Jacks v. State, 364 So.2d 397 (Ala.Crim.App.), cert. denied, 364 So.2d 406 (Ala.1978). In Jacks v. State, the Court of Criminal Appeals observed:

"Daniels v. State, 50 Ala.App. 88, 277 So.2d 364 (1973), involved a prosecution for robbery. The state's chief witness against the defendant had also been indicted for the robbery.

" 'The fact that Bailey was jointly indicted with the appellant will not per se raise a presumption that he was an accomplice. * * * According to Bailey's testimony he was unaware that appellant and the others were intending to commit a robbery. Whether this testimony was believable was for the jury. This issue was properly submitted to the jury via given written requested charges and decided adversely to appellant.'

"Daniels, 50 Ala.App. 91, 92, 277 So.2d 367.

This is in accord with the general rule.

" 'If a witness admits his participation with the defendant in the crime but seeks by his testimony to explain it and to show his innocent intent, it has been held that a question is presented for the jury.' 19 A.L.R.2d 1352, 1381 (1951)."

364 So.2d at 403.

Hubbard testified that he and the defendant were alone with Mims at the time that he was robbed and subsequently killed. Hubbard's further testimony established his participation in the crime; however, he contended that his participation resulted from coercion, duress, and a lack of prior knowledge.

In Yarber v. State, 375 So.2d 1229 (Ala.1978), the Court held that when a witness denies willing participation in the crime charged against the defendant, the issue of his being an accomplice presents a question of fact for the jury. In that case, the defendant and the alleged accomplice were alone with the victims at the time the crime was committed. At the trial, in which the defendant did not testify, the alleged accomplice denied that he had prior knowledge of or was a willing participant with the defendant in the crime. In the instant case, as in Yarber, the defendant did not take the stand at trial.

We do not agree with the Court of Criminal Appeals that the issue of whether Hubbard was an accomplice was a matter of law. It was, as it was in Daniels and Yarber, supra, for the jury to decide whether Hubbard's testimony as to his alleged innocent participation in the crime was believable. Our disagreement with the Court of Criminal Appeals on this issue, however, does not mean that the trial court erred to reversal in denying the petitioner's motion for a directed verdict.

First, it was not error to refuse to direct a verdict of acquittal on the basis that the State had failed to put on a prima facie case. The testimony of Hubbard was corroborated by at least three witnesses upon which we will elaborate shortly. Therefore, the case for the jury was made out.

Secondly, the jury charges which the defendant requested and which the trial court refused were all defective, and, therefore, it was not error to refuse them. Requested charges 23, 24, 25, 26, and 27, which were refused, read as follows:

"Defendant's Requested Charge No. 23. Members of the Jury, I charge you that if you are convinced that Michael Joe Hubbard was a participant in the alleged charges in the indictment, then he would be an accomplice and you could not convict the defendant unless the State has corroborated the evidence."

"Defendant's Requested Charge No. 24. Members of the Jury, the Court charges that Randy Cole cannot be convicted upon the testimony of Michael Joe Hubbard unless corroborated by testimony of witnesses as to material elements of the offense, and that unless you believe the testimony of the State's witnesses beyond a reasonable doubt, you should find the defendant not guilty."

"Defendant's Requested Charge No. 25. Members of the Jury, the Court charges that Randy Cole cannot be convicted upon the testimony of an accomplice unless corroborated by the testimony of other witnesses connecting the defendant with the commission of the offense which he is charged, and unless you believe from the evidence beyond a reasonable doubt that Joe Austin, Jr., and Carol Joiner have testified truthfully in this case, you cannot find the defendant guilty."

"Defendant's Requested Charge No. 26. Members of the Jury, a mere recitation of the details of the crime is insufficient to corroborate the testimony of an accomplice if it fails to connect the accused with the offense."

"Defendant's Requested Charge No. 27. Members of the Jury, I charge you that if you believe that Michael Joe Hubbard was a participant in the charges in this indictment, then the State must connect the defendant by other evidence, and if you find that the State has not connected the defendant by evidence other than that of Michael Joe Hubbard, then you must find the defendant not guilty."

A "participant" in a crime is not synonymous with an accomplice. Stevens v. State, 333 So.2d 852 (Ala.Cr.App.1975). LaBryer v. State, 45 Ala.App. 33, 222 So.2d 361 (1969), cert. denied, 284 Ala. 732, 222 So.2d 366 (1969); Ferrell v. State, 41 Ala.App. 659, 148 So.2d 656 (1963). Therefore, it was not error to refuse charges 23 and 27. Charge 24 was properly...