Ex parte Faircloth

Decision Date10 May 1985
Citation471 So.2d 493
PartiesEx parte Michael C. FAIRCLOTH. (Re: Michael C. FAIRCLOTH v. STATE). 83-1396.
CourtAlabama Supreme Court

Robert E. Willisson of Willisson & Tucker, Huntsville, for petitioner.

Charles A. Graddick, Atty. Gen., and Michael A. Bownes, Asst. Atty. Gen., for respondent.

BEATTY, Justice.

The petitioner, Michael C. Faircloth, and his cousin, Jim Carl Faircloth, were jointly indicted and tried for attempted rape. Both were convicted and sentenced to 50 years' imprisonment. The Court of Criminal Appeals affirmed their convictions in a single opinion. Faircloth v. State, 471 So.2d 485 (Ala.Crim.App.1984). Rehearing was denied, and the cousins thereafter filed separate petitions for writ of certiorari in this Court. Jim Carl's petition was denied. Michael's petition was granted in order for this Court to determine whether the Court of Criminal Appeals was correct in holding that the trial judge did not abuse his discretion in refusing to permit a defense witness to testify because the witness had violated the witness sequestration rule.

The facts concerning this issue are set forth as follows in the opinion by the Court of Criminal Appeals:

"At the beginning of the trial, Michael's defense counsel invoked 'the Rule.' The trial judge instructed counsel for both defendants: 'You are both responsible for your own witnesses.' After the last defense witness testified, the following occurred:

" 'MR. ACCARDI (Assistant District Attorney): Your Honor, we are going to object to Sherry testifying, she was in the Courtroom.

" 'MR. WILLISSON (Michael's defense counsel): Were you in the Courtroom?

" 'THE COURT: This witness was in the Courtroom for a substantial part of the trial; is that correct, ma'am?

" 'AN UNKNOWN WITNESS: Yes, it sure is.

" 'MR. WILLISSON: Are you sustaining the objection?

" 'THE COURT: You invoked the Rule, I believe, and the witness has been in the Courtroom and has heard part of the testimony, and the State is objecting to that; so I would have to sustain it.

" 'MR. WILLISSON: Okay. Our other witness has not arrived. Your Honor.'

"This constitutes all the information on this alleged error that is contained in the record. Although there was a motion for new trial, this issue was not raised. The witness was never further identified and there was no showing of her expected testimony."

The Court of Criminal Appeals noted that, generally, " '[i]f a witness in a criminal case violates the order without fault in the accused, the accused cannot be deprived of the witness's testimony as such deprivation would violate the accused's constitutional right to have witnesses testify in his behalf and at his call.' [C. Gamble], McElroy's Alabama Evidence, § 286.01 [ (3d ed. 1977) ]." That court then held that because there had been no proffer of the witness's expected testimony, nor any allegation that her testimony was material, the trial judge was presumed to have acted properly and without abusing his discretion in refusing to allow her to testify. Petitioner contends that this holding conflicts with this Court's decisions in Degg v. State, 150 Ala. 3, 43 So. 484 (1907), and Peters v. State, 240 Ala. 531, 200 So. 404 (1941), in that Degg and Peters held that the defendant was entitled to the testimony of a witness who had been present in the courtroom while other witnesses testified and that neither case contained any express requirement or even a reference to a showing of the materiality of that witness's testimony.

In Degg, this Court stated:

"The defendant's witness Manning should have been allowed to testify. We are not unmindful of the fact that it has been held that the admission of the testimony of a witness who has been put under the rule and who has violated the rule is in the discretion of the trial court, and as a general rule the action of the trial court in the exercise of this discretion will not be reviewed on appeal. The better practice, however, seems to be to permit the witness to testify and punish for the violation of the rule. We are of the opinion that where the rule is invoked as to witnesses, and is violated by a witness without any fault on the part of the defendant, the court has not the right under the law to deprive the defendant of the testimony of such witness. We think the right is one guaranteed to the defendant by the constitution, and of which he may not be deprived without fault on his part. ..." 150 Ala. at 9, 43 So. at 486.

Petitioner apparently would have us hold that this language applies in each and every situation where a defense witness violates a sequestration order so that the defendant is always entitled to have that witness testify in his behalf. It is clear, however, that this Court did not intend Degg to have that effect. Immediately following the above quoted language is this passage:

"In the present case Manning was not a witness at the time the rule was invoked and the witnesses were sworn and put under the rule. His evidence at this time was not known to the defendant or his counsel, and as soon as it became known he was sent without the hearing of the case, and was afterwards sworn and put under the rule. It is evident that neither the witness Manning, nor the defendant, nor his counsel was at fault. Under these circumstances, we are clearly of the opinion that the defendant was entitled to the testimony of this witness as a matter of right. ..." (Emphasis added.) Id.

A similar situation existed in Peters:

"The fact that Margaret Waltman, who was not subpoenaed as a witness, had been in the courtroom and heard some of the witnesses testify, did not justify the court in refusing to allow defendant to examine her as a witness, since it was made to appear that neither the defendant nor his counsel knew that she was an eye witness to a part of the difficulty between defendant and the Whitehursts, and she was not in the courtroom by procurement of defendant or his counsel. ..." (Emphasis added.) 240 Ala. at 535, 200 So. at 407.

The purpose of the witness sequestration rule is to prevent any one witness from hearing the testimony of other witnesses and perhaps perceiving the value of his own testimony to one party or the other. Obviously, if witnesses are sequestered, they are not able to "strengthen or color their own testimony, or to testify to greater advantage in line with...

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