Ex parte Faircloth
| Court | Supreme Court of Alabama |
| Writing for the Court | BEATTY |
| Citation | 471 So.2d 493 |
| Decision Date | 10 May 1985 |
| Parties | Ex parte Michael C. FAIRCLOTH. (Re: Michael C. FAIRCLOTH v. STATE). 83-1396. |
Page 493
(Re: Michael C. FAIRCLOTH
v.
STATE).
Page 494
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
Page 495
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...
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Gavin v. State
...Ballenger v. State, 720 So.2d 1033, 1034 (Ala.Crim.App.1998), quoting Faircloth v. State, 471 So.2d 485, 488 (Ala.Crim.App.1984), aff'd, 471 So.2d 493 (Ala.1985). "`The test used in determining the sufficiency of evidence to sustain a conviction is whether, viewing the evidence in the light......
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Whitt v. State, No. CR-96-0349.
...must review the evidence in the light most favorable to the prosecution. Faircloth v. State, 471 So.2d 485 (Ala.Crim.App.1984), aff'd, 471 So.2d 493 (Ala.1985); Cumbo v. State, 368 So.2d 871 (Ala.Crim.App.1978), cert. denied, 368 So.2d 877 (Ala.1979). Conflicting evidence presents a jury qu......
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Powell v. State , CR–09–1192.
...Ballenger v. State, 720 So.2d 1033, 1034 (Ala.Crim.App.1998), quoting Faircloth v. State, 471 So.2d 485, 488 (Ala.Crim.App.1984), aff'd, 471 So.2d 493 (Ala.1985). “ ‘The test used in determining the sufficiency of evidence to sustain a conviction is whether, viewing the evidence in the ligh......
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Pace v. State
...Ballenger v. State, 720 So.2d 1033, 1034 (Ala.Crim.App.1998), quoting Faircloth v. State, 471 So.2d 485, 488 (Ala.Crim.App.1984), aff'd, 471 So.2d 493 (Ala.1985). "`The test used in determining the sufficiency of evidence to sustain a conviction is whether, viewing the evidence in the light......
-
Gavin v. State
...Ballenger v. State, 720 So.2d 1033, 1034 (Ala.Crim.App.1998), quoting Faircloth v. State, 471 So.2d 485, 488 (Ala.Crim.App.1984), aff'd, 471 So.2d 493 (Ala.1985). "`The test used in determining the sufficiency of evidence to sustain a conviction is whether, viewing the evidence in the light......
-
Whitt v. State, No. CR-96-0349.
...must review the evidence in the light most favorable to the prosecution. Faircloth v. State, 471 So.2d 485 (Ala.Crim.App.1984), aff'd, 471 So.2d 493 (Ala.1985); Cumbo v. State, 368 So.2d 871 (Ala.Crim.App.1978), cert. denied, 368 So.2d 877 (Ala.1979). Conflicting evidence presents a jury qu......
-
Powell v. State , CR–09–1192.
...Ballenger v. State, 720 So.2d 1033, 1034 (Ala.Crim.App.1998), quoting Faircloth v. State, 471 So.2d 485, 488 (Ala.Crim.App.1984), aff'd, 471 So.2d 493 (Ala.1985). “ ‘The test used in determining the sufficiency of evidence to sustain a conviction is whether, viewing the evidence in the ligh......
-
Pace v. State
...Ballenger v. State, 720 So.2d 1033, 1034 (Ala.Crim.App.1998), quoting Faircloth v. State, 471 So.2d 485, 488 (Ala.Crim.App.1984), aff'd, 471 So.2d 493 (Ala.1985). "`The test used in determining the sufficiency of evidence to sustain a conviction is whether, viewing the evidence in the light......