Ex parte Wright

• Decision Date: 21 May 1993
• Citation: 625 So.2d 1135
• Parties: Ex parte Curtis WRIGHT, Jr. (Re State v. Curtis Wright, Jr.) 1920121.
• Court: Alabama Supreme Court

Page 1135

625 So.2d 1135

Ex parte Curtis WRIGHT, Jr.

(Re State v. Curtis Wright, Jr.)

1920121.

Supreme Court of Alabama.

May 21, 1993.

James E. Kimbrough, Jr., Mobile, for petitioner.

James H. Evans, Atty. Gen., and Robin Blevins, Asst. Atty. Gen., for respondent.

HORNSBY, Chief Justice.

We have granted Curtis Wright's petition for certiorari review of a judgment of the Court of Criminal Appeals affirming Wright's conviction of assault in the first degree for the shooting of Brian Facemire. We reverse and remand.

On July 4, 1990, shortly after a fireworks display at the Mobile Festival Center, Mobile, Alabama, Russell Paul Smith and Jarrod Lovelace were sitting in Smith's automobile in the Festival Center parking lot when two young men, later identified as Curtis Wright and E.M., ran by the car. Apparently, both young men put their hands on Smith's car and "pushed off" from the corner of it as they ran by. At the time, Smith, who did not know either of the two young men, was sitting in the passenger's seat of his car with the door open. Smith testified that he hollered to the young men: "Don't run across my car like that." Then, he said, the second young man, who was wearing solid black clothing, stopped, walked backed to Smith's car, and asked Smith if he was "trying to start something." Smith said that while he was repeating to that young man what he had said, the other young man, who was wearing green and black clothing, walked back to the car. Smith said the young man wearing green and black clothing hit him in the head and kicked him; then, he said, the young man wearing solid black clothing pulled a gun and held it in his face. At that point, Brian Facemire, who had witnessed these events from his car, which was a few feet away, stepped out of his car, began walking toward Smith's car, and hollered at the young men, saying: "Just go on before the paddy wagon comes." Then, one young man turned and shot Facemire in the chest. Facemire survived the shooting.

A Mobile County grand jury indicted Wright on a charge of assault in the first degree for the shooting of Facemire. ¹ On May 30, 1991, his case was presented to a jury. Because the jury was unable to reach a verdict, the court declared a mistrial and scheduled a second trial for October 28, 1991. In that second trial, the jury found Wright guilty and the court sentenced him to 10 years in a state penitentiary. The Court of Criminal Appeals, by an unpublished memorandum, affirmed Wright's conviction. 617 So.2d 713.

In both of Wright's trials, his defense to the assault charge was that it was E.M.--not Wright--who had shot Facemire. During Wright's first trial, Marcus Seals, a defense witness, testified that on July 4, 1990, the day of the shooting, Seals, Wright, E.M., and Ari Gordon rode to the Festival Center together. Seals testified that earlier that day he had seen E.M. with a .25 caliber chrome-colored gun. The bullet that injured Facemire came from a .25 caliber gun. Seals also stated that he did not witness the shooting, but that E.M. later told him that E.M. had shot Facemire. Seals's testimony was the only testimony directly supporting Wright's defense. Seals was not present to testify at the second trial.

At the second trial, Wright requested that Seals's testimony given at the first trial be read to the jury. The trial court refused this request; Wright argues that the trial court thereby erred.

Former testimony (sometime called "prior testimony") is hearsay evidence, but it is admissible when the personal attendance of a witness is not procurable and when the former testimony meets certain criteria. See Charles W. Gamble, McElroy's Alabama Evidence § 245.07(1) (4th ed. 1991), and cases cited therein. In this case, the trial court ruled that Wright's attorney failed to prove that he could not produce Seals's personal attendance at the second trial. See id. at § 245.07(8). Specifically, it said Wright's attorney did not establish that he had exercised due diligence to secure Seals's attendance at trial. See Nolen v. State, 469 So.2d 1326, 1328 (Ala.Crim.App.1985). ² However, the record indicates that the predicate testimony offered to prove Seals's unavailability may have been sufficient to establish that Seals was permanently or indefinitely absent from the state. See Williams v. Calloway, 281 Ala. 249, 251-52, 201 So.2d 506, 508 (1967).

The question of sufficiency of the proof offered to establish the predicate of unavailability of a witness is addressed to the sound discretion of the trial judge. See Nolen, 469 So.2d at 1289. This Court will not disturb rulings in matters resting in the discretion of the trial court unless that court has clearly abused its discretion. Ex parte Guerdon Industries, Inc., 373 So.2d 322 (Ala.1979). Further, this Court has stated that to be entitled to a reversal of a judgment for an abuse of discretion, the party claiming abuse must establish that it was prejudiced by the alleged abuse. See Valley Properties, Inc. v. Strahan, 565 So.2d 571, 583 (Ala.1990).

Wright argues that the trial court abused its discretion by refusing to allow proffered predicate testimony regarding Seals's whereabouts. To lay a predicate for the admission of Seals's former testimony, Wright established that, at the time of the first trial, Seals was serving time in jail for reckless endangerment and for carrying a pistol without a permit. Before the second trial, the Mobile County sheriff attempted to serve a subpoena on Seals at his last known address, but returned the subpoena with the notation "moved, address unknown." Wright testified that he had heard that Seals was in New York, but that he was not really sure where Seals was. Further, Wright's attorney asked the court to hear testimony from Kayshawn Jones, a witness for the prosecution in both trials; Wright's attorney says Jones would have testified that Seals was in North Carolina. However, the court refused to allow Jones's testimony regarding her knowledge of Seals's location.

Despite the fact that Jones's testimony would have been outside the hearing of the jury, the court ruled that, because Jones had been seated in the courtroom since she had testified for the prosecution earlier in the trial, to allow her testimony would violate Rule 9.3(a), Ala.R.Crim.P. That rule provides:

"Prior to or during any proceeding, the court, on its own motion or at the request of any party, may exclude witnesses from the courtroom and direct them not to communicate with each other, or with anyone other than the attorneys in the case, concerning any testimony until all witnesses have been released by the court."

The trial court had invoked Rule 9.3(a) on its own motion. So far as the record indicates, the parties' only notice that the court had invoked this rule was the fact that it had instructed the witnesses to leave the courtroom. However, the record indicates no instruction to the...