Flannagin v. State

• Decision Date: 07 September 1972
• Docket Number: 8 Div. 463
• Citation: 289 Ala. 177,266 So.2d 643
• Parties: In re Earl FLANNAGIN v. STATE of Alabama. Ex parte Earl Flannagln.
• Court: Alabama Supreme Court

Page 643

266 So.2d 643

289 Ala. 177

In re Earl FLANNAGIN v. STATE of Alabama.

Ex parte Earl Flannagln.

8 Div. 463.

Supreme Court of Alabama.

Sept. 7, 1972.

Robert Straub, Decatur, Charles E. Carmichael, Jr., Tuscumbia, for petitioner.

William J. Baxley, Atty. Gen., and J. Victor Price, Jr., Asst. Atty. Gen., for the State.

McCALL, Justice.

The defendant Flannagin was convicted of murder in the first degree and sentenced to death in accordance with the verdict of the jury. His conviction was affirmed by the Court of Criminal Appeals, and this court granted his petition for a writ of certiorari under Supreme Court Rule 39, as amended, Appendix to Tit. 7, pocket parts, Code of Alabama, Recompiled 1958, which provide in their pertinent part that a petition for writ of certiorari to the Supreme Court in a criminal case in which the death penalty was imposed as punishment will be considered by the Supreme Court as a matter of right.

The Automatic Appeal from Death Sentence Act, Tit. 15, § 382(1)--(13), Code of Alabama, Recompiled 1958, provides in part for a consideration of all of the testimony by the appellate court in all cases of automatic appeals, to determine if the verdict is so decidedly contrary to the great weight of the evidence as to be wrong and unjust so as to warrant granting a new trial. We think § 382(10) of this Act, providing for reviewing the testimony, is to be read and considered in pari materia with Supreme Court Rule 39, providing for certiorari, because Tit. 13, § 111(2) of the Code, states that the Court of Criminal Appeals shall have exclusive appellate jurisdiction of all felonies. The petitioner Flannagin, having had a full review of the record of his conviction by an appeal to that court, he is not entitled to another review by appeal. The Automatic Appeal Act, providing for a consideration of all the testimony expressly relates to review by appeal, and nothing is mentioned therein about considering the testimony in the record on review by certiorari to this court. Therefore we will abide by our decisions that review by writ of certiorari is limited in this court to questions of law, which may include misapplication of the law to the facts as found by that court from the record before it. This court looks to the opinion of that court alone for findings of fact. Life & Casualty Ins. Co. of Tennessee v. Womack, 228 Ala. 70, 71, 151 So. 880; Mutual Savings Life Ins. Co. v. Osborne, 247 Ala. 252, 23 So.2d 867; Barber Pure Milk Co. v. Young, 263 Ala. 100, 81 So.2d 328.

Petitioner alleges that five veniremen were improperly challenged for cause by the State because of their alleged general opposition to capital punishment and that therefore he was denied a fair and impartial jury.

The United States Supreme Court held in Witherspoon v. Illinois, 391 U.S. 510, 522, 88 S.Ct. 1770, 20 L.Ed.2d 776, that:

'* * * a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced General objections to the death penalty or expressed conscientious or religious scruples against its infliction. * * *' (Emphasis supplied.)

In Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433, the Supreme Court reaffirmed the test it had previously stated in Witherspoon, using the language which follows:

'* * * 'The most that can be demanded of a venireman in this regard * * * is that he be willing to consider all of the penalties provided by state law, and that he not be Irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings. * * * " (Emphasis supplied.) 394 U.S. at 482, 89 S.Ct. at 1140.

The Court of Criminal Appeals concluded, after due consideration, that the five veniremen challenged by the State exhibited an 'irrevocable commitment' to vote against capital punishment. None of the related evidence being set forth in the opinion of the Court of Criminal Appeals, we are bound by its finding of fact. Clayton v. Ragsdale, 276 Ala. 321, 161 So.2d 804. We hold that the Court of Criminal Appeals applied the proper constitutional standards in deciding the issue and that there was no error in the court's ruling.

Petitioner contends that the acting district attorney and the trial court asked leading questions of the prospective jurors, so that their true feelings were obscured. The Court of Criminal Appeals' opinion sets out no evidence with respect to the specific questions asked of veniremen, and this court will not consider any evidence not set out by that court. Clayton v. Ragsdale, supra.

However, we do point out that it is a primary responsibility of the trial court, under Tit. 30, § 6, Code of Alabama, 1940, to see that a qualified jury is impaneled. Under Tit. 30, § 52, either party has the right to examine jurors as to their qualifications, interest, or bias that would affect the trial, and the right under the direction of the court, to examine jurors as to any matter that might tend to affect their verdict. In qualifying a jury, the court must apply various tests of eligibility and impartiality which are couched in language unfamiliar to the average venireman. If jurors are asked to state their views in their own words on a question, such as their willingness or unwillingness to impose the death penalty, they may well answer in language in no respect similar to the language of the test which must be applied. This will impose on the court the additional duty of making further inquiry. Therefore the court may ask specific questions in the terms of the test. Such questions, though leading, are in many instances necessary. This method of qualifying the jury was approved in Mays v. State, 218 Ala. 656, 120 So. 163, where this court held that on voir dire examination of jurors it is safer to adopt, as nearly as practicable, the language of a statute (§§ 55 and 57 of Tit. 30 of the Code), subject to an explanation when not understood by the jurors. See Seibold v. State, 287 Ala. 549, 567, 253 So.2d 302.

II.

Petitioner further alleges that the Court of Criminal Appeals erred in holding that the trial court did not commit error when it overruled defendant's objection to the admission in evidence of deceased's bloody shirt.

In support of this contention, petitioner has directed our attention to cases from other jurisdictions which hold that in a homicide prosecution introduction of bloodstained articles of clothing should be restricted to a case where they are relevant to a material issue and not merely cumulative of a fact which has been proved, or which has not been denied. McElfresh v. Commonwealth, 243 S.W.2d 497 (Ky.1951). Thus, for example, where the identity of the deceased was unquestioned and where the nature of the wound and its location, character, and fatality either were undenied by accused or were established by other evidence, it was error to admit in evidence clothing worn by deceased when killed. Burke v. Commonwealth, 249 S.W.2d 764 (Ky.1952); State v. Creed, 299 Mo. 307, 252 S.W. 678. Such is not the law of Alabama.

It is a long established rule of this State that demonstrative evidence, such as clothing worn by deceased at the time of the killing, is admissible if it tends to shed light on any material inquiry, even though such evidence is only cumulative of other evidence and tends to inflame the jury. Barbour v. State, 262 Ala. 297, 78 So.2d 328; Ray v. State, 253 Ala. 329, 45 So.2d 4. The rule regarding admissibility was set forth with clarity in Rollings v. State, 160 Ala. 82, 86--88, 49 So. 329, 331 as follows:

'The clothing of deceased, as well as that of the accaused, . . . (sic) are usually held admissible on trials of homicide. There are only a very few cases in which they have been excluded, when offered as evidence for the inspection of the jury, if tending to elucidate the transactions, to identify any of the parties to connect the accused with the crime, or to show the character of the would, motive or intent of the killing, or degree of the crime--whether the killing was in self-defense or not. If such objects tend to corroborate or disprove, illustrate or elucidate, any other evidence, they are admissible * * *.

'The wearing apparel of deceased, showing the location of the bullets, the character and nature of the wound, the blood stains, etc., were properly admissible under the rules stated above, and It is no reason to exclude them that these matters might be shown by other evidence, or that these objects might prejudice the jurors. * * *' (Emphasis supplied.)

We believe that the Court of Criminal Appeals correctly distinguished Boyette v. State, 215 Ala. 472, 110 So. 812, in which a judgment of conviction was reversed for improper admission of deceased's clothing, from those cases which state the general Alabama rule, that the victim's clothes which bear marks of violence are admissible for the purpose of showing the location of the wounds on the body, even where the location of the wounds is not disputed by defendant. This distinction has been recognized by this court in its opinions, such as Barbour v. State, 262 Ala. 297, 309, 78 So.2d 328, where we made the following statement:

'* * * In these cases (Boyette, supra, and Langley v. State, 32 Ala.App. 163, 22 So.2d 920) the clothing was not pierced by the bullets causing the deadly wounds and, therefore, did not 'tend to corroborate or disprove, illustrate or elucidate any other evidence'. Here, the clothing showed the location of the bullet holes and was relevant,' as shedding light upon the character and location of the wound(s) on the body, though it was merely cumulative evidence, and there was no dispute.' * * *'

Petitioner asserts that the shirt contained no bullet holes and that it should, therefore, not have been admitted, relying on Boyette, supra. In his brief he points to...