Fowler v. State
| Decision Date | 29 September 1989 |
| Docket Number | 6 Div. 783 |
| Citation | 562 So.2d 666 |
| Parties | Barbara Berry FOWLER v. STATE. |
| Court | Alabama Court of Criminal Appeals |
David C. Johnson, Birmingham, and William H. Atkinson, Hamilton, for appellant.
Don Siegelman, Atty. Gen., and Beth Slate Poe, Asst. Atty. Gen., for appellee.
This is an appeal from a murder conviction.
In October 1987, appellant was indicted by a Fayette County grand jury for the murder of her husband, Steve Fowler, in violation of § 13A-6-2, Code of Alabama (1975). In May 1988, appellant was found guilty in a jury trial of the offense charged, and she was thereafter sentenced to a term of life imprisonment.
The appellant argues that the trial court erred by allowing W.A. (Bill) Fowler, the victim's father, to testify on rebuttal about a tape recorded conversation between the appellant and a person identified only as "Jerry." She argues that Mr. Fowler's testimony was inadmissible, because, she says, the recording it described was itself the product of illegal electronic surveillance, because the tape recording had not been authenticated, and because this testimony was hearsay. Because we agree with the appellant's contention that the testimony of Mr. Fowler was hearsay, and thus, inadmissible, this case is due to be reversed and this cause remanded for a new trial.
The record indicates that, prior to the murder, the appellant and the victim were experiencing severe marital problems. These problems allegedly resulted from an affair the victim had been involved in about four years earlier, but which had only recently been discovered by the appellant. Several witnesses testified for the prosecution that, approximately ten days before his death, the victim had suffered a black eye and gouge marks on his head and forehead, apparently during a fight with the appellant. These witnesses also testified that the appellant did not appear to have been injured in the fight. David Grayson, who worked with the victim, further testified to seeing new scratch marks on the victim three or four days before his death, and stated that he also saw a bruise on the appellant's arm during this same period of time.
On direct examination, the appellant testified that she and the victim had never had any physical fights during their marriage until she learned of his affair. Thereafter, the appellant testified, she and the victim had had several fights in which they hit each other.
On cross-examination, the prosecution asked the appellant whether she had ever had a conversation in which a man said, "Well, I see you've given him a black eye" and in which she replied, "Yes, and the next time I'm going to kill him." The appellant responded to the prosecutor's question by stating "No, sir, I never said that."
On rebuttal, W.A. (Bill) Fowler testified that he saw the victim on the Friday morning before his death. At this time, Mr. Fowler testified, the victim played for him a tape recording made of a conversation between the appellant and a person named "Jerry." Mr. Fowler testified as follows:
The record fails to state who made the alleged recording, or whether the victim was present at the time the conversation allegedly occurred.
Initially, this Court notes that the appellant's arguments that Mr. Fowler's testimony was inadmissible because the tape recording was the result of illegal electronic surveillance and because the prosecution did not authenticate the tape were not raised at trial. Therefore, these issues are not preserved for our review. Kennard v. State, 531 So.2d 938, 940 (Ala.Cr.App.1988); Bolding v. State, 428 So.2d 187, 191 (Ala.Cr.App.1983).
The State argues that the appellant's statement that "the next time I'm going to kill him" evidences a design or emotion which points to her guilt, and was thus properly allowed into evidence as an admission. C. Gamble, McElroy's Alabama Evidence, § 264.01(1) (3d ed 1977); Smith v. State, 513 So.2d 1036, 1044 (Ala.Cr.App.1987). We note, however, that this Court has under exceptional circumstances refused to apply the above-stated rule, where to do so would deprive the accused of his constitutional rights to confront and cross-examine witnesses against him.
In Arthers v. State, 459 So.2d 972 (Ala.Cr.App.1984), the trial court, pursuant to § 12-21-5, Code of Alabama (1975), admitted into evidence a number of hospital records pertaining to events which took place the night before the murder for which the appellant was convicted. One of these documents was an emergency room record on which the following handwritten notation as made: "despondant [sic]--stated that he would kill his wife is she didn't take the pills." The appellant alleged that the notation was inadmissible hearsay since the person who had made it was not available in court for confrontation and cross-examination. In reversing the judgment of the trial court, this Court held the following:
To continue reading
Request your trial
-
Ex parte Fowler
...conviction on the ground that prejudicial evidence had been improperly admitted and remanded the case for a new trial. Fowler v. State, 562 So.2d 666 (Ala.Crim.App.1989). Again Ms. Fowler moved for a change of venue, arguing that she could not obtain a fair trial in Fayette County. The tria......