Freeman v. State

• Citation: 722 So.2d 806
• Parties: Jamaal FREEMAN v. STATE.
• Decision Date: 08 May 1998
• Court: Alabama Court of Criminal Appeals

722 So.2d 806

Jamaal FREEMAN v. STATE.

CR-96-1617.

Court of Criminal Appeals of Alabama.

May 8, 1998.

Rehearing Denied August 14, 1998.

John William Cole, Birmingham, for appellant.

Bill Pryor, atty. gen., and Robin Blevins, asst. atty. gen., for appellee.

LONG, Presiding Judge.

The appellant, Jamaal Freeman, was convicted of robbery in the first degree and attempted murder. He was sentenced to 21 years' imprisonment for each conviction, the sentences to run concurrently.

I.

The appellant contends that the trial court erred to reversal in refusing to give his written requested jury charge no. 5, the so-called "single-witness" charge, which provided:

"The court charges the jury, if a conviction in case numbers CC-95-5082 and CC-95-5083 depends upon the testimony of the single witness, James Lee Kingery, and if the jury has a reasonable doubt as to the truthfulness of the testimony of said witness, you cannot convict the defendant Freeman and your verdict should be one of not guilty."

(C. 15.) The appellant maintains that his requested charge was appropriate because, he says, the testimony given by James Kingery constituted the sole identification evidence against him and without it the state's evidence would have been insufficient to support his conviction.

The trial court's refusal to give the appellant's requested charge was not error. This was not a case where the appellant's convictions rested solely upon the testimony of a single witness. While Kingery, the victim, was the only witness who gave "eyewitness" testimony concerning the actual robbery and the actual attempted murder,¹ other witnesses gave testimony placing the appellant near the scene of the offense around the time of its occurrence. Officer Burke Swearingen of the Homewood Police Department testified that he observed a blue car matching Kingery's description of the vehicle that the appellant was in (Kingery telephoned "911" and reported the incident almost immediately) pull into the parking lot of a Super 8 Motel approximately a quarter of a mile from the crime scene within minutes of the offense. Swearingen testified that by the time he pulled his patrol car into the motel parking lot in pursuit, the blue car had been parked haphazardly in the lot and abandoned; the engine had been left running, the lights were on, and the doors had been left open. According to Swearingen, a motel guest standing in the parking lot yelled to him, "they ran that-a-way," and pointed to the motel's entrance. Donna Shook, a desk clerk at the Super 8 Motel, testified that she saw the appellant and another black male enter the motel and run down a hallway around the time Officer Swearingen saw the blue car enter the motel parking lot. Officer Kathy Henderson of the Homewood Police Department testified that she arrived at the Super 8 Motel around the same time as Officer Swearingen and took up a position at the motel's back exit. Shortly thereafter, she said, she apprehended the appellant and his codefendant, Ronald Roberson, as they left the motel through the back exit. Officer Henderson testified that the appellant and Roberson were sweating profusely when they were apprehended. She stated that Kingery was brought to the motel, where he positively identified the appellant as the man who had shot at him. Officer Henderson also identified a photograph she took after the incident (State's Exhibit No. 2) depicting three bullet holes in the driver's side of Kingery's car. She stated that one bullet had struck the left rear tire of Kingery's car, one bullet had struck the upper portion of the rear driver's-side door, and one bullet had struck the pillar post behind the driver's seat. In view of the photograph and the other testimony providing circumstantial evidence corroborative of Kingery's testimony, it would be incorrect to assert that the appellant's convictions depended solely on the testimony of a single witness. See Flanagan v. State, 533 So.2d 637 (Ala.Cr.App.1987). In Baxley v. State, 18 Ala.App. 277, 90 So. 434, cert. denied, 206 Ala. 698, 90 So. 925 (1921), the appellate court considered the following jury charge requested by the defendant and refused by the trial court: "If the state's evidence in this case consists in the statement of witnesses of the truth of which the jury have a reasonable doubt, then they cannot convict thereon, although they may not believe defendant's witnesses." 18 Ala.App. at 278, 90 So. 434. The court held:

"In the cases where [the above charge] is held to be good and its refusal error, the state's case was dependent and predicated upon the testimony of one witness. Segars' Case, 86 Ala. 59, 5 South. 558 [(1889) ]; McDaniels' Case, 162 Ala. 25, 50 South. 324 [(1909)]; Mills' Case, 1 Ala. App. 76, 55 South. 331 [ (1911) ]. In other cases where there were other witnesses and other testimony, as in the case at bar, the charge is held to be confusing and misleading. Price's Case, 10 Ala.App. 67, 65 South. 308 [ (1914) ]; Conner's Case, 10 Ala.App. 206, 65 South 309 [(1914)]; McConnell v. Adair, 147 Ala. 599, 41 South. 419 [ (1906) ]. In the case at bar there were several witnesses for the state who testified as to the facts of the killing and several witnesses for the defendant who testified as to the details of the homicide.... To say the least, the charge is misleading, under the facts in this case."

18 Ala.App. at 279, 90 So. 434. In light of the other evidence presented in the instant case, the "single-witness" charge requested by the appellant would have been misleading.

Additionally, this court had held that a defendant is not entitled to a "single-witness" charge in a case where there has been no evidence of the victim's bad reputation either generally or for truth and veracity. Adams v. State, 587 So.2d 1265, 1269 (Ala.Cr.App. 1991). Here, there was no evidence showing that Kingery had a bad reputation either generally or for truth and veracity, and thus the appellant's requested charge was properly refused.

Furthermore, the record reflects that the trial court sufficiently charged the jury on the issue of witness credibility. The trial court's oral charge provided, in pertinent part:

"Also in this case the issue of identification arose, and the law says that in a criminal case, the State must prove not only the essential elements of the offense, as I've defined, but also must prove beyond a reasonable doubt the identity of the defendant as the perpetrator of the alleged offenses. In evaluating the identification testimony of a witness, you may consider the credibility of the witnesses who testify, whether the witness had an adequate opportunity to observe the person in question at the time or times about which he testified, and the length of time the witness had to observe the person in question, the prevailing conditions at the time in terms of visibility or distance and those things, and whether the witness had known or observed the person at earlier times. You may also consider the circumstances surrounding the identification itself, including the manner in which the defendant was presented to the witness for identification and the length of time that elapsed between the incident in question and the next opportunity the witness had to observe the defendant.

"....

"The law says that you are the sole and exclusive judges of the evidence presented in this case, which means that you determine how much weight or how sufficient the evidence may be. It also means that you are the judges of the credibility or believability of the witnesses who testified. In determining the weight and credibility of any witness's testimony, you may consider any interest, bias, prejudice, or anything which in your judgment would tend to keep a witness from telling the truth. The witness's appearance or demeanor can also be considered in determining what weight or credibility you give the testimony of a witness. If you determine that any witness has wilfully testified falsely to a material matter in this case, you may disregard all or any part of that witness's testimony."

(R. 245-49.) (Emphasis added.)

In Hudson v. State, 628 So.2d 1063 (Ala.Cr.App.1993), this court upheld the denial of a requested "single-witness" charge where the trial court instructed the jury on the state's burden of proof, reasonable doubt, and the jury's discretion to disregard the entire testimony of a witness if it disbelieved any part of that witness's testimony. In addition to giving the above-quoted instruction that jurors could disregard the entire testimony of a witness where they believed the witness has testified falsely, the trial court here instructed the jury on the state's burden of proof and had defined reasonable doubt for the jury. In light of Hudson, then, we find that the appellant's requested charge was substantially covered by the trial court's oral charge. "The refusal of a requested written instruction, although a correct statement of the law, shall not be cause for reversal on appeal if it appears that the same rule of law was substantially and fairly given to the jury in the court's oral charge or in other charges given at the request of the parties." Rule 21.1, Ala.R.Crim.P. "This principle applies even where `the actual language of the requested charge is not employed in the oral charge,' and even where the requested charge `may be preferred as a statement of the law over a given charge.'" Malphurs v. State, 615 So.2d 1310, 1313 (Ala.Cr.App. 1993). Accordingly, we find no error in the trial court's refusal to give the appellant's requested jury charge no. 5.

II.

The appellant contends that the trial court erred in denying his motion for a new trial based on the state's failure to produce, as part of pretrial discovery, statements that the appellant and his codefendant, Ronald Roberson, made to the police. The record reflects that the appellant's counsel did not file a written pretrial discovery request. However, the appellant...