Goodwin v. State, 6 Div. 55
| Decision Date | 09 September 1986 |
| Docket Number | 6 Div. 55 |
| Citation | 516 So.2d 818 |
| Parties | Riley Martin GOODWIN v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Michael D. Blalock, Birmingham, for appellant.
Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
Riley Martin Goodwin was convicted of robbery in the first degree and sentenced as a habitual offender to life imprisonment without the possibility of parole. Three issues are argued on appeal.
The following requested charge was properly refused:
The defendant argues that, since he did not testify in his own behalf, this requested charge was "his only opportunity to express to the jury his view of what occurred and where he was at the time this crime took place." Appellant's brief, p. 7.
The trial judge charged the jury that "the defendant has offered evidence that he was elsewhere than at the time and the place and at the moment when this offense was committed" and instructed the jury on alibi evidence.
This charge was properly refused because it stated that "there was testimony to support his theory." "Requested instructions that the evidence 'tends' to show certain matters are properly refused as invasive of the province of the jury." White v. State, 410 So.2d 135, 137 (Ala.Cr.App.1981).
At trial, there was no evidence that the defendant "stated" anything about an alibi. If the defendant wanted to "express to the jury his view of what occurred" he should have either testified himself or presented other witnesses who could testify to his statements. Because the defendant had not "stated" anything, this portion of the requested charge was abstract and properly refused for that reason also.
The defendant argues that the trial judge erred in refusing to grant his requested continuance to secure the attendance of an alleged "crucial defense witness." The witness was Ricky Goodwin, the defendant's brother. He would provide the defendant with an alibi. The continuance was properly denied.
The following occurred immediately before trial:
At this time, no continuance was requested and there was no further inquiry into the matter after the trial judge stated that he would "see" why Ricky had been arrested. The defendant proceeded to trial without objection. Tracy Goodwin testified at trial as a defense witness--the defendant's only alibi witness.
The trial began one day and the next day the State rested its case-in-chief. Defense counsel moved for a judgment of acquittal, presented defense witnesses Tracy Goodwin and Birmingham Police Officer A.W. Bates, and stated "we rest." Only after this did defendant request a continuance to secure his brother's presence at trial.
The record shows that defense counsel "talked to" Ricky "last night" (between the first and second day of trial), that a subpoena and at achment had been issued, and that Ricky could not be found and did not appear to testify for his brother.
In overruling the motion for a continuance, the trial judge stated: "Since he was contacted by the defendant and we sent on attachment for him, he was subpoenaed, and doggone, if he's not going to show up for his own brother's trial then--I can understand the problem, but we've had testimony [from Tracy Goodwin] consistent with his so I'm going to overrule the motion for a continuance at this time."
The general rule is that "[a] movant [for a continuance] must show that due diligence has been exercised to obtain the attendance of the witness, that substantial favorable testimony would be tendered by the witness, that the witness is available and willing to testify, and that the denial of a continuance would materially prejudice the defendant." United States v. Uptain, 531 F.2d 1281, 1287 (5th Cir.1976)....
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...a continuance would materially prejudice the defendant.' United States v. Uptain, 531 F.2d 1281, 1287 (5th Cir.1976)." Goodwin v. State, 516 So.2d 818 (Ala.Cr.App.1986). In the present case, there has been no showing that Mrs. Stewart could ever be located. There has been no showing made as......
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...not indicate that the accused waived youthful offender treatment or was denied treatment as a youthful offender." Goodwin v. State, 516 So.2d 818, 821 (Ala. Crim.App.1986), writ quashed, 516 So.2d 821 Because Hale did not object to the case action summary on any ground before the trial cour......
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...a continuance would materially prejudice the defendant.' United States v. Uptain, 531 F.2d 1281, 1287 (5th Cir.1976)." "Goodwin v. State, 516 So.2d 818 (Ala.Cr.App.1986)." In the present cause the witness showed up in chambers, but was afraid to testify. The witness did not show up the foll......