Gratton v. State

• Decision Date: 26 June 1984
• Docket Number: 6 Div. 611
• Parties: Charles Austin GRATTON, Jr. v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 865

456 So.2d 865

Charles Austin GRATTON, Jr. v. STATE.

6 Div. 611.

Court of Criminal Appeals of Alabama.

June 26, 1984.

Rehearing Denied July 31, 1984.

Certiorari Denied Oct. 19, 1984

Alabama Supreme Court 83-1289.

George W. Andrews, III, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., and Martha Gail Ingram, Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

Charles Austin Gratton, Jr. was indicted and convicted for burglary in the first degree involving Judy Wilkinson. He was sentenced as an habitual offender to life without parole. We affirmed Gratton's conviction for first degree burglary involving Barbara Britton in Gratton v. State, 455 So.2d 189 (Ala.Cr.App.1984). Eight issues are raised on this appeal.

I

Gratton argues that reversible error was committed when the trial judge refused to allow the defense to introduce evidence concerning the mental incapacity of Mrs. Wilkinson, the victim.

Mrs. Wilkinson testified that on the morning of May 3, 1980, she was awakened by "a man saying if you don't turn over on your back, I'm going to kill your baby." Mrs. Wilkinson got on top of her two-year-old daughter who was sleeping with her to protect her. The man started stabbing Mrs. Wilkinson and then ran from her apartment. About a week later, after Mrs. Wilkinson had been released from the hospital, she identified Gratton in a police lineup as her assailant. On cross examination of Mrs. Wilkinson, defense counsel did not attempt any inquiry into her mental condition.

As part of Gratton's defense, defense counsel sought to introduce into evidence a petition which Mrs. Wilkinson's mother had filed seeking to have the victim committed to a mental institution.

"MR. JOHNSON (Defense Counsel): Your Honor, I would propose to show in June of 1980, a commitment hearing--not a commitment hearing--but a petition to commit Mrs. Judy Wilkinson to Bryce Hospital alleging that she was mentally ill was filed in Probate Court, that she was ordered arrested and that she was carried to the jail and then transferred quickly to 3 North. I would offer to show from this petition, and the petition was signed by her mother, and I would question her as to whether or not she was over a two to three year period taking tranquilizers and pain pills excessively and these things that are in the petition from her mother. And I would also question her as to whether or not--Mrs. Wilkinson as to whether or not she had had some mental illness for some two to three years, whether or not she continuously broke glass and whether or not she threatened people on occasions with knives. And I would also propose, if your Honor ruled that it was admissible, to call--if she denied those things, to call her mother who filed that sworn petition, the purpose of that being to show her state of mind and just her competency as a witness.

"That was filed in June of '80, June the--anyway, it was June. I'm not sure of the exact date. But it was June of 1980.

"MR. CAHILL (Assistant District Attorney): Your Honor, we would object to this going in. That was merely an allegation just as the swearing of a warrant is an allegation. And we feel that that would not be admissible, whether it be an allegation of mental competency or an allegation of crime, committing a criminal offense.

"MR. JOHNSON: I will state, Judge, that upon the hearing by Judge Reynolds some week or ten days later, that the petition was dismissed, that she was released from that hospital.

"THE COURT: All right. Well, being that June was after the event and all, I will sustain the objection." (Emphasis added).

Defense counsel then called Mrs. Wilkinson as a witness but did not make or attempt any inquiry into her mental competency.

Although the credibility of a witness may be attacked by a showing of mental derangement, questions "which merely tend to show a mental condition or mental treatment at a time prior to trial, or not contemporaneous to the matter being testified about, are not admissible as impeaching the credibility of a witness." Garrett v. State, 268 Ala. 299, 306-07, 105 So.2d 541 (1958).

"The credibility of a witness may be impeached by proving mental derangement or insanity but only if such mental incapacity exists at the time the witness takes the stand to testify or at the time he observed the facts to which he has testified on direct. Consequently, proof may be made of his insanity or another more precise kind of mental illness that might be reasonably supposed to affect his capacity to observe, recollect, or narrate either at the time of his testifying or at the time of the event to which he has testified." C. Gamble, McElroy's Alabama Evidence, § 141.01(1) (3rd ed. 1977).

From the record there appears to be some confusion over the exact manner in which defense counsel desired to prove Mrs. Wilkinson's mental incompetence. The petition was inadmissible because it constitutes hearsay, Cox v. State, 36 Ala.App. 99, 102, 52 So.2d 826 (1951), and insanity may not be proven by hearsay. Dickinson v. State, 228 Ala. 28, 29, 152 So. 29 (1934).

Here, there was no specific contention that Mrs. Wilkinson was mentally deranged at the time of the offense or at the time of trial. Neither was there a contention that Mrs. Wilkinson's alleged use of drugs was so excessive as to have impaired her memory. The principle stated in Standard Oil Co. v. Carter, 210 Ala. 572, 574, 98 So. 575 (1924), is applicable here. "The use of opium cannot be introduced to impair the credit of a witness unless it be shown that he was under the influence of the drug at the time of testifying or at the time of the occurrence of the event to which he is testifying, or that his mind was generally impaired by the use of said drug."

We find no error in the action of the trial judge. It is not clear exactly how defense counsel was going to attempt to impeach Mrs. Wilkinson, whether by the petition itself or through examination of Mrs. Wilkinson or her mother. Moreover, it is within the discretion of the trial court to refuse to allow a witness to be recalled to lay a foundation for impeachment. Pitman v. State, 148 Ala. 612, 42 So. 993 (1906); Bell v. State, 74 Ala. 420 (1883); Baxter v. State, 360 So.2d 64 (Ala.Cr.App.1978).

II

Gratton contends that Mrs. Wilkinson's in-court identification of him should have been suppressed "due to the highly suggestive and distorted procedure employed in the police line-up."

Gratton was not denied any constitutional right to the assistance of counsel. He was arrested in the presence of his attorney while they were in court on another case. At that time counsel was informed that a lineup would be conducted but "there was never a specific time or place set for a lineup." Gratton had not been indicted for the instant offense at the time of the lineup.

The right to counsel established in United States v. Wade, 388 U.S. 218, 237 87 S.Ct. 1926, 1937, 18 L.Ed.2d 1149 (1967), applies only to post-indictment corporeal identification procedures, and does not extend to identification procedures that occur prior to indictment. Kirby v. Illinois, 406 U.S. 682, 688-89, 92 S.Ct. 1877, 1881-82, 32 L.Ed.2d 411 (1972). "The defendant had no constitutional right to counsel at a post arrest lineup for the reason that adversary judicial proceedings had not been initiated." Franklin v. State, 424 So.2d 1353, 1354 (Ala.Cr.App.1982).

Gratton asserts that the "visual identification was unduly suggestive" because he "age 30, [was] between a 19 year old and a 22 year old, outweighing his two 'comparative' participants by 20 and 16 pounds, respectively."

There were six participants in the lineup. All were dressed in white jail coveralls. The participants on either side of Gratton were placed there by Birmingham Police Sergeant Ann Ballard, who conducted the lineup. Both of these men were six feet tall, as was Gratton. Sergeant Ballard placed them there because she "tried to pick the ones that looked most like the suspect to be nearest." "The fact, in and of itself, that there was some slight discrepancy in physical appearance among the participants of a lineup does not taint that identification procedure or render it suggestive as a matter of law." Lewis v. State, 399 So.2d 907, 909 (Ala.Cr.App.1981). "(D)isparate physical appearances of the lineup participants is not alone sufficient to warrant a finding of suggestiveness." Swicegood v. Alabama, 577 F.2d 1322, 1327 (5th Cir.1978); Jones v. State, 439 So.2d 824, 827 (Ala.Cr.App.1983).

Gratton also contends that "the voice identification was, due to the utterly inadequate equipment employed, so distorted and improperly amplified as to risk being totally misleading." Sergeant Ballard, who conducted the lineup, testified that she heard Gratton's voice both before and after the lineup and that his voice "appeared the same as it had on the microphone" during the lineup and that there was not any difference. She heard no echo or distortion over the speaker system. Two defense experts, who were not present when the lineup was conducted, examined the public address system and the acoustics in the lineup room at the Birmingham City Jail. One witness testified that there was "considerable distortion of the voice ... primarily due to the reverberation within the small room." The other expert testified that he could not recognize a known voice over the sound system. He stated that "it's a very poor system as a voice identifying instrument. It appears to have been a system designed to communicate merely from one room to the next, and not to identify words."

Although the alleged poor quality of the sound system at the lineup facilities may have been "misleading", we fail to understand how that could be termed suggestive. In view of the fact that there was conflicting testimony on the sound reproducing qualities of equipment, we will not disturb the trial judge's ruling on the admissibility of the in-court identification. Under the...