Gratton v. State
Decision Date | 26 June 1984 |
Docket Number | 6 Div. 611 |
Citation | 456 So.2d 865 |
Parties | Charles Austin GRATTON, Jr. v. STATE. |
Court | Alabama Court of Criminal Appeals |
George W. Andrews, III, Birmingham, for appellant.
Charles A. Graddick, Atty. Gen., and Martha Gail Ingram, Asst. Atty. Gen., for appellee.
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.
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.
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).
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).
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
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...
To continue reading
Request your trial-
Steele v. Thomas
...is not presumed and the party claiming that a trial judge has abused his discretion has the burden of persuasion." Gratton v. State, 456 So.2d 865, 872 (Ala.Crim.App. 1984). Steele has not met his burden.III.Steele argues that his trial counsel was ineffective for failing to advise Steele's......
-
United States v. Herrold
..."can be formed in a ‘remaining within’ form of aggravated burglary after consent is withdrawn" (emphasis added) ); Gratton v. State , 456 So.2d 865, 872 (Ala. Crim. App. 1984) ("[U]nder the criminal code definition of burglary, the intent to commit a crime may be concurrent with the unlawfu......
-
United States v. Bernel-Aveja
...604 (2016) (explaining the difference between "divisible" statutes and "alternative means" statutes).121 See Gratton v. State , 456 So.2d 865, 872 (Ala. Crim. App. 1984) (observing that a jury instruction that intent must be formed at the time of entry was properly refused as an incomplete ......
-
Ray v. State
...v. Embree, 130 Ariz. 64, 633 P.2d 1057 (Ariz.App.1981); State v. Mogenson, 10 Kan.App.2d 470, 701 P.2d 1339 (1985); Gratton v. State, 456 So.2d 865 (Ala.Cr.App.1984); State v. Reams, 292 Or. 1, 636 P.2d 913 (1981); State v. Papineau, 53 Or.App. 33, 630 P.2d 904 (1981); see also State v. Pea......