Greathouse v. State, 1 Div. 34
| Decision Date | 29 June 1971 |
| Docket Number | 1 Div. 34 |
| Parties | Cato GREATHOUSE v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Kenneth Cooper, Bay Minette, for appellant.
MacDonald Gallion, Atty. Gen., and Richard F. Calhoun, Asst. Atty. Gen., for the State.
Appellant was indicted for murder in the first degree, convicted of murder in the second degree and sentenced to imprisonment in the penitentiary for fifteen years.
The attorney for the appellant on appeal has included in the transcript an assignment of error and has argued in brief the points raised. This is permissible, although not necessary on appeal in a criminal case. In addition to our duty to search the record for error, we have responded to matters specifically raised in said assignment.
Appellant argues in support of Assignment of Error No. 3 that the court erred in admitting the signed statement of defendant made at the jail and testified to by witness Tolbert because it was not shown to be voluntary under the well known rule set out in Sanders v. State, 278 Ala. 453, 179 So.2d 35; Lokos v. State, 278 Ala. 586, 179 So.2d 714; Myhand v. State, 259 Ala. 415, 66 So.2d 544. This rule is as follows:
'It is well established by our cases that extrajudicial confessions are prima facie involuntary and inadmissible and the duty rests in the first instance on the trial court to determine whether or not a confession is voluntary and unless it so appears it should not be admitted.' Lokos, supra.
Before the introduction of the statement above referred to, Deputy Sheriff W. A. Tolbert testified that just prior to making the statement the defendant was advised as follows:
After objection, appellant's counsel examined the witness on voir dire. On this examination the witness reiterated his direct testimony on this question as follows:
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No other witnesses were offered on voir dire.
Objection of appellant to the introduction of the statement was based 'on the grounds it has not been shown that he waived any of his rights as to the voluntariness of the confession, and it has not been shown to this court that he was asked whether or not he fully understood all of the rights that were explained to him in order that he could waive these rights if he saw fit.' Objection was overruled and appellant excepted.
Under the testimony in this case, it appears that the rights of appellant under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, were fully explained to him before he made the statement introduced. There was adequate evidence from which the trial court could conclude that appellant intelligently waived his right to counsel before he was questioned.
In Assignments of Error Nos. 4, 5 and 6 appellant contends that the court was in error in permitting State's witness Tolbert to testify as to where a bedwas in the back room. The transcript shows the following:
'MR. WILKINS: I object to that as hear-say.
'A. Cato's.
The objections to this testimony were made in each instance after the witness had answered. Under the holding in Goodson v. State, 42 Ala.App. 266, 160 So.2d 652, the objection and the motion to exclude came too late and the court cannot be put in error on its rulings.
There was further testimony of witness Tolbert elicited on cross-examination as to the location of the bed, and testimony of Lester Greathouse on this same question which would render harmless any error claimed.
In Assignment of Error No. 7 the appellant contends that 'the trial court erred in permitting witness Nelson Grubbs to testify as to cause of death.'
The only attempt by the State to question the witness as an expert was to show that he was a 'State Toxicologist for the State of Alabama.' No testimony was offered to show his study, practice, experience or observation by the particular subject under inquiry, as is required to authorize a witness to testify as to knowledge beyond that of an ordinary witness. Many cases directed to this proposition of law are collected and cited in Vol. 6, Ala.Digest, Criminal Law, k478(1).
However, no objection was made at the trial to the failure of the State to properly qualify the witness as an expert, and no ruling of the court was invoked. Matters not objected to in trial court cannot be considered for the first time on appeal since a review on appeal is limited to those matters at which rulings are invoked at nisi prius. Smith v. State, 40 Ala.App. 600, 119 So.2d 202; Thompson v. State, 44 Ala.App. 414, 211 So.2d 505; Volunteer State Life Ins. Co. v. Danley, 33 Ala.App. 543, 36 So.2d 123, cert. denied 250 Ala. 702, 36 So.2d 132.
Testimony of State's witness Charles Kirby showed that he picked up the body of deceased within a short time after...
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