Harrell v. State, 6 Div. 171

• Court: Alabama Court of Criminal Appeals
• Writing for the Court: BOWEN
• Citation: 470 So.2d 1303
• Docket Number: 6 Div. 171
• Decision Date: 12 June 1984
• Parties: Ed HARRELL, Jr. v. STATE.

Page 1303

470 So.2d 1303 Ed HARRELL, Jr.
v.
STATE. 6 Div. 171. Court of Criminal Appeals of Alabama. June 12, 1984.
Rehearing Denied July 31, 1984.

Page 1305

Jake V. Bivona of Paden, Green, Paden & Bivona, Bessemer, for appellant.

Charles A. Graddick, Atty. Gen., and William D. Little and Gerrilyn V. Grant, Asst. Attys. Gen., for appellee.

BOWEN, Presiding Judge.

On October 1, 1981, Ed Harrell, Jr. shot and killed Bessemer Police Officer Tommy Lee Thedford. He was indicted for the capital offense involving the murder of a police officer defined in Alabama Code § 13A-5-40(a)(5) (1975). A jury found Harrell "guilty of the capital offense as charged in the indictment", and later recommended, by a vote of eleven to one, "that the penalty be life without parole." The trial judge refused to accept the jury's recommendation and sentenced Harrell to death by electrocution. On this appeal, thirteen issues are presented.

I

The trial judge properly denied Harrell's request for funds to hire a psychiatrist or psychologist of his own choosing. In Ex parte Clisby, 456 So.2d 95 (Ala.1983), our Supreme Court held:

"[T]he indigent defendant in a criminal case does not enjoy a constitutional right to have the aid of the State by the appointment of an expert for his exclusive benefit. Thigpen v. State, 372 So.2d 375 (Ala.Cr.App.), cert. denied, 372 So.2d 387 (Ala.1979), cert. denied, 444 U.S. 1206 [100 S.Ct. 690, 62 L.Ed.2d 660] (1980). The defendant may have that right where necessary for an adequate defense. Anno., 34 A.L.R.3d 1256 (1970). However, 'there exists no constitutional right to the appointment of a private psychiatrist of the defendant's own choosing at public expense.' Satterfield v. Zahradnick, 572 F.2d 443 (4th Cir.), cert. denied, 436 U.S. 920 [98 S.Ct. 2270, 56 L.Ed.2d 762] (1978)."

Prior to trial, Harrell requested and received a mental examination at the Forensic Unit at Bryce Hospital at state expense. The Lunacy Commission found that Harrell "did possess the substantial capacity to appreciate the criminality of his conduct and to conform his conduct to the requirements of the law at the time of the particular offense charged", and that he was competent to stand trial. The Commission further found that Harrell was malingering; that he was "making conscious attempts to appear mentally ill by deliberately distorting his responses to test questions", and that "his suicidal gestures are a conscious attempt ... to avoid prosecution on the charges pending." After the Commission made its report, defense counsel withdrew the plea of not guilty by reason of insanity. There is nothing in the record to even suggest some reason to doubt Harrell's competency or sanity.

II

The trial judge did not violate Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), in qualifying the jury venire. No venireman was excluded for cause solely because of his opposition to the death penalty.

III

The trial judge properly denied defense counsel's challenge for cause of venireman Robert Ransom. In response to questions concerning the media accounts of the crime, Ransom stated that he "remember[ed] it being on television and in the newspaper" but did not "recall all the circumstances." Initially, he testified that he was "not positive I couldn't put it aside." However, on further questioning he stated, "I think I could be objective about it."

"[J]uror exposure to news accounts of the crime with which an accused is charged

Page 1306

does not alone presumptively deprive the accused of due process of law." Gwin v. State, 425 So.2d 500, 503 (Ala.Cr.App.1982), cert. quashed, 425 So.2d 510 (Ala.1983). Ransom indicated that he could be objective and consequently was not subject to a challenge for cause. Bowen v. State, 274 Ala. 66, 145 So.2d 421 (1962). IV

The photographs of the interior of the slain officer's automobile were properly admitted into evidence. After being shot, Officer Thedford staggered into his car. The photographs were not immaterial but were illustrative of the crime scene and corroborative of the testimony of Officer Clifton M. Vasser, who was the first policeman to arrive on the scene. Arnold v. State, 348 So.2d 1092, 1095 (Ala.Cr.App.), cert. denied, 348 So.2d 1097 (Ala.1977); C. Gamble, McElroy's Alabama Evidence § 123.03(1) (3rd ed. 1977). A photograph "is competent evidence of anything, of which it is competent and relevant for a witness to give a verbal description." 23 C.J.S. Criminal Law § 852(1)(a) (1961).

V

The photographs of the wound to Thedford's head were admissible, Palmore v. State, 283 Ala. 501, 506, 218 So.2d 830 (1969), even though they were taken immediately before the autopsy and were cumulative evidence based on an undisputed matter. Washington v. State, 415 So.2d 1175, 1180-81 (Ala.Cr.App.1982).

VI

The trial judge properly allowed the State to withdraw from evidence Harrell's written statement given after his arrest.

At a hearing outside the presence of the jury, the State proved the voluntariness of Harrell's statement. The statement was admitted into evidence without objection by defense counsel at this hearing. In this statement, Harrell stated that he was giving the pistol to Officer Thedford when it accidentally discharged. However, after the hearing and before the jury, the State never attempted to introduce this statement.

On cross examination of the officer who took the statement, defense counsel attempted to elicit testimony concerning the contents of the statement. The trial judge sustained the prosecutor's objection, and noted that "(t)here has been no mention of it made in the presence of the jury. The jury has not heard it." He then permitted the State to withdraw the statement from evidence.

The trial judge properly refused to allow Harrell to introduce the statement he made to the police after his arrest. Powell v. State, 51 Ala.App. 398, 400, 286 So.2d 73, cert. denied, 291 Ala. 796, 286 So.2d 75 (1973). "The acts, declarations, and demeanor of an accused before or after the offense, unless a part of the res gestae, are not admissible for him." Coats v. State, 253 Ala. 290, 295, 45 So.2d 35 (1950); Hill v. State, 156 Ala. 3, 46 So. 864 (1908). The declarations of the accused, made after the commission of the crime, are not admissible in his favor unless they constitute a part of the res gestae or are introduced by the State. Oliver v. State, 17 Ala. 587, 595-96 (1850). Although frequently said to constitute self-serving declarations, Grooms v. State, 228 Ala. 133, 152 So. 455 (1934), Hill v. State, 194 Ala. 11, 69 So. 941 (1915), statements made by the accused, after the commission of the crime and not as part of the res gestae, fit the classic definition of hearsay. McElroy, §§ 242.01, 242.02.

It is in the discretion of the trial judge to permit the withdrawal of evidence. 23 C.J.S. Criminal Law § 1040 (1961). See also Frost v. State, 225 Ala. 232, 237, 142 So. 427 (1932).

VII

Since Harrell's statement to the police was not admissible in his favor, the refusal of the trial judge to allow defense counsel to cross examine a State's witness about this matter did not restrict Harrell's Sixth Amendment right of confrontation.

Page 1307

Hearsay testimony is not admissible over objection even on cross examination.

Although the accused's right of confrontation may be violated if restrictions on his right of cross examination limit relevant inquiries into guilt or innocence, United States v. Pritchett, 699 F.2d 317, 321 (6th Cir.1983), or the credibility of witnesses, Davis v. Alaska, 415 U.S. 308, 316-17, 94 S.Ct. 1105, 1110-11, 39 L.Ed.2d 347 (1974), the trial judge has discretion to limit cross examination after the accused has been afforded the "constitutionally required threshold level of inquiry." United States v. Tracey, 675...