Hayes v. State
| Decision Date | 01 March 1991 |
| Citation | 588 So.2d 502 |
| Parties | Leonard Lavon HAYES v. STATE. CR 89-1194. |
| Court | Alabama Court of Criminal Appeals |
Gary D. Porter, Mobile, for appellant.
Don Siegelman, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., for appellee.
Leonard Lavon Hayes, the appellant, was convicted of leaving the scene of an accident in violation of Ala.Code 1975, § 32-10-1, and was sentenced to 15 years' imprisonment. At the same trial, he was also convicted of criminally negligent homicide in violation of Ala.Code 1975, § 13A-6-4, and was given a concurrent sentence of one year in prison. The appellant raises three issues on this appeal from those convictions.
The appellant argues that the trial court committed reversible error in consolidating indictments for the two offenses without the appellant or his attorney being present.
The State filed a motion to consolidate on December 21, 1989. The certificate of service indicates that a copy of that motion was served on defense counsel. The motion was granted by the trial judge on January 26, 1990. The minute entry for that date states:
"This day in open court came the State of Alabama by its District Attorney and the Motion to Consolidate Offenses filed by the State, December 21, 1989, coming on to be heard and being understood by the court; It is ordered and adjudged by the Court that the Motion ... is granted."
The appellant was tried for both offenses on May 16, 1990.
The record contains no other information relating to this issue. Defense counsel made no objection to the consolidation on any ground at trial. This issue is raised for the first time on appeal.
The requirement of Rule 15.3(b), A.R.Crim.P.Temp. (now combined with Rule 15.4(b), A.R.Crim.P.Temp., in Rule 13.3(c), A.R.Crim.P.), that the defendant be given an "opportunity to be heard" prior to the granting of a motion to consolidate Sharpe v. State, 560 So.2d 1107, 1110-11 (Ala.Cr.App.1989). Strict compliance with Rule 15.3(b) is required because the opportunity to be heard on the question of consolidation is considered a critical stage of the proceedings at which the accused is entitled to the effective assistance of counsel. See Ex parte Jones, 473 So.2d 545, 546 (Ala.1985).
While neither appellant's trial counsel nor his appellate counsel has claimed that trial counsel did not receive notice of the motion to consolidate, it does appear from the record on appeal that the trial judge "heard" the motion in open court when only the district attorney was present. There is no indication that the appellant or defense counsel waived their presence at this "hearing" if, indeed, there actually was such a hearing. Under Jones and pursuant to the demands of Rule 15.3(b), it must be recognized that if there was a hearing on the motion to consolidate, the appellant and his counsel had a right to be present.
Under the circumstances of this case, this cause must be remanded to the trial court with directions that a hearing be conducted in the presence of all parties, unless the presence of any particular party is waived and the waiver is placed on the record. We request that the following questions be answered in a written order by the trial judge: 1) What actually occurred in open court on January 26, 1990, when the trial court granted the motion to consolidate? 2) Did defense counsel receive notice of the State's motion to consolidate prior to the granting of the motion? 3) Did defense counsel, having had notice of the motion, fail to object to the consolidation both before and after the motion was granted? As an alternative to an evidentiary hearing, the parties may enter into a stipulation of facts. We encourage the trial judge and the parties to place in the record any other material and relevant facts and circumstances surrounding this issue. The transcript of the evidentiary hearing, or the stipulations, as well as the written findings of the trial judge, shall be forwarded to this Court within 60 days from the date of this opinion.
The appellant argues that the prosecutor erred in arguing facts not supported by the evidence.
During the course of the prosecutor's closing argument to the jury, the following occurred:
Near the very beginning of his oral instructions to the jury, the trial judge specifically charged that "if either lawyer has argued to you inferences or conclusions from the facts different from what you yourself would draw then I tell you to totally disregard it and be guided by what you remember the facts to be and the inferences and conclusions that you would draw."
The homicide occurred in the parking lot of Gordon's Supper Club in Mobile County. The victim, Anjeanette ("Angie") Woodward and Helen Tice had been inside the club from approximately 3:30 until 7:00 on the morning of February 19, 1989. According to Ms. Tice, about ten minutes before they left, the victim repeatedly told her that "she had to talk with this man" who was standing or waiting by the doorway. The two women went to the restroom and when they came out, the "man" was gone. That man was later identified as the appellant.
Ms. Tice and the victim walked out of the club into the parking lot. The appellant's automobile was "just [slowly] rolling through the parking lot" approaching them. Ms. Tice testified that the appellant "was waiting for us to come out," and that "Angie told me, she said, I've got to go talk to--she called him an asshole."
The victim walked to the appellant's automobile and the automobile stopped. Ms. Tice testified that the appellant "stopped the car to talk to" the victim and that something was said between the victim and the appellant. There was also evidence that the appellant pulled up beside the victim and said something to her as she was walking through the parking lot. There was testimony that "Angie and the boy in the car were having words" and "fussing." The "way they were acting" it appeared that a "fight was fixing to go on."
The next thing Ms. Tice observed was the victim The appellant accelerated toward the highway, dragging the victim; the victim fell off the car.
When the appellant turned the curve in front of the club, Ms. Tice saw the victim "hanging on and [the appellant's] arm on hers." Other testimony indicated that the appellant was "holding with his arm on her arm." The victim fell off the car and died as a result of blunt force injuries to her head.
Ms. Tice testified that the victim did not tell her why she called the appellant an asshole.
Ms. Tice testified that she never saw the victim talk to the appellant until they were in the parking lot.
The appellant testified that he did not see or talk to the victim inside the club. He claimed that the victim approached him in the parking lot and started "cussing." As he drove away, she ran after his car trying to hit him with her purse. The appellant testified that he had no knowledge of any accident until that evening.
The prosecutor argued that the appellant started the altercation by hitting on the victim inside the club. There is no evidence that the appellant struck the victim inside the club. The phrase "hit on" also means "to make persistent sexual advances to." The Random House Dictionary of the English Language 907 (2d ed. 1987). There is no evidence that the appellant "hit on" the victim in that sense either. There was no direct evidence of any conversation between the victim and the appellant inside the club.
"It has been uniformly held that counsel should have wide latitude to draw reasonable inferences from the evidence but should not be allowed to argue as a fact that which is not supported by the evidence." Brown v. State, 374 So.2d 391, 394 (Ala.Cr.App.), affirmed, 374 So.2d 395 (Ala.1979). Whether an inference is reasonable is generally within the sound discretion of the trial judge. Ainsworth v. State, 501 So.2d 1265, 1268-69 (Ala.Cr.App.), reversed on other grounds, 501 So.2d 1269 (Ala.1986).
While it appears that the prosecutor's comment in this case is based on little more than sheer speculation, "[i]t is not every improper remark to which objection is not sustained which will...
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