Holsemback v. State, 7 Div. 156

Citation443 So.2d 1371
Decision Date01 November 1983
Docket Number7 Div. 156
PartiesDaniel Barry HOLSEMBACK and Phillip E. Holsemback v. STATE.
CourtAlabama Court of Criminal Appeals

Ralph L. Brooks, Anniston, for appellant Daniel B. Holsemback.

Fred Ray Lybrand, Anniston, for appellant Phillip E. Holsemback.

Charles A. Graddick, Atty. Gen., and Gerrilyn V. Grant, Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

Daniel Holsemback and his brother, Phillip, were separately indicted for the murder of Donald Joe Coleman. The indictments were consolidated for trial pursuant to A.R.Crim.P.Temp. 15.4(b). A jury found both brothers guilty of murder and the trial judge sentenced each to a term of life imprisonment.

On the 11th of September, 1982, Phillip and his wife went to the Rainbow Inn in Oxford. Later, Daniel arrived with his date, Earlene Mayfield, and her niece, Connie Mitchell. The brothers sat at separate tables in different parts of the club and had only occasional contact with each other throughout the evening.

Sometime prior to the homicide, Phillip confronted Wayne Morgan in the men's restroom and told Morgan that he "didn't let nobody f--- with him." Phillip drew his knife. Morgan did likewise, and words were exchanged. At that time, the club bouncer "came in and broke up the scuffle", the cause of which was never established. A few minutes after Morgan had returned to his table, Phillip came over "just trying to fuss" and Morgan argued with him. The bouncer "came over and got" Phillip from Morgan's table. Morgan left shortly after this incident, but immediately before he left Phillip came over and Phillip, the bouncer, and Morgan apologized.

Shortly after one a.m., Joe Coleman entered the club. Ms. Mitchell, who was with Daniel and his date, kept calling Coleman over to their table. Seconds after Coleman had come to Daniel's table, Daniel and Coleman starting fighting and fell to the floor. When Daniel was pulled off Coleman, he had blood on his shirt. Daniel put a knife in his pocket and fled the club.

While Coleman was still on the floor, Phillip came from another part of the club, jumped on him and began hitting Coleman. The bouncer pushed Phillip off Coleman and Phillip fled the club stating, "You're lucky you ain't dead." Coleman had been cut or stabbed seven times. The cause of death was multiple stab wounds. Of the seven wounds, the "most rapidly fatal wound" went "in a different direction from the other wounds."

Phillip was arrested at 1:48 a.m. that morning. He had blood "all over him" and two knives were discovered on his person. He was taken to the Oxford City Jail and placed in a cell.

Later, Oxford Police Officer Danny Stewart returned to Phillip's cell and noticed the water running in the sink. Phillip turned from the sink, "wiping something on his shirt", and handed Officer Stewart a wet knife stating, "Don't you think you ought to take this?" On the knife and in the sink were faint traces of blood.

Phillip told the police that he did not cut anybody, stated that "Danny did the cutting", and said, "If you will let me get a hold of my brother, I'll make him tell you the truth."

After he fled the club, Daniel ran to the house of Shirley Herron. He told her that he had been in a fight with Coleman and tried to give her his knife. When Ms. Herron refused to take the knife, Daniel "laid the knife down on the stereo" and left.

Later that same night, he telephoned the police and turned himself in. He showed them the knife he used and gave a statement claiming that he only cut Coleman in self-defense.

I

Both defendants argue that the court rule permitting consolidation of separately indicted defendants for trial is an abridgment of their substantive right to trial by jury and in violation of the constitution.

In Alabama, the rules governing joinder and consolidation are rules of court. Section 6.11 of Amendment 328 of the Alabama Constitution provides:

"The supreme court shall make and promulgate rules governing the administration of all courts and rules governing practice and procedure in all courts; provided, however, that such rules shall not abridge, enlarge or modify the substantive right of any party nor affect the jurisdiction of circuit and district courts or venue of actions therein; and provided, further, that the right of trial by jury as at common law and declared by section 11 of the Constitution of Alabama 1901 shall be preserved to the parties inviolate. These rules may be changed by a general act of statewide application."

This same power to make rules of procedure and practice is listed among the powers of the supreme court in Alabama Code Section 12-2-7 (1975). It is undisputed that the Legislature intended to grant the supreme court this authority, for Alabama Code Section 15-1-1 (1975) provides that the rules of criminal practice and procedure adopted by the Alabama Supreme Court shall take precedence over the statutes governing criminal procedure. Although the general rule is that a legislative enactment takes precedence over a court rule, Ex parte Foshee, 246 Ala. 604, 21 So.2d 827 (1945), when the Legislature gives the court the power to make rules and the court acts, the rules become of "legislative origin in substance." Ex parte Leeth Nat. Bank, 251 Ala. 498, 38 So.2d 1 (1948).

Both defendants argue that the court rules of joinder and consolidation constitute substantive law and abridge their right of trial by jury at common law.

Alabama Code Section 15-14-20 (1975), over which A.R.Crim.P.Temp. 15 now takes precedence, provided the unqualified right to demand a separate trial by any defendant jointly indicted with another. This right of separate trial, at least where the indictment was joint, was granted by statute. Prior to the Code of 1886 in which the identical language of what is now Section 15-14-20 is initially found, the allowance of a separate trial was discretionary with the court. Andy v. State, 87 Ala. 23, 6 So. 53 (1889). Alabama Code Section 4892 (1876) provided: "When two or more defendants are jointly indicted, they may be tried, at the discretion of the court, either jointly or separately." This was also the rule at common law. Jackson v. State, 104 Ala. 1, 16 So. 523 (1894); Hawkins v. State, 9 Ala. 137 (1846). See also Charley v. State, 204 Ala. 687, 87 So. 177 (1920); Palmer v. State, 15 Ala.App. 262, 73 So. 139, cert. denied, 198 Ala. 693, 73 So. 1001 (1916).

In this state, we have found only three cases which address the issue of the separate indictment of two defendants for the same offense and the right of a separate jury trial. Helums v. State, 23 Ala.App. 401, 126 So. 183 (1930), summarily held that, "Being separately indicted, the defendant is entitled to a separate trial, and a joint trial with another without the consent of the defendant or a waiver of the right by him appearing of record is error and cause for reversal. Martin v. State, 19 Ala.App. 432, 97 So. 768." Martin, without discussion or citation to authority, simply concluded that "(t)wo defendants indicted separately for the same felony shown by the evidence to have been committed jointly may consent to be tried together and a separate verdict may be returned in each case." With the same abrupt and conclusionary treatment, the court of appeals remarked in Taylor v. State, 20 Ala.App. 133, 134, 101 So. 93 (1924): "We know of no law which authorizes a consolidation of felony cases where the parties are not jointly indicted...."

The only reason for this rule was found in J. Bishop, 2 New Criminal Procedure, Section 1043 (2nd ed. 1913), wherein it was stated that the consolidation of separate indictments against separate defendants, with their trials together, "was deemed so burdensome as, though distinct verdicts were found, to render the proceeding erroneous." In T. Butler and M. Garsia, Archbold Criminal Pleading, Evidence and Practice, Section 544 (35th ed. 1962), two English cases are cited for the rule that persons separately indicted cannot be tried together. One of these cases held that this matter was jurisdictional and defendants not jointly indicted could not be tried together even by consent. Dennis and Parker, 1 K.B. 867, 18 Crim.App. 39 (1924), relying on Crane, 15 Crim.App. 23 (1920), holding that the trial of two defendants separately indicted is void ab initio: "The result is that there never has been a trial at all." 15 Crim.App. at 25.

Despite this authority to the contrary, we find that joinder and consolidation of defendants and indictments are procedural matters that do not ordinarily affect the substantive rights of the parties. The same issue was addressed by the Supreme Court of Massachusetts in Commonwealth v. Gallo, 275 Mass. 320, 175 N.E. 718, 720-21 (1931), which held that the issue of joinder was procedural: "So far as concerns essentials in the ascertainment of truth and the administration of justice, a joint trial of two defendants on two separate indictments for one crime differs in no respect from a single trial of the same defendants joined in one indictment for the identical crime." See also M. McGee, Alabama Criminal Practice 178, n. 13 (1969) ("May several defendants charged by separate indictments be tried together in one proceeding? This seems permissible as long as a defendant does not object, there being no substantial difference between separate indictments and a joint indictment if the offenses charged are the same.").

In Gallo, the court dealt with the two English cases cited above and the apparently contradictory Alabama case of Taylor.

"While there can be no impairment of constitutional guaranties, defendants charged with crime have no vested rights in matters merely procedural, bearing no vital connection with a real defense, fairly presented, based upon the merits. Traditional tenderness for persons accused of crime, having its...

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