Howard v. State
| Decision Date | 20 February 1973 |
| Docket Number | 3 Div. 142 |
| Citation | 274 So.2d 104,49 Ala.App. 548 |
| Court | Alabama Court of Criminal Appeals |
| Parties | Roosevelt HOWARD, alias v. STATE. |
David T. Hyde, Jr., Evergreen, for appellant.
William J. Baxley, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for the State.
Murder, first degree: life imprisonment.
Roosevelt Howard was tried, convicted and sentenced to death for first degree murder. The Supreme Court of Alabama affirmed that conviction September 28, 1961. Howard v. State, 273 Ala. 544, 142 So.2d 685.
Howard then brought a petition for writ of error coram nobis which was denied by the Supreme Court of Alabama, 275 Ala. 59, 151 So.2d 790, but was subsequently granted, 275 Ala. 449, 115 So.2d 927.
Upon his second trial, Howard was again sentenced to death, and his conviction affirmed by the Supreme Court of Alabama, Howard v. State, 278 Ala. 361, 178 So.2d 520.
On writ of error coram nobis, a third trial was ordered after the Supreme Court determined the doctrine announced in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed. 776, was violated, Howard v. State, 287 Ala. 435, 252 So.2d 304. Upon that trial he was convicted and sentenced to life imprisonment from which he brings the instant appeal. The opinions above sufficiently state the facts.
Howard contends that the testimony accepted into evidence of three witnesses at a former trial was error sufficient to reverse his conviction because the proper grounds for admission were not shown.
At the third trial of the defendant in January, 1972, it was shown that two witnesses, Mr. J. R. Callins and Mr. Sam Reid, who had testified in the first two cases had died (Tr. pps. 30 & 74).
It was also shown that another witness, Mrs. Mary Moorer, who had testified in the first two cases was critically and seriously ill and would in all probability never be able to testify again (Tr. p. 129). The fact of death of two of the witnesses and the illness and probability the third would never be able to testify was not contested at the trial.
As to each of these witnesses, the state offered in evidence the transcript of their respective testimony which was given at the second trial in 1964. The State produced duced the certificate of the Clerk of the Supreme Court who certified that the transcript he was returning was 'a true, correct, and complete transcript of the testimony of (the three former witnesses) in the cause of the State of Alabama v. Roosevelt Howard, alias 'Pee Wee' Howard, Case #3708 in the Circuit Court of Butler County, Alabama, being part of the transcript of the evidence as true and correct by Mary L. Wright, official court reporter, 2nd Judicial Circuit of Alabama on the 24th day of July, 1964, and being a part of the transcript of the record certified as full, true, correct, and complete by Bobby T. Branum, Clerk of the Circuit Court of Butler County, Alabama . . . Witness, J. O. Sentell, Clerk of the Supreme Court of Alabama' (Tr. pps. 66, 67, 80, 119).
It is the established law of Alabama that upon showing the death of a witness, the testimony at a former trial may be used, Levert v. State, 225 Ala. 214, 142 So. 34 (1934); Carr v. State, 44 Ala.App. 40, 202 So.2d 59 (1967).
There is, apparently, no case in Alabama wherein the fact presented to the Court was that the former testimony was offered due to the present illness of the witness.
Several Alabama cases have stated with approval the general rule which allows a witness' testimony given at a former trial to be shown, where the witness is presently sick and unable to testify and from the nature of the illness no reasonable hope that the witness will be able to appear in court on a future occasion, Marler v. State, 67 Ala. 55 (1880); Wray v. State, 154 Ala. 36, 45 So. 697 (1908); Lowe v. State, 86 Ala. 47, 5 So. 435 (1888); American Union Telegraph Co. v. Daughtery, 89 Ala. 191, 7 So. 660 (1889).
In 20 Am.Jr., Evidence § 704, p. 591, it is said:
'In criminal prosecutions, according to the weight of authority, the mere temporary illness or disability of a witness is not sufficient to justify the reception of his former testimony; it must appear that the witness is in such a state, either mentally or physically, that in reasonable probability he will never be able to attend the trial.'
See also, Peterson v. United States, 344 F.2d 419, 5 Cir., Tex. (1956); Tanner v. State, 213 Ga. 820, 120 S.E.2d 176 (1958).
A less rigorous rule is stated by Professor Wigmore in his work on evidence: 'The Duration of the illness need only be in probability such that, with regard to the importance of the testimony, the trial cannot be postponed.', 5 Wigmore on Evidence, § 1406(a), p. 158.
We need not prescribe in this case the exact dimensions of the rule for under either statement and the principle of necessity upon which the rule is based, Marler v. State, supra, it is clear that where the witness is now ill, and in all probability will never be able to testify again, the former testimony may be used.
Upon the showing of proper grounds for the failure of the witness to be present, the former testimony of that witness may be given orally by a witness who was present at the trial or by a court reporter's transcript properly identified, Harper v. State, 16 Ala.App. 538, 79 So. 632 (1918); Todd v. State, 13 Ala.App. 301, 69 So. 325 (1915); Alabama Western Railroad Co. v. Downey, 177 Ala. 612, 58 So. 918 (1912).
Another question presented by this appeal is whether the certification by the Clerk of the Supreme Court was sufficient authentication to permit the testimony of the witnesses to be read into evidence.
The law of at least one state holds that the certificate of the Clerk of the Supreme Court of the state in whose office the testimony was filed on appeal of the former case is sufficient authentication, Caldwell v. Kuykendall, 94 Okl. 84, 221 P. 84 (1923).
The Code of Alabama 1940, Recompiled 1958, presents sufficient authority to decide the case now before the court.
Title 13, § 262, sets out the duties of court reporters. Such duties include attendance at court and where so directed to 'take full stenographic notes of the oral testimony.' The section also provides that the notes taken by the reporter '* * * shall be Preserved by him and Treated as part of the records of the respective courts * * *' Italics added.
Title 7, Sections 827(1) and 827(1b) set out the duties of the official court reporter upon an appeal being taken of a case in which he has taken stenographic notes.
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Lokos v. State, 2 Div. 310
...of that court is an adequate and proper authentication of the transcript of the testimony for which it is offered. Howard v. State, 49 Ala.App. 548, 274 So.2d 104 (1973). The record also reflects that appellant waived at trial any request that the original court reporter authenticate the co......
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Williams v. State
...given orally by another who was present at the former trial or action when it is shown that the witness was unavailable. Howard v. State, 49 Ala.App. 548, 274 So.2d 104; Fuqua v. State, 2 Ala.App. 47, 56 So. 751; Marler v. State, 67 Ala. No requirement exists that the exact words be given, ......
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Brown v. State, 1 Div. 104
...13 Ala.App. 301, 69 So. 325 (1915); Alabama Western Railroad Co. v. Downey, 177 Ala. 612, 58 So. 918 (1912)." Howard v. State, 49 Ala.App. 548, 274 So.2d 104, 106 (1973). There is some undesirable vagueness as to the exact status of the court reporter who reported and certified the transcri......