Hutto v. State, 3 Div. 933

• Decision Date: 11 December 1984
• Docket Number: 3 Div. 933
• Citation: 465 So.2d 1211
• Parties: Suzie Nell HUTTO v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1211

465 So.2d 1211

Suzie Nell HUTTO v. STATE.

3 Div. 933.

Court of Criminal Appeals of Alabama.

Dec. 11, 1984.

Rehearing Denied Jan. 22, 1985.

Certiorari Denied March 29, 1985

Alabama Supreme Court 84-439.

Elno A. Smith, Jr. of Smith, Cruse, Law & May, Montgomery, for appellant.

Charles A. Graddick, Atty. Gen., and Fred F. Bell, Asst. Atty. Gen., for appellee.

HARRIS, Judge.

The appellant, Suzie Nell Hutto, was involved in a head-on automobile collision on April 30, 1983, in which she was the driver of one of the automobiles involved. The driver of the other automobile, a small Volkswagen passenger car, was killed in the collision and a passenger in the deceased's vehicle received minor cuts, bruises, and scrapes.

The collision occurred on the Troy Highway, a four-lane roadway, in Montgomery, Alabama, between Virginia Loop Road and the Southern Boulevard. The evidence adduced at appellant's trial revealed that she was driving in the southbound lane heading in the wrong direction. The victim was driving in her proper lane of traffic.

Subsequent to the collision, the appellant was arrested and later indicted by the August 1983 term of the Montgomery County Grand Jury on the charge of murder. The indictment detailed two counts. The first count charged that the appellant "did recklessly engage in conduct" which caused the death of Beth Marie Jenkins and the second count charged that the appellant "intentionally caused the death of another person." Additionally, both counts stated that the victim's death was caused by the appellant's recklessness in operating a motor vehicle.

On October 3, 1983, appellant's trial was held in the Circuit Court of Montgomery County before Judge Mark Kennedy. After deliberations, the jury returned a guilty verdict as to the lesser included offense of manslaughter. Appellant was sentenced to seven years in the penitentiary. This appeal followed.

Appellant's first issue for our review is whether the trial court erred in allowing into admission State's Exhibits 8 and 9, which were photographs of the victim's automobile taken at the scene of the collision.

We are not convinced that the exhibits complained of prejudiced the appellant in any way by their admission into evidence. "The test for determining the admissibility of a photograph is whether it is a true and faithful representation of the place or subject it purports to represent as it existed at a time pertinent to the inquiry." Elmore v. State, 414 So.2d 175 (Ala.Crim.App.1982). For aught that appears in the record, the photographs met this standard of admission.

While the photographs in question in the present case may not have been highly substantive in nature, they were nonetheless admissible if they illuminated any of the issues presented to the jury. Photographs, if relevant, are admissible even though they might have a tendency to inflame the minds of the jury. Lawrence v. State, 409 So.2d 987 (Ala.Crim.App.1982). Therefore, appellant's alternative argument that the photographs were prejudicial in that they had a probability of "inflaming the jury" is not justifiable.

Alabama's evidentiary rule "affords the trial court a wide and liberal latitude in the admission of photographs illustrative of a criminal transaction and the surrounding circumstances." Lawrence, supra; Arnold v. State, 348 So.2d 1092 (Ala.Crim.App.1977), cert. denied, Ex parte Arnold, 348 So.2d 1097 (1977); Lewis v. State, 339 So.2d 1035 (Ala.Crim.App.1976), cert. denied, 339 So.2d 1038 (Ala.1976).

For the foregoing reasons, we do not feel that the trial court committed prejudicial error in allowing into evidence State's Exhibits 8 and 9.

The appellant also contends that the trial court erred when it overruled her motion for judgment of acquittal under count two of the indictment. Essentially, the appellant alleges that the second count was insufficient to sustain a verdict of guilty.

During the trial, appellant moved for an acquittal as to count two of the indictment at the close of the State's case and again at the close of all arguments. Both motions were denied by the trial court.

If the trial court committed any error in not granting appellant's motion for judgment of acquittal as to count two of the indictment, the error was not prejudicial to the appellant or her substantial rights. This court has in the past held, and we reaffirm the proposition, that "[w]here one or more counts of a multicount indictment are sustained by the evidence, a general verdict of guilty, as rendered in the instant case, will be referred to the good count." McCormack v. State, 431 So.2d 1336 (Ala.Crim.App.1982); reversed on other grounds, Ex parte McCormack, 431 So.2d 1340 (Ala.), on remand, 431 So.2d 1341 (Ala.Crim.App.1983).

Appellant's misleading argument in reliance on Ex parte Washington, 448 So.2d 404 (Ala.1984), and Northington v State, 413 So.2d 1169 (Ala.Crim.App.1981), would have us believe that the appellant was not informed of the charges against her by way of the indictment, thus violating the principles of the United States Constitution, Amendment VI, and the Alabama Constitution, Article I, Section 6. The facts and findings of our court and the Alabama Supreme Court in the above two cases are quite distinguishable from the case at bar.

In Ex parte Washington, supra, the defendant was indicted on a one-count indictment which charged him with the "intentional" murder of a person. The defendant was subsequently found guilty of murder after the trial judge had charged the jury that they "could convict the defendant of murder if they found that he had acted recklessly." The Alabama Supreme Court concluded that the trial court...