Johnson v. State

• Decision Date: 25 February 1986
• Docket Number: 3 Div. 134
• Citation: 500 So.2d 69
• Parties: Gregory Lewis JOHNSON v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 69

500 So.2d 69

Gregory Lewis JOHNSON v. STATE.

3 Div. 134.

Court of Criminal Appeals of Alabama.

Feb. 25, 1986.

Rehearing Denied July 15, 1986.

Certiorari Denied Dec. 5, 1986

Alabama Supreme Court 85-1286.

Bradley E. Byrne, Sr., of Garrett, Thompson & Hines, Atmore, and William Roy Stokes, of Stokes, Jernigan & Stokes, Brewton, for appellant.

Charles A. Graddick, Atty. Gen., and Cecil G. Brendle, Jr., Asst. Atty. Gen., for appellee.

TAYLOR, Judge.

Gregory Lewis Johnson institutes a joint appeal from his convictions in two separate criminal prosecutions. On October 8, 1984, the appellant entered a plea of guilty to charges of receiving stolen property (2nd degree), theft of property (2nd degree) (two counts), forgery (2nd degree), and criminal possession of a forged instrument (2nd degree). He was later sentenced to fifteen years' imprisonment on each count, with the sentences to be served concurrently. Also on October 8, 1984, the appellant was tried and found guilty of burglary (1st degree) and assault (1st degree). He was sentenced under the Habitual Felony Offender Act to life imprisonment without parole. Five issues are raised on appeal.

I

The appellant's first contention is that the trial court erred to reversal in denying his motion for continuance. The record indicates that on September 27, 1984, the appellant's trial attorney filed a motion for continuance in both of the cases here under review, alleging that he was not adequately prepared to defend the appellant due to the fact that he had several other cases set for trial at approximately the same time. The motion was denied. On October 8, 1984, defense counsel filed another motion, entitled "Motion to reconsider Defendant's Motion for Continuance," in which he argued, among other things, that due to the multitude of charges pending against the defendant and the complexity of each, he lacked sufficient time to prepare for trial. Counsel also argued that the trial should be postponed because several defense witnesses would be absent from the jurisdiction on the scheduled trial date. This motion was also denied.

A

"It is fundamental that counsel must be given adequate time for preparation." Simpson v. State, 465 So.2d 472, 474 (Ala.Cr.App.1984).

"Whether time allowed counsel ... for preparation for trial is sufficient depends upon the nature of the charge, the issues presented, counsel's familiarity with the applicable law and pertinent facts, and the availability of material witnesses." Burton v. State, 43 Ala.App. 249, 187 So.2d 808 (1966).

The number of counts pending against a defendant, as well as the complexity of the case, are certainly factors which may be considered by the trial court in determining whether to grant a defendant's request for a continuance. It is equally well settled, however, that a motion for continuance due to lack of time for adequate preparation is a matter entirely and exclusively within the sound discretion of the trial court and its ruling will not be reversed on appeal absent a plain and palpable showing of abuse. Dawkins v. State, 455 So.2d 220 (Ala.Cr.App.1984). The record indicates that in this case, the appellant's trial attorney had over two months to prepare for trial. This court has previously held 24 hours' preparation to be sufficient. Gosha v. State, 442 So.2d 138 (Ala.Cr.App.1983). See also, Nance v. State, 416 So.2d 437 (Ala.Cr.App.1982) (two and one-half weeks' preparation held sufficient); Murphy v. State, 399 So.2d 340 (Ala.Cr.App.1981), cert. denied, 399 So.2d 347 (Ala.1981) (two days held sufficient). We have also held, however, that as much as three weeks' time for preparation was not sufficient. Owens v. State, 460 So.2d 305 (Ala.Cr.App.1984). What constitutes a sufficient amount of time for adequate preparation of a defense is a subjective, as well as an objective, consideration. We must give the trial court's decision deference. The judge was there; we were not. The trial court in this case did not abuse its discretion in denying appellant's motion for continuance.

B

The absence of a material witness is a factor to be considered in deciding whether a continuance should be granted. Godfrey v. State, 383 So.2d 575 (Ala.Cr.App.1980), cert. denied, 383 So.2d 579 (Ala.Cr.App.1980), cert. denied, 449 U.S. 903, 101 S.Ct. 276, 66 L.Ed.2d 134 (1980). But as we noted previously, the decision as to whether a continuance should be granted is within the sound discretion of the trial judge and his ruling will be reversed only where there is a showing of plain and palpable abuse of discretion. Pritchett v. State, 445 So.2d 984 (Ala.Cr.App.1984). Denial of a continuance can never be an abuse of discretion in the absence of a showing as to what the witness would testify to. Fields v. State, 424 So.2d 697, 699 (Ala.Cr.App.1982). We find no abuse of discretion. It is a rare criminal trial in which there is no request for continuance and not at least one unavailable witness for one side or the other.

II

As an additional claim of error, the appellant argues that the state failed to make out a prima facie case of assault in the first degree because it did not present sufficient evidence that the victim sustained a "serious physical injury." § 13A-6-20(a)(1), Code of Alabama 1975. The sufficiency of the evidence is subject to appellate review only where the defendant challenges the state's lack of evidence by either a motion to exclude, a motion for judgment of acquittal, or a motion for new trial. Slaughter v. State, 424 So.2d 1365 (Ala.Cr.App.1982). In the present case, the appellant failed to make either a motion to exclude state's evidence or a motion for judgment of acquittal. The record does indicate that at the close of the state's case in chief, the appellant moved for a directed verdict of acquittal on the ground that there was "no evidence submitted in court that the [appellant's] entry into the apartment was for theft of property." However, this court held in McKennie v. State, 439 So.2d 706 (Ala.Cr.App.1982), rev'd on other grounds, 439 So.2d 713 (Ala.1983), that a motion for a directed verdict of acquittal does not preserve for review the question of the sufficiency of the evidence. Under Rule 12, Alabama Temporary Rules of Criminal Procedure, the motion for directed verdict, the motion for affirmative charge, and the demurrer to the evidence have been abolished. They are subsumed and replaced by the motion for judgment of acquittal. Comment, Rule 12, Alabama Temporary Rules of Criminal Procedure. Interpreting appellant's motion for directed verdict as one for a judgment of acquittal, we are still obliged to hold that the sufficiency issue here in question was not properly preserved. The appellant argues on appeal that the state failed to make out a prima facie case of assault in the first degree because there was no evidence that the victim sustained "serious physical injury" as required by § 13A-6-20(a)(1), Code of Alabama 1975. In his motion for directed verdict, however, defense counsel argued only that the state failed to make out a prima facie case of burglary because no evidence was presented that the appellant entered the victim's apartment "with intent to commit theft." The primary purpose of objections is not to "preserve error" for appellate review. Their primary purpose is to give the trial court an opportunity to correct that which might otherwise have been error. A defendant is bound by the grounds specified in his objection. Bolding v. State, 428 So.2d 187 (Ala.Cr.App.1983). A challenge to the sufficiency of the evidence on the burglary count does not preserve for appellate review the question of whether sufficient evidence was presented by the state to make out a prima facie case of assault. The issue was never presented to the trial court.

The appellant did not adequately raise the question of the sufficiency of the state's evidence in his motion for new trial. In his motion, the appellant merely stated that a new trial was required "because the verdict is contrary to evidence and without evidence to support it." This is a "scatter-gun" approach. It does not squarely present to the trial court the issue of the sufficiency of the evidence; consequently, it is insufficient to preserve the issue for appellate review. Trone v. State, 366 So.2d 379 (Ala.Cr.App.1979). A defendant's motion for new trial, in which he asserts that the state failed to present sufficient evidence to sustain the verdict, is required to specifically point out wherein the evidence is contended to be deficient. Trone v. State, 366 So.2d at 380; Little v. Peevy, 238 Ala. 106, 189 So. 720 (1939).

"The obvious purpose of a motion for a new trial is to accord the trial judge a fair opportunity to consider and correct, if necessary, any erroneous rulings and to acquaint him with the specific objection to those rulings. It is equally obvious that attention should be drawn specifically to the alleged objectionable rulings." Perry v. People, 116 Colo. 440, 181 P.2d 439, 440-41 (1947).

Since the appellant's motion for new trial lacked the degree of specificity that is required, nothing is presented for our review.

III

Under the terms of a pretrial discovery order, the state was required to provide the appellant with a copy of the written statements of any person the state expected to call as a witness. During defense counsel's cross-examination of the victim, the following occurred:

"Q. Miss McClellan, did you give a statement to the police as to what happened in your apartment?

"A. Yes.

"Q. Did you sign that statement?

"A. Yes.

"MR. IRBY: Your, Honor, I move to have a copy of that statement. I filed a general motion for discovery and I would like a copy of the statement that was given by her.

"MR. HART: Judge, we provided copies of any statements we were required to and we haven't offered this in evidence.

"....

"MR. HART: Judge, I am having her to check. As far as I know, we complied with all ...