Jolly v. State

• Citation: 858 So.2d 305
• Parties: David Michael JOLLY v. STATE of Alabama.
• Decision Date: 22 November 2002
• Court: Alabama Court of Criminal Appeals

858 So.2d 305

David Michael JOLLY v. STATE of Alabama.

CR-00-2693.

Court of Criminal Appeals of Alabama.

November 22, 2002.

Rehearing Denied January 24, 2003.

Certiorari Denied March 28, 2003.

John David Floyd, Gadsden; and Marcus W. Reid, Anniston, for appellant.

William H. Pryor, Jr., atty. gen., and Stephanie N. Morman, asst. atty. gen., for appellee.

Alabama Supreme Court 1020712.

SHAW, Judge.

The appellant, David Michael Jolly, was convicted of two counts of reckless manslaughter, violations of § 13A-6-3(a)(1), Ala.Code 1975. He was sentenced to 20 years' imprisonment for each conviction, the sentences to run consecutively.

The evidence adduced at trial revealed the following. On December 23, 1999, at approximately 11:00 p.m., Jolly was driving his Dodge pickup truck on Highway 431 when he struck head-on a Ford Mustang automobile driven by Ashley Doyle. Doyle and his passenger, Josh Gaither, died as a result of injuries they sustained in the crash.¹ A witness for the State testified that he observed Jolly drink several beers and some Jack Daniel's whiskey the night of the incident. Several witnesses at the scene testified that they had observed Jolly after the crash; that he appeared shaken and unsteady; and that he smelled of alcohol. None of the witnesses who testified that they actually heard the collision heard any noises, such as tires squealing, that sounded like brakes were applied before the impact.

Several law-enforcement officers testified that they smelled alcohol on Jolly's breath and that they saw empty beer bottles in the floorboard of Jolly's truck. Jolly, who was not asked to perform any field sobriety tests at the scene, did consent to and gave blood and breath tests several hours after the crash.² Jolly was arrested for driving under the influence of alcohol and was taken to the Calhoun County jail. Shortly after arriving at the jail, Jolly waived his Miranda³ rights and, in a recorded interrogation, admitted to having had "two or three beers" several hours before the incident, but he claimed that the beer bottles found in his truck belonged to someone else. (R. 323.) Jolly also stated that he "had dozed off and [he] apparently went on the wrong side of the road and hit another car." (R. 318.) At trial, Jolly admitted to having had "a couple of beers" several hours before the crash, but testified that he was not intoxicated and that he must have fallen asleep shortly before he hit the Mustang.

I.

Jolly first argues that the trial court erred in not instructing the jury on criminally negligent homicide as a lesser-included offense to murder, the offense for which he was indicted; an instruction he claims was warranted because, according to Jolly, there was evidence to support the giving of that instruction. The State contends that Jolly's objection at trial did not raise the grounds he argues on appeal. We agree with the State.

After the trial court had charged the jury, Jolly raised the following objection to the trial court's refusal to give his requested jury charge on criminally negligent homicide:

"Your Honor, for the record, the defendant would except to the failure of the Court to give the criminally negligent homicide charge [as] the lesser included at the end of Defendant's requested jury instruction number 7, which would request that the Court charge on § 13A-6-4, criminally negligent homicide and in relation thereto, defendant's requested jury instruction number 9, which is also a distinction on the law between the mental culpability requirement of criminally (sic) negligence, as opposed to manslaughter and recklessness, which would also support a charge of criminally negligent homicide. I think that's all, Your Honor."

(R. 764-65.)

Nowhere in his objection at trial did Jolly argue that there was evidence before the jury that would justify the giving of that instruction. See Wilkerson v. State, 686 So.2d 1266, 1274 (Ala.Crim.App. 1996). In fact, Jolly did not state any grounds in his objection to the trial court's refusal to give the lesser-included-offense instruction. See Rule 21.3, Ala.R.Crim.P. See also Miller v. State, 673 So.2d 819 (Ala.Crim.App.1995); Greenhill v. State, 746 So.2d 1064 (Ala.Crim.App.1999). To the extent that Jolly did arguably state a ground for his objection, it did not address whether the evidence supported the lesser-included-offense instruction; rather, it addressed the distinction between degrees of culpability, i.e., recklessness or negligence. The statement of specific grounds of objection to a jury instruction at trial waives all other grounds. See Raper v. State, 584 So.2d 544, 546 (Ala.Crim.App. 1991). See also Miller v. State, 645 So.2d 363, 366 (Ala.Crim.App.1994); and Wasp v. State, 647 So.2d 81, 84-85 (Ala.Crim.App. 1994). Therefore, Jolly failed to preserve this issue for our review.

II.

Second, Jolly argues that the trial court erroneously denied his motion to suppress the evidence seized from his truck pursuant to a search warrant because, he says, "the search warrant ... was issued on the basis of an affidavit that was clearly a `bare bones' affidavit." (Jolly's appellate brief at p. 40.) The State correctly notes that the affidavit and search warrant Jolly complains of are not included in the record on appeal; therefore, this issue is not properly before this Court on appeal. See Williams v. State, 794 So.2d 441, 442 (Ala.Crim.App.2000); Crenshaw v. State, 563 So.2d 16, 17 (Ala. Crim.App.1989); Copeland v. State, 455 So.2d 951, 955 (Ala.Crim.App.1984). It is the appellant's duty to check the record and to ensure that a complete record is presented on appeal. See T.T.J. v. State, 716 So.2d 258, 260 (Ala.Crim.App.1998).

III.

Third, Jolly argues that the trial court denied him his Sixth Amendment right to counsel at trial. Specifically, Jolly contends that he was denied the right to counsel when the trial court ordered one of his three attorneys out of the courtroom following the jury verdict, and then instructed that attorney not to return to his courtroom, not even for the sentencing hearing in the instant case. The State correctly notes that Jolly did not object when the trial court entered its ruling or during the sentence proceeding and, thus, that he failed to preserve this issue for our review. See Trawick v. State, 431 So.2d 574, 578-79 (Ala.Crim.App.1983)("The grounds urged on a motion for a new trial must ordinarily be preserved at trial by timely and specific objections."). See also Brown v. State, 705 So.2d 871, 875 (Ala. Crim.App.1997) ("Even constitutional claims may be waived on appeal if not specifically presented to the trial court."); Mester v. State, 755 So.2d 66, 69 (Ala. Crim.App.1999); Harris v. State, 794 So.2d 1214 (Ala.Crim.App.2000).

We note, however, that even if this issue had been preserved for review, Jolly was not actually denied his right to counsel. Three attorneys represented Jolly throughout the proceedings, and only one of those was barred from the courtroom during Jolly's sentencing hearing. Compare with Pratt v. State, 851 So.2d 142 (Ala.Crim.App.2002)(defendant was without counsel at sentencing hearing where trial court allowed counsel to withdraw before handing down sentence). See also Steeley v. State, 622 So.2d 421, 425 (Ala. Crim.App.1992)(it is well settled that, unlike the right to the assistance of counsel, the right to counsel of one's choice is not absolute). The two remaining attorneys had been substantially involved in the trial—conducting seven of the eight direct examinations during the defense's case-in-chief and nearly half of the examinations during the State's case-in-chief and the hearing on the motion for youthful-offender status, as well as making numerous motions and objections throughout the proceedings. Therefore, Jolly was not denied his right to counsel.

IV.

Fourth, Jolly argues that the trial court erroneously denied his motion for youthful-offender status. Specifically, Jolly contends that the trial court's decision to deny him youthful-offender status was "arbitrary" and was made "without some examination of any facts to show that the defendant would be ineligible for youthful offender treatment." (Jolly's appellate brief at p. 52.) He contends that "[t]here is nothing in the record to indicate that the trial court based its decision on other factors in addition to the nature of the crime charge[d], but that youthful offender status was denied solely because of the nature of the crime charged." (Jolly's appellate brief at p. 52.)

In Mansel v. State, 716 So.2d 234 (Ala. Crim.App.1997), this Court stated:

"`The trial court has almost absolute discretion in ruling on applications for youthful offender status, and the actions of the trial judge are presumptively correct in the absence of a showing to the contrary.' Carden v. State, 621 So.2d 342, 345 (Ala.Cr.App.1992).

"`"When deciding whether to grant youthful offender status, it is expected that the nature of the crime charged, along with prior convictions of the defendant, will be considered, as well as any other matters deemed relevant by the court. No prescribed format is required. Neither is the trial court required to articulate on the record the reasons for denying youthful offender status to a defendant."'

"Self v. State, 512 So.2d 811, 814 (Ala.Cr. App.1987), quoting Goolsby v. State, 492 So.2d 635, 636 (Ala.Cr.App.1986) (citations omitted).

"`It is sufficient if the order of denial reflects that some investigation, examination, or inquiry was conducted before the application for youthful offender status was denied. Talley v. State, 504 So.2d 741, 742-43 (Ala.Cr. App.1987). A formal hearing on an application for youthful offender status is not required. Garrett v. State, 440 So.2d 1151, 1152 (Ala.Cr.App. 1983). Where it does not affirmatively appear that the trial court's decision was arbitrary or that it was made without any examination or investigation, there is no basis for

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