Kitchens v. Maye

• Decision Date: 25 June 1993
• Citation: 623 So.2d 1082
• Parties: Frank M. KITCHENS v. Bobby Jack MAYE. 1911255.
• Court: Alabama Supreme Court

Page 1082

623 So.2d 1082

Frank M. KITCHENS v. Bobby Jack MAYE.

1911255.

Supreme Court of Alabama.

June 25, 1993.

William H. Broome, Anniston, for appellant.

Joseph M. Maloney, Jacksonville, for appellee.

ALMON, Justice.

The defendant, Frank M. Kitchens, appeals from a judgment for $350,000 in favor of the plaintiff, Bobby J. Maye, in an assault and battery action brought for damages for personal injuries suffered when Kitchens allegedly shot Maye in the chest and groin. The principal issues are whether the trial judge erred in declining to recuse himself; in refusing to grant a continuance; in admitting evidence of a criminal prosecution of Kitchens for the shooting; and in denying a request for a remittitur without holding a hearing.

On the evening of the shooting, Maye and his family were helping his foster brother, Robert Turley, Sr., move Turley's belongings from a trailer that had caught fire earlier that day. Turley's trailer was located on Kitchens's property. Turley testified that late that afternoon, after the firefighters had left, he saw Kitchens walking over his property and firing weapons into the air. Later that evening, as Maye, his wife, and their two children were leaving in their pickup truck, several shots hit the truck. After telling his wife to get the police, Maye got out of the truck and began walking toward Turley's trailer to see if Turley and his wife had been hurt. Kitchens shot him in the chest. As Maye continued toward the trailer, Kitchens shot him again, in the groin. When Maye reached the trailer, he took Turley's shotgun and fired two rounds into the air. After Maye's shots, Kitchens fired once more and then stopped. Maye ultimately reached a hospital, where he underwent surgery. The gunshot wound to Maye's chest resulted in the loss of his spleen. The evidence indicated that Maye suffered great pain and was hospitalized for 18 days.

In July 1990, Maye filed a complaint alleging assault and battery, demanding $100,000 in compensatory damages and $250,000 in punitive damages. After denying Kitchens's motion to dismiss, the trial judge entered an order setting the case for trial on June 28, 1991. On June 27, 1991, Kitchens filed a motion to continue, claiming as grounds the unavailability of a rebuttal witness. Granting the motion, the trial judge set the case again for trial on December 20, 1991.

At the beginning of the nonjury trial, Kitchens's attorney ¹ filed in open court a second motion for continuance. In support of this motion, Kitchens's counsel asserted that both Kitchens and Mrs. Ezell Breedwell, a witness to the incident who lived with and took care of Kitchens, were ill and consequently unable to appear in court. Although Kitchens's attorney could not verify the illness with any statement from a physician or hospital, he did call Dan Davis, a neighbor, who testified that both had appeared sick when he visited them the day before the trial.

The trial judge denied the motion to continue, on the ground that there was no verification of the illnesses. During oral argument on the motion, the trial judge informed Kitchens's attorney that earlier that morning, before the proceeding and in the presence of Maye's attorney, he had spoken to an officer of the Heflin Police Department. The judge said that the officer said he had been to Kitchens's residence the previous day with a rescue squad and that, although Mrs. Breedwell appeared ill, "he could not tell that the defendant was sick or not [sic]." The trial judge also stated:

"At that point I asked him [the officer] to go back out to the residence this morning to see if Mr. Kitchens was there. Then the chief of police called back and reported that the defendant was not there."

The court denied the motion for a continuance, and the plaintiff began presenting his case.

When the court convened again after a morning recess, Mrs. Breedwell appeared but not Kitchens. Kitchens's attorney renewed his motion for a continuance. He produced Kitchens's niece, Annie Lipscomb, who testified that she had taken both Kitchens and Mrs. Breedwell to a local hospital earlier that morning. Lipscomb stated further that the two had appeared weak and sick; that at the hospital Kitchens had received a shot of penicillin; and that Mrs. Breedwell had received prescriptions for cough medicine and an anti-diarrheal medication. Lipscomb also remarked that Kitchens did not appear to have been drinking that morning.

At the request of Maye's attorney and with the agreement of Kitchens's attorney, the court recessed to telephone Dr. Charles Williams, the physician who had examined and treated Kitchens and Mrs. Breedwell. After Kitchens's attorney placed the call, Dr. Williams confirmed to the trial judge that Kitchens had health problems, but told the trial judge, "Frankly, I think he was too drunk to appear in court."

The trial judge denied Kitchens's renewed motion for continuance. The trial judge stated that he was aware of defense counsel's reputation for dilatory tactics and that he would not continue the trial because Kitchens was too drunk to appear. Kitchens's attorney then suggested the trial judge should recuse himself, asserting that the judge had shown bias against the defendant's counsel. The trial judge replied:

"It is not appropriate for the Court to recuse himself. I have no biased opinion in this case. I don't even know the facts of this case. I don't know any of the parties in this case. This is the first time you have ever appeared in my court and obviously the first time you have ever had ... a chance to continue a case in my court.

"It does seem strange that the first case you have with me, this is the second motion I've had to continue it. I'm not ... going to continue the case because your client is too drunk to appear in court."

Kitchens's counsel again moved to continue, arguing that no tests had been undertaken to confirm that Kitchens was indeed drunk. In response to this motion, the trial judge called another recess, telephoned the sheriff, and then stated in open court: "[The sheriff] is going to find Mr. Kitchens and bring him up here. I will then determine whether or not he can proceed with the trial of this case." Later that day, after testimony from other witnesses for the plaintiff had been heard, Kitchens was brought before the court. After a brief colloquy between the trial judge and Kitchens, the trial judge concluded that Kitchens was drunk, observing for the record that Kitchens had staggered into the courtroom with bloodshot eyes, smelling of alcohol, Listerine, and chewing gum, and had behaved belligerently toward the court. The trial judge again denied Kitchens's motion to continue. With Kitchens's consent, a test was administered to determine his blood-alcohol content; it revealed that at 2:34 p.m. that day, his blood-alcohol measured .255%, more than two and a half times the amount at which the State of Alabama statutorily presumes a defendant to be under the influence of alcohol in civil or criminal actions involving the use of a motor vehicle. § 32-5A-194(b), Ala.Code 1975 (0.10%). ²

Before resting his case, Maye offered into evidence a certified copy of the case action summary from the criminal prosecution of Kitchens for the shooting that is the subject of this civil action, State v. Kitchens, CC-90-89 (Cleburne County), for the purpose of determining how much, if any, punitive damages should be awarded. The case action summary included bench notes describing a settlement agreement between Kitchens and the State. Under its terms, in exchange for Kitchens's plea of guilty to assault in the third degree, the State agreed to impose no jail sentence. The bench notes also stated that under the agreement the plea would not be entered until disposition of this civil case. The trial court admitted the summary, over Kitchens's objection.

After considering all the testimony and Kitchens's deposition, the trial judge entered a $350,000 judgment in favor of Maye. Although Maye had asked for $100,000 in compensatory damages and $250,000 in punitive damages, the trial judge did not specify which part of the judgment constituted compensatory damages and which part punitive damages:

"Judgment is hereby entered in favor of the plaintiff and against the defendant in the amount of Three Hundred Fifty Thousand Dollars ($350,000), as damages in this proceeding, for which let execution issue."

(Emphasis added.)

On February 7, 1992, Kitchens filed a "Motion for new trial or to alter and amend the judgment and request for oral argument." Among the grounds cited in his motion were the denials of the motion to continue, an alleged failure to prove certain items of damages, excessiveness of the "verdict," and an alleged failure to prove any "vindicative damage" or any malice or intent to injure on which to base an award of punitive damages. In support of his motion for new trial, Kitchens submitted two hospital reports on Kitchens and Mrs. Breedwell prepared during their visit the morning of the trial and an affidavit by Kitchens in which he generally denied shooting Maye, claimed that the damages were excessive, and asserted that the trial judge had erred in not continuing the trial when, he says, both he and Mrs. Breedwell were too ill to appear. In March 1992, Kitchens filed another motion to permit oral argument on his motion for new trial. Without holding a hearing, the trial judge entered an order in March 1992 denying Kitchens's motion for new trial.

The first issue is whether the trial judge committed reversible error in denying Kitchens's suggestion of recusal. Kitchens argues that the trial judge's extrajudicial communication with members of the Heflin Police Department prior to the trial concerning Kitchens's physical condition, his remarks concerning defense counsel's reputation for dilatory tactics, and his repeated refusals to grant Kitchens's motions to continue the trial compelled his...