Lucy v. State

• Decision Date: 05 October 1976
• Docket Number: 1 Div. 674
• Citation: 340 So.2d 840
• Parties: Charles Alexander LUCY v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 840

340 So.2d 840

Charles Alexander LUCY v. STATE.

1 Div. 674.

Court of Criminal Appeals of Alabama.

Oct. 5, 1976.

Rehearing Denied Nov. 16, 1976.

Arthur B. Briskman, Mobile, for appellant.

William J. Baxley, Atty. Gen., and G. Daniel Evans, Asst. Atty. Gen., for the State.

JOSEPH A. COLQUITT, Circuit Judge.

Appellant was convicted of murder in the first degree and sentenced to life imprisonment.

The evidence as produced by the State tended to establish the following facts. Around 11:00 or 11:30 P.M., on June 18, 1975, appellant and several other men gathered along Rose Street in Citronelle, Alabama. Discussions of previous fights between members of the group began, and as the discourse continued, arguments resulted.

At some point during the argument, appellant engaged in disputes with both the deceased, Eddie Hughes, and another party, Willie Roberts (or Robinson). The conflict between appellant and the deceased was terminated by the intervention of Edward Hughes, the brother of the deceased. During the argument with Roberts, however, appellant was cut on the back of his right shoulder. This injury was apparently a knife wound inflicted by Roberts.

Appellant thereupon departed from the immediate vicinity of the gathering and proceeded to a relative's house across the street to examine his wound. After a brief interval, appellant then left the relative's house and went to his own house a short distance away. While at his house, appellant procured from a closet a loaded shotgun belonging to his brother. From there he then proceeded back to the site where the group had gathered.

Before he reached the group, appellant placed the shotgun at the corner of the house in front of which the group had gathered. As appellant reached the group, he inquired as to the whereabouts of Willie Roberts. Roberts had left the area and appellant was informed of this.

Appellant then displayed his wound to the group and he was advised to see a doctor. Turning to the deceased, Eddie Hughes, appellant began asking the deceased why he had given Roberts the knife with which to cut him.

The deceased explained to appellant that he had not given Roberts the knife and in proof thereof he attempted to show appellant that his knife was clean. Appellant's reply to the deceased was, 'I'm going to kill you.'

Appellant proceeded to the corner of the house where he had placed the shotgun, picked the shotgun up, and turned toward the deceased, who had followed appellant. The deceased was still trying to convince appellant that he had not given Roberts a knife. As the deceased approached, appellant fired the shotgun, hitting the deceased in the midsection. The deceased fell to the ground and called for help, but as other members of the group attempted to provide some aid, appellant warned them not to come near.

One Alonzo Feagin thereupon got into a car and backed it out onto the road. Two others jumped into the car and Feagin began to move the car up the road. Appellant turned his shotgun and fired at the car. Feagin was hit and the car careened off the road and into a ditch. Both the deceased and Feagin died from the gunshot wounds.

Leaving the scene of the shootings, appellant returned to his home. From there, his mother took him to a doctor for treatment of his wound and then to the police station in Citronelle.

While at the police station, appellant was informed of his right to counsel and his right to remain silent by reading the Miranda warning. Appellant waived these rights by signing a waiver form. Appellant then made a statement admitting the shootings.

Appellant was indicted, tried, and convicted for unlawfully and with malice aforethought killing Eddie Hughes by shooting him with a shotgun.

The above facts are taken from the record on appeal. Appellant, however, made other assertions in his brief on appeal which cannot be substantiated by the record. These assertions are as follows:

'During voir dire examination of the venire, the Court asked if any member of the jury was related by blood or marriage to any one of the prospective witnesses whose names the Court had read (R. iv, v). The Court also asked if any member of the jury knew of any reason whatsoever why he could not fairly and impartially try this case based upon the evidence that is heard in the courtroom (R. v). Herman Edward Beard, who ultimately served on the petit jury, did not respond to either of these questions (R. v, 5). Nowhere in the voir dire examination of the venire did the Court ask if any members of the jury were related by blood or marriage with the deceased or members of his family (R. i-v).'

Furthermore, in his argument on appeal, appellant also asserted the following:

'One of the members of the jury was related to the deceased, to a subpoenaed witness and to an individual whose death was brought out through the entire course of the trial having allegedly been caused by the Appellant (Deposition of Herman Edward Beard) and nowhere in the voir dire of the jury did the Court or counsel for the Appellant request the qualification of the jury as to any relationship by blood or marriage to the deceased or members of his family (R. i-v).'

The citations for these allegations, designated 'R.,' and the 'Deposition of Herman Edward Beard,' are not contained in the record, nor is there any other indication in the record that these alleged occurrences took place. Upon these unsupported statements, appellant maintains that he was denied his constitutional right to a fair trial by an impartial jury.

Appellee argues that since there is no transcript of the voir dire examination contained in the record and, since the alleged facts of kinship are otherwise not revealed by the record, the matter of irregularities in the voir dire examination is not properly reviewable on appeal. It is maintained that the court is bound by the record.

As a general rule, it has been firmly established that the reviewing court may only consider matters contained in the record as it is filed on appeal. Harris v. State, 57 Ala.App. 558, 329 So.2d 618 (1976); Blakely v. State, 28 Ala.App. 574, 190 So. 102 (1939). This principle often finds expression in the phrase that the appellate courts are 'bound by the contents of the record.' Butler v. State, 285 Ala. 387, 393, 232 So.2d 631, 636, cert. den. 406 U.S. 939, 92 S.Ct. 1807, 32 L.Ed. 140 (1972). See: Williams v. State, 52 Ala.App. 207, 290 So.2d 668 (1973), cert. den. 292 Ala. 758, 290 So.2d 672 (1974).

As a corollary to this rule, the appellate court cannot consider any matter outside of the record on appeal. Dates v. State, 282 Ala. 457, 212 So.2d 845 (1968). Therefore, facts asserted in the brief of the appellant or of the appellee, which cannot be ascertained from the record, cannot be reviewed. Dockery v. State, 269 Ala. 564, 114 So.2d 394 (1959); Walker v. State, 223 Ala. 294, 135 So. 438 (1931); Boyd v. State, 50 Ala.App. 394, 279 So.2d 565 (1973); Thomas v. State, 49 Ala.App. 537, 274 So.2d 93 (1973); Hayes v. State, 33 Ala.App. 364, 33 So.2d 744 (1948).

In Thomas, supra, upon appeal, the appellant therein contended that the trial court committed reversible error in denying his motion for a mistrial based on the conduct of a prospective juror on her qualifying examination. Appellant, in his brief, maintained that during the court's examination the prospective juror failed to reveal her acquaintance with the prosecuting witness and her knowledge of the facts of the case. It was further asserted that appellant had to 'smoke her out' on voir dire, but that her conduct nevertheless created 'ineradicable prejudice against the defendant.' Id. 49 Ala.App. at 539, 274 So.2d at 95. The court stated:

'We here can be guided only by the record before us. . . . The record is silent as to the court's qualifying questions to the juror and her answers thereto. We are bound by the record and cannot consider statements in brief not supported by the record.'

From the foregoing authority, it can be concluded that in the present case the factual assertions made by the appellant in his brief concerning irregularities in the jury examination must be disregarded.

Appellant indicates in his brief that a sworn statement in support of the facts as asserted in his brief was to be filed with the Court of Criminal Appeals. By what authority this statement was to be filed was not indicated. Furthermore, appellant also indicates that a deposition of Herman Edward Beard is available to the Court. The deposition was not made part of the record. ¹ In any respect, these documents cannot be considered. Appellate courts are bound by the record on appeal, and such record may not be supplemented, impeached, or contradicted by affidavits or otherwise by matters dehors the record. Williams v. State, 52 Ala.App. 207, 290 So.2d 668 (1973), Cert. denied, 292 Ala. 758, 290 So.2d 672 (1974); Colburn v. State, 40 Ala.App. 248, 112 So.2d 800, cert. denied, 269 Ala. 694, 112 So.2d 804 (1959).

Butler, supra, concerned circumstances similar to those in the present case. The attorneys for the Appellant therein submitted affidavits to the appellate court to be made a part of the record on appeal. In substance, these affidavits alleged that at the voir dire examination of prospective jurors, several jurors were excluded on the grounds that they opposed the death penalty. Neither the record nor the transcript of evidence contained any matter concerning the voir dire examination. In refusing to consider the affidavits, the court noted that '(e)x parte affidavits of the nature in question cannot be made a part of the record . . ..' Id., 285 Ala. at 393, 232 So.2d at 636.

During the trial of appellant, the prosecution introduced evidence of another crime which appellant allegedly committed and which was not charged in the indictment. This evidence was admitted over the objection of appellant.

The evidence in controversy, as produced by the prosecution,...