Massey v. State

• Decision Date: 17 October 1972
• Docket Number: 6 Div. 131
• Citation: 49 Ala.App. 345,272 So.2d 271
• Parties: Elva Lee MASSEY v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 271

272 So.2d 271

49 Ala.App. 345

Elva Lee MASSEY v. STATE.

6 Div. 131.

Court of Criminal Appeals of Alabama.

Oct. 17, 1972.

Rehearing Denied Nov. 21, 1972.

Tarter & Wininger, Birmingham, for appellant.

William J. Baxley, Atty. Gen., and Herbert H. Henry, Asst. Atty. Gen., for the State.

PER CURIAM.

The indictment charged the appellant with murder in the first degree. The person alleged to have been killed is named in the indictment as Peggy Fetner Bradley Massey. The appellant entered a plea of not guilty. Trial was had and resulted in a verdict of guilty of murder in the second degree and fixing her punishment at 20 years imprisonment in the penitentiary. Judgment was duly entered by the trial court in accordance with the verdict. The appellant filed a motion for a new trial which was overruled. Hence this appeal.

The evidence offered on behalf of the State tended to show that the appellant and James Massey had been married and divorced; that a child of said marriage, James Massey, Jr., was in the custody of appellant; that on the date of killing in question, the said James Massey, Jr. took some of his personal property and left the home of his mother, the appellant, and went to the home of his father who was the husband of the deceased, Peggy Fetner Bradley Massey; that appellant went to that home to get her son and bring him back to her home; that an argument took place between appellant and the deceased and James Massey, Sr. concerning the boy; and that appellant shot and killed James Massey, Sr. and Peggy Fetner Bradley Massey. The other evidence in the case so far as necessary for this opinion will be stated in the course of this opinion as necessity to do so arises.

The killing involved in this case took place at the back door of the home of the deceased or in the hall of the second floor of said home. The home was located on a hill which sloped toward the front of the house. The front door of the house was an entry to the first floor and the back door was an entry to the second floor. A diagram of the house was admitted in evidence. A number of pictures showing the scene in and around the back door and in the house were also admitted in evidence. Two people were killed on the occasion in question. Some of the pictures were taken before the bodies were removed from the premises. Some of the pictures were taken of the appellant's car parked near the back door and reveals the contents of the area of the front seat of that car. These were taken within a very short time after the killing and before appellant's car was removed from the scene.

The appellant also offered a series of pictures in evidence. These pictures were designed to show a reenactment of the events, as testified to by appellant, prior to and leading up to the moment of the fatal shot. They were taken sometime after the killing. These pictures have people in them acting out or endeavoring to demonstrate what the appellant claims happened at the time in question. The trial court sustained objections to their admission in evidence. The appellant complains that the trial court erred in failing to allow those 'reconstruction' pictures in evidence.

These pictures are clearly an effort to present a demonstration of conduct and action on the part of the different people involved in the killing either as a participant or as a witness. In the case of State v. 2147 Pounds of Packing Stock Butter, 29 Ala.App. 607, 199 So. 739, it is stated:

'Considerable latitude of discretion is accorded to the nisi prius court in the conduct and regulation of trials. It is within the discretion of the trial court to permit or refuse to allow experiments, demonstrations, or tests to be made * * *.'

International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, C.I.O. et al. v. Russell, 264 Ala. 456, 88 So.2d 175, was a case in which motion pictures, taken at intervals, and an objection was made to their admission on the ground that said films did not show a continuity of action and was therefore misleading and inadmissible. In that case, the motion picture was admitted in evidence, however, the court stated:

'The determination of the sufficiency of the preliminary proofs offered to identify the photograph or to show that it is an accurate representation of the objects which it purports to portray is a matter within the sound discretion of the trial court and will not be reviewable except for gross abuse. McKee v. State, 253 Ala. 235, 44 So.2d 781.

'It is likewise a matter for the trial court in the exercise of his sound discretion to determine whether the motion picture will aid the jury or tend to confuse or prejudice the jury.' (citing many cases)

In Godwin v. Jerkins, 282 Ala. 11, 208 So.2d 210, the court said:

'Appellant next urges error in that the trial court refused to allow in evidence photographs of the plaintiff's automobile admittedly taken some time after the accident, after the automobile had been taken to Monroeville. The witness testified that the pictures were taken some week and a half after the accident, and after the automobile had been carried to the Ford place in Monroeville. The pictures are before us and we agree with the trial court that they do not depict the condition of the automobile immediately following the accident. There are several pieces of twisted metal lying about, completely dismantled from the body of the automobile.

'In any event, the rule of this state is to the effect that the determination of the sufficiency of preliminary proofs offered to identify pictures and to show that such pictures accurately represent what they purport is a matter within the sound discretion of the trial court and his decision on sufficiency of the predicate so laid will not be reviewed by an appellate court except for abuse. It is a matter for the trial court in the exercise of his sound discretion to determine whether a photograph offered in evidence will aid the jury or tend to confuse or prejudice the jury.' (citing many cases)

The still pictures offered in the case at bar, taken in sequence and at intervals, when viewed in that order, were designed to show motion and action, but they show only one position in each picture. They show none of the action between the pictures. One position or one motion leaves out much of the context in which it is set. The trial judge in the exercise of his discretion could well be of the opinion that it over-emphasizes and gives added prominence to a single act or motion and that it would confuse or prejudice the jury. Without question, such pictures show less than a motion picture taken at intervals. Motion pictures show all acts within the pictures over an interval of time, but the still picture shows only one position out of many positions of a single motion. When taken by a party in interest or on such party's behalf, one could well believe that it would show the most damaging part of such motion. The motion picture in the International Union, United Automobile Aircraft and Agricultural Implement Workers of America, C.I.O. et al., case, supra, comprised pictures of actual events as they took place. The pictures in the case at bar were a demonstration and the actors therein were performing that which they did not see on being prompted only by hearsay. What better way could be found to testify in court to what someone else has told you?

The trial judge did not abuse his discretion. There is no error in that respect.

The record disclosed that during the argument of counsel for the appellant to the jury the following occurred:

'MR. MCDONALD: We object. We could not have brought it. If he wants to reopen the case, we will be glad to bring plenty of evidence.

'THE COURT: I sustain the objection to that type argument.

'MR. MCDONALD: We offer to bring in that type of evidence.

'THE COURT: I sustain the objection.

MR. MCDONALD: Would you ask the defendant if she wants to bring in that type evidence? It is not too late.

'THE COURT: No, I will not do that.'

That is all the record shows with reference to that incident. No exception was reserved by appellant to the ruling of the trial court in connection with the above. We do not find anything in the record to indicate that appellant made any effort to correct the record or to make it speak more fully. There are statutory means of doing so.

Counsel for the appellant, in brief filed, states in an apparent reference to the above excerpt from the record:

'It is clear that where a witness has testified and no testimony has been offered by the opposition to prove the bad character of the witness then it may be argued properly to the jury that the witness must have a good reputation because of the opposing party's failure to introduce evidence to the contrary.'

We cannot substitute the brief of counsel for the appellant for the record. The record does not show what the argument objected to was about.

In the case of Flowers v. State, 269 Ala. 395, 113 So.2d 344, the court said:

'We have held that where the argument of one's counsel passes beyond the bounds of legal propriety, it is the duty of opposing counsel to object specifically, and point out substantially the language deemed objectionable; and the record should disclose with reasonable certainty what was said in the court below, in order that the appellate court may review it. Mincy v. State, 262 Ala. 193, 78 So.2d 262; Stephens v. State, 250 Ala. 123, 33 So.2d 245; Ferguson v. State, 36 Ala.App. 358, 56 So.2d 118. * * *'

See also Sullivan v. State, 23 Ala.App. 10, 119 So. 243; and Housing Authority of the City of Decatur v. Decatur Land Co., 258 Ala. 607, 64 So.2d 594, 597. The objection in the instant case does not meet these requirements. There is no error in that respect.

The appellant complains that the trial court erred in not allowing individual questioning of jurors at the time the jurors were being qualified. Counsel for appellant filed a written...