McDade v. State
| Decision Date | 26 April 2002 |
| Parties | Byron McDADE v. STATE. |
| Court | Alabama Court of Criminal Appeals |
L. Scott Johnson, Jr., Montgomery, for appellant.
William H. Pryor, Jr., atty. gen., and Elizabeth Ray Butler, asst. atty. gen., for appellee.
The appellant, Byron McDade, was convicted of two counts of second-degree assault, violations of § 13A-6-21(a)(2), Ala. Code 1975. Applying the firearm enhancement set forth in § 13A-5-6(a)(5), Ala.Code 1975, the trial court sentenced him to serve concurrent terms of ten years in prison. It then split the sentences and ordered him to serve three years in prison followed by the balance on probation. The appellant filed a motion for a new trial, which was denied by operation of law. See Rule 24.4, Ala. R.Crim. P. This appeal followed.
At trial, five prosecution witnesses testified that the appellant was the aggressor in the assaults. Subsequently, defense counsel called a witness who testified that the appellant had a good reputation for truthfulness in the community. On crossexamination, the State elicited a response that the witness was not aware of the appellant's prior convictions for receiving stolen property and possession of narcotics. The appellant did not testify during the trial.
The appellant argues that the trial court erroneously allowed his motion for a new trial to be denied by operation of law. In his motion for a new trial, he contended that his counsel rendered ineffective assistance at trial, that he was deprived of his right to take the stand on his own behalf, and that the trial court should have sua sponte instructed the jury on self-defense. In support of his ineffective-assistance-ofcounsel claim, the appellant specifically alleged that counsel did not object to the trial court's oral charge; did not request a jury instruction on self-defense; should not have called the character witness, who made the introduction of evidence about his prior bad acts possible; and should have called him to testify on his own behalf after evidence about his prior convictions had been admitted.
In support of his motion for a new trial, the appellant submitted an affidavit in which he stated that neither defense counsel nor the trial court explained to him his right to take the stand in his own defense; that defense counsel did not inform him that his prior convictions could be revealed to the jury if a character witness testified; and that, if defense counsel had called him as a witness after his prior convictions had been revealed to the jury, he would have testified that he acted in self-defense. (C.R.43.) The State did not refute any of the allegations in the appellant's motion for a new trial and affidavit, and the trial court allowed the motion to be denied by operation of law.1
In Edgar v. State, 646 So.2d 683, 687 (Ala.1994), the Alabama Supreme Court addressed a similar situation as follows:
"We hold that where, as here, a criminal defendant's motion for a new trial is denied under the provisions of Rule 24.4, Ala. R.Crim. P., without an affirmative statement by the trial judge giving the ruling a presumption of correctness and the defendant supports his new trial motion by evidence that was not presented at trial, and that...
To continue reading
Request your trial
-
Chavers v. State
...v. State, 646 So.2d 683, 687 (Ala.1994); see also Benjamin v. State, 889 So.2d 610, 612 (Ala.Crim.App.2003); McDade v. State, 864 So.2d 377, 378 (Ala.Crim.App.2002). Given these circumstances, we conclude that the best course of action is to remand this case for the trial court to issue spe......
-
Pace v. State
...an order either granting or denying the motion." See also Benjamin v. State, 889 So.2d 610, 612 (Ala.Crim.App.2003); McDade v. State, 864 So.2d 377, 378 (Ala.Crim.App.2002). While we express no opinion as to the merits of Pace's other grounds in his motion for a new trial, we note that the ......
-
Coleman v. Coleman
... ... Specifically, the husband asserts that contacts with the State of Alabama were insufficient to give an Alabama court jurisdiction over him. He contends that his contacts with the State of Alabama have been ... ...
-
Booker v. State
...April 25, 2003] ___ So.2d ___, ___ (Ala.Crim.App.2003); Benjamin v. State, 889 So.2d 610, 612 (Ala.Crim.App.2003); McDade v. State, 864 So.2d 377, 378 (Ala.Crim.App.2002). [2] While we express no opinion as to the merits of Booker's other grounds in his new-trial motion, we note that the af......