McDonald v. State

• Decision Date: 07 December 1976
• Docket Number: 8 Div. 820
• Citation: 340 So.2d 103
• Parties: William Fletcher McDONALD v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 103

340 So.2d 103

William Fletcher McDONALD v. STATE.

8 Div. 820.

Court of Criminal Appeals of Alabama.

Dec. 7, 1976.

David L. Thomas, Huntsville, for appellant.

William J. Baxley, Atty. Gen., and James S. Ward, Asst. Atty. Gen., for the State.

LEIGH M. CLARK, Supernumerary Circuit Judge.

Presented by appellant's brief as the only basis for a reversal of his conviction of murder in the first degree are several instances in which the trial court sustained the State's objections to questions asked witnesses for the State on cross-examination.

Hardly in any of the instances complained of by appellant can it be said an important witness was being cross-examined at the time of the particular question on any matter which tended to indicate bias of the witness. In such a situation, the reins of the trial court's bridle of discretion are more tightly drawn than usual. Wells v. State, 292 Ala. 256, 292 So.2d 471.

We consider the rulings complained of in the sequence presented in appellant's brief.

The first was in sustaining State's objection to a question asked on cross-examination by defendant of State's witness, the operator of the 'shot house' where the killing occurred. The text and context are as follows:

'Q. Let me ask you this: Did you see Dean Adkins down there?

'A Yes, he was there.

'Q Now, were you there when Frederick Boone (the deceased) pulled a pistol on Dean Adkins? Do you remember that?

'A No, I didn't see that.

'Q Do you remember Dean Adkins and his girlfriend being there?

'MR. MORGAN: Your Honor, the State will object to impermissible leading at this point. Mr. Jeff is testifying.

'THE COURT: I sustain the objection.'

The question contains a factual assumption not in evidence, and for that reason the objection was properly sustained. Byrd v State, 51 Ala.App. 234, 283 So.2d 683. In McElroy, Law of Evidence in Alabama, § 121.06, it is stated:

'As a general rule, a question to a witness which assumes the existence of a material fact to which he has not testified is an improper question; and this is true whether such question is asked on direct or on cross-examination.'

It is to be noted that it had already been stated by the witness on cross-examination that he had seen Dean Adkins 'down there,' but there was no testimony that his girlfriend was also 'down there.' If the addition of the girlfriend to the question to which an objection was sustained was the addition of a material fact, the question was improper; if the added assumed fact was not material, there is no just ground for complaint.

Defendant asked one witness on cross-examination, 'Why did he (the deceased) threaten you?' and another, 'And he thought you all turned him (the deceased) in on the armed robbery?' Each of the questions called for testimony as to the mental operation of another, and the State's objection thereto was properly sustained. Bailey v. State, 107 Ala. 151, 18 So. 234; Spurlock v. State, 17 Ala.App. 109, 82 So. 557; Whigham v. State, 20 Ala.App. 129, 101 So. 98; Hembree v. State, 20 Ala.App. 181, 101 So. 221; Bynum v. State, 20 Ala.App. 619, 104 So. 834; Poellnitz v. State, 48 Ala.App. 144, 262 So.2d 631.

Another cross-examination question asked a witness for the State was, 'Had you ever seen him (the deceased) with a gun before? The witness had just answered an inquiry on cross-examination whether he had seen anything in the pockets of deceased the day of the killing while he and deceased were at the 'shot house,' and he had replied in the negative. Whether deceased had 'ever' before been seen by the witness with a gun was too remote to have had any material bearing on the issues in the case, including defendant's claim of self-defense and particularly defendant's testimony to the effect that he thought the deceased was reaching for a gun when defendant shot him with a sawed-off shot gun immediately after defendant entered the 'shot house' for the admitted purpose of a confrontation with deceased about the previous difficulty between them.

A detective, who testified as to what he had learned when he arrived at the scene of the killing, was asked on recross examination whether he had been looking for the deceased 'earlier that day.' It was not error for the court to sustain the State's objection to the question. It had no apparent relevancy, and the trial court was not apprised of any claimed relevancy.

One of the witnesses for the State, who knew both defendant and deceased and who had gone with defendant to the 'shot house' just before the killing and had entered the 'shot house' with defendant and witnessed the killing, testified On cross-examination that he had previously been to the 'shot house' the same night and had seen the deceased there. He said On further cross-examination he was there only two or three minutes and left through the back door, that the reason he left through the back door was that he was trying to dodge trouble with 'Frederick, the dead man.' He was then asked, 'Well, why didn't you tell the Jury about that?', to which question the court sustained the State's objection. Then the following occurred:

'Q You say you were trying to dodge trouble?

'A Right.

'Q Well, was it what he said to you or the way he looked at you, or what made you think there was reason for you to be trying to dodge trouble?

'MR. MORGAN: Your Honor, the State objects.

'THE COURT: Sustained.

'MR. MORRIS: Judge, we were doing that for the purpose of showing bias and prejudice of this witness.

'THE COURT: As to that question, I sustain the objection.'

The rule, which prevailed even before Starr v. Starr, 293 Ala. 204, 301 So.2d 78, that permitted questions on cross-examination as to the reason, purpose, intent or the like of a witness as to his acts testified to by him On direct examination was held to be self-restrictive, that is, that such questions as to acts shown for the first time on cross-examination were improper. Williams v. State, 123 Ala. 39, 26 So. 521; Patton v. State, 197 Ala. 180, 72...