McFerrin v. State
| Decision Date | 16 November 1976 |
| Docket Number | 6 Div. 213 |
| Citation | 339 So.2d 127 |
| Parties | Thomas McFERRIN v. STATE. . Oct, 12, 1976. Rehearing Denied |
| Court | Alabama Court of Criminal Appeals |
Joel L. Sogol, Asst. Public Defender, Tuscaloosa, for appellant.
William J. Baxley, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for the State.
This is an appeal from the Tuscaloosa County Circuit Court. These cases arose by virtue of the District Attorney's complaint. The appellant was convicted in the following cases: #5358--B, Driving while intoxicated, sentenced to 270 days at hard labor and a fine of $150.00; #5359--B, Failure to yield the right of way to a police or other emergency vehicle, sentenced to 10 days hard labor, and fined $50.00; #5360--B, Resisting arrest, sentenced to 180 days hard labor, fined $100.00.
Prior to the trial the three cases were consolidated by agreement between the State of Alabama, the defense attorney and the appellant. A jury in the Tuscaloosa County Circuit Court returned three separate verdicts and found the appellant guilty in case #5358--B, 5359--B, and 5360--B. After the verdicts were returned, the trial court entered its judgment setting sentence accordingly.
On Saturday, July 12, 1975, Billy Jack Dunn and Dennis Hyche went to Hannah's Store in Tuscaloosa County, Alabama. There they observed the appellant sitting outside the store. An argument commenced between the appellant and Billy Jack Dunn and Dennis Hyche. A scuffle ensued, continuing inside the store. They were ordered to leave the store by one George Hannah. The scuffle continued outside the store between Billy Jack Dunn and Thomas McFerrin, the appellant. Dennis Hyche went to get the truck. After the scuffle, Dunn and Hyche observed the appellant with a shotgun. However, the shotgun was never pointed in their direction or at the truck. Dunn and Hyche left the premises and sometime later reported the incident to the sheriff's department of Tuscaloosa County, Alabama.
Deputy Sheriff Ronnie Bowen and Rex Abrams answered the call and talked to Hyche and Dunn concerning the incident. Then Deputy Bowen met his regular partner, Deputy Thomas Cargile and they began patrolling the area for the appellant. The appellant was observed driving his truck on Kellerman Road in Tuscaloosa County, Alabama. The deputies approached the appellant going in the opposite direction. They turned their patrol car around and proceeded to follow the appellant. They turned on the blue light and siren. The appellant would no stop. They had to go around the appellant and block the road, at which time the appellant stopped his truck. Deputy Cargile went over to the appellant and, according to Cargile's testimony, placed the appellant under arrest for reckless driving.
Deputy Bowen drove the appellant's truck to the appellant's brother's house at which time he then got into the patrol car and accompanied Cargile and the appellant to the Tuscaloosa County Jail. On arrival at the jail, Deputy Cargile went into the jail and Deputy Bowen attempted to have the appellant get out of the patrol car, at which time, according to Deputy Bowen, the appellant made a sudden move toward Deputy Bowen. At this time Bowen pushed the appellant and the appellant struck the angle iron on the steel door of the jail causing injury to his head. He then fell inside the jail, bleeding profusely. According to Deputy Bowen, the appellant was then taken to the drunk tank and offered medical assistance. The appellant was then offered the photo-electric intoximeter test and, according to Deputy Bowen, the appellant refused both the medical assistance and the P.E.I. test.
The appellant was subsequently charged with driving while intoxicated, resisting arrest, and failing to yield the right of way to police or other emergency vehicle.
According to the appellant, there was a scuffle and altercation with Dunn and Hyche at Hannah's Store. However, the appellant denies having been intoxicated, having only two beers before 10:00 a.m. on July 12, 1975. According to the appellant, he then went to visit Frances White and Gussie Lewis. Both women testified that, in their opinion, the appellant was not intoxicated. The appellant then claims that he left these two women and proceeded home, at which time he met officers Bowen and Cargile. According to the appellant the patrol car turned around and came in behind the appellant's truck. The appellant said he saw the blue light, but did not hear the siren. He denied driving recklessly because the road on which he was driving was narrow and full of potholes.
The appellant further testified that when he observed the blue light, he was in a curve and could not immediately pull over parallel to the road and stop, but that he subsequently did stop and the deputies pulled around him. At no time, according to the appellant, did either of the deputies advise him as to why he was under arrest and at no time did he resist the deputies. The appellant then testified that Deputy Bowen drove the appellant's truck to appellant's brother's house and then they proceeded to the Tuscaloosa County Jail. Upon arrival at the jail the appellant testified that he did not make a sudden move toward Deputy Bowen nor did he threaten the deputies. The appellant said he was pushed inside the jail on the floor in front of the booking desk where three or four deputies commenced kicking and hitting him causing the injuries.
The appellant testified that he requested the P.E.I. test which was denied. The appellant admitted that he refused to allow Deputies Bowen and Cargile to take him to the hospital for medical treatment. He testified that he later requested from other deputies to be taken to a hospital for treatment and the deputies did so.
The appellant after making bond and being released from jail, reported the incident to the District Attorney's office of Tuscaloosa County, the sheriff's office, and the Federal Bureau of Investigation and an investigation was conducted.
On cross examination the appellant admitted having been convicted of a crime involving moral turpitude, namely, assault with intent to murder.
The appellant cites as error the following:
'The personal opinion of the prosecutor as to the guilt of the accused, or any material fact involved in the case, is improper.'
The appellant relies on the case of Woods v. State, 19 Ala.App. 299, 97 So. 179 (1923).
The portion of the transcript the appellant is relying on is found in R--161 wherein the appellant, who was testifying in his own behalf, was asked on the cross examination by the prosecuting attorney:
Mr. Sogol: We object. That is not proper.
The Court: Overruled.
Mr. Sogol: Except . . ..'
Woods, supra, deals with a long line of cases concerned with the closing arguments of the prosecutor. Those cases are not applicable in the present case. A prosecutor is entitled to a thorough and sifting cross-examination. This is shown by Title 7, Section 443, 1940 Code of Alabama, Recompiled 1958. Said section as follows:
It has been settled in this state by many cases that the scope of cross examination is left strictly to the sound discretion of the trial court. Noble v. State, 253 Ala. 519, 45 So.2d 857. The range of cross examination has been and always should be within the sound discretion of the trial court and, unless it clearly appears that error intervened to the substantial injury of the adverse party, the ruling of nisi prius will not be disturbed upon appeal. Sowell v. State, 30 Ala.App. 18, 199 So. 900. See also Wright v. State, 49 Ala.App. 539, 274 So.2d 95 (1973), Burke v. State, 44 Ala.App. 379, 209 So.2d 859 (1968), Seals v. State, 282 Ala. 586, 213 So.2d 645 (1968), McCain v. State, 46 Ala.App. 627, 247 So.2d 383 (1971).
The second proposition cited by the appellant as error is as follows:
The cases cited by the appellant are not applicable, in that they deal with closing arguments of the prosecutor.
There were no objections to the District Attorney's closing argument, consequently there is nothing in the record for this court to review. As stated by this court in Browder v. State, 54 Ala.App. 369, 308 So.2d 729 (1974), This court in Browder went on to say, 'It is only where there is objection and exception taken to argument that such should be transcribed, citing McClary v. State, 291 Ala. 481, 282 So.2d 384.'
The appellant in his brief argues that the trial court placed undue emphasis on the testimony of the defendant in that he admonished the defendant as shown by transcript record (R. 180). The District Attorney is cross examining the defendant:
'The Court: Tom, just answer the questions.
'A: That is not right the way they done...
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