Murphy v. State
Decision Date | 11 October 1991 |
Citation | 596 So.2d 42 |
Parties | Anthony Paul MURPHY v. STATE. CR 90-648. |
Court | Alabama Court of Criminal Appeals |
William R. Blanchard, Montgomery, for appellant.
James H. Evans, Atty. Gen., and Andy S. Poole, Asst. Atty. Gen., for appellee.
The appellant, Anthony Paul Murphy, was convicted of sodomy in the first degree and sexual abuse in the first degree. He was sentenced to 10 years in prison on the sexual abuse charge and life in prison on the sodomy charge, the sentences to run consecutively. On appeal the appellant presents three issues.
The appellant initially argues that the trial court erred in denying his Batson motion based on his allegation that males were improperly excluded from the jury. This issue has come before this court on more than one occasion. The law currently states that Batson does not extend to gender-based strikes. Fisher v. State, 587 So.2d 1027 (Ala.Cr.App.1991), writ denied, 587 So.2d 1039 (Ala.1991); Daniels v. State, 581 So.2d 536 (Ala.Cr.App.1990), writ denied, 581 So.2d 541 (Ala.1991); Dysart v. State, 581 So.2d 541 (Ala.Cr.App.1990), cert. denied, 581 So.2d 545 (Ala.1991); Stariks v. State, 572 So.2d 1301 (Ala.Cr.App.1990).
The appellant next contends that the trial court erred in defining "reasonable doubt" for the jury. The appellant maintains that the court's instruction violated the United States Supreme Court's holding in Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990). The appellant contends that the following instruction constituted reversible error:
(R. 289-90.)
The appellant maintains that the court's use of the term "substantial doubt" several times in its instruction lessened the degree necessary to convict him of the crimes charged. We do not agree. The United States Supreme Court in Cage v. Louisiana stated the following:
Cage, 498 U.S. at ----, 111 S.Ct. at 329-30. (Emphasis added.)
This court recently held in Adams v. State, 587 So.2d 1265 (Ala.Cr.App.1991), and Williams v. State, [Ms. 89-191, June 14, 1991], --- So.2d ---- (Ala.Cr.App.1991), that the use of some of the terminology used in Cage does not automatically render the instruction impermissible under Cage. As this court stated in Adams:
"In [Cage ] the United States Supreme Court held that when the terms 'substantial doubt' and 'grave uncertainty ' are considered with the reference to the term 'moral certainty,' a reasonable juror could find that the degree of proof required to convict is less than that required by the Due Process Clause."
Adams, 587 So.2d at 1268-69. (Emphasis added in Adams.)
It is clear from a review of the instruction that the trial court did not violate the Supreme Court's holding in Cage. A review of the trial court's instruction as a whole shows that the trial court adequately charged the jury on the definition of "reasonable doubt."
The appellant further contends that the trial court erred in allowing one of the state's witnesses to testify. Specifically, the appellant contends that the witness was not competent to testify at trial.
"A presumption of competency attends a witness." Smith v. State, 380 So.2d 345 (Ala.Cr.App.1980). C. Gamble, McElroy's Alabama Evidence § 92.01(2) (4th ed. 1991), quoting § 12-21-165(6), Code of Alabama 1975. "The burden of proving the incompetency of a witness is upon the party objecting." Smith, 380 So.2d at 348.
In the instant case, prior to state's witness Bobby Spurlin's testifying, the witness was questioned extensively concerning his competency. The witness was 18 years old and was in special education classes. It is clear from his answers that he understood the difference between telling the truth and telling a lie. It is also clear that he understood that he was bound to tell the truth on the witness stand. We see no reason why the witness would not be competent to testify. "In each particular case where the competency of a witness is challenged the fundamental question is whether 'the derangement or defect is such as to make the person highly untrustworthy as a witness.' " Smith, 380 So.2d at 347. We do not believe after an examination of Spurlin's testimony that his testimony would be "highly untrustworthy."
The appellant maintains that since the witness could not correctly define the word "oath" and had trouble remembering a name that he was incompetent as a witness. We do not agree. "The particular defects in the witness's capacity to observe and remember went to [his] credibility and were matters for the jury." Smith, 380 So.2d at 348. The witness was correctly permitted to testify.
For the reasons stated above, the appellant's conviction is due to be affirmed.
Affirmed.
I dissent from Part I of the opinion in which the majority concludes that "Batson does not extend to gender based strikes."
I adhere to my position that gender discrimination is prohibited under state law. See Daniels v....
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