Nelson v. State
Decision Date | 26 April 1991 |
Parties | Joseph Langston NELSON v. STATE. CR 89-657. |
Court | Alabama Court of Criminal Appeals |
Eddie Beason of Fine & McDowell, Russellville, for appellant.
James H. Evans, Atty. Gen., and Yvonne A. Henderson, Asst. Atty. Gen., for appellee.
Joseph Langston Nelson was indicted for the offense of attempted murder. The jury found the appellant guilty of the lesser included offense of assault in the first degree. The appellant was sentenced to 20 years' imprisonment.
The appellant does not challenge the sufficiency of the evidence and, therefore, the facts of the case will be briefly stated. On the evening of February 1, 1990, in the Reedtown Community of Russellville, Alabama, Anthony Winston was stabbed twice in the chest by the appellant as a result of a disagreement over money. One of the stab wounds penetrated Winston's heart. Surgery was required to repair this wound and Winston would have died without surgical intervention.
The appellant contends that the trial judge erred by denying his request for funds to hire a private investigator. In his motion requesting funds to hire a private investigator, the appellant stated that he needed the assistance of an investigator in locating witnesses. He said this was necessary because he was incarcerated prior to trial and, thus, he could not assist his attorney in locating the witnesses to this incident.
Hold v. State, 485 So.2d 801, 803 (Ala.Crim.App.1986). See also McLeod v. State, 581 So.2d 1144 (Ala.Crim.App.1990). The appellant made no further specific showing as to his need for a private investigator. Thus, we find that the trial court properly denied the appellant's request for funds for a private investigator.
During the course of the trial, defense counsel elicited testimony from several police officers that they had had dealings with the victim and that he had a bad reputation for violence (R. 275, 364, 369, 372-73). In response, the prosecutor attempted to question one of the officers concerning the appellant's reputation for violence as compared to the victim's reputation for violence (R. 364-65). Defense counsel immediately objected and moved for a mistrial. The trial judge sustained the objection but overruled the motion for a mistrial. Later, over defense counsel's objections the prosecutor was allowed to elicit testimony from two of the police officers that they had had dealings with the appellant in their capacity as police officers (R. 369, 373).
"As a general rule, the prosecution may not take the initiative, in its case in chief, to introduce any kind of evidence as to the accused's evil character, disposition or reputation in order to establish probability of guilt." C. Gamble, McElroy's Alabama Evidence § 27.02(1) (3d ed. 1977). See Headley v. State, 51 Ala.App. 148, 283 So.2d 458 (1973); Stearns v. State, 266 Ala. 295, 96 So.2d 306 (1957). Therefore, the trial judge properly sustained defense counsel's objection to the prosecutor's question regarding the appellant's reputation for violence. We do not find that the trial judge abused his discretion by failing to grant a mistrial in this instance. Spears v. State, 500 So.2d 96 (Ala.Crim.App.1986).
Lowe v. State, 514 So.2d 1042, 1048 (Ala.Crim.App.1986), rev'd on other grounds, 514 So.2d 1049 (Ala.1987).
United States v. Shelton, 628 F.2d 54, 57 (D.C.Cir.1980).
However, the trial court's error in admitting this evidence was rendered harmless by the appellant's subsequent admission during his testimony that he had been convicted of assault in the second degree. Lowe (error in allowing evidence of defendant's prior dealings with bonding company was harmless where defense brought out the fact that defendant had previously been arrested for burglary). See also Burlison v. State, 369 So.2d 844 (Ala.Crim.App.), cert. denied, 369 So.2d 854 (Ala.1979).
During the prosecutor's closing argument the following occurred:
The appellant argues that the trial court should have granted his motion for mistrial. We disagree. The defense introduced evidence that the appellant had been convicted of the offense of assault in the second degree. Further, on cross-examination by the prosecutor, the appellant stated, "I am violent." Defense counsel did not object to this testimony by the appellant. Therefore, the appellant cannot now object to the prosecutor's comment upon evidence to which he, himself, testified. Burlison. This issue is without merit.
During its oral charge to the jury, the trial court stated:
(R. 468.)
The appellant contends the trial judge's charge on this matter was reversible error. As the appellant correctly points out, there is no presumption of truthfulness in Alabama, and such an instruction "is a derogation of the jury's exclusive right to determine the credibility of witnesses," Williams v. State, 520 So.2d 179, 181 (Ala.Crim.App.1987). However, any error in giving a charge such as the one quoted above may be harmless, as it is in this case, when the court's oral charge is viewed in its entirety. See Ex parte Holifield, 562 So.2d 254 (Ala.1990); Touart v. State, 562 So.2d 625 (Ala.Crim.App.1989); Sosa v. State, 591 So.2d 897 (Ala.Crim.App.1991). Here, the court instructed the jury that it was to consider the appellant's testimony just as it would consider the testimony of other witnesses and that it could believe the appellant's testimony despite the appellant's previous conviction. Furthermore, the court instructed the jury that it was the sole judge in this case with regard to the credibility of the witnesses in this case and that it could accept or disregard any part of the testimony of the witnesses.
" '[T]he fact that isolated instructions are erroneous or misleading is no ground for reversal where the instructions as a whole present the case properly.' " Sosa (quoting Williams). We have reviewed the court's instructions as a whole and find that any error in the charge quoted above was harmless as it was cured by the other portions of the court's oral charge. Sosa; Holifield; Touart.
During the court's oral charge to the jury, the court gave an instruction on self-defense. The substance of the charge was that "[a] person may use deadly physical force in order to defend himself if he reasonably believes that the other person is using or about to use unlawful deadly physical force." (R. 474.) Following the court's charge to the jury, defense counsel stated, ...
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