Page v. State

• Decision Date: 05 March 1993
• Docket Number: CR-91-1188
• Citation: 622 So.2d 441
• Parties: Mike Allen PAGE v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 441

622 So.2d 441

Mike Allen PAGE v. STATE.

CR-91-1188.

Court of Criminal Appeals of Alabama.

March 5, 1993.

Rehearing Denied April 16, 1993.

Certiorari Denied June 11, 1993

Alabama Supreme Court 1921152.

Reid G. Webster, Huntsville, for appellant.

James H. Evans, Atty. Gen., and Beth Poe, Asst. Atty. Gen., for appellee.

PATTERSON, Judge.

The appellant, Mike Allen Page, was convicted of assault in the second degree in violation § 13A-6-21, Code of Alabama 1975. His sentence of 10 years' imprisonment was split, with 3 years to be served in prison and the balance on probation. He raises six issues on appeal.

I

The appellant argues that the trial court erred by instructing the jury on assault in the second degree, as defined by § 13A-6-21(a)(1), (2) and (3), Code of Alabama 1975, when the appellant was charged by indictment with assault as defined only by § 13A-6-21(a)(2). This argument, however, is procedurally barred because the appellant failed to object to the trial court's oral charge. Turrentine v. State, 574 So.2d 1006 (Ala.Cr.App.1990); A.R.Cr.P. 21.2.

II

The appellant contends that his trial counsel was ineffective. The record reflects the following: On March 18, 1992, the appellant was convicted of assault in the second degree. On May 8, 1992, the appellant was sentenced. On May 14, 1992, the appellant's trial counsel moved to withdraw. On the same day, the trial court temporarily denied the motion to withdraw until the appellant furnished the court with the name and address of his newly retained counsel. On May 18, 1992, the trial court ordered the appellant to appear in court on May 29, 1992, with his newly retained counsel. The record does not reflect when the appellant retained his appellate counsel. On June 8, 1992, new counsel filed a motion for a new trial; however, he did not allege ineffective assistance of counsel as a ground for that motion. The motion did contain the following statement:

"Further, defendant has requested and paid for the preparation of a transcript of the trial court proceedings for review by his new counsel and the defendant requests this Court to grant permission to allow the defendant to amend and perfect this motion and to prepare, present for approval, and file a brief of evidence in this cause...."

On June 10, 1992, the trial court summarily denied the motion without comment.

The state argues that the ineffective assistance issue is procedurally barred because the appellant did not present it to the trial court and cites Ex parte Jackson, 598 So.2d 895 (Ala.1992), wherein the Alabama supreme court adhered to the rule that " 'claims of ineffective assistance of counsel may not be considered for the first time on direct appeal.' " Id. at 897 (quoting Jackson v. State, 534 So.2d 689, 692 (Ala.Cr.App.1988) (quoting other sources)). In Ex parte Jackson, the court noted the following procedure by which newly appointed counsel could preserve issues through a motion for a new trial after having reviewed the trial record:

"We recognize that when an attorney is appointed to represent a defendant on appeal, it is unlikely that the reporter's transcript will be made available to him before the 30-day period within which to file a motion for a new trial has expired. Although some grounds for a new trial may be discovered in the absence of a transcript, the absence of a transcript may prevent appointed appellate counsel from ascertaining all of the grounds to support a motion for a new trial. Therefore, we hold that if the trial court appoints new counsel to represent the defendant on appeal, the trial court shall note that fact on the case action summary sheet, and shall also note that the time within which to file a motion for a new trial is extended in such case, provided the following occurs: If newly appointed counsel files a motion with the court within 14 days after his appointment, requesting that the running of the time within which to file a motion for new trial be suspended until such time as the reporter's transcript is prepared and filed, then in that event, the 30-day period within which to file a motion for new trial shall be computed from the date the reporter's transcript is filed, which date shall be entered on the case action summary sheet, rather than from the date of the pronouncement of sentence, as provided for in Rule 24, A.R.Crim.P. Appellate counsel will then have the means to raise all appropriate issues before the trial court. We believe that this exception to the rule that '[a] motion for new trial must be filed no later than thirty (30) days after sentence is pronounced,' Rule 24.1(b), A.R.Crim.P., is an appropriate accommodation of the interest of the judiciary in having the benefit of the trial court's development of the issues and the interest of the defendant in fully presenting any meritorious argument regarding those issues."

Id. at 897-98. We note that Ex parte Jackson was originally issued by the supreme court on February 28, 1992, but was later withdrawn and a substituted opinion was issued on May 8, 1992, the day the appellant was sentenced. See Id. at 896. This court takes the position that Ex parte Jackson applies not only to appointed counsel, but also to retained counsel.

While the appellant's counsel requested in his motion for new trial leave to review the trial transcript and to ascertain whether there were any other meritorious issues, he failed to comply with the procedure outlined in Ex parte Jackson, requiring new counsel to file a motion making such a request within 14 days of the date he was appointed or retained. This court takes the position that the procedure outlined in Ex parte Jackson must be strictly complied with. Thus, because the appellant's counsel failed to comply with Ex parte Jackson, this argument is procedurally barred.

III

The appellant argues that the trial court erred by denying his motion for a mistrial, which was based on allegedly improper statements and questions concerning prior alleged misconduct of the appellant and in the court's failure to eradicate the prejudice through curative instructions. On direct examination, the appellant's counsel asked, "Mr. Page, have you ever been convicted of a felony or a misdemeanor?" The appellant responded that his only conviction was in 1983 for driving under the influence of alcohol. On cross-examination, the following occurred:

"Q [by the prosecutor:] Now, in response to what you said to your lawyer, he asked you if you had a criminal record, right?

"A Not that I know of.

"Q You said you knew of one public drunkenness and that's all you know of?

"MR. SHIPMAN [defense counsel]: He said he knew of one DUI.

"Q Whatever your answer was, I think it was DUI. You didn't tell them about the carrying a concealed weapon conviction, did you?

"MR. SHIPMAN: Your Honor, we object, that's not proper. I object, because that's not the proper way to ask the question.

"MR. BECHER [prosecutor]: I'm just responding in kind, the door has been opened.

"THE COURT: I think you have asked him a question about his prior convictions and he's answered, so I will allow the district attorney to pursue that.

"MR. SHIPMAN: That's not the proper way to ask the question your honor.

"THE COURT: Overruled.

"Q Back in '72, you were convicted of carrying a concealed weapon, were you not?

"A They threw it out.

"Q They threw it out. It looks like a $50 fine and costs.

"A That's for violating--

"MR. SHIPMAN: Your Honor, we object. He said it was thrown out. If they have evidence to the contrary to impeach him, they can bring in legal evidence. I certainly object to pointing to a piece of paper and saying it looks like you were convicted, he said it was thrown out.

"THE COURT: Overruled.

"Q The DUI you were talking about, is that the one in December of 1971 or is that the one--

"A I'm talking about that one on your record, I'm not talking about them when I was a kid.

"Q You are talking about the one in August, August 13th of 1983?

"A '83.

"Q How about the one May the 2nd of 1976, you were not talking about that one either?

"MR. SHIPMAN: I object to this whole line of questioning--there has to be a predicate laid, as the prosecutor know[s], he's been doing this long enough. There is a predicate to be laid to even ask a question. He's been asking questions that are improper, and at this point we are going to ask for a mistrial.

"THE COURT: Your motion is denied. Let me give an instruction to the jury with respect to this. Ladies and Gentlemen, in this case the indictment charges the defendant with one crime, and that is assault in the second degree. There is a lesser included crime that I will charge you on later in the case that involves assault in the third degree. The credibility of a witness may be attacked by introducing evidence that the witness has been convicted of a crime of moral turpitude. The crime of driving under the influence is not a crime of moral turpitude. You are to consider only the charge in this case, and the questions asked by the district attorney have been in an attempt to attack the believability or credibility of this witness. Only a crime involving moral turpitude goes to the credibility of this witness, and you can only consider that type of crime in determining whether or not you will give weight to this witness's testimony, or how much weight to give this witness's testimony. It will take me just a minute to look in one other place, and I will determine whether or not carrying a concealed weapon is a crime involving moral turpitude, and if it is, then there is a particular way that that evidence has to be introduced before you, it has not been introduced in the proper way, so I will ask you to disregard any evidence as to whether or not this defendant has been convicted of carrying a concealed weapon or driving under the influence as you determine what believability or credibility to give this witness. So, with that instruction, we will proceed."

Durin...