Pickron v. State, 4 Div. 144

• Decision Date: 08 May 1984
• Docket Number: 4 Div. 144
• Parties: Myra Jean PICKRON v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 593

475 So.2d 593

Myra Jean PICKRON v. STATE.

4 Div. 144.

Court of Criminal Appeals of Alabama.

May 8, 1984.

Rehearing Denied June 12, 1984.

Larry R. Grissett of Prestwood, Prestwood & Grissett, Andalusia, and D. Patrick Harris of Harris & Harris, Montgomery, for appellant.

Charles A. Graddick, Atty. Gen., and Douglas L. Anderson, Asst. Atty. Gen., for appellee.

LEIGH M. CLARK, Retired Circuit Judge.

This appellant was found guilty by a jury and sentenced by the court to imprisonment for ten years on a trial on an indictment that charged that she "did, with intent to cause serious physical injury to another person, cause serious physical injury to Joann Davis by means of a deadly weapon, or a dangerous instrument, to-wit: an automobile, in violation of Title 13A-6-20 of the Code of Alabama, 1975 ...."

No issue is presented on appeal as to the sufficiency of the evidence to support the verdict. We find it unnecessary to recite any of the details of the evidence other than those contained in the next paragraph.

After midnight on the night of May 1-2, 1982, the alleged victim was struck and seriously injured on a public street in Florala by an automobile owned by the appellant. The victim is the sister of appellant's husband, who had been separated from appellant about a year and a half. The husband, accompanied by the alleged victim and another female, were at a club, across the Alabama-Florida line, where there was much drinking and revelry, in which they participated. Appellant was also at the club that night, but was not in company with the other three mentioned. The other three had gone to the club in the automobile of appellant's husband, who after midnight returned with his sister and the other female in the automobile with him, first to the other female's home and then to his sister's home. As the sister was leaving the automobile and while she was still in the street, the mentioned automobile drove by and collided with her, knocking her down in the street, and did not stop at the scene.

The crucial issue of fact was whether defendant was driving the automobile when the alleged victim was struck by it. There was positive evidence that defendant was driving at the time; the defendant testified emphatically that she was not in the automobile at the time, and that she had allowed another female to borrow it.

I.

During the testimony of Mr. Alcus Radney, the father of the defendant, who had testified that he was with the defendant at the club on the night of the alleged crime, the following occurred during the direct examination of the witness:

"Q. Did anyone else join you and Myra or come up at that time?

"A. There was a girl by the name of Mildred come up.

"Q. Now can you tell us where she came from?

"A. She was there in the State Line.

"Q. In the State Line?

"A. She come outside.

"Q. Did she say anything to you or did you know her?

"A. Not personally, no sir.

"Q. Did she say anything to Myra?

"A. Yes, sir.

"Q. Can you tell us what she said to Myra?

"MR. LOGGINS [District Attorney]: Your Honor, we object.

"THE COURT: I sustain the objection to that.

"Q. Can you tell us anything that Myra said to her?

"MR. LOGGINS: We object to that also, Your Honor.

"THE COURT: I sustain the objection to that.

"A. Am I supposed to answer that question?

"Q. No, the Judge has ruled that you can't answer it. Can you tell us if Mildred drove off from that place?

"A. Yes, sir.

"Q. All right. This vehicle that your daughter had, did she drive off in that vehicle?

"MR. LOGGINS: We object, Your Honor?

"THE COURT: Overruled.

"A. Yes sir, Mildred drove off in Myra's car. She wanted to borrow it.

"MR. LOGGINS: We object to that statement, that she wanted to borrow it, and move to exclude it.

"THE COURT: I overrule, go ahead.

"Q. At that time where did Myra live in Florala?

"A. She lived over around at them low rental apartments there in Florala. I don't know the address.

"Q. Now did you and Myra leave that place together or did you leave separately, you and Myra?

"A. At the State Line?

"Q. Yes.

"A. We left together.

:"Q. Where did you go?

"A. We [sic] to her house.

"Q. All right, when you got to her house did you see this Mildred again?

"A. She was leaving. Her and some man was in that car and they was leaving and she just rolled the window down--

"MR. LOGGINS: Wait, we object, if you are going to say something that she said.

"THE COURT: He said that he saw her, she was at the house. Just continue with your examination.

"Q. Did Mildred say anything to you?

"MR. LOGGINS: We object, Your Honor. What Mildred said, that is hearsay.

"THE COURT: I sustain the objection.

"Q. Did Mildred say anything to Myra?

"MR. LOGGINS: We object to that.

"THE COURT: I sustain.

"Q. Did Mildred get out of the vehicle that she was in?

"A. No, sir.

"Q. Was she driving that vehicle?

"A. No, sir.

"Q. Could you tell who was driving?

"A. No, sir.

"Q. Did you see your daughter's car there at the time?

"A. Yes, sir.

"Q. Where was it?

"A. It was sitting in front of the apartment.

"Q. All right. What did Myra do when you got to her apartment?

"A. She went in and went to bed, I reckon, she went inside."

Appellant urges that the trial court was in error in sustaining the State's objection to the inquiry of the witness as to what "Mildred" had said to the defendant, and insists that what she said would have disclosed a request by "Mildred" to borrow the defendant's automobile. Our view is that the testimony of the witness otherwise shows clearly that he in effect testified clearly that "Mildred" did ask or request the defendant to let her borrow the automobile, and that defendant was not prejudiced by the rulings of the court as shown above.

II.

Appellant's second issue pertains to the court's ruling relative to objections or motions by defendant to questions propounded to the defendant, and other witnesses for her, on cross-examination as to whether the witness knew "what perjury is."

The transcript shows the trial court did not rule adversely to defendant as to any objection or motion made by defendant as to such inquiry, except defendant's motion for a mistrial, which the trial court overruled, which ruling constitutes the basis for the fourth issue presented by appellant, which we will hereafter consider in the order presented in appellant's brief.

III.

As a third contention for a reversal, it is argued in appellant's brief:

"The trial court prevented all of the Defendant's witnesses from identifying the person who borrowed the Defendant's car. The Defendant submits that she should have been allowed to introduce all competent evidence which would tend to exclude her as the person who assaulted the Defendant."

One incident on the trial is referred to by appellant in support of the contention just quoted. It occurred during the redirect examination of one of defendant's witnesses, who had worked at the Dinner Bell in Florala. The transcript shows the following on the particular point:

"Q. Do you remember seeing a girl whose first name was Mildred come in the Dinner Bell?

"MR. LOGGINS: We object to that form of the question, Your Honor.

"THE COURT: I sustain the objection to that."

We fail to see, as does appellant, anything wrong with the form of the question, unless perhaps it was somewhat leading or suggestive. However, we also fail to see any harm to defendant by the court's sustension of the State's objection to the question. Appellant argues that "the testimony supported the previous testimony of the witness, Alcus Radney. (R-94)." We have already discussed and quoted from the testimony of Alcus Radney at page 94 of the record. No categorical answer to the question to which the objection was sustained would have tended to support the material part of the testimony of the witness, Alcus Radney, to the effect that defendant was not in her own automobile at the time the alleged victim was struck by the automobile. There was no prejudicial error committed by the sustension of State's objection to the question asked the witness Shirley Henson as to whether she remembered seeing a girl whose first name was Mildred come in the Dinner Bell.

IV.

We add to what we have stated under II above the following as to the last reference in the transcript as to what was said by any witness, any attorney, or the trial judge, as to whether any witness "knew what perjury is":

"MR. PRESTWOOD [Defendant's Attorney]: We are going to move for a mistrial. Because he asked that of Mr. Alcus Radney who was not on trial and now he is trying to justify it by saying that his witnesses are not on trial.

"THE COURT: Ladies and gentlemen, the objection was sustained to that question asking this witness if she knew what perjury was and it was sustained. Could all of you put that out of your mind? ... If there is any one of you that couldn't put that question out of your mind, hold up your hand? ... Motion overruled."

V.

Under the above caption appellant's brief contains the following:

"The trial court erred in allowing the prosecutor to comment in his closing remarks that 'he' had never heard of the person who had borrowed the Defendant's car. The Defendant submits that what the prosecutor had heard or had not heard was totally irrelevant. This was simply another improper prejudicial stab at the Defendant to which the trial court closed its eyes."

The material at which appellant's contention is directed is found during the following portion of the closing argument of the District Attorney:

"MR. LOGGINS: Now this, this letter, I don't know what this is, I don't know who wrote it. I never heard of this Mildred.

"MR. PRESTWOOD: We object to the District Attorney testifying, in effect, he doesn't know or he doesn't know that.

"THE COURT: I think that is a legitimate response."

The reference to a letter was a reference to defendant's Exhibit 1, a letter bearing the date of February 15, 1983, with the envelope postmarked Panama City, Fla., 18 Feb. 1983, addressed to Myra...