Randolph v. State, 8 Div. 926

• Decision Date: 24 May 1977
• Docket Number: 8 Div. 926
• Citation: 348 So.2d 858
• Parties: Charles RANDOLPH v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 858

348 So.2d 858

Charles RANDOLPH v. STATE.

8 Div. 926.

Court of Criminal Appeals of Alabama.

May 24, 1977.

Rehearing Denied June 28, 1977.

Robert L. Potts, Potts & Young, Florence, for appellant.

William J. Baxley, Atty. Gen. and Jane LeCroy Robbins, Asst. Atty. Gen., for the State.

CLARK, Supernumerary Circuit Judge.

This is an appeal from a second conviction of defendant under a two-count indictment for murder in the first degree and robbery. On the previous appeal, the judgment of conviction and sentence was reversed by reason of the prejudicial error in allowing the State to impeach the testimony of one of its witnesses. Randolph v. State, Ala.Cr.App., 331 So.2d 766, cert. denied, Ala., 331 So.2d 771 (1976). There was evidence that appellant and Ronald Gholston killed and robbed Willie Washington, a taxi driver, in Russellville. Gholston was convicted and his conviction was affirmed in Gholston v. State, 338 So.2d 454 (Ala.Cr.App.1976). Most of the material evidence was narrated in the opinion in each of such cases. We see no necessity to narrate the evidence in the case now on appeal other than to focus attention upon some significant differences between it and the evidence in the previously reported cases.

Appellant raises a serious question as to the sufficiency of the evidence to support the conviction from which this appeal is taken. We recognized the seriousness of the question in Randolph, supra, but in view of the necessity for a reversal on another ground, we elected to "pass to another day a determination" thereof. In Gholston, supra, we held the evidence sufficient. In Gholston, however, there was considerable difference between the evidence and the evidence on each of the two trials of Randolph. Furthermore, there is considerable difference between the testimony in the proceeding under review and the evidence on the trial when this appellant was previously convicted. We note some of such differences.

As in both of the cited cases, Josephine Harrison was the principal witness relied upon by the State on the trial involved in this appeal to prove the identity of the persons who killed and robbed Willie Washington. On each of the three trials Josephine was a chameleonic witness. On each trial, she was called as a witness by the court, but testified differently from previous statements in which she had positively identified Gholston and Randolph as persons so related to the time, the scene and the victim of the crime as to point persuasively to their guilt. On each of the other trials, the State was allowed to impeach her testimony, wherein she weakly identified the two, by her previous statements and testimony wherein she strongly declared their identity. In that respect, her evidence on the other trials is different from her testimony in the case sub judice, wherein the witness did not identify, even weakly, either Gholston or Randolph, as the persons who the evidence shows almost conclusively killed and robbed Washington. Her testimony on that subject was as follows:

"Q Now, would you please tell the Ladies and Gentlemen of the jury who those two fellows are?

"MR. POTTS: We excuse me, I withdraw the objection.

"Q If you recognized them and who they were?

"A I didn't recognize them.

. . ."

Thereafter, the witness was interrogated intensively as to previous statements and testimony by her wherein she had identified the two. Notwithstanding the confrontation of her by her previous statements and testimony, she cleaved to her testimony that, "I didn't recognize them." On further examination of her by the State, her testimony was as follows:

"Q Miss Harrison, would you please tell the Ladies and Gentlemen of the jury right now your present judgment as to who the two fellows were, do you have an opinion as to who the two men were that you saw run back up southward along St. Clair there and pass your van?

"MR. POTTS: We object to that; she has already stated her testimony at this trial and we feel that this is repetitious.

"THE COURT: Overruled.

"A Like I told you, I wasn't sure who it was.

"Q Do you have an opinion as to who it was? Do you think you recognized them?

"A No."

Thus it is to be seen that this important witness' testimony on the trial now reviewed was materially different from her testimony on the other two trials. We cannot say as we did in Gholston, supra :

"In her testimony, before any attempt to impeach her was made, she identified defendant as one of the persons. The fact that she did not positively identify him does not vitiate her testimony as to his identity. The hesitancy of a witness in identifying a defendant is a matter for consideration of the jury in passing upon the weight of such testimony. . . ."

Insofar as the State's case is dependent upon the testimony of Josephine Harrison, instead of having her testimony on the last trial as it was on the other two trials, we have it in the hypothesis stated in Gholston, supra :

"If the witness had testified that neither of the persons she saw running from the cab toward the house of Sue Hamm was defendant, if her testimony were blank on the question whether defendant was one of such persons, the State's case would fail, even though the State was able to show by the witness that she had made previous statements, some in the form of testimony, wherein she positively identified defendant as one of the persons. . . ."

To uphold the verdict there must be substantive evidence of defendant's guilt. As to this the State relies upon two items of evidence not presented on either of the other two trials: (1) the testimony of one Arthur Burr, as to a statement by Randolph to the effect that he had killed a cab driver and thrown away the knife, and (2) some evidence that defendant had attempted to flee when he saw the police officers who were looking for him about a week after the murder.

To determine whether these two particular items of evidence are sufficient, when considered with the evidence as a whole, to support the conviction, due regard must be had for the general principle that the weight of testimony is for the trier of the facts, not for the court on appeal. On the other hand, attention must be given to whether the particular testimony constitutes substantial evidence of defendant's guilt. There is much to be said on both sides of that issue. We forego a determination of it by reason of the conclusion hereinafter reached which is dispositive of this appeal.

Among the fifty-six written charges requested by defendant and refused by the court were the following:

"5-D. I charge you, ladies and gentlemen, that the evidence which has been received in this case for impeachment purposes, that is, evidence received to show that a witness's previous statements prior to this trial were inconsistent or different from the testimony given by that witness here, can only be used by you to judge the credibility of that witness or his or her testimony given at this witness or his or her testimony given at this trial, and cannot be used by you as substantive evidence of the facts stated on the prior occasion, or to prove or disprove the innocence or guilt of the defendant, Charles Randolph, of the offenses alleged in the indictment.

"6-D. I charge you members of the jury that evidence that the State of Alabama offered at the trial of the case to impeach the testimony given by Josephine Nance (sic) and any other witness sought to be impeached by prior inconsistent statements, cannot in any manner be considered by you as tending to prove the guilt of the defendant, Charles Randolph, but can only be considered by you in deciding in what weight to give the testimony given in the courtroom by the witness so impeached.

"7-D. I charge you, members of the jury, that statements or testimony received into evidence during a trial which were admitted to show that a witness had made previous statements inconsistent with that he or she made from the witness stand in this trial, or in other words, impeachments evidence, is not usable by the State as substantive evidence of the facts stated in the previous statements."

In its oral charge to the jury, the court said:

"Now, there has been testimony in this case, Ladies and Gentlemen, and evidence offered in the nature of impeachment. That is, testimony offered to show that some witness or witnesses have made a different statement or a prior inconsistent statement than that testified by the witness from the stand. Statements previously made by the witness or a witness given before a Grand Jury or at a preliminary hearing or to other persons that differed from that they testified from the stand. And you are authorized, Ladies and Gentlemen, to take this testimony in considering what weight you will give to the testimony of that particular witness. It was admitted for your consideration for this limited purpose on the question of credibility."

Nothing further on the question of the effect of such impeaching testimony was stated by the court until after the case was submitted to the jury and the jury had deliberated thereon for about an hour and a half, at which time it was reported that the jury desired further instruction. The jury was called back into the courtroom and the following occurred:

"THE COURT: Ladies and Gentlemen, you have a note here asking for certain for the Court to go back over some of the matters that were covered yesterday by the Court in the Oral Charge concerning burden of proof and reasonable doubt and the impeachment testimony and alibi and then you asked for some testimony to be read. . . ."

Thereupon, as shown by six pages of the transcript, the court charged the jury orally as to the matters about which inquiry had been made, which included the following as to testimony in the nature of impeachment testimony:

"And you were told also, Ladies and Gentlemen, that some testimony was presented in the nature of impeachment and that you were authorized to take that...