Reese v. State, 5 Div. 333

• Decision Date: 12 October 1976
• Docket Number: 5 Div. 333
• Citation: 338 So.2d 495
• Parties: Willie Frank REESE v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

Page 495

338 So.2d 495

Willie Frank REESE v. STATE of Alabama.

5 Div. 333.

Court of Criminal Appeals of Alabama.

Oct. 12, 1976.

For Opinion on Rehearing Dec. 6, 1976. See 339 So.2d 1107.

Marlin M. Mooneyham, Montgomery, for appellant.

William J. Baxley, Atty. Gen., and Vanzetta Penn Durant, Asst. Atty. Gen., for the State.

DON P. BENNETT, Circuit Judge.

Willie Frank Reese, indicted April 8, 1975, for robbery, was tried by a jury on April 21, 1975, and convicted; thereby receiving a sentence of ten years in prison. He now appeals from his conviction.

I

The State's essential evidence was the testimony of the victim, Mrs. Ramsey Brown, who identified the Defendant as the one who robbed her at her store on October 10, 1974. Other than the in-court identification, Mrs. Brown had picked out the Defendant's picture from a group of six pictures presented to her the day after the robbery on October 11, 1974. In addition an automobile fitting the description of the one driven away from the scene of the crime was traced to the Defendant.

The Defendant contended that he did not commit the crime, was not at the place of the crime at the time it occurred, that he had never been to the particular locality, and offered testimony other than his own that he was at another place, miles away, at the time the crime allegedly occurred.

II

The defendant argues three main assignments of error. The first derives from a question propounded a character witness for the Defendant, who was also defendant's grandmother. The witness testified to the good character of the Defendant and then the following question was asked by Defendant's attorney:

'Does the fact that you're his grandmother cause you to alter any of your testimony which you've made today?'

The State's objection to the question was sustained and this ruling of the Court constitutes the Defendant's contention of error.

Both the Defendant and the State agree that the landmark case of Starr v. Starr, 293 Ala. 204, 301 So.2d 78, is the latest authority on the subject of allowing a witness to testify to his mental state. The difference of opinion is in application. The Defendant contends that the question is permissible under Starr, and the State, with Considering the decision in the Starr case most favorably for the Defendant here, and assuming that the witness would have answered in the negative (also favorable to the Defendant), the Defendant's case would be strengthened very little and most likely not at all by allowing the question. The witness was in fact the grandmother of the Defendant and to think that the jury might find the witness more credible or less likely to be guilty, if the grandmother is allowed to personally assert that this relationship to the Defendant would not influence her opinion of him, is absolutely absurd. Besides, the question as worded does not make sense. We are assuming something it does not say. The witness, grandmother, has testified that the Defendant has good character. Now the defense asks her if, because she is the Defendant's grandmother, she wishes to alter her testimony. We all have assumed, perhaps, that the Defendant's attorney meant to ask a question similar to the following:

most impressive erudiction, distinguishes the Starr case from the instant case.

Does the fact you're his grandmother cause you to testify as you have? or if you were not his grandmother, would your testimony be the same?

And even if we give the question, as worded, the meaning intended and apply the holding of the Starr case, we believe that the question is still objectionable. In the Starr case, referring to a witness testifying to his mental state, the court stated that a witness could do so, 'provided (italicized) that the testimony is material to the issues in the case'. The witness, grandmother, was allowed to give material testimony which related to the Defendant's good character. The other testimony sought and rejected could hardly be considered material. And the Court goes further to say:

'This is another area where the sound discretion of the trial judge will come into play. Thus we will not review the court's ruling in either admitting or excluding such evidence in the absence of abuse.'

This Court finds no abuse of discretion on the part of the trial judge in rejecting the question. It is also worthy to note that the witness did testify as to her mental state regarding the Defendant. The testimony of his good character is an opinion, which itself is no more or less than an expression of a mental state. The question objected to related to Why the witness (the grandmother) though as she did. Even Starr and later Roynica v. State, 54 Ala.App. 436, 309 So.2d 475, certiorari denied 293 Ala. 772, 309 So.2d 485, does not go that far. In Starr it was a question of an intention to carry out a plan. In Roynica it was whether or not the witness 'noticed' something or other. In neither case, did the court say the witness should be allowed to state Why he or she had such an intention or noticed such and such. The court did hold that a witness could testify as to 'motive', which does get to the 'why' of things. Yet motive we associate with an act rather than a thought. Hence the disallowed question propounded the witness in the instant case would go so far into the workings of the mind that it would be difficult to separate a reasonable mental state from fantasy or surmise. Therefore, the question for the several reasons mentioned was properly refused.

III

The next specification of error presented by the Defendant is founded mostly in the Alabama constitutional provision that an '. . . accused has a right . . . to have compulsory process for obtaining witnesses in his favor; . . .' Alabama Constitution, Article 1, Section 6, Code of Alabama of 1940, Vol. 1, Recompiled 1958 (as amended). The facts relied upon in support of this assignment were elicited at the trial out of the presence and hearing of the jury. Defendant issued a subpoena on the day of the trial for Mr. Ramsey Brown, husband of the robbery victim, Mrs. Ramsey Brown. The Sheriff did not serve the subpoena. The Defendant attempted to show by a witness, Arthur Harris, that within fifteen or twenty minutes after the robbery he appeared at the The Defendant tried two or three times to question Mrs. Brown about what her husband may have told her about his shooting the automobile. Objections by the State initially to these questions were sustained. Eventually, however, the State decided it also wished for Mrs. Brown to answer this question, but the court still would not allow it. The answer to such a question would undoubtedly be hearsay. The court wisely in both instances, Mrs. Brown and Arthur Harris, prohibited such questioning.

scene and that the husband stated to him that he had shot a hole in the robbers' automobile and that the automobile, which he saw, was brown or beige in color. The automobile traced to the Defendant, of course, was white with a black top and did not have a bullet hole in it. The court sustained an objection to the testimony of witness, Harris, in this regard and would not require the Sheriff to bring in Mr. Brown, either by subpoena or attachment. The Court did allow the Sheriff to testify that the witness, Brown, was in a nursing home only three blocks away, but that in his opinion he was neither mentally nor physically competent to testify. The Sheriff was also allowed to testify that on the day of the robbery, the witness was incompetent. Other testimony of the Sheriff was that he had known Mr. Brown all of his life and most recently had seen him within three or four weeks of the trial. It is well established law that upon proper predicate a layman can testify as to his opinion of the mental condition of another at a particular time. For what it was worth the Sheriff's testimony was admissible. Certainly the testimony of the witness, Harris, as to what Mr. Brown told him was hearsay and does not become admissibly by any exception to the rule governing such. It would be a much stronger contention for the Defendant if the Defendant's attorney had attempted to ascertain Mr. Brown's condition far in advance of the trial, either in person or through testimony, expert or otherwise, of someone at the nursing home where Mr. Brown resided. Certainly the defense was aware very early in the proceeding that Mr. Brown arrived at the scene of the robbery within minutes or even seconds after it occurred. It was even known that he shot at the departing automobile. Apparently, however, the defense did nothing to contact Mr. Brown and try to determine what he knew about the case before the day of trial. Even the Sunday afternoon immediately before the day of trial, when the Defendant's attorney learned of Arthur Harris's testimony, was not too late for the attorney to ascertain the condition of the witness, Mr. Brown. The Alabama Constitution states that an accused has the right to compel the attendance of witnesses 'in his favor' at his trial. That the witness, Brown, would testify in the Defendant's favor was not established at all.

The Defendant failed to Timely request the attendance of the witness, Mr. Brown, at the trial and failed either to make a showing that the testimony of the witness would be favorable to the Defendant or that the witness was competent, mentally and physically, to testify. As to the requirement that an attachment or subpoena must be requested in timely fashion, see Forrester v. State, 41 Ala.App. 654, 148 So.2d 251. In view of these omissions the trial court did not err in refusing to require the witness, Mr. Ramsey Brown, to appear in court.

The case of Terry v. State, 120 Ala. 286, 25 So. 176, cited by the State as authority for not requiring a witness to appear upon a showing that the witness is sick is not applicable here. Had the State in the Terry case not stipulated with the defense as to the testimony of the sick witness, it would most...