Reeves v. State, 7 Div. 826

• Decision Date: 12 April 1988
• Docket Number: 7 Div. 826
• Citation: 530 So.2d 894
• Parties: Russell Junior REEVES v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 894

530 So.2d 894

Russell Junior REEVES v.STATE.

7 Div. 826.

Court of Criminal Appeals of Alabama.

April 12, 1988.

Rehearing Denied May 10, 1988.

Certiorari Denied Aug. 26, 1988

Alabama Supreme Court 87-990.

Jonathan L. Adams, Talladega, for appellant.

Don Siegelman, Atty. Gen., and Jean Alexandra Webb, Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

Russell Junior Reeves was convicted for the murder of Howard Clayton Miller and sentenced to thirty-five years' imprisonment.Five issues are raised on this appeal from that conviction.

I

Reeves contends that Emanuel Denny, David Williams, and Jimmy Williams were his accomplices and that he was entitled to pretrial disclosure of their statements under Rule 18.1(b)(1), A.R.Cr.P.(Temp.).

A.

Initially, it must be noted that "[t]he accused is ordinarily not entitled to pretrial inspection of statements of prosecution witnesses.This rule applies to statements of accomplices and co-defendants."Kennedy v. State, 472 So.2d 1092, 1096(Ala.Cr.App.1984), affirmed, Ex parte Kennedy, 472 So.2d 1106(Ala.1985), cert. denied, Kennedy v. Alabama, 474 U.S. 975, 106 S.Ct. 340, 88 L.Ed.2d 325(1985).Rule 18.1(b) provides: "Upon motion of the defendantthe court shall order the district attorney: (1) To permit the defendant to inspect and copy any written or recorded statements which the state intends to offer in evidence at the trial made by a co-defendant or accomplice to any law enforcement officer, ..."(Emphasis added.)Under Rule 18.1(b), a defendant is only entitled to discover the contents of those statements which were made by a co-defendant or accomplice to any law enforcement officer and which the State intends to offer in evidence at trial.Here, there was no showing that the State intended to call any of the defendant's three companions as a witness, and the State did not in fact do so.

B.

Second, we note that the defendant did not carry his burden of proving that his three companions were actually accomplices.

The defendant filed a pretrial motion requesting that the State produce and disclose "[a]ny written or recorded statements made by a co-defendant or accomplice to any law enforcement officer."This motion was heard by the trial court immediately prior to trial.The defendant requested to examine the statements of Jimmy Williams, David Williams, and Emanuel Denny.The trial court denied this motion stating: "The court has considered the statements in camera and after having considered these statements finds that they are not--that these particular men are not co-conspirators in the case which this court is trying."

The undisputed evidence at trial showed that the defendant, Jimmy Williams, David Williams, and Emanuel Denny had a dispute with Steve Reeves(the defendant's brother), Connie Reeves(his sister), and the victim.Later, the defendant and his three companions attempted to borrow a shotgun from Bill Matson, Jimmy Williams' neighbor.Matson only gave them some shotgun shells.The defendant and his companions then drove by the victim's house, where Steve Reeves and the victim were standing in the front yard.As the car drove by, the defendant climbed out the passenger's window of the car, placed the shotgun across the roof, and fired.The blast struck the victim, knocking him over Steve Reeves.The four men in the car were arrested later that night at the Williams home.The State did not call any of the defendant's companions to testify.

David Williams testified as a defense witness.He stated that he never saw the defendant load the shotgun, which belonged to the defendant, and nothing was said about shooting anyone.Williams testified that they did not think the victim would be at his house and "nobody talked about what was going to happen."He stated that he thought the defendant"was going to shoot up in the air."

The defendant testified in his own behalf.He admitted shooting the shotgun but claimed that he"didn't know it was loaded, or nothing, and [he] just shot."He stated that there was no prior conversation about shooting the gun, and that Jimmy Williams did not tell him to shoot the victim.

After the defendant had been excused from the witness stand, defense counsel"renewed" his motion to produce, claiming that evidence elicited during the prosecutor's cross-examination of David Williams showed that the defendant's three companions were actually his accomplices.That evidence was that all four men talked about getting a shotgun and going target shooting, that immediately after the defendant fired Denny said "one of them had been hit," and that after the shooting all four men went to the Williams residence and planned to tell the police that they had been there drinking that day and had never left.

The district attorney argued that, since there was no evidence that any of the defendant's companions was an accomplice, the defendant was not entitled to see their statements.However, at the conclusion of his comments, the prosecutor stated, "I will be glad, if Your Honor thinks it's safer just for the record, I will be glad to do it; but there's no evidence before this Court that anybody in that car was a co-conspirator in the murder."Then the following occurred:

"THE COURT: Are you going to call a witness at this time?

"MR. ADAMS [Defense Counsel]: No, Your Honor.Other than we would like to renew our motion to exclude the State's evidence.Other than that, we rest.

"MR. RUMSEY [District Attorney]: I'll be glad to give him the statements.That's what I just said for the record.I don't want anything messed up in the record.He makes a motion for the statements and then he rests.

"THE COURT: Go ahead if you've got them.The Court has looked at them.

"MR. KING [Assistant District Attorney]: Which ones is he asking for, Judge?

"THE COURT: Which ones do you want, Mr. Adams?

"MR. ADAMS: Emanuel Denny.

"MR. RUMSEY: Here it is.I've only got the original.

"THE COURT: Do you have anything further, Mr. Adams?

"MR. ADAMS: No.I would like for the Court to make those statements part of the file, and if they are needed for appeal they would be sealed and go down as an in camera inspection.

"MR. KING: Which statements are you talking about?

"MR. ADAMS: All statements.All the ones you viewed in camera I would like to be made a part of the file and just sealed; and if it goes to the effect that the defendant is ultimately convicted, made a part of the record and would go down with the record.With that, we rest.

"THE COURT: Any response?

"MR. RUMSEY: Yes, sir, we have a witness coming.

"THE COURT: I mean to this motion.

"MR. RUMSEY: He just got what he wanted and then he called a witness up here.What's he talking about?

"MR. ADAMS: All I would like is if an appeal has to be taken that they just be made a part of the record, that those statements he viewed in camera be sealed and go down with the record.

Judge, we contended from the first that we were relying on them being statements of accomplices; and you ruled that they weren't.

"MR. RUMSEY: I beg your pardon.He ruled at that time that they were not.

"MR. ADAMS: They were not available to us; you inspected them.

"THE COURT: I'll take your motion under advisement and rule on it accordingly.

"MR. ADAMS: With that, we rest."

The statements of the defendant's three companions are not contained in the record on appeal.The record contains no ruling of the trial court on the defendant's motion that the statements be included in the record.There is nothing to indicate that the trial court refused, rather than simply failed, to rule.SeeBoykin v. State, 398 So.2d 766, 768(Ala.Cr.App.), cert. denied, Ex parte Boykin, 398 So.2d 771(Ala.1981).Whorton v. State, 422 So.2d 812, 813(Ala.Cr.App.1982)("In the absence of a ruling, a request for a ruling, or an objection to the court's failure to rule, we have nothing to review.").The defendant has filed no motion to correct the record.Rule 10, A.R.A.P.

"Appellant bears the burden of bringing the record before an appellate court.He and his counsel have the duty of checking the record before submitting the appeal.It is their duty to file a correct record."Harris v. State, 420 So.2d 812, 816(Ala.Cr.App.1982)(citations omitted)."Rule 10(f),Alabama Rules of Appellate Procedure ... specifically authorizes the correction of an omission from the record."Pope v. State, 387 So.2d 300, 301(Ala.Cr.App.1980).See alsoWeaver v. State, 401 So.2d 344, 348(Ala.Cr.App.1981)."Since the rule has not been invoked to supply the complained of omission, there is nothing for this Court to review."Welch v. State, 455 So.2d 299, 300(Ala.Cr.App.1984).

"[I]n the absence of the evidence and proceedings on the trial, all presumptions must be indulged in favor of the trial court.Error cannot be presumed."Thomas v. State, 231 Ala. 606, 607, 165 So. 833, 834(1936)."When there is no showing to the contrary, the presumption is always in favor of correct action on the part of the trial judge."Ballard v. State, 236 Ala. 541, 542, 184 So. 260, 261(1938)."It is also the well established rule that doubtful recitals must be construed most strongly against the excepter....Appellant has the burden of showing reversible error, and error must affirmatively appear."Id."Substantial error is not presumed, but the burden is upon the appellant to show error."Edwards v. State, 274 Ala. 569, 570, 150 So.2d 710, 711(1963)."A reviewing court cannot predicate error on matters not shown by the record.Indeed, a silent record supports a judgment.It is the appellant's duty to file a correct record."Robinson v. State, 444 So.2d 884, 885(Ala.1983)(citations omitted).

The evidence that is contained in the record disputes the defendant's contention that his companions were his accomplices.Indeed, the defendant himself testified that no murder was planned and that he never intended to kill anyone.

"[K]ey elements of accomplice liability are...