Reynolds v. State

• Decision Date: 29 March 1977
• Docket Number: 4 Div. 520
• Citation: 346 So.2d 979
• Parties: Rosie Lee REYNOLDS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 979

346 So.2d 979

Rosie Lee REYNOLDS v. STATE.

4 Div. 520.

Court of Criminal Appeals of Alabama.

March 29, 1977.

Rehearing Denied May 3, 1977.

Harry D. Raymon, Tuskegee, for appellant.

William J. Baxley, Atty. Gen., and Eugenia D. B. Hofammann, Asst. Atty. Gen., for the State, appellee.

BOWEN, Judge.

The appellant was indicted by a grand jury of Bullock County, Alabama, for the first degree murder of Rufus Pickett "by shooting him with a gun or pistol". A jury found the appellant guilty of murder in the second degree and set her punishment at twenty years in the state penitentiary. Accordingly, the trial court entered judgment and sentence. Following conviction and notice of appeal, the trial court determined the appellant to be indigent and appointed her privately retained trial counsel to represent her on appeal.

The evidence presented at trial showed that the deceased, Rufus Pickett, was a "friend" and one-time companion of the appellant and the father of one of her two children. In March of 1976, Mr. Pickett came to the appellant's home in Fitzpatrick, Alabama, and requested that the appellant return a television set which, according to the appellant, he had given her as a present several months earlier. The appellant told him that he wasn't going to get the T.V. and an argument ensued. During the course of this argument Mr. Pickett pushed the appellant onto a sofa and twisted her arm.

Pickett grabbed the television and ran out of the house. The appellant ran after him carrying a .22 caliber rifle which she retrieved from one of the bedrooms. Pickett ran around the house three times and then headed for the pasture laughing all the while. However, the appellant had been running after Pickett "trying to make him to put the television set back in the house". Before Pickett had gone more than one hundred yards out into the pasture the appellant fired. Pickett turned and fell, telling the appellant that she had shot him.

Pickett's body was found by the sheriff who observed the appellant leaning over the body and a rifle and television set lying nearby. A deputy coroner testified that death resulted from severe hemorrhage caused by a gunshot wound in the back.

I

The appellant complains of several errors committed by the trial court upon which this case must be reversed. Initially, the appellant contends that it was error to allow the deputy coroner to testify as to his opinion regarding cause of death without being qualified as an expert.

It is true, as asserted by the appellant, that the mere fact that a person holds the office of coroner does not qualify him to express an opinion as to the cause of death, nor is he considered an expert witness unless shown to be qualified by training and experience. Carter v. State, 53 Ala.App. 248, 298 So.2d 668 (1974); Smith v. State, 282 Ala. 268, 210 So.2d 826 (1968); Jones v. State, 53 Ala.App. 542, 302 So.2d 126 (1974); Page v. State, 41 Ala.App. 153, 130 So.2d 220, cert. denied, 273 Ala. 5, 130 So.2d 227 (1961).

The general rule is that the competence of an expert witness to testify is an inquiry substantially within the discretion of the trial judge. This court, on appeal, will not disturb the trial judge's determination of expert qualifications unless there is a clear abuse of this discretion. Cobb v. State, 50 Ala.App. 707, 282 So.2d 327 (1973); Luckie v. State, 55 Ala.App. 642, 318 So.2d 337, cert. denied, 294 Ala. 764, 318 So.2d 341 (1975).

A deputy coroner may render an opinion as to the cause of death where it is shown by preliminary examination that he is qualified by knowledge and experience to give such an opinion. Snow v. State, 50 Ala.App. 381, 279 So.2d 552 (1973); Willingham v. State, 50 Ala.App. 363, 279 So.2d 534 (1973); Hicks v. State, 247 Ala. 439, 25 So.2d 139 (1946). The criterion for the admission of expert testimony is that the witness, by study, practice, experience, or observation as to the particular subject, should have acquired a knowledge beyond that of the ordinary witness. White v. State, 294 Ala. 265, 314 So.2d 857 (1975). The record before this court indicates that the witness had been a deputy coroner of the county for two years; that he had "observed, as (his) initial duties, bodies"; and that prior to becoming coroner he had had some "education and training on determining cause of death" at Jacksonville State Junior College.

Considering the facts that the appellant admitted chasing the deceased with a rifle and that she "guessed" she shot him, plus her testimony that the deceased told her that she had shot him, we do not think there was error in allowing the deputy coroner to give his opinion as to the cause of death. Ward v. State, 44 Ala.App. 229, 206 So.2d 897 (1966); Alabama Rules of Appellate Procedure, Rule 45. Additionally, the deputy coroner was shown by study and experience, though somewhat minimal, to have acquired a knowledge beyond that of the ordinary layman. Thus we cannot say that the trial judge abused his discretion in allowing him to testify.

II THE CONFESSION

The appellant insists that the trial court committed reversible error in admitting in evidence an extrajudicial confession made by the appellant. It is true than an extrajudicial confession is prima facie involuntary and inadmissible, and the duty rests in the first instance on the trial court to determine whether or not the confession is voluntary and unless it so appears, it should not be admitted. Duncan v. State, 278 Ala. 145, 176 So.2d 840 (1965); Ballard v. State, 51 Ala.App. 393, 286 So.2d 68, cert. denied, 291 Ala. 772, 286 So.2d 72 (1973).

The record reflects that before the confession was admitted, a deputy sheriff testified that he had an occasion to talk to the appellant in the Sheriff's office concerning the shooting; that he did not promise, threaten, or coerce her in any way to make a statement; and that he advised the appellant "of her rights that she could make a statement or not make a statement and have a lawyer". The state then introduced a typewritten form entitled "Waiver Of Counsel By Defendant In Custody" acknowledging that the appellant had been advised of her specific constitutional rights and waived them, had knowingly and intelligently waived her right to counsel, and had knowingly and voluntarily made the statement to the officers. This form was signed by the appellant. No objection was interposed to its admission by counsel for the appellant.

A.

All of the testimony concerning the voluntariness of the confession of the appellant was taken in the presence of the jury. While the proper procedure for determining the admissibility of a proposed confession is for the defense attorney to move to suppress and for the trial court to hold a voir dire examination outside the presence of the jury, the failure to do so in the instant case was not error. Pinto v. Pierce, 389 U.S. 31, 88 S.Ct. 192, 19 L.Ed.2d 31 (1967). Here, as in Taylor v. State, 282 Ala. 567, 213 So.2d 566, cert. denied, 393 U.S. 1102, 89 S.Ct. 903, 21 L.Ed.2d 795 (1968), the question as to the voluntariness of the confession was presented in the presence of the jury. No request was made by appellant's counsel that such hearing be held outside the presence of the jury and there was no contradiction of the testimony adduced in the presence of the jury relative to the voluntariness of the confession. No effort was made by counsel for the appellant to present any witness, the defendant or others, to rebut the testimony presented by the state relative to the voluntariness of the confession. Taylor, supra, 282 Ala. at 571, 213 So.2d 566. There is no reversible error in failing to hear evidence on the voluntariness of the confession outside the presence of the jury where there is no request for a hearing and there is no conflict in evidence as to the voluntariness on the main trial. Vincent v. State, 284 Ala. 242, 224 So.2d 601 (1969); Duncan v. State, 278 Ala. 145, 176 So.2d 840 (1965); Tiner v. State, 279 Ala. 126, 182 So.2d 859 (1966); Freeman v. State, 46 Ala.App. 640, 247 So.2d 682 (1971).

After the state has established prima facie admissibility of a confession by laying the Miranda and pre Miranda predicates, there is no duty on the trial court ex mero motu to withdraw the jury where the accused has not made a motion to do so. Johnson v. State, 56 Ala.App. 627, 324 So.2d 341 (1975); Love v. State, 44 Ala.App. 85, 203 So.2d 140 (1967).

B.

While counsel for the appellant did not object, and specifically so stated, to the introduction of the signed waiver of rights form, he did object to an admission of the actual confession on the grounds that (1) the state did not show when, where and who was present when the confession was given and (2) because the state had failed to prove the corpus delicti of the charged crime. In the brief on appeal, the appellant argues that after the confession was admitted, on cross examination of the deputy sheriff it appeared that someone else was present during the period of time that the appellant was being questioned. The waiver itself affirmatively reflects the fact that another officer was present during the confession as at the end of the waiver appears the following, "Witnessed by: Cpl. A. G. Tew". Under the signature of the appellant Deputy Sheriff Cole signed a statement acknowledging that he had advised and explained the constitutional rights listed on the waiver to the appellant and she had voluntarily waived those rights. Included in the paragraph was the following statement:

"No threats, promises, tricks, or persuasion were employed by me or anyone in my presence to induce him to waive his rights to an attorney and to make a statement without an attorney." (Emphasis added)

Thus under the circumstances of this case, the state presented the proper foundation for the admission of the confession and a proper showing that it was freely and voluntarily given.

C.

Finally, the appellant claims that the...