Richburg v. State, 6 Div. 820
| Decision Date | 19 July 1983 |
| Docket Number | 6 Div. 820 |
| Parties | Rodney RICHBURG v. STATE. |
| Court | Alabama Court of Criminal Appeals |
James M. Jolly, Birmingham, for appellant.
Charles A. Graddick, Atty. Gen., and James F. Hampton and J. Anthony McLain, Sp. Asst. Attys. Gen., for appellee.
Appellant was convicted by a Jefferson County Jury of the offense of theft of property in the first degree and sentenced to a term of seven years.
The evidence revealed that the sixty-nine year old prosecuting witness, Grace Spano, was the victim of a purse snatching in September of 1980. In addition to her testimony, the State presented Birmingham police officer, Sergeant C.F. Hoehn. The prosecuting witness testified about the incident itself and made an in-court identification of the appellant. Officer Hoehn testified that during his investigation he showed the prosecuting witness several photographs of suspects from which she identified the appellant as being the thief.
On appeal, appellant contends that the evidence was insufficient to support the jury's verdict, and that the trial court erred in overruling appellant's motion to exclude at the close of the State's evidence. Without further comment, we find these contentions are without merit.
Appellant next contends that the trial court erred in overruling appellant's motion for a mistrial based on certain unresponsive statements of the prosecuting witness.
The record reveals the following:
Clearly, a portion of the witness's answer would have been subject to exclusion on proper motion of the defendant. However, no such motion was made. Consequently, any objection was waived. C. Gamble, McElroy's Alabama Evidence, § 121.08 (3d ed. 1977); Ivory v. State, 237 Ala. 344, 186 So. 460 (1939).
We do not find that the unresponsive portion of the witness's answer was so prejudicial to the defendant as to require the granting of defendant's "motion" for mistrial.
With certain recognized exceptions, the granting of a mistrial is a matter within the discretion of the trial court. Duncan v. City of Birmingham, 384 So.2d 1232 (Ala.Cr.App.1980).
Appellant further contends that the trial court erred to reversal by allowing into evidence the group of photographs from which the victim first identified the appellant.
Defendant offered an alibi defense in this case. Consequently, Mrs. Spano's identification of defendant was a material issue in the case because her testimony was all that connected the defendant to the crime. Cross examination of Mrs. Spano attempted to show that her identification of the defendant was based upon insufficient opportunity to view his face and other characteristics. Due to the inference of mistaken identity raised by cross examination, the trial court properly received the evidence of the photographic display to rebut such inference. Carlisle v....
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