Seay v. State
| Decision Date | 02 October 1979 |
| Citation | 390 So.2d 7 |
| Parties | Stanley G. SEAY, Jr. v. STATE. 3 Civ. 72. |
| Court | Alabama Court of Criminal Appeals |
Richard H. Sforzini, Jr., of Wood, Minor, Parnell & Sforzini, Montgomery, for appellant.
Charles A. Graddick, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for appellee.
Assault with intent to murder; sentence: twenty years imprisonment.
On the morning of June 23, 1978, Yolanda Bell Moore left home in her automobile en route to school. Following her in a separate automobile were her sisters and an infant niece. All of them were going to stop by the home of Rosebud Hall to leave the baby. As both automobiles pulled out of the driveway, the appellant jumped from behind some bushes beside the road and started firing a shotgun at Yolanda's automobile. When Yolanda passed by, he then started shooting at the other automobile which swerved off the road and wrecked. The appellant immediately jumped into his automobile and gave chase to Yolanda.
Upon arriving at the Hall residence, Yolanda jumped from her automobile and went inside. Within seconds the appellant arrived at Mrs. Hall's and started firing the shotgun at the house. The appellant yelled for Yolanda to come outside and proceeded to break into the house. As he broke into the house, Yolanda and Mrs. Hall escaped to a neighbor's house. At this point in time the police arrived and arrested the appellant.
The evidence for the State was undisputed and sufficient for a conviction. However, we are compelled to reverse and remand the case for a new trial because of evidence illegally admitted during the State's rebuttal portion of the trial.
At the outset we must answer the State's contention that since there was never a ruling on the appellant's motion for a new trial there is nothing for this court to review on appeal.
The appellant filed a timely motion for a new trial, but there was never a ruling by the trial court on the motion. The State submits that where there is no ruling on the motion for new trial the motion is not reviewable on appeal. We agree. A motion for new trial will be considered abandoned where the record reflects no ruling thereon. Bundrick v. State, 263 Ala. 245, 82 So.2d 309 (1955); Bass v. State, 219 Ala. 282, 122 So. 45 (1929). Rule 4(b), Alabama Rules of Appellate Procedure, amended June 8, 1978, states in part that: "When a motion ... for a new trial is abandoned, withdrawn, or discontinued, notice of appeal and all subsequent steps in the appellate procedure shall be treated as if such motion had not been filed." (Emphasis added.) It is incumbent upon a party to see that his motions are ruled upon. Although we cannot review the motion for new trial, the law requires us to rule on other properly preserved errors of record. Section 12-22-240, Code of Ala.1975.
At arraignment on August 21, 1978, the appellant pled not guilty. On September 8, 1978, the appellant amended his not guilty plea by adding the special plea of not guilty by reason of insanity. Also on September 8, the appellant filed a motion to undergo psychiatric examination. The trial judge, on the same day, ordered a sanity investigation of appellant at Bryce Hospital in Tuscaloosa, Alabama, specifically citing §§ 15-16-20 and 15-16-21, Code of Ala.1975, as authority. Those sections set out the procedure for determining a defendant's competency to stand trial. The order stated that the findings should be made in a report in writing to the trial court.
On January 5, 1979, the trial judge was notified in writing by the Forensic Evaluation Board at Bryce Hospital that the appellant was mentally competent to stand trial. On January 17, 1979, the trial court ordered that criminal proceedings against the appellant be resumed.
As the State's evidence against the appellant was sufficient to prove the offense, counsel for appellant concentrated their evidence exclusively on the defense of insanity. Several relatives of the appellant testified as to a long history of problems and strange behavior on the part of the appellant including two previous commitments to mental institutions and a medical discharge from the Marines. All of the relatives expressed their opinion that the appellant was insane.
Dr. Wallace Marshall, a psychiatrist, testified that the appellant suffered from schizophrenic paranoia and that he was definitely insane at the time of the offense and was presently insane at the time of trial. It should be noted that, beginning with the voir dire examination, the trial of this case was marked by repeated outbursts of obscenities, gestures, and irrational behavior on the part of the appellant.
At the conclusion of the evidence for the defense, the State attempted to introduce as rebuttal evidence the entire file of the appellant compiled while he was under the court ordered psychiatric testing at Bryce Hospital. The appellant objected on the grounds that such was hearsay and a denial of his federal and state constitutional right to cross-examine witnesses against him. The trial court did not admit the complete file, but did admit portions of the hospital records dealing with diagnosis. Those records admitted were:
(1) State's Exhibit 37-a letter from the custodian of the records of Bryce Hospital certifying the medical records to be true and correct.
(2) State's Exhibit 38-the findings of the Forensic Evaluation Board of Bryce Hospital that the appellant was mentally competent at the time of the acts charged and that he was mentally competent to stand trial, which in pertinent part states:
(3) State's Exhibit 39-a hospitalization summary of the appellant containing personal data and diagnosis. The top of the sheet was marked "Confidential & Privileged for Professional Use Only Not for Publication Not to be Used Against Patient's Interests."
On a plea of not guilty by reason of insanity, the burden is on the defendant to prove his insanity to the reasonable satisfaction of the jury by a preponderance of the evidence. Christian v. State, Ala., 351 So.2d 623 (1977); § 15-16-2, Code of Ala.1975. In the instant case the defendant introduced substantial evidence of his insanity at the time of commission of the offense charged. The State introduced the above designated hospital records as rebuttal evidence. The State had an opportunity to cross-examine each of the appellant's witnesses concerning the basis for their opinion as...
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Lynn v. State, 4 Div. 183
...that right to include the right to cross-examination. Hembree v. City of Birmingham, 381 So.2d 664 (Ala.Crim.App.1980); Seay v. State, 390 So.2d 7 (Ala.Crim.App.1979), reversed on other grounds, 390 So.2d 11 (Ala.1980), cert. denied, 449 U.S. 1134, 101 S.Ct. 956, 67 L.Ed.2d 121 (1981). Lynn......
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Harris v. State
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Seay v. State
...We reverse. The basic facts involved in this appeal are set forth in the opinion of the Court of Criminal Appeals in Seay v. State, 390 So.2d 7 (Ala.Cr.App.1979). Pursuant to Rule 39(k) of the Alabama Rules of Appellate Procedure, the State as petitioner adds the following additional facts:......
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Garrison v. State, 6 Div. 201
...was available for cross-examination by this defendant." The distinguishing characteristic of this case, as opposed to Seay v. State, 390 So.2d 7 (Ala.Cr.App.1979), relied on by Garrison, is that the opinion or conclusion of the absent doctor was never offered into evidence. Having Dr. Scheu......