Slinker v. State

• Decision Date: 19 April 1977
• Docket Number: 8 Div. 882
• Citation: 344 So.2d 1264
• Parties: Richard A. SLINKER v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1264

344 So.2d 1264

Richard A. SLINKER v. STATE.

8 Div. 882.

Court of Criminal Appeals of Alabama.

April 19, 1977.

Earl E. Cloud, for Cloud, Berry, Ables, Blanton & Tatum, Huntsville, for appellant.

William J. Baxley, Atty. Gen., and C. Lawson Little, Asst. Atty. Gen., for the State.

BOOKOUT, Judge.

Assault with intent to murder; sentence: fifteen years imprisonment. This appeal arises from a gun fight which occurred in Huntsville in the early morning hours of September 24, 1975. On that occasion, the appellant shot two men, James Moss, Sr., and Steve Kirkland. Moss was killed and Kirkland was wounded. The appellant was convicted of second degree murder for killing Moss. This Court's opinion (by Harris, J.) affirming the murder conviction sets out in great detail the facts surrounding the shooting. See: Slinker v. State, Ala.Cr.App., 342 So.2d 44 (1977). We, therefore, pretermit another discussion of the evidence as presented in the instant trial of the appellant for shooting Kirkland, as the facts are the same in both cases.

I

The appellant contends that the trial court erred in failing to require the District Attorney to produce any information in his possession pertaining to any juror whose name appeared in the venire for the trial of the case. We find no authority for such a contention. There is, however, ample authority for the proposition that, subject to a few narrow exceptions, a prosecutor's work product is not subject to discovery by a defendant. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Giles v. Maryland, 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed. 737 (1967); Goldberg v. United States, 425 U.S. 94, 96 S.Ct. 1338, 47 L.Ed.2d 603 (1976). 'There is no general constitutional right to discovery in a criminal case . . ..' Weatherford v. Bursley (February 22, 1977) --- U.S. ---, 97 S.Ct. 837, 51 L.Ed.2d 30.

II

The appellant argues that the attorneys for the State twice made prejudicial statements in their closing argument. The colloquy surrounding the first statement is as follows:

'MR. LOFTIN: If I said at any time that a pistol was in Mr. Steve Kirkland's pocket, then I made a mistake, because going through the trial twice there has never been but two pistols--

'MR. CLOUD: Now, we object to that, if the Court please as not being a correct statement and we object to that.

'THE COURT: Well, I sustain.

'MR. CLOUD: And we move for a mistrial.

'THE COURT: Denied.

'MR. CLOUD: We except.'

Appellant assigned no specific ground for objection, only that such was 'not a correct statement.' The trial court, nevertheless, sustained the objection. Appellant then moved for a mistrial without assigning any ground at all. The trial court will not be put in error for overruling objections or motions where no specific or proper legal grounds are stated. Generally, specific objections are necessary before the ruling of the trial judge is subject to review. McClary v. State, 291 Ala. 481, 282 So.2d 384 (1973). That is, unless the ground is so obvious that the trial court's failure to act constitutes prejudicial error. Stennett v State, Ala.Cr.App., 340 So.2d 60, reversed and remanded, Ala., 340 So.2d 65 on remandment, Ala.Cr.App.,340 So.2d 67, cert. denied, Ala., 340 So.2d 68 (1976).

We distinguish the circumstances of the instant case from those in Stennett. In that case, there was a clear reference to another crime and another indictment. In the instant case, the reference to two trials was ambiguous and its prejudicial effect was not such that mandate a mistrial. In our opinion, if any error resulted, it would fall within Rule 45, Alabama Rules of Appellate Procedure, as being harmless error. It should likewise be noted that in Stennett, supra, there was a motion for a mistrial setting out specific and detailed grounds, unlike the instant case.

III

The second colloquy containing alleged improper remarks by the prosecutor is as follows:

'MR. SIMPSON: That file right there is public record about this murder and this shooting and he can get it any time he wants to and to come up here and try to--

'MR. CLOUD: If the Court please, we object to that. He has argued that is his work product and has argued it several times.

'THE COURT: Well, I overrule.

'MR. CLOUD: We except.'

The appellant Now contends that the State's attorney deliberately injected a reference to the prior murder trial into the case. However, a reading of the above colloquy reveals that this was not appellant's objection at trial. Specific grounds of objection waive all grounds not specified, and the trial court will not be put in error on grounds not assigned. Rogers v. State, 53 Ala.App. 573, 302 So.2d 547 (1974). We find no error on the part of the trial judge in overruling the appellant's specific objection. The appellant had been attempting to obtain materials from the District Attorney relative to his case, discussed supra, however the District Attorney had argued that such was his work product and not subject to discovery. It appears to us that appellant's instant objection is to the effect that the prosecution had refused him access to their files, but now contends that the files are public record and were open to him at any time. That is the only interpretation that we can place upon the objection due to its ambiguity and lack of specificity. The trial court ruled upon the objection as made during the course of the trial, and the appellant cannot now change the ground for his objection on appeal.

IV

Judge S. A. Watson, Jr., who tried the present case, is the same judge who tried the appellant for the murder of Moss. The appellant apparently after his conviction for second degree murder, requested that Judge Watson recuse himself from the present case. The request was made on March 11, 1976. A hearing was held at which the appellant then requested that Judge Watson not recuse himself. Apparently during this period of time, an article appeared in a Huntsville newspaper which alleged that appellant was involved in a conspiracy to kill not only the trial judge, but also several of the State's witnesses to the gun fight. The appelant, on May 3, 1976, requested Judge Watson by letter not to recuse himself despite the publicity. Then, on May 26, 1976, the appellant requested Judge Watson again to recuse himself because of his failure to answer the appellant's letter of May 3, 1976.

The Canons of Judicial Ethics, adopted by the Alabama Supreme Court effective February 1, 1976, in pertinent part are as follows:

'CANON 3

'A JUDGE SHOULD PERFORM THE DUTIES OF HIS OFFICE IMPARTIALLY AND DILIGENTLY

'C. DISQUALIFICATION.

'(1) A judge should Disqualify himself in a proceeding in which his disqualification is required by law or his impartiality might reasonably be questioned, including but not limited to instances where:

'(a) He has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

'(b) He served as a lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer in the matter, or the judge or such lawyer has been a material witness concerning it.' (Emphasis added.)

The motion to recuse must be addressed to the judge challenged, and his decision will not be reviewed on appeal in the absence of clear evidence of bias. Ex parte White, 53 Ala.App. 377, 300 So.2d 420 (1974) cert. denied 293 Ala. 778, 300 So.2d 439; Ex parte Thompson, 23 Ala.App. 46, 121 So. 429 (1929).

The appellant must present evidence to prove the personal bias of a judge, or else his motion cannot prevail. Johnson v. State, Ala.Cr.App., 335 So.2d 663, at 675 (1976). The failure of a judge to answer a letter sent by a defendant is, of course, no ground whatsoever for recusal. A judge should '. . . neither initiate nor consider ex parte communications concerning a pending or impending proceeding.' Canon 3, A(5), Alabama Canons of Judicial Ethics.

V

The record on appeal contains the appellant's letter of May 3, 1976, to Judge Watson. The appellant contends For the first time on appeal that the court committed reversible error in submitting the letter to the jury.

The record does not reflect that the letter was ever introduced into evidence during the trial on the merits or that it was ever submitted to the jury. From aught that appears in the record, the letter was included in the record as an exhibit in the hearing on the motion to recuse, which took place prior to the trial on the merits of the case. Absent an objection to the introduction or submission of the letter and a ruling thereon by the trial court, we have nothing to review. Review on appeal is limited to matters on which rulings are invoked in the trial court. Frazier v. State, 53 Ala.App. 492, 301 So.2d 256 (1974).

VI

During the voir dire examination of the jury venire, the appellant's counsel attempted to ask the following question:

'Do each of you understand the witnesses for the Defendant are not permitted to be called at the request of the Defendant to testify before the Grand...