Smith v. State

• Decision Date: 28 May 1999
• Citation: 745 So.2d 922
• Parties: Brian Andre SMITH v. STATE.
• Court: Alabama Court of Criminal Appeals

745 So.2d 922

Brian Andre SMITH v. STATE.

CR-97-0005.

Court of Criminal Appeals of Alabama.

May 28, 1999.

Rehearing Denied July 9, 1999.

Certiorari Denied October 15, 1999.

John E. Medaris, Pelham; and W. David Nichols, Birmingham, for appellant.

Bill Pryor, atty. gen., and Cedric B. Colvin, asst. atty. gen., for appellee.

Alabama Supreme Court 1981770.

LONG, Presiding Judge.

The appellant, Brian Andre Smith, was convicted of capital murder, see § 13A-5-40(a)(18), Ala.Code 1975, and of attempted murder. He was sentenced to life in prison without parole. This opinion consolidates the issues raised by the appellant on direct appeal and on appeal from the trial court's denial of his Rule 32 petition for postconviction relief.

A review of the record reveals the following facts. On October 14, 1994, Quincy Smith and Jesse Binon were shot with a.25 caliber pistol while standing on a street corner in Clanton. Smith was pronounced dead at the scene; Binon suffered severe abdominal injuries, but survived. From the record, it appears that Chilton County High School hosted a football game against Jemison High School on the night of the shooting. At the game, several boys from Jemison began fighting with several boys from Clanton. Involved in the altercation were the appellant, Anthony Ford, and Charles Melton (all from Jemison), and Sadaka Davis, Anthony Looney, Bernard Jemison, and Quincy Smith (all from Clanton). The Jemison boys fled after the fight in a white Geo Prism automobile, owned and driven by the appellant's sister. As they were leaving, the appellant stated, "We'll be back." (R. 581.)

Later that night, six boys from Clanton were on a street corner in Clanton's West End; these boys included Davis, Looney, Jemison, Charles Cottrell, and the two victims —Quincy Smith and Jesse Binon. As the six boys were standing on the corner talking, the Prism drove up, followed by two other cars. Davis, Looney, Jemison, and Binon testified that the appellant was leaning out of the passenger-side window of the Prism, pointing a small caliber handgun at the crowd. Davis and Jemison testified that the gun was a .25 caliber pistol; Binon and Looney were unsure of the caliber. When gunfire erupted, five of the six boys began to run. Binon testified that he looked directly at the appellant in the car and said, "Hold up," in the hope that the appellant would not shoot. (R. 788.) Binon stated that he then saw flashes coming from the appellant's hand, but he could not positively state that the bullet that hit him came from the appellant's gun.

In addition to Binon, Jemison, Looney, and Davis, the state called two other eyewitnesses to the shooting: Charles Melton, who was a passenger in the third car behind the Prism at the time of the shooting, and Kevin Nunn, who was driving the car immediately behind the Prism. Melton testified that he heard four or five gunshots, but that he did not see who did the shooting; he saw only the boys on the corner running away. Nunn testified that he saw someone hanging out of the passenger-side window of the Prism, but he could not identify who it was. He also testified that he never saw a gun, but that he did hear several gunshots. Five of the six eyewitnesses testified that the only gunshots they heard were from a small handgun, while Jemison testified that he heard not only pistol shots, but also shotgun shots. Melton, Nunn, Binon, Jemison, Looney, and Davis all testified that the only gunfire came from inside the Prism and that the boys standing on the corner were not shooting back.

It was undisputed that the appellant, the appellant's sister, and Terrance Lee were in the Prism on the night of the shooting. However, the testimony was conflicting as to the identity of the fourth passenger. Nunn testified that the fourth passenger in the Prism was Darian Ellis. Melton, on the other hand, testified that Robert Davis was the other passenger. The evidence was equally unclear as to who was sitting in what position in the Prism at the time of the shooting. According to Melton, the appellant was in the backseat with Terrance Lee, while Robert Davis was in the front passenger seat. Jemison also testified that the appellant was in the backseat. However, according to Sadaka Davis, Binon, and Looney, the appellant was in the front passenger seat.

As part of its case-in-chief, the state introduced several pieces of evidence, including a .25 caliber Lorcin pistol, a Winchester shotgun, two spent shotgun shells found five blocks from the shooting, and three spent pistol cartridges found at the scene. All of these items were introduced over defense objections. The state called several witnesses to verify the chain of custody of the items, including Ray Mann, an officer with the Clanton Police Department, who was in charge of the investigation. In addition, the state called Joseph Saloom, a firearms expert with the Alabama Department of Forensic Sciences. Saloom testified that the .25 caliber pistol introduced by the state was the murder weapon. He stated that the bullet taken from the body of Quincy Smith and the bullet removed from Jesse Binon had both been fired from the pistol. However, he could not verify that the spent cartridges found at the scene had been fired from the pistol. No fingerprints were found on the pistol.

I.

Issues on Direct Appeal

A.

The appellant contends that the trial court violated his constitutional rights when it refused to allow him to call witnesses on his behalf at the preliminary hearing.

Although it is clear from the record that a preliminary hearing was held, the record contains no transcript of that hearing. "An appellate court is `bound by what appears in the record before [it]. The 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 corrected record.'"'" Ingram v. State, 629 So.2d 800, 804 (Ala.Cr.App.1993), quoting Jordan v. State, 607 So.2d 333, 335 (Ala.Cr.App. 1992) (citations omitted). We will not predicate error on a silent record.

However, even if the record were complete and we could properly review this issue, we would decide it adversely to the appellant. "`Constitutionally, a preliminary hearing is not necessary to satisfy the requisites of due process.'" Herriman v. State, 504 So.2d 353, 357 (Ala.Cr. App.1987), quoting Duncan v. State, 369 So.2d 885, 887 (Ala.Cr.App.1979). Furthermore, after indictment, "no reversible error ... can be predicated on the denial of a preliminary hearing." Goodwin v. State, 495 So.2d 731, 732 (Ala.Cr.App. 1986). Therefore, the trial court's refusal, if any, to allow the appellant to call witnesses at the preliminary hearing was not reversible error.

B.

The appellant contends (issues two and three in his brief) that the trial court erred to reversal in admitting into evidence the.25 caliber Lorcin pistol identified as the murder weapon and the Winchester shotgun found pursuant to a search warrant executed at the home of Robert Davis, the alleged fourth passenger in the Prism on the night of the shooting. He advances substantially the same arguments as to the admission of both guns.

First, the appellant argues that the state failed to connect him to either the pistol or the shotgun. Specifically, he claims that without such a connection, there was no evidentiary foundation for admission of the guns at trial. We disagree.

"`Before the admission of demonstrative evidence at a trial, such evidence must be identified. The testimony can be visual, that is, by testimony at the trial that the object displayed is the one related to the case. For admission, it suffices if the evidence establishes that it is more probable than not that the object is connected with the case. A preponderance of the evidence is sufficient.'"

Mims v. State, 591 So.2d 120, 124 (Ala.Cr. App.1991), quoting State v. Nelson, 261 La. 153, 164-68, 259 So.2d 46, 51-52 (1972). The pistol and the shotgun were both identified by Joseph Saloom, the state's firearm expert. Saloom testified that the bullet removed from Quincy Smith's body and the bullet removed from Jesse Binon were both fired from the .25 caliber Lorcin pistol, thus identifying the pistol as the weapon used in the crime. In addition, Saloom testified that the two shotgun shells found five blocks from the scene of the crime had been fired from the Winchester shotgun admitted into evidence. This, combined with the testimony that a shotgun was fired during the drive-by shooting the appellant was involved in, made it more probable than not that the shotgun was also connected to the incident. Thus, a proper foundation was laid for the admission into evidence of both guns. Whether those guns were connected to the appellant was a question of the weight and credibility of the evidence, not its admissibility.

The appellant contends that, even if a proper foundation was laid, the guns were irrelevant and had no probative value because they had no connection to him. "`Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Rule 401, Ala.R.Evid. "In order to be admissible under Alabama law, evidence must merely have `any probative value, however slight, upon a matter in the case.'" Tankersley v. State, 724 So.2d 557, 562 (Ala.Cr.App.1998), quoting C. Gamble, McElroy's Alabama Evidence, § 21.01(1) (5th ed.1996). There was evidence elicited at trial that the appellant aimed a .25 caliber pistol at the boys on the corner just seconds before the shooting. In addition, Saloom's testimony that the .25 caliber Lorcin pistol was the murder weapon was undisputed. This evidence was probative as to the question of the appellant's guilt. The pistol was therefore "of consequence" to a material fact in the case...