Smoot v. State

• Decision Date: 28 July 1987
• Docket Number: 3 Div. 606
• Parties: Robert Fuller SMOOT v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 182

520 So.2d 182

Robert Fuller SMOOT v. STATE.

3 Div. 606.

Court of Criminal Appeals of Alabama.

July 28, 1987.

Rehearing Denied Sept. 8, 1987.

Certiorari Denied Feb. 26, 1988

Alabama Supreme Court 86-1596.

John T. Kirk, Montgomery, for appellant.

Don Siegelman, Atty. Gen., and Cecil Brendle, Jr., Asst. Atty. Gen., for appellee.

McMILLAN, Judge.

The appellant, Robert Fuller Smoot, was indicted for the offense of murder and, following a jury trial, was convicted of manslaughter. He was sentenced to eight years' imprisonment.

The appellant had been drinking at Crockmier's restaurant on the afternoon of March 28, 1986. The appellant, on his drive home, struck a child riding a bicycle. The victim, seven-year-old Alex Jackson, Jr., died from irreversible brain damage resulting from the collision.

I

The appellant argues that the State failed to prove a prima facie case against him. According to Section 13A-6-3, Code of Alabama (1975):

"(a) A person commits the crime of manslaughter if:

(1) He recklessly causes the death of another person."

"Recklessly" is defined under § 13A-2-2 as follows:

"A person acts recklessly with respect to result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates a risk but is unaware thereof solely by reason of voluntary intoxication, as defined in subdivision (e)(2) of § 13A-3-2, acts recklessly with respect thereto." (Emphasis added.)

The State presented evidence that the appellant had been drinking prior to the offense. Officer E.E. Howton, who was the first officer to arrive at the scene, testified that he informed Corporal Pierce that he believed that the appellant had been drinking. Howton testified that he "could smell an odor of an alcoholic beverage about [the appellant's] person" and his eyes were bloodshot. Corporal Pierce testified that Officer Howton also advised him that the appellant had stated that he "had had a couple of beers to drink." Corporal Pierce further testified that he could smell an odor "of an alcoholic beverage" about the appellant. The appellant was advised of his rights and placed under arrest for D.U.I. Thereafter, the appellant was taken to the police station, where he was again read his rights and where he signed a "waiver of rights form." A breath test was taken and the appellant registered a blood alcohol level of .168 percent.

An assistant manager at Crockmier's testified that on March 28, he was tending bar. He testified that the appellant was present at the bar for approximately two hours and drank three or four alcoholic drinks known as "screwdrivers."

The State presented evidence that the appellant was speeding through a residential neighborhood when he struck the child. A witness testified that the appellant's car was traveling at a rate of at least five miles per hour over the speed limit. Furthermore, Corporal Pierce testified that on the basis of his previous training and education, and taking into consideration the skid marks left prior to impact, estimated the appellant's speed was approximately 35 miles per hour when the brakes were locked. The speed limit in the neighborhood was 25 miles per hour.

The appellant contends that his speed and his previous alcohol consumption did not cause the victim's death. He argues that evidence was provided to show that the position of the sun might have contributed to the accident. He also argues that the evidence established that the child was riding his bike in the wrong lane of traffic and that the child turned directly in front of the car. However, the record indicates that there was conflicting testimony presented concerning the sun's possible influence in the offense. Also, despite the appellant's apparent argument of "contributory negligence," it is clear that the State proved a prima facie case of manslaughter.

"When a person is under the influence of alcohol, his ability to drive is impaired and his is incapable of driving safely. The person's degree of intoxication is irrelevant. If a person is intoxicated to any degree, his driving capacity is diminished and he is a danger to others who may travel over the public highways. Evans v. State, 389 So.2d 567 (Ala.Crim.App.1980)."

Pace v. City of Montgomery, 455 So.2d 180, 185 (Ala.Cr.App.1984). See also Hanners v. State, 461 So.2d 43 (Ala.Cr.App.1984).

Viewing the evidence in the light most favorable to the State, Gossett v. State, 451 So.2d 437 (Ala.Cr.App.1984), the prosecution sufficiently proved that the appellant recklessly caused the death of Alex Jackson, Jr.

II

The appellant maintains that the trial court committed reversible error in allowing testimony concerning his prior arrests for D.U.I. He argues that the prior incidents were too remote. He also contends that the State failed to adequately prove the convictions under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The record indicates that Officer E.E. Howton testified that he had recognized the appellant because of a prior incident. Officer Howton testified that on August 19, 1985, he had arrested the appellant for D.U.I., following a collision with injuries. Corporal Pierce also testified that he had recognized the appellant from the same prior incident. Officer Frederick Michaud testified that he was an accident investigator on March 29, 1981. He testified that at 7:55 a.m. he observed a vehicle, which was blocking traffic, stopped in the middle of the road. He further testified that the appellant was then arrested for D.U.I.

Lanny Stanford, an Alabama State Trooper, testified that on July 9, 1980, while he was patrolling in Lee County, he clocked a vehicle traveling at 88 miles per hour. State Trooper Stanford determined, after the driver was stopped, that the driver was intoxicated; the driver was arrested for D.U.I. and speeding. State Trooper Stanford further testified that the individual identified himself as Robert Fuller Smoot.

The prior incidents of driving under the influence by the appellant were admissible and were highly relevant to prove the recklessness of the appellant in regard to the probable consequences of his acts. Palmer v. State, 401 So.2d 266, 269 (Ala.Cr.App.1981), cert. denied, Ex parte Palmer, 401 So.2d 270 (Ala.1981), cert. denied, Palmer v. Alabama, 455 U.S. 922, 102 S.Ct. 1280, 71 L.Ed.2d 463 (1982). Prior arrests for driving while intoxicated (one five years and the other two years prior to the offense) were admitted into evidence in Palmer, but there was no indication made to the jury that the defendant was ever convicted of these charges. The same is true of the case at hand. Thus, "the prosecution merely introduced evidence of other acts of driving while intoxicated by the defendant." Id. at 268. In holding that the prior incidents were relevant to prove the reckless indifference of the defendant, this court asserted:

" 'If the accused is charged with a crime that required a prerequisite intent, then prior criminal acts are admissible to show that he had the necessary intent when he committed the now-charged crime. This rule is based upon the theory that, because the unintentional doing of an act is abnormal and unusual, the more a person does other acts similar to the act in question the greater the likelihood that the act in question was not done inadvertently.'

C. Gamble, McElroy's Alabama Evidence, Section 69.01(5)(3d ed. 1977)."

Id. at 269.

This court further determined in Palmer that the two prior incidents were not so remote in time as to affect their admissibility. Moreover, it was determined that their admission was a matter within the sound discretion of the trial judge.

"The question of remote evidence was discussed in Smitherman v. State, 33 Ala.App. 316, 318, 33 So.2d 396 (1948).

" 'Ordinarily, remoteness of time affects the weight and probative value of evidence rather than its admissibility. It rests largely in the enlightened discretion of the court whether or not such proof will be allowed. Remoteness has regard also to factors and considerations other than mere lapse of time. It results therefore that it is practically impossible and not at all accurate to attempt to state a fixed rule or standard with particular reference to the time element. Of course, it can be said with certainty that the tendered evidence must not be so remote in point of time as to be without causal connection or logical relation to the main fact.'

"Remoteness with respect to the admissibility of evidence is a relative idea and varies in its application according to the facts of each case. Dorch v. State, 40 Ala.App. 475, 115 So.2d 287 (1959). See C. Gamble, McElroy's Alabama Evidence, Section 21.01(2) (3d ed. 1977)."

Palmer v. State, at 269.

Furthermore, as in Palmer, the appellant's claim that the prosecutor did not properly prove the prior convictions is without merit, because the transcript "gives absolutely no indication that the jury was ever informed by any means that the defendant had prior convictions" resulting from the prior arrests. Id. at 270.

III

The appellant argues that the trial court erred in permitting evidence of speed based on skid marks to be introduced to show the vehicle's speed at the time of impact. Specifically, the appellant alleges that the use of skid marks was erroneous in that the witness stated that the total skid marks, including the skid marks made after impact, were used to determine speed. The record indicates that Corporal Pierce testified that there were skid marks left prior to impact that measured approximately 26 feet. He then stated that based on his previous training and education, after observing the...