Spurgeon v. State, 7 Div. 252
| Decision Date | 01 December 1989 |
| Docket Number | 7 Div. 252 |
| Citation | 560 So.2d 1116 |
| Parties | Jerome Lemon SPURGEON v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Fred W. Teague, Ashville, for appellant.
Don Siegelman, Atty. Gen., and Cecil G. Brendle, Jr., Asst. Atty. Gen., for appellee.
Jerome Lemon Spurgeon was indicted in a three-count indictment for manslaughter, in violation of § 13A-6-3(a)(1), Code of Alabama 1975; for vehicular homicide, in violation of § 32-5A-192, Code of Alabama 1975; and for assault in the second degree in violation of § 13A-6-21, Code of Alabama 1975. The vehicular homicide count was nol prossed and the jury found the appellant guilty of manslaughter and assault in the second degree as charged in the indictment. The appellant was sentenced to 45 years' imprisonment on the manslaughter conviction and to 15 years' imprisonment on the assault conviction, with these sentences to run consecutively.
At approximately 5:30 on the afternoon of April 26, 1988, Mary Louise Thomas was driving behind a black Cougar or Thunderbird on Interstate 759 in Etowah County, Alabama. Thomas followed this car for several miles and she noticed it weaving back and forth across the center line. Kay Brown was also driving behind this car on the day in question. As this car approached a narrow bridge, she saw the car cross the center line into the oncoming traffic's lane and then hit another car.
On the afternoon in question, Dawn Wagnon and Ladd Griffith were driving to the mall when a black car entered their lane of traffic and hit them. Griffith was driving the car and he was killed as a result of the injuries he sustained in the accident. Wagnon suffered a major concussion, lacerations, and a broken nose. She was hospitalized for two days after the accident and underwent surgery twice to repair her nose.
Lee Teague testified that the appellant came to his house about 2:00 p.m. on the day in question and they drank a couple of beers. They then went to a beer store and purchased a half case of beer and went to a friend's house in Boaz where they drank some more beers. After they left Boaz on their way back to Gadsden, the accident happened. The appellant was driving at the time. Teague hit his head on the windshield when the accident occurred. There were four beers left when the accident occurred.
Officer Vance Patton of the Gadsden Police Department investigated the car accident. When he arrived at the scene, he found that the vehicle, in which Griffith and Wagnon had been traveling, was along the roadway. He located the other vehicle down an embankment in a pond approximately 150 yards from the road. As he was walking toward this vehicle, he saw Teague and the appellant walking away from this car. The two were arguing about who was driving the car. Patton noticed Teague had a head injury and the windshield on the passenger side of the car in which he was riding was damaged. While Patton was talking to the appellant, he noticed a strong smell of alcohol coming from the appellant. The appellant's speech was slurred and his eyes were bloodshot. Patton testified that, in his opinion, the appellant was under the influence of alcohol at the time and had had too much to drink to safely operate a vehicle. Patton stated that his investigation indicated that the accident had occurred in Griffith's lane since that was where most of the debris from the accident was located.
The appellant gave a statement to the police. He claimed that Griffith's car was in his (the appellant's) lane of traffic when the accident happened. However, he admitted that he had consumed several beers and some whiskey on the day in question.
The appellant contends his statement should have been suppressed because it was not voluntarily given. The following evidence was adduced at a hearing on the appellant's motion to suppress. Officer Duane Hopper of the Gadsden Police Department testified that the appellant was transported to the city jail shortly after the accident and he was then taken to the hospital for a blood test. At approximately 8:00 p.m., the appellant was returned to the city jail. At this time, Hopper read the appellant his Miranda rights and a waiver of those rights. The appellant indicated to Hopper that he understood his rights and that he wanted to make a statement. However, the appellant refused to sign the waiver.
Officer Jeffery Wright took the appellant's statement. As the appellant told Wright what happened, Wright typed the statement. Wright then read the statement to the appellant and he made any changes which the appellant wanted to make. The appellant then initialed all corrections. The appellant then read the statement and signed it. No threats, promises, hopes of reward or other inducements were made or offered to the appellant in return for his making the statement. The officers stated that, although it was clear that the appellant had been drinking, he clearly understood what was going on during the time he gave his statement.
The appellant testified at the hearing that he doesn't remember the police reading him his rights. He stated that the police kept telling him that he had killed a man. The appellant testified that he told the police that he did not want to make a statement but, when he overheard Lee Teague talking to the officers in another room, the appellant said, The appellant than gave a statement, read it, and signed it. The appellant admitted at the hearing that the substance of the statement in issue was "about correct."
The appellant contends that his statement was not voluntarily given because he did not understand the legal significance of giving this particular statement. He doesn't specifically remember receiving the Miranda warnings and he contends that he only gave a statement to rebut some of the statements he heard Lee Teague make in the next room.
Bush v. State, 523 So.2d 538, 554 (Ala.Crim.App.), cert. denied, (Ala.1988).
Our review of the totality of the circumstances convinces us that the trial judge's decision that the appellant's statement was freely and voluntarily given was not clearly erroneous. The trial judge properly admitted the statement into evidence.
During the direct examination of Officer Patton, he testified that, in his opinion, the appellant was under the influence of alcohol when Patton saw him shortly after the accident occurred. The appellant contends this testimony was inadmissable. Although defense counsel's general objection at trial did not preserve this issue for our review, Johnson v. State, 526 So.2d 34 (Ala.Crim.App.1987), it is clear that this testimony was admissible. See Patterson v. State, 518 So.2d 809 (Ala.Crim.App.1987), cert. denied, (Ala.1988) (non-expert witness may testify as to the apparent intoxication of another at scene of automobile accident); Grimes v. State, 488 So.2d 8 (Ala.Crim.App.), cert. denied, (Ala.1986) (police officer may testify as to the sobriety vel non of an accused); Grimes v. State, 491 So.2d 1053 (Ala.Crim.App.1986). Furthermore, another officer testified, without objection, to this very same matter.
The following occurred during the direct examination of Officer Patton:
The appellant contends that the reference to the blood test was prejudicial because no results of any blood test were ever admitted into evidence. This issue has not been preserved for our review since defense counsel's objection was not specific and it was made after the witness had already answered. Butler v. State, 531 So.2d 52 (Ala.Crim.App.1988).
Defense counsel made several objections during the prosecutor's direct examination of Kay Brown. The following excerpts from the record are relevant to this issue.
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