St. John v. State

• Decision Date: 29 December 1987
• Docket Number: 5 Div. 246
• Parties: Richard Acton ST. JOHN v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 521

523 So.2d 521

Richard Acton ST. JOHN v. STATE.

5 Div. 246.

Court of Criminal Appeals of Alabama.

Dec. 29, 1987.

Rehearing Denied Feb. 18, 1988.

Certiorari Denied April 22, 1988

Alabama Supreme Court 87-660.

Donald R. Cleveland, West Point, Ga., for appellant.

Don Siegelman, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for appellee.

TAYLOR, Judge.

The appellant, Richard Acton St. John, was convicted of shooting a firearm into an occupied vehicle, in violation of § 13A-11-61, Code of Alabama 1975. He received a split sentence of 10 years, with 6 months' imprisonment in the county jail and the balance to be served on probation.

The evidence presented by the State tended to show that on May 17, 1986, Timothy Sims picked up his uncle's 1967 Chevrolet Chevelle automobile around 1:30 that afternoon to do some repair work on it. To determine what work was necessary, he had to take the car out for a drive. Sims's cousin, Byron Ford, went along on this drive. During this drive, they passed by appellant's house, proceeded 150 yards down the road to a race track, turned around, and drove the car back to Sims's shop for repairs. Among the deficiencies noticed was that the car lacked a muffler, and thus, was rather noisy.

Sims finished the repairs around 5:00 o'clock that afternoon, and decided to take the car back out for a test drive. He took his cousin and two friends along with him. Sims again drove past appellant's house on the road to the race track. On his way past appellant's house, all of the vehicle's occupants noticed appellant standing out in his yard with a rifle, but thought nothing of it. Sims drove down to the race track, turned around, and headed back past appellant's house. He had started to accelerate and change gears when he saw a puff of smoke from appellant's gun. He saw another puff, then the car windshield cracked. Realizing that the appellant was shooting at them, the occupants all ducked down into the car and Sims drove away as quickly as possible. Upon arriving back at his home, Sims reported what had happened to his parents, who in turn called the Sheriff's Department and reported the incident.

Mike Boyd, an investigator with the Chambers County Sheriff's Department, went to appellant's house on the night of the shooting. When Boyd arrived, appellant was standing in the front yard wearing a .357 Magnum revolver in a shoulder holster. He told appellant to put his hands up, whereupon appellant stated, "You're not going to have any trouble out of me." Boyd walked over and removed the gun from appellant's holster. Appellant then stated, "That's not what I shot at them with," and "The 30.06 is in the house." Both of these statements were uttered spontaneously, as Boyd had not asked appellant any questions at all.

By this time another law enforcement official arrived, and placed appellant under arrest. Appellant's wife then took Investigator Boyd into the house and showed him where the 30.06 rifle was located. Boyd picked up the rifle and one live round of ammunition lying next to it, took it to the Sheriff's Department, and turned it over to Deputy Howard Carlton.

Appellant testified that in the past, automobiles had gone by his house at high rates of speed. He admitted that he aimed his gun and fired at the car, but stated that he never meant to hit anyone. Appellant also admitted calling the Sheriff's Department and complaining about speeding vehicles going by his house, but denied that he called the Sheriff's Department with threats to kill the person driving in front of his house.

In rebuttal, the State called Chief Deputy Greg Lovelace, who testified that he had talked to appellant numerous times over the past few months regarding his complaints about speeding cars driving past his house. Lovelace further testified that approximately two weeks before the shooting, appellant called and complained about a race car running up and down the road in front of his house. Appellant told Lovelace, "If someone doesn't get up here within the next few minutes, I'm just going to blow the son-of-a-bitch out of the road."

I

Appellant first contends that the trial court erred in denying his motion for a mistrial on the grounds that the prejudicial effect of testimony concerning a phone conversation could not be erased from the minds of the jurors.

"A motion for a mistrial implies a miscarriage of justice and should only be granted where it is apparent that justice cannot be afforded. Young v. State, 416 So.2d 1109 (Ala.Cr.App.1982). A trial judge is allowed broad discretion in determining whether a mistrial should be declared, because he is in the best position to observe the scenario, to determine its effect upon the jury, and to determine whether the mistrial should be granted. Woods v. State, 367 So.2d 982 (Ala.1978); Duncan v. City of Birmingham, 384 So.2d 1232 (Ala.Cr.App.1980); Wadsworth v. State, 439 So.2d 790 (Ala.Cr.App.1983), cert. denied, Wadsworth v. Alabama, U.S. , 104 S.Ct. 1716, 80 L.Ed.2d 188 (1984).

"The granting of a mistrial is an extreme measure, and a mistrial should be denied where the prejudicial qualities of the comment can be eradicated by the action of the trial court. Young, supra, Dickey v. State, 390 So.2d 1177 (Ala.Cr.App.), cert. denied, 390 So.2d 1178 (Ala.1980)."

Dixon v. State, 476 So.2d 1236, 1240 (Ala.Cr.App.1985).

The record reveals that Chambers County Jailer Bill Smith testified that someone identifying himself as the appellant called the sheriff's office and threatened to kill the people riding up and down the road in front of his house. When the trial court determined that Smith could not testify with certainty that the caller was indeed the appellant, the court sustained defense counsel's objection and promptly instructed the jurors to totally disregard the testimony concerning the telephone call.

We, therefore, hold that any prejudice suffered by the appellant as a result of the jailer's testimony was erased by the curative instructions of the trial court.

"There is a prima facie presumption against error where the trial court immediately charges the jury to disregard the improper remarks or answers. Wadsworth, supra; Kelley v. State, 405 So.2d 728 (Ala.Cr.App.), cert. denied, 405 So.2d 731 (Ala.1981); Chambers v. State, 382 So.2d 632 (Ala.1980). Therefore, the trial court did not err in refusing the appellant's motion for mistrial."

Moreover, the later admission of similar evidence establishing prior threats by appellant renders any error with regard to the jailer's testimony harmless.

II

Appellant next contends that the trial court erred in allowing the jury to consider the testimony of Chief Deputy Greg Lovelace.

While on the stand, Lovelace testified that appellant had called the sheriff's office approximately two weeks before the shooting and said: "If someone doesn't get up here within the next few minutes, I'm just going to blow the son-of-a-bitch out of the road." At the end of that statement, defense counsel objected, but failed to state any grounds for his objection.

Appellant's contention that the trial court erred by admitting Lovelace's testimony concerning the telephone conversation because the caller had not been identified is without merit.

As previously mentioned, an attempt was made by the State during its case-in-chief to introduce testimony concerning threats made by appellant during phone calls to the sheriff's office. This effort failed because the witness could not positively identify the caller as the appellant. The State then rested its case. As part of the defense, the appellant took the stand to testify in his own behalf. He readily admitted making numerous phone calls to the Sheriff's Department over the past few months to complain about cars speeding up and down the road in front of his house. Appellant's admission thus "opened the door" for the State to inquire further into the content of the telephone calls.

"[W]hen one party brings out part of a transaction or conversation, the other party may inquire further into the matter or bring out the whole subject for further examination. Logan v. State, 291 Ala. 497, 282 So.2d 898 (1983); Hocutt v. State, 344 So.2d 194 (Ala.Crim.App.1977). This proposition of law, also known as the 'rule of completeness,' 7 Wigmore, Evidence §§ 2094-2125 (3d ed. 1940), serves the purpose of allowing a party to explain or rebut adverse inferences which might arise from the fragmentary or incomplete character of the evidence introduced by his adversary. See generally 22A C.J.S. Criminal Law § 660 (1961) and the cases cited therein."

Ex parte Tucker [v. State], 474 So.2d 134, 135 (Ala.1985). Moreover, appellant's admission that he had called the sheriff's office numerous times to complain about speeding cars in front of his house, coupled with Deputy Lovelace's testimony that he had received numerous complaints over the past few months regarding speeding cars on the road in front of appellant's house from the same person and that the person identified himself as the appellant, supplied sufficient evidence to identify the speaker as the appellant. See 7 Wigmore, Evidence § 2155 (Chadbourn rev. 1978); State v. Richards, 294 N.C. 474, 242 S.E.2d 844 (1978) (circumstantial evidence was sufficient to identify the caller, including evidence that same person had made calls over a six-month period and had identified himself as the accused). Therefore, the trial court was correct in allowing the voice identification and the subsequent telephone conversation to be admitted into evidence.

III

Appellant further contends that it was error for the trial court to admit into evidence certain spontaneous statements he made to Investigator Boyd before Boyd had the opportunity to advise him of his Miranda rights.

Certain voluntary oral statements are exceptions to the Miranda requirements. Included among these are spontaneous statements. Smith v. State, 489 So.2d 638, 640 (Ala.Cr.Ap...