Suggs v. State, 7 Div. 670

• Decision Date: 05 May 1981
• Docket Number: 7 Div. 670
• Citation: 403 So.2d 309
• Parties: Ernest Donald SUGGS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 309

403 So.2d 309

Ernest Donald SUGGS v. STATE.

7 Div. 670.

Court of Criminal Appeals of Alabama.

May 5, 1981.

Rehearing Denied June 23, 1981.

Russell T. McDonald of McDonald, Brown & Tipler, Birmingham, and Robert B. Propst of Wilson, Propst, Isom, Jackson, Bailey & Bolt, Anniston, for appellant.

Charles A. Graddick, Atty. Gen., and Elizabeth Evans Campbell, Asst. Atty. Gen., for appellee.

HARRIS, Presiding Judge.

Appellant was convicted of murder in the first degree and the jury fixed his punishment at life imprisonment. Throughout the trial proceedings he was represented by retained counsel who represent him on this appeal. At arraignment, in the presence of his attorneys, he pleaded not guilty. After sentence was imposed he gave notice of appeal.

The pertinent facts leading up to the fatal shooting of the deceased are set forth in the opinion in Suggs v. State, 403 So.2d 303, 7 Div. 692, Ala.Cr.App., released this date. In that cause, which grew out of the same incident as the one here under consideration, appellant was convicted of assault with intent to murder the companion of the deceased of the same incident. For a more definitive statement of the facts involved in the murder conviction reference is made to the opinion involving the assault with intent to murder conviction in which appellant was sentenced to fifteen years imprisonment in the penitentiary and which sentence was made concurrent with the life sentence he received following the murder conviction.

In the murder conviction appellant raised several issues which were not involved in the conviction for assault with intent to murder. Most of these issues were first raised in his motion for a new trial and much evidence was heard in the hearing on that motion. At the conclusion of the hearing on the motion for a new trial the trial court made a written order denying the motion. The order reads as follows:

"ORDER: MOTION FOR NEW TRIAL OVERRULED

"State of Alabama ) In The Circuit Court of

Vs. ) Calhoun County, Alabama

Ernest Donald Suggs, ) Case No. CC 78-578

Defendant. )

Filed 7-18-79

ORDER

"The defendant's motion for a new trial, as amended, is submitted on the evidence presented through July 3, 1979, in open court, jury questionnaires received by the Court outside of presence of Counsel by agreement of Counsel, arguments and briefs of the attorneys and upon consideration thereof the Court finds:

"1. That the evidence and law support the verdict of the jury.

"2. There is no evidence to support the allegation that a juror slept or was inattentive during the trial. The Court, during the course of this trial, also, from time to time, observed the jury and did not observe any juror sleeping or inattentive.

"3. There is no evidence that a juror had resided in Calhoun County for less than the last twelve (12) months.

"4. One juror had been convicted of assault and battery in Calhoun County Court on a warrant sworn out by his wife, the alleged victim. Section 182 of Article VIII of the Constitution of Alabama lists disqualifications from registering and voting, many are violative of the United States Constitution and therefore are invalid. One is assault and battery on a wife. This cannot be considered any longer as a disqualification to register and vote. See Hopson v. Pow, 434 F.Supp. 362.

"5. On voir dire examination of the jury by the State of Alabama the venire was asked whether any jurors 'had ever been associated or connected with anyone that had been involved in a criminal case.' One juror's son was involved in a 'hub cap' case which was more than ten (10) years ago but he did not respond to the question. The Court considers this remote and no prejudice to the defendant has been shown.

"6. The Court qualified the venire by asking the following question: 'Has anyone of you ever lost the right to vote as a result of conviction of a crime involving moral turpitude? Moral turpitude generally means a crime punishable by imprisonment in the state penitentiary, but includes any crime contrary to honesty, justice, and good morals.' No juror responded to this question. One juror, who served on this case, in 1977, has been convicted of petit larceny in the Recorder's Court of the City of Anniston. It has long been held that convictions in Municipal or Recorder's Courts are not crimes involving moral turpitude.

Norris v. State, 229 Ala. 226, 156 So. 556.

Parker v. State, 280 Ala. 685, 198 So. 261.

Huggins v. State, 271 Ala. 428, 123 So. 911.

"The Recorder's Court of the City of Anniston had only the jurisdiction to enforce its ordinances at the time of the conviction.

"The Court is of the opinion the juror answered the question correctly. He has never been removed from the voting rolls of Calhoun County. This juror and the defendant's father have been acquaintances for more than fifteen years and it is inconceivable this was not known to the defendant and his attorneys prior to trial as defendant's father retained the defendant's counsel. Calhoun County does not have 'secret venires' and the jury list was available to the attorneys at least two weeks prior to trial. No prejudice to the defendant has been shown.

"7. Defendant alleges that a juror was deaf and cannot read or write. This has not been shown by the evidence and in court and on this hearing the juror appears to the Court to have sufficient hearing, reading and writing ability to qualify for jury service.

"8. There is no evidence to support the contention the jury venire was selected or chosen contrary to law. Also, see: Manson v. State, Ala.Cr.App., 349 So.2d 67.

"9. The defendant further claims the Court erred in excluding from the Rule, Mr. Hakes, father of the deceased who sat at the counsel table with the State's attorney during the trial. The assistant District Attorney asked that Mr. Hakes be excused from the Rule which the Court granted. The Court does not find this to be an abuse of discretion and the State is entitled such request. The defendant has failed to show any prejudice in the trial of this case due to Mr. Hakes' presence in the Courtroom nor any abuse of discretion by the Court. It is within the discretion of the Court to excuse a witness from the 'Rule' and consent of the defendant is not necessary. Mr. Hakes only came to tears one time while he was on the witness stand testifying.

"10. During the trial the female companion of deceased, while testifying, became emotionally distressed and Court had to be adjourned for her to regain her composure. She retired to the only witness room and her mother and the mother of the deceased went into said room to comfort her. Part of this occurred in the presence of the Trial Judge. Nothing prejudicial to the defendant has been shown by this event. Defendant has failed to show any prejudice to Defendant or impropriety on the part of any State witness.

"11. Jurors were allowed to separate by agreement with the State and Defendant, which was made in writing prior to trial, and the defendant has not shown any prejudice from this occurrence.

"12. Defendant alleges that it was error to refuse his requested charge # 14 which was marked 'refused' by the Court. The Court is of opinion this charge was adequately covered in its oral charge and by requested charges # 20 and # 21 which were given.

"13. There is no evidence to support the allegation that the Jury Commission of this County systematically excluded persons over sixty-five (65) years of age and the Court has personally seen many jurors over sixty-five (65) years of age in jury panels since the new jury box has been filled under the jury law enacted in May of 1978.

"14. In regard to the twentieth ground of defendant's motion for a new trial the telephone tape of the City of Anniston concerning the day of this incident was reused and not available at the time defendant brought this to the Court's attention. Nothing inculpatory or exculpatory has been alleged or shown to have been on this tape and no prejudice to the defendant has been shown. The weapons turned in to...