Thigpen v. State
| Decision Date | 31 October 1978 |
| Docket Number | 3 Div. 943 |
| Citation | 369 So.2d 291 |
| Parties | Wyzonia THIGPEN v. STATE. |
| Court | Alabama Court of Criminal Appeals |
J. L. Chestnut, Jr. of Chestnut, Sanders & Sanders, Selma, for appellant.
William J. Baxley, Atty. Gen. and J. Anthony McLain, Asst. Atty. Gen., for the State, appellee.
The prosecution in this case was based on an indictment charging defendant with murder in the first degree of Alfred Means by shooting him with a pistol. A jury found her guilty of manslaughter in the first degree and fixed her punishment at imprisonment for ten years. The court sentenced her accordingly.
Defendant was represented on the trial by employed counsel. Upon giving notice of an appeal, the court determined that she was indigent and appointed her trial counsel to represent her on appeal, which he has faithfully done, raising all points, we believe, that can reasonably be presented in favor of appellant.
Our review of the evidence convinces us the evidence was sufficient to support the verdict. Even so, we will briefly state some of the salient facts that are conducive to a better understanding and a correct determination of the issues presented on appeal.
Appellant and deceased were living together in an apartment (also referred to as a house) in a housing project in Fort Deposit. The living together was without restriction or qualification, but each knew that the legal status of husband and wife, either by ceremony or by common law, did not exist, by reason of prior undissolved marriage, or marriages, of deceased. Defendant arranged for the apartment, but she and deceased had previously lived in an old house in Fort Deposit. Living in the same apartment or house with defendant and deceased were defendant's brother and another man.
Between sunset and full night on a Saturday, April 23, 1977, a man by the name of William Crosskey came to the house where defendant and deceased lived, with a supply of beer and wine. A "heap of" people were there at the time. Some of them, including defendant, came outside when Crosskey arrived. Defendant and others went into the house with the beer. As Crosskey was about to leave, he made it known that he couldn't find his car keys. A search was made for the keys. During that time an argument and threats of violence took place between defendant and Alfred Means. There was some evidence to the effect that he threatened to shoot her with a rifle in his possession and she threatened to protect herself with a shot gun in her possession. The particular quarrel subsided; Means went out of the back door with the rifle, and soon thereafter defendant went out of the house to see a neighbor.
The evidence does not show how long defendant was out of the house, but, by the time she returned, those in the house had made effective use of the beer and wine or other intoxicants. Defendant's brother was drunk, or, as she expressed it, was "out of it." Soon after returning, she learned that Means had returned, as she heard him fussing, cursing her and otherwise making a noise in their bedroom. She picked up a .22 caliber pistol that was lying in the lap of a guest and shouted to Means not to come out of the room, that she was going "to shoot down the hall." She shot down the hall, and while she was shooting, Means came out of the room, and then returned to the room. He had been fatally wounded by one of the bullets. According to defendant, she did not know that a bullet had struck Means. Her testimony as to what took place immediately afterwards was as follows:
The first insistence by appellant that prejudicial error was committed is as to action of the court in denying a motion for a mistrial made by defendant during the testimony of S. L. McMeans, a witness for the State, as to a statement he said he had heard defendant make near her house on the morning of the fatal difficulty. The motion for a mistrial and its context were as follows:
On cross-examination of the witness, counsel for defendant on the trial impressively developed the information from the witness that defendant had not stated the name or identity of the threatened victim. Furthermore, counsel for defendant showed that Means was not seen in the neighborhood at the time of the threatening words of defendant. By such cross-examination, defendant's counsel greatly discounted the testimony of the witness purporting to show a threat by defendant to shoot and kill Means. However, during the cross-examination of defendant as a witness on the trial, she was asked about the testimony of S. L. McMeans as to what she had said the morning of the fatal difficulty, and she replied, "No, that's not true." She further said that she was not at the project that morning, and was not out where McMeans testified he saw her any time that afternoon.
In strongly urging that defendant was prejudiced by the testimony of McMeans that he had learned that Alfred Means "had been shot and he was on the critical list," appellant says that such testimony "strongly implied that the deceased, Alfred Means, was the person the defendant was talking about earlier that morning when the said threat was allegedly made." We do not question the apprehension of appellant's counsel as to the testimony. We do not gainsay that there was no possibility that the jury inferred from the testimony excluded that Means was the target of the threats the witness testified the defendant made, but a careful analysis of the testimony excluded, and its context, shows that such an inference would have been unjustified and that there is no "implication" therein that Means was the person "defendant was talking about earlier that morning." Appellant's resourceful argument as to the "strong implication" in the testimony excluded, as viewed at the time the testimony was given, is greatly weakened by defendant's subsequent testimony in denying that she had made any threats whatever against anybody.
Defendant was entitled to nothing more than she obtained by the rulings of the court in excluding the testimony and in denying the motion for a mistrial. The testimony, though hearsay and properly excluded, was not injurious to defendant, as it was merely cumulative of the undisputed evidence.
We think the trial court was correct in overruling defendant's motion for a mistrial. In addition, the denial of a motion for a mistrial is discretionary with the trial judge, and its exercise of that discretion will not be interferred with on appeal unless there has been a clear abuse of discretion. Shadle v. State, 280 Ala. 379, 194 So.2d 538 (1967); Edgeworth v. State, 54 Ala.App. 93, 304 So.2d 911 (1974); Hopkins v. State, 54 Ala.App. 75, 304 So.2d 629 (1974); Kelly v. State, Ala.Cr.App., 338 So.2d 1047 (1976); Impson v. State, Ala.Cr.App., 331 So.2d 837 (1976).
Another contention of appellant is that the trial court was in error in "failing to give sufficient charges to the jury on self-defense."
In a clear and accurately stated oral charge, the court did not refer to the matter of self-defense. At the conclusion of the oral charge, the court inquired, "What do you say for the State?", and the following occurred:
Immediately thereafter, the Court delivered forms of verdict, the indictment, and the exhibits to the jury, or the bailiff, and directed the bailiff to escort the jury to the jury room, and the jury retired to the jury room to deliberate.
There is nothing in the record to show that at any time prior to the completion of...
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