Thomas v. State
| Decision Date | 10 March 1978 |
| Parties | In re Richard THOMAS v. STATE. Ex parte Richard Thomas. SC 2499. |
| Court | Alabama Supreme Court |
Albert D. Lipscomb, Bessemer, for petitioner.
William J. Baxley, Atty. Gen. and James L. O'Kelley, Asst. Atty. Gen., for the State.
PETITION FOR WRIT OF CERTIORARI to COURT OF CRIMINAL APPEALS, 356 So.2d 210.
WRIT QUASHED AS IMPROVIDENTLY GRANTED.
Certiorari was granted to determine whether the Court of Criminal Appeals had applied the correct rule of law when that Court had reviewed the trial court's refusal to give certain requested charges. In affirming this petitioner's conviction for rape, the Court of Criminal Appeals held that no error resulted in the refusal to give the petitioner's requested charges because the principles of law contained in them were adequately and substantially covered in the trial court's oral charge. I disagree with that conclusion and would remand the case to that Court for an order not inconsistent with this opinion.
The record reveals that upon her cross-examination the prosecutrix gave testimony which was inconsistent with answers to the same questions asked her during the preliminary hearing:
Q In fact, none of your female organs were damaged or bruised in any way, were they?
A I don't know.
Q You don't know. Are you saying they were, they are not, or what?
A Was they damaged?
Q Yes, ma'am.
A I don't know whether they were damaged. I tore my knee when I fell out of the car, jumped out of the car.
Q Going to ask you again. I know it's a delicate question, but were any of your private parts injured or damaged in any way?
A Beg pardon?
Q Were any of your private parts injured or damaged in any way?
A I don't know.
Q Do you recall at the preliminary hearing I asked you this question. 'Were any of your private parts injured or damaged in any way.' Do you remember answering that question?
A Yes.
Q My asking that question?
A Yes.
Q And do you remember answering 'no'?
A No.
Q You don't recall that?
A No.
Her lack of recollection was a sufficient predicate for her impeachment, Weaver v. State, 33 Ala.App. 207, 31 So.2d 593 (1947). Petitioner then offered for impeachment purposes the prosecutrix's prior statement at the preliminary hearing.
Based on the foregoing testimony of the prosecutrix, petitioner requested the trial court to instruct the jury as follows:
Defendant's Requested Charge No. 7:
The Court charges the jury that if a witness has come upon the stand and testified to a different state of facts here to what he or she testified upon the preliminary trial of defendant had before Judge J. Dawson Britton, you have the right to look to this evidence as evidence tending to impeach the witness who has made such conflicting statements.
Defendant's Requested Charge No. 8:
The Court charges the jury that if Patricia Brown has come upon the stand and testified to a different state of facts here to what (s)he testified upon in the preliminary hearing of the defendant had before Judge J. Dawson Britton you have the right to look to this evidence as evidence tending to impeach the witness who has made such conflicting statements.
The trial court refused to give these charges. The Court of Criminal Appeals upheld that refusal on the ground that the requested instructions, stating correct principles of law, were covered by that portion of the Court's oral charge which states:
If you find that some witness has testified to you corruptly and falsely on any material matter you have a right to disregard any or all of that witness' testimony.
Further, the State contends that the defendant's requested charges were also covered by that portion of the trial court's charge which is:
Now, you have heard witnesses testify in this case. It is your duty as jurors to reconcile all of the testimony that you heard to make all of the witnesses speak the truth, because...
To continue reading
Request your trial
-
Boggan v. State
...probability that the shirt had not been tampered with or changed. Thomas v. State, 356 So.2d 210 (Ala.Crim.App.1977), writ quashed, 356 So.2d 214 (Ala.1978); Jackson v. State, 375 So.2d 1271 (Ala.Crim.App.), cert. denied, 375 So.2d 1274 (Ala.1979); Lynn v. State, 380 So.2d 366 (Ala.Crim.App......
-
Jackson v. State
... ... Pursuant to Alabama law, a statement made subsequent to an arrest is prima facie involuntary and inadmissible at trial; thus, the State must prove the statement was voluntarily made and must lay a Miranda predicate before the statement is admissible. Thomas v. State, 373 So.2d 1167 (Ala.1979), vacated on other grounds, 448 U.S. 903, 100 S.Ct. 3043, 65 L.Ed.2d 1133 (1980); Lewis v. State, 295 Ala. 350, 329 So.2d 599 (1976). Whether a waiver is voluntarily, knowingly, and intelligently made depends upon the particular underlying facts and ... ...
-
Mahan v. State, 6 Div. 596
...So.2d 1257 (Ala.Cr.App.1978), cert. denied, 365 So.2d 1258 (Ala.1979); Thomas v. State, 356 So.2d 210 (Ala.Cr.App.), cert. quashed, 356 So.2d 214 (Ala.1978)." Mauldin v. State, supra, at 1110. Rather, the evidence "must prove to a reasonable probability that the item is the same as, and not......
-
Gothard v. State, 6 Div. 191
...cert. denied, Ex parte Williams, 375 So.2d 1271 (Ala.1979); Thomas v. State, 356 So.2d 210 (Ala.Cr.App.1977), cert. quashed, 356 So.2d 214 (Ala.1978). The evidence affords ample assurance of the integrity and authenticity of the samples and establishes the "reasonable certainty that there h......