Thompson v. State, 6 Div. 799

• Decision Date: 08 April 1986
• Docket Number: 6 Div. 799
• Citation: 503 So.2d 871
• Parties: Michael Eugene THOMPSON v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 871

503 So.2d 871

Michael Eugene THOMPSON v. STATE.

6 Div. 799.

Court of Criminal Appeals of Alabama.

April 8, 1986.

Rehearing Denied May 13, 1986.

B.J. McPherson and John J. Dobson, Oneonta, for appellant.

Charles A. Graddick, Atty. Gen., and William D. Little and Mary Ellen Fike Forehand, Asst. Attys. Gen., for appellee.

TYSON, Judge.

Michael Eugene Thompson was indicted for the capital murder of one Maisie Gray in violation of § 13A-5-40(a)(1) and (2), Code of Alabama 1975. The jury found the appellant "guilty of capital murder" and, following a sentencing hearing, the jury recommended that the appellant "be punished by death." Following a separate sentence hearing held by the trial court, the trial judge accepted the jury's recommendation and sentenced this appellant to death.

A brief statement of the facts is set out below. A more thorough recitation of the circumstances of this cause is set forth as needed in discussing each of the issues raised on appeal.

On the night of December 10, 1984, the appellant, Thompson, proceeded to the Majik Mart in Attalla, Alabama. One Maisie Gray was the only person working at the store that night. When the appellant arrived at the store, he went into the store and bought a "Coke or a beer". He then left the store, proceeded to his car where he picked up his .22 caliber pistol and reentered the store. Appellant then forced Ms. Gray to empty the cash register. Thompson then took Ms. Gray outside the store, forced her into his car and left the area. After driving around for some time, Thompson took Ms. Gray to a well in Blount County. He then forced Ms. Gray into the well and, according to his own statement, he shot into the well several times. Thompson then left and proceeded to the home of one Shirley Franklin with whom he was living at the time. Once there, he picked up some more bullets for the pistol and told Shirley to go with him. The appellant and Shirley then proceeded back to the well. The appellant shot into the well some seven or eight more times. Thompson denied this statement during trial, testifying instead that Shirley Franklin had done all the shooting into the well.

Thompson and Franklin then returned to their home. The next day Thompson took the pistol, which he and Shirley had cleaned, to another well and threw it in there. The body of Maisie Gray was discovered on January 5, 1985. The Department of Forensic Sciences was able to make a determination as to the cause of death, i.e., multiple gunshot wounds. There were seven bullet wounds in the body of the victim.

I

The appellant contends that the trial court committed reversible error by denying his motion for a continuance made on the morning of trial.

The record reflects that, prior to the trial of this cause, indeed, prior to the completion of the jury selection process, the trial court held a hearing on the motion for continuance. Appellant was requesting the continuance in order to obtain the criminal record of Shirley Franklin. A review of the record of the hearing indicates that the State made repeated efforts to get the information for the defendant prior to trial, that they finally had Ms. Franklin brought in and questioned and, in this tape recorded interview, she admitted a prior record in Indiana and that she had served six years, eight months and twenty-one days in jail. This information was then turned over to the defendant. From the record: (R. 56-61):

"THE COURT: Well, I'm going to put the burden on you at this time, rather than delay the trial, when the matter may not--the question that you are asking the Court at this time may not ever come up. But if you feel like that there is a possibility. Have you questioned the witness with regard to these matters?

"MR. DOBSON: No, sir, I have not.

"THE COURT: Well, why not do that first?

"MR. DOBSON: I have heard a taped statement where she has admitted one of these convictions.

"THE COURT: Well, why don't you question her now. Then you can impeach her with permission of this Court--well, it wouldn't be necessary--by showing that she had made prior statements to that.

"MR. DOBSON: That's correct.

"THE COURT: I would suggest--even though she is a State's witness, she is not insulated from the defendant's lawyers.

"MR. DOBSON: She can be impeached on her prior statement.

"THE COURT: Gentlemen, the question may not come up. I would suggest that if you have any questions about it that you should make an effort to get any documentation on it at this time.

"MR. McPHERSON: Judge, may we ask you to do this: would you direct the State of Alabama to make an effort to get this, because it not only has to be certified, it must be exemplified.

"THE COURT: I don't know that that is right. I think in this case if it's a certified copy of the record. Now, there are some laws on other matters requiring it to be certified and exemplified, but as far as a record of conviction--maybe it is out of another state.

"MR. McPHERSON: Yes, sir, it has to be exemplified.

"THE COURT: The law would speak to that.

"MR. McPHERSON: I think we can resolve the whole problem if they would agree to stipulate that what is contained on the NCIC is correct.

"THE COURT: Unless they know, I think they would be fools, unless they have actual knowledge of it to stipulate to any such thing.

"MR. BURTTRAM: Judge, Mr. Dobson, and maybe Mr. McPherson, for a good many days prior to last Saturday, kept telling us that they thought she had a record. I don't know how many times we asked for a printout on her, and showed it to him each time.

"THE COURT: How about putting it in the record how many times you asked for a printout?

"MR. BURTTRAM: How many, John?

"MR. DOBSON: How many times did I ask you or Robert?

"MR. BURTTRAM: I'm talking about the printouts that were shown to you when you would ask and they would go down and put it in the machine?

"MR. DOBSON: I was down there all morning Thursday.

"MR. BURTTRAM: Several times?

"MR. DOBSON: I was down there two times, anyway, three times.

"MR. BURTTRAM: And it would always come back from Indiana, no record. So, Mr. Dobson insisted that she had a record. I presume that maybe he got it from the defendant, the information or something. Anyway, he had belief that she had a record. I sent for her, had her brought to the office, sat her down, and she was interviewed for some hour and a half. And it was taped. In that interview, she stipulated that she did have a record in Indiana and had served what?

"MR. DOBSON: Six years, eight months and twenty-one days.

"MR. BURTTRAM: All right. And that is the best that we were able to produce for this man at his request in the way of a record. I thought coming from the witness--

"THE COURT: Have you furnished them with all the information you have as far as her record is concerned?

"MR. BURTTRAM: Absolutely. He has something that I haven't, now. He got it Saturday.

"THE COURT: All right.

"MR. BURTTRAM: He's got everything that I have. I could swap files with him right now, Judge, and I wouldn't be any worse off or any better off.

"THE COURT: I will reserve any further ruling with regard to that question at the time it might be raised in the trial. I would suggest that if you have--the first thing that I would suggest that you do is talk to the defendant--I mean, not the defendant--talk to the witness. We might be sitting here arguing about nothing. However, if it comes up, as you stated in the trial, I would suggest that after talking to her, if you have any doubts about it, that you should forthwith proceed with efforts to get whatever is there. Mr. Burttram, I know it is hard for the defendant to get those records, if such be, if there are any records.

It is clear to this court that the trial court did not prejudice this appellant in any way by refusing to grant the motion for continuance. It should be noted that a continuance in a criminal case is addressed to the sound discretion of the trial court, the exercise of which will not be disturbed on appeal unless clearly abused. McConico v. State, 458 So.2d 743 (Ala.Crim.App.1984); Pritchett v. State, 445 So.2d 984 (Ala.Crim.App.1984); Fletcher v. State, 291 Ala. 67, 277 So.2d 882 (1973). There has been no abuse of discretion shown here. See Beauregard v. State, 372 So.2d 37 (Ala.Crim.App.1979), cert. denied, 372 So.2d 44 (Ala.1979).

Moreover, Ms. Franklin admitted her prior criminal record during her testimony, thus completing her impeachment. See C. Gamble, McElroy's Alabama Evidence, § 145.01(17) (3rd ed. 1977). The appellant simply was not prejudiced by the trial court's refusal to grant his motion for a continuance.

II

The appellant contends that the trial judge erred by failing to declare a mistrial during the State's cross-examination of the appellant. During cross-examination of the appellant, the State elicited information as to a prior conviction. The appellant contends that in this conviction he, Thompson, was afforded youthful offender status and such was, therefore, improper impeachment, requiring a mistrial. However, it is not clear from the record that this was, in fact, a reference to a youthful offender conviction. (R. 746-747).

It should be noted initially that "[t]he grant or denial of a mistrial is a matter within the sound discretion of the trial court and will only be disturbed upon a showing of manifest abuse." Durden v. State, 394 So.2d 967 (Ala.Crim.App.1980), cert. denied, 394 So.2d 977 (Ala.1981); Wright v. State, 421 So.2d 1324 (Ala.Crim.App.1982); Shadle v. State, 280 Ala. 379, 194 So.2d 538 (1967); Davis v. State, 457 So.2d 992 (Ala.Crim.App.1984). "The entry of a mistrial is not lightly to be undertaken. It should be only a last resort, as in cases of otherwise ineradicable prejudice. Where error is eradicable a mistrial is too drastic and is properly denied. Chillous v. State, 405 So.2d 58 (Ala.Crim.App.1981); Van Antwerp v. State, 358 So.2d 782 (Ala.Crim.App.), cert. denied, 358 So.2d 791 (Ala.1978); ...