Wagner v. State, 7 Div. 415
| Decision Date | 08 October 1985 |
| Docket Number | 7 Div. 415 |
| Citation | 489 So.2d 623 |
| Parties | Norris WAGNER, Jr. v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Thomas M. Semmes, Anniston, for appellant.
Charles A. Graddick, Atty. Gen., and M. Beth Slate, Asst. Atty. Gen., for appellee.
Norris Wagner, Jr. was indicted for assault in the first degree, in violation of § 13A-6-20, Code of Alabama 1975. The jury found the appellant guilty as charged in the indictment and the trial judge set sentence at 12 years' imprisonment in the penitentiary.
J.W. Pitts testified he is the minister of E Street and Christine Avenue Church of Christ in Anniston, Alabama. At approximately 4:45 p.m. on July 26, 1983, Pitts was leaving the Sawyer Motor Company when he saw the appellant in a red truck. Pitts started to ask the appellant to move his truck so Pitts could drive out when the appellant said, "I'm going to kill you" or "I aught to kill you, you black S.O.B." (R. 17.)
The appellant then fired a shot at Pitts and left. Pitts began following the appellant until he noticed blood on his leg. He then drove to the emergency room where he was treated.
Pitts stated that the appellant had threatened him in the two weeks period prior to the shooting.
Dr. Michael Cummings testified that he treated Pitts for a gunshot wound to the left arm. The bullet traveled until it hit a rib. Cummings described Pitts' wound as serious.
James McGee testified that he had a conversation with the appellant two years before the shooting in which the appellant told him to keep his family away from Pitts and his church. The appellant stated that Pitts had taken his wife and family away from him and he was going to kill Pitts.
Approximately one year prior to the shooting, Eddie McGee had a conversation On November 12, 1983, the appellant told Janie Smith that his wife and Pitts were "so dirty that they didn't need to walk upon the face of the earth and that he was going to see to it that they didn't." (R. 44.) The appellant asked Smith to relay the message to Pitts.
with the appellant concerning Pitts. McGee had gone to pick up the appellant's family for church and the appellant told him they weren't going. He told McGee he was going to kill Pitts.
Charlie Smith testified that one or two weeks before the shooting the appellant told him that he was going to kill Pitts because he had broken up his family.
John L. Johnson, the minister at the Jennifer Church of Christ, testified that he and other ministers had several meetings with the appellant and Pitts prior to the shooting. The purpose of these meetings was to resolve the problems between the two men.
On the Sunday after the shooting, the appellant told Johnson that Pitts had shot at him three times. The appellant showed him three dents in his truck.
Shortly thereafter, the church withdrew its fellowship from the appellant.
Earl Wagner, the wife of the appellant, stated that she and the appellant were separated at the time of the shooting. She testified that Pitts had nothing to do with the separation.
Tommie Turner stated that she was with the appellant on the afternoon of July 26, 1983. She testified that Pitts came by the truck and the appellant started laughing at him. Pitts shot at the truck three times and the appellant shot back.
The appellant said he and Turner were riding around in his truck on July 26 when they saw Pitts. Turner said Pitts looked like a gorilla and the appellant started laughing. Pitts drove up at this time and asked what he was laughing at. The appellant continued laughing and Pitts shot at him three times. Pitts appeared as if he was going to shoot again so the appellant shot back.
The appellant contends the trial court improperly allowed the admission into evidence of a diagram of the scene which was prepared by the district attorney and which had notations of facts in dispute placed upon it.
The admission into evidence of a diagram used to aid a witness in his testimony is largely left to the sound discretion of the trial court. C. Gamble, McElroy's Alabama Evidence, § 123.01(2) (3d ed. 1977). The diagram does not necessarily have to be prepared by the witness and may be prepared prior to the trial. Griffin v. Gregory, 355 So.2d 691 (Ala.1978). It may be prepared by the attorney. Burton v. State, 115 Ala. 1, 22 So. 585 (1897); Jarvis v. State, 138 Ala. 17, 34 So. 1025 (1903).
Before a diagram may be admitted into evidence, a proper foundation must be laid. The witness must testify that he understands the diagram, that he has personal knowledge of the matters depicted and that it will aid him in his testimony. McElroy's, supra.
In the case at bar, a proper foundation for the admission of the diagram was laid by Pitts. He stated he understood the diagram, knew the matters it depicted and it would aid him in his testimony.
The record does not support the appellant's contention that there were improper notations on the diagram. The diagram portrayed the scene where the shooting took place. The only markings on the diagram were representations of vehicles and arrows indicating the path of travel of the two vehicles.
"... Counsel may make marks on the diagram in conformity with what he understands the witness' testimony to be, provided he then calls on the witness to confirm or correct the markings." McElroy's, supra, at § 123.01(3).
The position of the vehicles and their paths of travel were not in dispute and Pitts verified these markings during the
course of trial.--Therefore, we find no basis of error here.
The appellant asserts that there was insufficient evidence presented by the State to support his conviction. We disagree.
Pitts testified that the appellant stated he was "going to kill him" before he fired the shot. Dr. Cummings characterized Pitts' injury as serious. Several witnesses testified that the appellant had told them he wanted to kill Pitts.
A review of the record clearly reveals that there was sufficient evidence, presented at trial, from which the jury could conclude, by fair inference, that the appellant was guilty of assault in the first degree. See Baldwin v. State, 342 So.2d 940 (Ala.Cr.App.1977), and cases cited. Hodges v. State, 48 Ala.App. 217, 263 So.2d 518 (1972); Tolliver v. State, 50 Ala.App. 654, 282 So.2d 92 (1973).
The last issue raised on appeal concerns the appellant's competency to stand trial. The appellant asserts that the trial judge erred to reversal by failing to "sua sponte conduct" a competency hearing during trial. While defense counsel did not raise this issue during trial, we feel it necessary to address this issue.
Some background information is helpful before we discuss this issue. During their deliberations, the jury asked the trial judge whether they could make a recommendation as to the mental health of the appellant. The court replied that the issue of the appellant's mental health was reserved for the court.
After the jury rendered their verdict, the court stated that "[b]ecause of the nature of the testimony in this case," the court was going to delay sentencing until a pre-sentence report was prepared. (R. 155).
On April 4, 1985, a pre-sentence hearing was held and the following occurred:
(R. 156 A-B)
The report, referred to by the court, which was done by the Calhoun Cleburne Mental Health Center, concluded that the appellant was suffering from delusions of persecution and a mental illness. (P.C. 9-10).
The following is the court's order, dated April 5, 1984, to have the appellant evaluated at the Taylor Hardin Secure Medical Facility.
"The Defendant in the above-styled cause was convicted of the Class B Felony Offense of Assault in the First Degree on February 15, 1984. During the course of the trial it appeared to the Court that the Defendant may be mentally ill and suffer from dilusions of persecution focused upon the victim in this case. Following the Defendant's conviction, the Court caused the Defendant to be evaluated by the Calhoun-Cleburne "This case came before the Court this date for sentencing and the Court had presented to it a pre-sentence investigation prepared by the Probation and Parole Office and a report from Wallace W. Wilkerson, M.D., in regard to the initial evaluation of the Defendant conducted by the Calhoun-Cleburne Mental Health Center.
Mental Health Center and delayed sentencing.
Based upon the Court's consideration of the evidence and testimony presented during the trial of this case, and further based upon the Court's consideration of the pre-sentence investigation report presented to the Court by the State Probation and Parole Office and the report of Dr. Wallace Wilkerson, the Court is of the opinion that sentencing in this case should be delayed and the Defendant referred to the Taylor...
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