Williams v. State

• Decision Date: 25 November 1986
• Docket Number: 3 Div. 505
• Citation: 506 So.2d 368
• Parties: Wilson WILLIAMS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 368

506 So.2d 368

Wilson WILLIAMS v. STATE.

3 Div. 505.

Court of Criminal Appeals of Alabama.

Nov. 25, 1986.

Rehearing Denied Dec. 30, 1986.

On Remand April 14, 1987.

Benjamin E. Pool, Montgomery, for appellant.

Charles A. Graddick, Atty. Gen., and James B. Prude, Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

Wilson Williams was indicted for the murder of Emma Lee Davis, convicted of manslaughter, and sentenced to ten years' imprisonment.

I

The defendant argues that the court erred by disallowing evidence that the victim had a reputation for carrying a weapon, see C. Gamble, McElroy's Alabama Evidence § 63.01(2) (3d ed. 1977). The evidence was admitted, however, during the following testimony of the defendant:

"Q [By Defense Counsel]: You testified she did have a reputation--

"A [By Defendant]: Yeah.

"Q --for carrying a pistol or weapon?

"A Yeah.

"MR. JAMES [Assistant District Attorney]: Objection. That's not what he testified to. And I would is [sic] ask the answer be stricken.

"THE COURT: Well, I sustained it on the ground that the proper predicate has not been laid to get the testimony in." (R. 180)

The question was answered before the State's objection and, although there was a motion to strike the answer, the court never ruled on the motion or excluded the answer from the jury's consideration. See Chambers v. State, 356 So.2d 767, 768 (Ala.Cr.App.1978). Evidence of the victim's reputation for carrying a pistol was, therefore, before the jury and the defendant's complaint is groundless. Evidence to the same effect was also admitted during the testimony of defense witness Helen Cooper at R. 136.

"(BY MR. POOL [Defense Counsel]: Continuing)

"Q All right. Based on what you heard people in the community say about her, did she have a reputation as being one who carried a gun?

"A Yes.

"MR. JAMES: Objection.

"THE COURT: Sustained.

"MR. JAMES: Don't answer when--

"THE COURT: Sustained."

II

The defendant maintains that the trial court's refusal to charge the jury on criminally negligent homicide was error. The evidence was in dispute, but, even taken in the light most favorable to the defendant, it did not afford a rational basis for a conviction of the lesser included offense of criminally negligent homicide.

The defendant testified that, during an argument at Cooper's Lounge in Montgomery, the victim kicked him in the chest and he sprawled backwards onto a pool table. The defendant told the victim not to put her feet on him again and the victim threatened him, saying, "If I pull mine I'm going to use it." When the defendant tried to get away, the victim grabbed him and put her hand into her purse. According to the defendant, he drew his gun intending to hit the victim to make her release her hold on him and did not intend to pull the trigger. The gun discharged and the victim was killed by a single shot to the head.

Under this version of the facts, the defense theory was either self-defense or accident. See Lawson v. State, 476 So.2d 116, 118 (Ala.Cr.App.) cert. quashed, Ex parte Lawson, 476 So.2d 122 (Ala.1985); Wakefield v. State, 447 So.2d 1325, 1327 (Ala.Cr.App.1983). "Although an accidental killing may support a conviction for negligent homicide, Ex parte Weems, 463 So.2d 170 (Ala.1984), '[a] killing is not accidental when the act causing death is done intentionally.' Phelps v. State, 435 So.2d 158, 165 (Ala.Cr.App.1983)." Lawson v. State, 476 So.2d at 118.

The distinction between reckless conduct amounting to manslaughter and criminally negligent conduct amounting to criminally negligent homicide is explained in the commentary to § 13A-2-2, Code of Alabama (1975):

"A common denominator in both is that in each instance the underlying conduct must involve a 'substantial and unjustifiable risk' that a result or circumstance described in the penal statute will occur or exists. The reckless offender is aware of the risk and 'consciously disregards' it. On the other hand, the criminally negligent offender is not aware of the risk created ('fails to perceive') and, therefore, cannot be guilty of consciously disregarding it."

Even under the defendant's version of the facts, he could not be guilty of simply "fail[ing] to perceive" the risk that the gun might fire. "One who intentionally draws a gun in response to or in anticipation of a confrontation with another is certainly aware of the risk that the gun might discharge; therefore, he cannot be guilty of mere criminal negligence." Robinson v. State, 441 So.2d 1045, 1047 (Ala.Cr.App.1983). See also Wiggins v. State, 491 So.2d 1046 (Ala.Cr.App.1986).

The fact that the defendant had had several drinks before the fatal encounter with the victim did not entitle him to a charge on criminally negligent homicide. Even if he had been intoxicated, that circumstance would not have been legally sufficient to render him unaware of the risk he created by drawing his pistol. Ala.Code 1975, § 13A-3-2(b). ("When recklessness establishes an element of an offense and the actor is unaware of a risk because of voluntary intoxication, his unawareness is immaterial in a prosecution for that offense.") Voluntary intoxication can never, therefore, reduce manslaughter to criminally negligent homicide. "Voluntary intoxication ... cannot negate awareness of a risk, if recklessness is sufficient to establish the offense." Ala.Code, 1975, § 13A-3-2 (Commentary).

III

There was no error in the court's disallowing the following question on cross-examination of a State's witness: "Would it surprise you to learn that [the victim] had a reputation for carrying a gun?" "The victim's bad general reputation for peace and quiet, violence or like trait is admissible only if the evidence before the trial court, at the time such general reputation is offered, tends to show that the accused acted in self-defense." C. Gamble, McElroy's Alabama Evidence § 33.01(2) (3d ed. 1977). See also id. at § 63.01(2). At the time defense counsel asked the question there was no evidence of self defense.

There was also no error in sustaining the State's objection to the following question asked of the same State's witness: "You didn't actually see Wilson Williams deliberately pull a trigger, did you?" A witness may not testify to the uncommunicated mental operation or intent of another. Fincher v. State, 211 Ala. 388, 100 So. 657 (1924); Flanagan v. State, 369 So.2d 46, 50 (Ala.Cr.App.1979); Whigham v. State, 20 Ala.App. 129, 101 So. 98 (1924).

"The existence of premeditation and deliberation must be determined from the particular facts and individual circumstances of each case.

" 'There is no possible state of facts from which the law presumes their concurrence and coexistence is not a fact to which a witness, or any number of witnesses, can testify. It is a matter of inference from all the facts and circumstances of the particular case.' Coats v. State, 253 Ala. 290, 294, 45 So.2d 35 (1950)."

Young v. State, 428 So.2d 155, 158 (Ala.Cr.App.1982) (emphasis added).

IV

Defense counsel requested the issuance of an instanter subpoena and moved for a continuance on the ground that a defense witness who had been previously served with a subpoena did not appear at trial. After ascertaining that counsel expected the witness's testimony to corroborate the defendant's self-defense theory, but that there was at least one other defense witness who was expected to give similar testimony, the court stated: "At sometime during the trial if I find that your client is gravely prejudiced by this witness not being here, I will have the sheriff go out and try to pick him up." Counsel never redirected the court's attention to the absent witness at any later point in the trial and we must assume that he, therefore, acquiesced in the trial court's action. See Brinks v. State, 500 So.2d 1311 (Ala.Cr.App.1986); Henry v. State 468 So.2d 896, 901 (Ala.Cr.App.1984), cert. denied, 468 So.2d 902 (Ala.1985). There was no abuse of discretion in denial of the motion for continuance. Barton v. State, 494 So.2d 943 (Ala.Cr.App.1986) (testimony of absent witness would have been cumulative).

V

The photographs of the victim were properly admitted into evidence. Photographic exhibits are admissible even though they may be cumulative, Washington v. State, 415 So.2d 1175, 1181 (Ala.Cr.App.1982), demonstrative of undisputed facts, Craft v. State, 402 So.2d 1135, 1138 (Ala.Cr.App.1981), or gruesome, McKee v. State, 33 Ala.App. 171, 176, 31 So.2d 656, cert. denied, 249 Ala. 433, 31 So.2d 662 (1947). As long as the exhibits tend to shed light on the issues being tried, their admission is within the sound discretion of the trial judge. Thornton v. State, 369 So.2d 63 (Ala.Cr.App.1979). "Photographs which show wounds on a victim's body which tend to corroborate the testimony of a toxicologist as to the number and location of the wounds are admissible." Washington v. State, 415 So.2d at 1180. There was no abuse of discretion in admitting the exhibits.

VI

The defendant contends that the chain of custody of a pistol introduced as the murder weapon was not proven. On direct examination of Montgomery police officer L.O. Perdue, the State established that the pistol was obtained from the defendant pursuant to a consensual search of the defendant's car. Officer Perdue stated that the weapon shown to him at trial had the same serial number as the pistol recovered from the defendant's vehicle. The pistol was admitted without objection. Then, on cross-examination defense counsel ascertained that officer Perdue had not maintained continuous care, custody and control of the firearm up to the time of trial. Officer Perdue conceded that the pistol had, at one time, been in the custody of the Department of Forensic Sciences. Defense counsel then moved to exclude the evidence for lack of a proper predicate.

" 'To warrant the reception of an object in evidence against an objection that an unbroken chain of custody has not been shown, it is...