Word v. State
| Decision Date | 12 October 1982 |
| Docket Number | 8 Div. 560 |
| Parties | Terry Floyd WORD v. STATE. |
| Court | Alabama Court of Criminal Appeals |
William J. Underwood, Tuscumbia, for appellant.
Charles A. Graddick, Atty. Gen., and Leura J. Garrett, Asst. Atty. Gen., for appellee.
Appellant was tried on an indictment charging him in two counts with the murder of Ricky Andrew Vinson by shooting him with a shotgun. A jury found him guilty of manslaughter. The court fixed his punishment at imprisonment for six years and sentenced him accordingly.
The undisputed evidence was to the effect that the alleged victim was killed by buckshot fired from a shotgun by some person on a truck near the victim's home on the night of September 14, 1980, and that appellant was on the truck with four other persons at the time. He denied firing the weapon on the occasion, and there is little, if any, basis for an inference from the evidence to the contrary. The controverted issue between the parties on the trial was chiefly whether he was an accomplice of the one on the truck who did fire the fatal shot. Several witnesses testified as to the circumstances of the incident, including appellant and the four others on the truck with him, one of whom was Mason Gibson, who testified on call of the State and who had been previously convicted of manslaughter of the alleged victim. Mason Gibson admitted that he either invited or permitted the others to go with him on the trip to the vicinity of where the alleged victim lived, and further testified that he was undertaking to find the number of the tag of an automobile from which some people had been firing weapons near him and otherwise molesting him. He further admitted that he fired a shotgun at or about the time the alleged victim was killed and the alleged victim's wife was hit by some shot from a shotgun. Although defendant's testimony in the case perhaps made a better case for him than a written statement he made to officers soon after his arrest as to his asserted innocence of any intention to join in any effort to shoot or kill any human being, his written statement, which was introduced in evidence by the State, contains a more condensed recital of the incident and the foregoing and succeeding circumstances, and for that reason it is here quoted:
The statement was signed by appellant and witnessed by two officers on September 16, 1980.
Appellant was nineteen years of age at the time of the incident upon which the prosecution herein was commenced. He was questioned on cross-examination by the State as to a "conviction" on August 29, 1980, of third degree theft. He replied that he "couldn't say it was third degree" but that he was convicted of theft. Appellant urges as error that the State should not have been allowed to show such previous conviction, which it did on cross-examination of defendant, for that he was at the age of a youthful offender at the time of his commission of theft in the third degree and that he did not have counsel at the time of his conviction. As to the first ground, it does not appear from the record proper or from the transcript of the proceedings that defendant was tried in the theft case as a youthful offender. In that state of the record proper and the transcript of the proceedings, it cannot be said that the judgment in the theft case was an adjudication as a youthful offender as distinguished from the judgment in a case that was not handled as a youthful offender proceeding and as to which the confidentiality of youthful offender proceedings does not apply. Daniels v. State, Ala.Cr.App., 375 So.2d 523, 526-527 (1979).
Appellant's other ground for challenging the court's action in permitting evidence of defendant's previous conviction, viz., that he was not afforded an attorney at the time, is equally not well taken, in view of the fact that his conviction was for a misdemeanor and his punishment consisted of a fine as distinguished from imprisonment. The constitutional right to counsel extends to misdemeanor cases involving the loss of liberty. Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). However, the constitutional right to counsel does not extend to misdemeanor cases unless the defendant is actually sentenced to jail. Lake v. City of Birmingham, Ala.Cr.App., 390 So.2d 36, 38 (1980), citing Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979).
Another contention for a reversal is that the court committed error "in not allowing appellant to explain his prior conviction." Appellant argues that he "should have been able to show why he pled guilty" that the "reasoning would fall on the age of the defendant at the time of the first conviction." The only rulings shown by the transcript of the evidence adverse to defendant in any way connected with the defendant's effort to "explain his prior conviction" or to "show why he pled guilty" are found in the first part of the redirect examination of the defendant as follows:
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...any there was, in sustaining the State's objection to the question, the error was without injury to the defendant." Word v. State, 424 So.2d 1374, 1377 (Ala.Crim.App.1982). In the few instances where the answer was not made before the objection, Waldrop failed to make an offer of proof or a......
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