Wyrick v. State, 8 Div. 462

• Citation: 409 So.2d 969
• Decision Date: 24 November 1981
• Docket Number: 8 Div. 462
• Parties: Linda Gay WYRICK v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 969

409 So.2d 969

Linda Gay WYRICK v. STATE.

8 Div. 462.

Court of Criminal Appeals of Alabama.

Nov. 24, 1981.

Rehearing Denied Dec. 29, 1981.

Certiorari Denied, Feb. 26, 1982

Alabama Supreme Court 81-341.

Donald E. Holt and Joe M. Patterson, Jr., Florence, for appellant.

Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.

TYSON, Judge.

The appellant was indicted for the murder of her ex-husband, John W. Wyrick, by shooting him with a pistol in violation of Ala.Code § 13A-6-2 (1977). The jury convicted her of manslaughter and the trial court fixed her punishment at ten years in the state penitentiary.

The evidence is uncontroverted that at approximately 9:54 p. m. on July 14, 1980 the deceased came to the appellant's home. Miss Shelia Miller, a friend of appellant and appellant's daughter, Terry, let the deceased in the front door. Appellant did not wish to see the deceased and had had Terry lock her bedroom door and tell the deceased she was not home. The deceased had called the appellant's home several times that day desiring to see appellant and also threatening to kill "the whole g.d. bunch" of them, saying that "he was coming back." (R. 213) The deceased had been coming to the appellant's house two or three times a day for "two or three weeks and making phone calls ... three or four times a day." (R. 275)

When Terry told the deceased her mother was not home the deceased called her a "lying bitch" and "started banging" on the appellant's bedroom door. (R. 208) The appellant had the light out in her bedroom and did not answer the deceased's knocking or make any other sounds indicating her presence. The deceased next walked to the front porch of the house, just outside the appellant's bedroom window, and unscrewed the light bulb to the front porch. Terry told the deceased to "get away" (R. 209) but he ignored her directions and moved towards her. The deceased then went back inside to the appellant's bedroom door and "started beating and telling her to let him in." (R. 210) Terry began "screaming real loud ... just at the top of my lungs" when she "heard a shot." (R. 210)

Hearing her daughter's screams, the appellant fired her Charter Arms .38 Special one time through her bedroom door fatally wounding the deceased. As the deceased turned and began to fall on his back the appellant opened her bedroom door and fired four more shots from close range into the deceased, emptying the pistol. The appellant, who had earlier called the Florence Police Department when the deceased arrived at her house to request their assistance, placed a second call for an ambulance. The deceased died shortly after police officers arrived at the scene. The appellant was immediately taken into custody. Further facts will be recited as they are pertinent to the issues.

I

The appellant first alleges that the trial court committed reversible error in allowing Investigator Lawrence D. Smelley of the Alabama Bureau of Investigation to state his opinion as to the amount of force that would have been necessary to break the appellant's bedroom door open. We disagree.

Investigator Smelley testified generally concerning his investigation at the scene. His examination of the bedroom door in question revealed that

"It was one of the old type doors that was probably-that was popular in homes built in the thirties and forties that had the wide border and then in the middle, it had a thin panel. It was just an old type door. It wasn't the double panel type doors that you see in more modern homes nowadays." (R. 133)

In response to a question by the trial court Smelley testified that he "examined the door to see if there had been any force placed against it." (R. 134) The trial court then overruled defense counsel's objection to Smelley stating his opinion, but cautioned the jury as follows:

"Well, ladies and gentlemen, I OVERRULE THE OBJECTION. I will, however, certainly say to you, that it's for you to really determine that question. I'll let this witness testify to it or to his opinion, although it's not controlling on you. But I'll let him testify as to his opinion based on his examination and familiarity with it. Now, go ahead and answer it." (R. 135)

Smelley then testified that in his opinion, "if a person had really wanted to go through the door, he could have with not very much trouble." (R. 135)

Smelley was cross-examined extensively by defense counsel. He admitted that he did not know how much force it would take to "pop" a particular kind of door open. Smelley further admitted that he did not test the door, or have it tested by experts, to see how much force was necessary to break it. He did not know what kind of wood the door was made from and his only inspection of the door consisted of an "eyeball examination." (R. 137)

We believe it a fair reading of the record that Investigator Smelley was not qualified as an expert witness for the question he was asked to give his opinion.

It has been the traditional rule in Alabama that a lay witness can testify to facts which he observed but cannot testify to opinions, conclusions, deductions or inferences which are based upon facts. C. Gamble, McElroy's Alabama Evidence § 127.01(1) (3rd Ed. 1977). This general rule has been criticized as being unrealistic and assuming a low mentality and gullibility in jurors. C. Gamble, McElroy's Alabama Evidence § 127.01(2) (3rd Ed. 1977) and cases cited therein. See Justice Beatty's concurring opinion in Boatwright v. State, 351 So.2d 1366, 1367 (Ala.1977).

There are many exceptions to the general rule. C. Gamble, McElroy's Alabama Evidence § 127.01(3) (3rd Ed. 1977). One such exception, which we find applicable here, is the "collective fact" or "shorthand rendition of fact" exceptions. Murrell v. State, 377 So.2d 1102, 1106 (Ala.Cr.App.), cert. denied, 377 So.2d 1108 (Ala.1979).

"A witness may testify to his opinion if it is a collective fact or a shorthand rendition of fact. This variety is most commonly referred to as the collective fact exception and arises when the facts observed by the witness are so many or so inexpressible that he is allowed to give the jury his opinion. His opinion is conceived of as being a shorthand way of giving the facts and, consequently, does not constitute a violation of the opinion evidence rule. When the witness is asked, for example, if a particular person was drunk, this is considered permissible as a shorthand way of expressing several well known facts or characteristics."

C. Gamble, McElroy's Alabama Evidence § 127.01(3) Variety No. 7 (3rd Ed. 1977).

As in Murrell, supra, Investigator Smelley's examination of the door provided a logical and sufficient basis for his opinion. We thus hold that his opinion was admissible.

Even assuming error, the trial court's instructions to the jury combined with defense counsel's sifting and thorough cross-examination of Smelley's testimony rendered any such error harmless. ARAP, Rule 45.

II

The appellant next contends that the trial court erred in refusing to give the following requested jury charge:

"The Court charges the Jury, that the indictment as read to you in this case includes within itself the charge of murder, and the lesser included charges of manslaughter and criminally negligent homicide. It will be your duty to determine from all of the evidence that has been presented to you in the case whether or not the Defendant is guilty of any offense whatsoever, and in the event that you find her guilty of some offense, it will then be your duty to determine what offense the Defendant is guilty of."

The appellant at one point in her testimony stated that she fired through the door "more to scare ... make them stop," that she thought her daughter and the deceased were together and that she didn't think about the possibility she might hit her daughter when she fired the gun. (R. 261) It is this testimony upon which the appellant now alleges the charge on "negligent homicide" should have been given. We disagree.

The charge as requested contains more than one legal principle. Gaston v. State, 359 So.2d 1170 (Ala.Cr.App.1978). The first part of the charge, which is the only part that mentions "negligent homicide" is abstract as applied to the evidence and is not properly hypothesized on a "belief from the evidence." Hudson v. State, 335 So.2d 208 (Ala.Cr.App.), cert. denied, 335 So.2d 211 (Ala.1976). Requested instructions which are mere statements of legal principles, without instruction as to the effect upon or application to the issues are abstract and may properly be refused. This is true even where a correct principle of law is set out. Hawkins v. State, 53 Ala.App. 89, 297 So.2d 813, cert. denied, 292 Ala. 723, 297 So.2d 817 (1974).

Moreover, we do not believe that the testimony by the appellant, which is set out above, was sufficient for a charge on negligent homicide to have been properly given. At the least the appellant acted "recklessly" as that term is used for manslaughter in Ala.Code § 13A-6-3(a)(1) (1977) as defined in Ala.Code § 13A-2-2(3) (1977). See the commentary to Ala.Code § 13A-6-3 (1977). Thus, we hold the charge requested to have been properly refused.

III

The appellant testified on direct examination that the deceased had continually tried to "dominate" and "rule" her life since their divorce in 1974. (R. 251) The appellant stated that she and the deceased continued "dating each other off and on" after the divorce, but that she terminated all "romantic contacts" with him in February, 1980 after she learned he had been molesting her daughter. (R. 249)

On appellant's cross-examination, it was learned that Chris Wyrick, the deceased and the appellant's son, visited with his uncle in North Carolina in June, 1980 for approximately two weeks. The appellant stated that after Chris's visit was over she and the deceased left Alabama in two cars to pick him up. The appellant...