Ziglar v. State
| Decision Date | 07 May 1993 |
| Docket Number | CR-90-1321 |
| Citation | 629 So.2d 43 |
| Parties | Spencer Owen ZIGLAR v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Stafford Pittman, Jr. and Roger Brannum, Enterprise, and Charles R. Driggars and L. Dan Turberville, Birmingham, for appellant.
James H. Evans, Atty. Gen., and Randall McNeill, Asst. Atty. Gen., for appellee.
The appellant, Spencer Owen Ziglar, was charged with murder for intentionally causing the death of Edward Lamar Kelley by shooting him with a shotgun, in violation of § 13A-6-2, Code of Alabama 1975. The jury found the appellant guilty of the lesser included offense of manslaughter. A sentencing hearing was held and the appellant was sentenced to 20 years at hard labor of at least 60 hours per week. The appellant was ordered to pay a fine of $10,000, court costs, attorney fees, restitution, and a fee to the Victims' Compensation Fund.
A complete recitation of the facts of this case is unnecessary. Only those facts which are pertinent to the issues raised on appeal are addressed.
The first issue is whether the trial court erred in compelling the appellant's alleged wife to testify when she had invoked the marital privilege.
Before trial, a question was raised as to whether the appellant was married and if so, whether his spouse could be compelled to testify as a State's witness. The appellant had filed a complaint seeking a divorce, but no action had been taken by his wife in response to the complaint. Thus, the appellant had filed an application for the entry of a default judgment in his divorce action. Several months later, the appellant's wife wrote the circuit court, requesting a final judgment. After it had received the letter, the court noted on the case action summary sheet: No testimony or other evidence was presented to the court. The court did not order a final judgment of divorce.
The court in which the appellant's criminal trial was pending concluded that the appellant was divorced. Therefore, the court ruled that the appellant's former spouse could be compelled to testify as a State's witness over the appellant's objection and the former spouse's invoking the marital privilege.
We hold the trial court erred in determining that, for purposes of invoking the marital privilege, the appellant and his wife were divorced. Rule 55(e), Ala.R.Civ.P., states, in relevant part: Rule 43(a), Ala.R.Civ.P., states in part:
Testimony in an uncontested action involving a divorce or annulment of marriage shall be taken before the clerk, unless otherwise ordered by the judge. In such a case, the clerk shall have the powers of a master as provided in Rule 53 and shall follow the procedure therein, or in cases of default or upon written waiver the testimony may be taken upon deposition on oral examination, in accordance with prior practice, and at any time and without notice of the time and place of the taking or other proceedings therein.
It is imperative that jurisdictional facts appear in the record in order for a court to grant a divorce. Johns v. Johns, 49 Ala.App. 317, 271 So.2d 514 (1973).
In this case, neither the appellant nor his wife established his or her claim or right to a divorce by any evidence. Thus, the court in which the divorce action was pending had no evidence before it and no jurisdictional authority to render a final judgment of divorce.
Because we conclude that the appellant and his wife were not divorced, we now turn to the issue of whether the trial court erred to reversal in compelling the appellant's wife to testify despite her invocation of the marital privilege not to testify and the appellant's objection. The State argues that The law is very clear that a witness cannot be compelled by the State to testify against his or her spouse. § 12-21-227, Code of Alabama 1975; Holyfield v. State, 365 So.2d 108, 112 (Ala.Crim.App.), cert. denied, 365 So.2d 112 (Ala.1978). The marital privilege not to testify against one's spouse belongs to the spouse whose testimony is sought. Id. Until the spouse elects to testify and has waived the privilege not to testify, the spouse is not a competent witness. Ex parte Billingsley, 402 So.2d 1060 (Ala.1981), cert. denied, 465 U.S. 1023, 104 S.Ct. 1276, 79 L.Ed.2d 681 (1984); Arnold v. State, 353 So.2d 524, 526 (Ala.1977) (citing De Bardeleben v. State, 16 Ala.App. 367, 77 So. 979, cert. denied, 201 Ala. 523, 78 So. 877 (1918)).
even if the appellant and his wife were not divorced, admitting the wife's testimony was harmless error because her testimony was cumulative and because, if there was any harm, it was to the wife and not the appellant. We disagree.
Here, the appellant's wife never waived her privilege not to testify against her husband, and, thus, was not a competent witness. We cannot hold that compelling the wife to testify, when she invoked the privilege not to testify constitutes harmless error to the appellant. In his brief to this Court, the appellant aptly notes pertinent portions of the wife's testimony that were not cumulative. As well, in pretrial proceedings, the prosecution represented that the appellant's wife was an essential witness, and it went to great lengths to procure her testimony. The prosecution sent an investigator to Florida, where the appellant's wife was living, to bring her back to Alabama to testify before the grand jury.
We have held that § 12-21-227, Code of Alabama 1975 () was drafted so as to prevent coercion by others that could directly or indirectly push a spouse onto the witness stand. Holyfield, 365 So.2d at 112. The testimony of a spouse is not admissible unless the spouse first elects to become a witness. Jordan v. State, 30 Ala.App. 313, 5 So.2d 110 (1941).
In De Bardeleben v. State, 16 Ala.App. 367, 77 So. 979, 980 (1918), the Court of Appeals held that reversible error occurred when the trial court compelled the wife to testify against her husband, over the wife's objection and the objection of the husband/defendant. The Court rejected the contention that no error ensued when his wife was forced to testify. Id. In this case, we uphold the principle that reversible error occurs when a spouse is compelled to testify when he or she has invoked the privilege not to testify and the defendant/spouse timely objects. The wife was not a competent witness, and the admission of her testimony constitutes error.
Because the judgment must be reversed and the case remanded for a new trial, we pretermit discussion of some issues raised by the appellant. We address only those remaining issues that may be pertinent upon a retrial of this cause.
The appellant argues that the trial court erred in admitting certain physical evidence because the State allegedly failed to establish the proper chain of custody. Specifically, the appellant argues that a spent shotgun shell, wadding, glass fragments, a shotgun and a pistol recovered from the appellant's automobile, three shotgun shells from the appellant's shotgun, were all inadmissible. We disagree.
The Alabama Supreme Court has held that proof of an unbroken chain of custody must be established to a reasonable probability by the party offering the physical evidence that the object sought to be introduced into evidence is in the same condition as, and not substantially different from, its condition at the beginning of the chain. Ex parte Holton, 590 So.2d 918, 919-20 (Ala.1991). Each person, or "link," who handled the item must be identified, and the record must show the following with regard to each link's possession of the item: "(1) [the] receipt of the item; (2) [the] ultimate disposition of the item, i.e., transfer, destruction, or retention; and (3) [the] safeguarding and handling of the item between receipt and disposition." Id. at 920 (quoting Imwinklereid, The Identification of Original, Real Evidence, 61 Mil.L.Rev. 145, 159 (1973)). The In this case, one link in the chain was unavailable to testify. However, the shotgun, the spent shotgun shell, the three live shells, and the pistol, were all identified by the officers who retrieved them. Furthermore, an investigator testified that these items were retrieved on the night of the offense from the appellant's vehicle under his direction and control. There was testimony as to the identity of each individual who was in possession of the items while they were in the chain of custody and how each individual came into possession of the items. There was also testimony that the items were in substantially the same condition when offered into evidence as on the night they were recovered. With regard to these objects, the prosecution established each link and the three criteria for each link.
proffering party may show the three criteria for each link by circumstantial evidence, which creates a weak, but not a missing, link, and which does not affect admissibility of the object. Id. A weak link presents a question of credibility and weight rather than admissibility. Id.
The appellant's argument with regard to the glass fragments and wadding is not preserved for our review. When the State introduced these items, defense counsel said that he had no objection to their being admitted into evidence. When a timely objection at the time of the admission of the evidence is not made, the issue is not preserved for this Court's review. Goodson v. State, 540 So.2d 789 (Ala.Crim.App.1988).
The appellant also argues that a summary of his tape-recorded statement made during an interrogation should not have been admitted into evidence and that the trial court...
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Russell v. State
...at the time of the admission of the evidence is not made, the issue is not preserved for this Court's review." Ziglar v. State, 629 So.2d 43, 47 (Ala. Crim. App. 1993)."If counsel makes objections and secures rulings ‘off the record,’ this court cannot consider those rulings. If the trial c......
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C.B.D. v. State, CR-10-0640
...at the time of the admission of the evidence is not made, the issue is not preserved for this Court's review." Ziglar v. State, 629 So. 2d 43, 47 (Ala. Crim. App. 1993). Therefore, this issue was not properly preserved for appellate review. Moreover, even had this issue been properly preser......
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C.B.D. v. State, CR-10-0640
...at the time of the admission of the evidence is not made, the issue is not preserved for this Court's review." Ziglar v. State, 629 So. 2d 43, 47 (Ala. Crim. App. 1993). Therefore, this issue was not properly preserved for appellate review. Moreover, even had this issue been properly preser......
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C.B.D. v. State
...at the time of the admission of the evidence is not made, the issue is not preserved for this Court's review.” Ziglar v. State, 629 So.2d 43, 47 (Ala.Crim.App.1993). Therefore, this issue was not properly preserved for appellate review. Moreover, even had this issue been properly preserved,......