Bradford v. StateBradford v. State
The appellant, Jay Bradford, was indicted on June 25, 1997, by the Talladega County grand jury for the attempted murder of Mike Smith.
The state‘s evidence tended to show the following. The appellant and his companions,
The appellant did not testify in his defense, but called several witnesses in an effort to cast doubt upon the state‘s evidence.1
I.
A.
The appellant first contends that the trial court committed reversible error in overruling his motion made pursuant to Batsonv. Kentucky, 476 U.S. 79 (1986), in which he claimed that the state exercised certain peremptory jury strikes in a racially discriminatory manner. In overruling the motion, the trial court found that the appellant had failed to establish a prima facie case of racial discrimination. In Batson, the United States Supreme Court held that black prospective jurors could not be struck from a black defendant‘s jury based solely on their race. The appellant is black.2
The state has the burden of articulating non-discriminatory reasons for challenged strikes only after the defendant meets his burden of establishing a prima facie case of discrimination. Batson,
In the instant case, the record shows that the prosecutor used 2 of its 10 peremptory strikes to strike 2 of the 5 black veniremembers. Three blacks served on the jury. The appellant relied only on the bare numbers or statistics to support his Batson motion; he offered no additional supporting evidence. The numbers alone, in this case, will not support a reasonable inference of racial discrimination. The appellant asserts in his brief, in support of his contention on appeal, that the prosecutor used his peremptory strikes to remove a majority of the blacks from the jury panel. The record does not support this assertion. Originally there were seven blacks on the jury venire. Two were properly excused for cause on motion of the state: one for being related to the appellant, and one for stating that, if she were selected, she could not render a fair and impartial verdict based solely on the evidence presented and the court‘s instructions. The appellant did not object to the granting of these challenges. Of the five blacks remaining, the prosecutor removed two by peremptory strikes and the remaining three served on the jury that tried the case.
All relevant evidence may be examined by the trial court, including the numbers involved, to determine whether an inference of discrimination has been raised. However, “[w]hen considered alone, evidence of the prosecution‘s use of a large number of its peremptory strikes to exclude black jurors would allow, but would not compel, a finding of prima facie discrimination.” Mines v.State, 671 So.2d 121, 123 (Ala.Crim.App. 1995). See also Exparte Thomas, 659 So.2d 3 (Ala. 1994). Even if the prosecution uses all of its peremptory strikes to exclude black veniremembers, a trial court is not required to find that a prima facie case of discrimination if other relevant evidence proves the contrary. Mines v. State.
In the instant case, the appellant obviously failed to meet his burden; thus the trial court‘s ruling that no prima facie case had been established was not clearly erroneous.
B.
The appellant further contends that the trial court committed reversible error by granting the state‘s motion made pursuant to Batson, J.E.B. v. Alabama, 511 U.S. 127 (1994), and WhiteConsolidated Industries, Inc. v. American Liberty Insurance Co., 617 So.2d 657 (Ala. 1993), in which it claimed that the appellant exercised his peremptory strikes in a racially and gender-based discriminatory manner. The appellant argues that the trial court erred in failing to require the state to establish a prima facie case of discrimination before requiring him to explain his strikes. The record shows that of the appellant‘s 10 peremptory strikes, he struck 9 white males and 1 female. The record does not disclose the race of the female. The trial court granted the state‘s motion and ordered the appellant to explain his strikes. The appellant explained his strikes, and
II.
The appellant contends that the trial court violated Rule 16.1(b)(1) and (2), Ala.R.Crim.P., “by holding that he was not entitled to accomplice statements prior to the trial of the case,” thereby allegedly committing reversible error. He argues that the failure of the state to furnish him the statements of Bradford, Buckner, and Arnold until they were called to the witness stand by the state to testify at the trial was “fundamentally unfair to the defense” and constituted a denial of due process. Rule 16.1 provides that upon written request of a defendant, the prosecutor shall, within 14 days after the request has been filed in court, disclose to the defendant the substance of any oral statement and permit the defendant to inspect and copy any written or recorded statements of a codefendant or accomplice in the possession of or under the control of the state and which the state intends to offer in evidence at trial. The appellant filed a pretrial discovery motion seeking, among other things, any statements by any accomplice or codefendant, whether oral, written, or recorded, in the possession of the state and which the state intended to use at the trial. The state contends that this issue was not preserved for appellate review because no objection was made on these grounds at trial. We agree. The appellant objected at trial to the use of the statements by the state only on the ground of hearsay. The trial court cannot be placed in error on grounds not asserted, and those not asserted are waived. Jackson v. State, 553 So.2d 647 (Ala.Crim.App. 1989); Johnson v. State, 421 So.2d 1306 (Ala.Crim.App. 1982).
Moreover, the trial court examined the statements in camera and held that the statements of Bradford, Arnold, and Buckner were not discoverable under Rule 16.1(b)(1) and (2) because they were not accomplices or codefendants, and they did not contain any information pertaining to the appellant that would be exculpatory. The statements of Bradford, Arnold, and Buckner were delivered to the appellant when they were called by the state to testify, and the appellant used their statements extensively in cross-examining them. We find no error in the ruling of the trial court in reference to the discovery motion. It is supported by the record. Thus, even if this issue had been properly and timely preserved for review, we would have found that it was without merit.
III.
The appellant contends that the trial court erred in overruling his pretrial motion and oral motions made during the trial that the district attorney be removed from prosecuting the case because he was a necessary witness in the case. He relies on Ala.R.Prof. Conduct 3.7, and Waldrop v. State, 424 So.2d 1345 (Ala.Crim.App. 1982), to support his contention. Rule 3.7 provides, in part, that a lawyer shall not act as an advocate at a trial in which he is likely to be a necessary witness. In Waldropv. State, 424 So.2d at 1347, we quoted with approval the holding in State v. Hayes, 473 S.W.2d 688 (Mo. 1971):
“A prosecuting attorney is not incompetent to be a witness, State v. Stiltner,
61 Wn.2d 102, 377 P.2d 252, and the trial court may exercise discretion in determining to what extent and as to what matters he may be permitted to testify. State v. Lee, 203 S.Ct. 536, 28 S.E.2d 402, 149 ALR 1300. However, the general and uniform rule is that the right of a prosecuting attorney to testify in a criminal case `is strictly limited to those instances where his testimony is made necessary by the peculiar and unusual circumstances of the case. Even then, his functions as a prosecuting attorney and as a witness should be disassociated. If he is aware, prior to trial, that he will be a necessary witness, or, if he discovers this fact in the course of the trial, he should withdraw and have other counsel prosecute the case.’ Tomlin v. State, 81 Nev. 620, 407 P.2d 1020.”
A “necessary witness” is one “who has crucial information in his possession which must be divulged.” Universal Athletic SalesCo. v. American Gym Recreational Athletic Equip. Corp., 546 F.2d 530, 538-39 n. 21 (3d Cir. 1976), cert. denied, 430 U.S. 984 (1977); Commerical Credit Loans, Inc. v. Martin, 590 F. Supp. 328, 335 (E.D.Pa. 1984). The necessity standard requires more than mere speculation that counsel will be required to testify. Electronic Laboratory Supply Co., Inc. v. Motorola, F. Supp. [Civ.A. No. 88-4494, July 3, 1990) (E.D.Pa. 1990).
The appellant alleged in his motions that the district attorney‘s pretrial conversations with Bradford made the district attorney a necessary witness. He refers to a discussion between the district attorney and Bradford and Bradford‘s parents before trial wherein Bradford agreed to cooperate with the state and testify against the appellant. The district attorney did not testify for the state, but was called as a witness by the appellant, who questioned him about an unrelated matter, his participation in drafting a search warrant and affidavit to search the Bradford residence. Defense counsel did not question the district attorney about his discussion with Bradford and his parents.
Clearly, the district attorney‘s conversation with Bradford and his parents, and his participation in the drafting of the search warrant and affidavit, under the circumstances here, would not make him a necessary witness in the trial of the case. The trial court did not abuse its discretion in overruling the motions.
IV.
Last, the appellant questions the sufficiency of the evidence to support his conviction for attempted murder, and argues that the state failed to prove a prima facie case. He preserved this issue for review by moving for a judgment of acquittal at the conclusion of the state‘s case-in-chief.
The elements of the crime of attempted murder are intent to kill and an overt act towards commission of that act. Chaney v.State, 417 So.2d 625 (Ala.Crim.App. 1982).
“It is clear that `[a]ttempted murder is a specific intent crime’ which requires the State to `prove that the accused acted with the intention of taking the life of another.’ Paige v. State, 494 So.2d 795, 796 (Ala.Cr.App. 1986). See
Ala. Code 1975, §§ 13A-4-2(a) and13A-6-2(a)(1) . However, `the element of intent, being a state of mind or mental purpose, is usually incapable of direct proof, [and]it may be inferred from the character of the assault, the use of a deadly weapon and other attendant circumstances.’ Johnson v. State, 390 So.2d 1160, 1167 (Ala.Cr.App.), cert. denied, 390 So.2d 1168 (Ala. 1980). Accord, Fears v. State, 451 So.2d 385, 387 (Ala.Cr.App. 1984); Young v. State, 428 So.2d 155, 158 (Ala.Cr.App. 1982).”
Jones v. State, 591 So.2d 569, 574 (Ala.Crim.App. 1991).
In the instant case, the state presented evidence in its case-in-chief that showed that the appellant put his loaded SKS, 7.62 x 39mm rifle in the trunk of the automobile Bradford was driving before they left Sylacauga for a nightclub in Alexander City; that he was cut on the arm in a fight at the nightclub; that, while in the parking lot of the nightclub, he took his rifle from the trunk of the automobile and threatened people with it and fired it several times; and that on the return trip to Sylacauga, he sat in the backseat of the automobile, immediately behind the driver and on the driver‘s side of the vehicle, holding his rifle between his legs. This evidence came from statements and testimony of Bradford, Buckner, and Arnold. The state‘s evidence showed that after the automobile was stopped by the police in Sylacauga in the early morning hours, and as Officer Smith approached the automobile from the rear, a door opened on the driver‘s side toward the rear and someone with a gun fired at him three times, hitting him in the chest, arm, and ankle; that as Officer Vickers approached the automobile from the opposite side, he heard Officer Smith “holler,” “Gun!” and he immediately heard a succession of shots come from the driver‘s side of the automobile, and heard Smith cry out, “Steve, I am hit;” that Vickers saw a black male standing on the driver‘s side of the automobile with a “long rifle,” and he fired his pistol at the person as the person fled from the scene; that neither Smith nor Vickers could identify the person they saw with the gun; that Buckner testified that he heard three shots from the rifle come from the driver‘s side of the automobile and then some pistol shots; that Arnold testified that the appellant was sitting in the rear of the automobile behind the driver and was holding the rifle when he, Arnold, got out of the automobile and ran; and that as he ran, he heard three shots from the rifle and then some pistol shots. The state‘s evidence further showed that the appellant‘s blood, which came from the cut on his arm he received in the nightclub, was found on the driver‘s headrest in the automobile and on a T-shirt in his home; and that blood was found on the rifle, but tests on it were inconclusive. The state‘s evidence further showed that the rifle was found in the yard of a house next-door to the appellant‘s residence; that ammunition for the rifle was found in the appellant‘s bedroom; that the box the rifle came in when purchased by the appellant was also found in his bedroom; and that the state presented evidence that the appellant had previously purchased the rifle from a gun dealer. The state‘s evidence further showed that the empty shells found at the scene of the incident and in the parking lot of the nightclub in Alexander City were fired by the appellant‘s rifle, and that the shells found in his bedroom were of the same type; that the bullet fragments recovered from the body vest armor worn by Officer Smith at the time he was shot were fired from a 7.62 x 39 mm SKS rifle; and that the body armor, which contained a “trauma plate,” probably saved his life. The state‘s evidence showed that the wounds sustained by Officer Smith required six days of hospitalization and three operations, and resulted in permanent nerve damage to his hand, arm, and ankle.
This review of the facts and circumstances convinces us that the evidence presented by the state was sufficient to allow the jury to conclude, by fair inference, that the appellant shot Officer Smith with the SKS rifle with the intent to murder him. While the evidence of the actual shooting was largely circumstantial, it was strong and convincing and sufficient for the jury to have reasonably found that the state‘s evidence excluded every reasonable hypothesis except that of the appellant‘s guilt and to have found the appellant guilty beyond a reasonable doubt. See Cumbo v. State, 368 So.2d 871 (Ala.Crim.App. 1978). The appellant‘s efforts to cast doubt on the state‘s case were weak and obviously ineffective. The denial of the appellant‘s motion for a judgment of acquittal was proper
For the reasons stated above, the judgment of the circuit court is due to be, and it is hereby, affirmed.
The foregoing opinion was prepared by Retired Appellate Judge John Patterson while serving on active duty status as a judge of this court under the provisions of §
Affirmed.
Long, P.J., and McMillan, Cobb, and Baschab, JJ., concur.