264 So. 2d 554 | Ala. Crim. App. | 1972
Murder in the first degree: death by electrocution.
The defense established without dispute that the victim, Harris, was killed by a bullet from Brown's gun. Crawford admitted shooting at Harris. Hence, if convinced to the required degree, the jury from the evidence could have inferred that Crawford's participation helped "pin down" Harris so that Brown's killing him was thereby facilitated. Code 1940, T. 14, § 14.
The record shows the following:
"THE COURT: Ladies and gentlemen, I don't think — we have been going a good while now, and I know you need a recess, so we will be in recess for lunch, and you may retire to the jury room at this time and get ready for lunch.
"(Thereupon, the jury left the courtroom at 11:48 a. m., and, out of the presence and hearing of the jury, the following proceedings were had and done:)
"THE COURT: Gentlemen, I believe you wanted to get an exception in the record about handcuffs.
"Go ahead and do that at this time.
"MR. TUCKER: Yes, sir. We would like to except to the appearance of the defendant before the jury in handcuffs.
"THE COURT: Gentlemen, let me say this:
"We make these various motions in the record, and somebody reading the record might not know what happened.
"Let the record show that when we came out after the last recess the handcuffs had been inadvertently left on the defendant, who was seated at the counsel table, with approximately twelve feet of table between him and the jury box, and his hands were in his lap, where he was eated.
"He did raise his hands, where the jury could see them, not in a demonstrative manner. His hands were placed on the table, where anyone could have seen them, but, when it became obvious, the bailiff called it to my attention, and the handcuffs were removed.
"All right, we will see you at 1:30."
In Clark v. State,
In Starr v. State,
Likewise on the record before us the ruling below is sustainable because of lack of proof that any juror saw the defendant handcuffed. Hence, no prejudice influencing the verdict was established.
The taking of testimony had ended and the defendant was represented by two lawyers to argue in summation to the jury. Hence, we cannot see that this brief restraint would have had any appreciable tendency to confuse or embarrass the defendant in the exercises of his mental faculties so as to assist his lawyers.
We find no error in this ruling. 21 Am.Jur.2d, Criminal Law, § 240.
We excerpt from the hearing on the motion for new trial:
"THE COURT: I want to say this for the record and see if this is fair to say:
"As I understand, there is one ground which you, by amendment, added to your motion for a new trial, and that had to do with ground number 20, which was added by amendment to the motion, to the effect that the defendant was not represented by counsel in the preliminary hearing.
"Now, as I understand, the Court did ask you if this ground of your motion was based on the right to cross examine and to discover, and that phase of it, as distinguished from some witness who may have been available at that time but who later may have become unavailable, and I believe you said the situation as to the witness did not occur, but that you based it on the other phases, that is, the advantages that may have been gained through and discovered through cross examination at that time.
"Is that correct ?
MR. WALLIS: That is substantially correct. I said I am not aware of a witness that became unavailable, and I haven't been aware of the situation in the trial.
"THE COURT: The reason I put that in the record, if it comes up — where records are silent, at times the appellate court has to send it back for the lower court to take testimony on some particular point.
"I thought I would clear that up, rather than to have them send it back for me to do that when I could do it easily right now.
"MR. TUCKER: Your Honor, at the preliminary hearing the defense could have subpoenaed witnesses for the State, who were not called at the preliminary hearing, who D could have been called, and, while they were not missing, they were not at the preliminary hearing.
"THE COURT: You are leaving me in a state of confusion. You are saying it would have been nice to have any witnesses who were not at the preliminary hearing, and having benefit in advance of knowing what the testimony was, but you are not contending that any witness has either died or moved off or not made available to the Court whose testimony may have been preserved?
"MR. TUCKER: No, sir.
"THE COURT: All right."
Seemingly the trial judge had in mind the "harmless-beyond-a-reasonable-doubt" test mentioned inColeman, supra, which is derived from Chapman v. California,
Whether or not his ruling was "conceding arguendo" that there was a preliminary hearing without the defendant's having counsel, we cannot but surmise.
The State argues that under Desist v. United States,
In view of the lack of any record proof that there was a preliminary hearing we find no error in the trial judge's ruling. A preliminary hearing does not always occur, Braden v. State,
During the course of cross-examining Crawford the Deputy District Attorney put the gun in similar fashion in the top of his trousers. Crawford's brief contends:
"* * * After he examined the defendant with reference to his placing the gun in his belt, the prosecutor went on to other unrelated testimony, but he continued to carry the gun in his belt, in the view of the jury. This was objected to by counsel for the defendant on at least two occasions during the next twelve pages of testimony which covered a period of approximately 20-25 minutes. The objections were overruled."
The only authority cited to put the trial judge in error is Campbell v. State,
The opinion then continues (leading to affirmance):
"* * * This is primarily a question for the trial court, who has the advantage of having heard and seen everything incident to the trial, and unless it appears that the conclusions are clearly erroneous they will not be distributed on appeal. From the position of this court, aided only by the cold and meager recitals in the record, we cannot say that the trial court erred in refusing to grant the motion for new trial."
It is a familiar practice, even purveyed to the laity by Perry Mason via television, for lawyers in cross-examination to use demonstrative simulations of movements, positions of objects, the menaces of opponents, etc. Generally they are tolerated as part of the search for truth in a Common Law that has moved from formal deposing under oath to the sifting of cross-examination. Code 1940, T. 7, § 443.
We find no claim that the prosecutor deviated from the evidence already before the jury.
Perhaps the prosecutor kept the pistol too long in his belt, but no claim is made that his imitation contradicted or distorted the testimony. Without some misleading tendency as to his mannerism we can see no probable prejudice to a substantial right of Crawford when undisputedly Crawford had carried the weapon in this mode. Linnehan v. State,
Affirmed.
PRICE, P. J., and ALMON, J., concur.