668 So. 2d 137 | Ala. Crim. App. | 1995
This case was originally assigned to another judge on the Alabama Court of Criminal Appeals. It was reassigned to Judge Cobb on January 17, 1995.
The appellant, David Lynn Hawkins, was convicted of driving under the influence of alcohol, a violation of §
Because we are reversing the appellant's conviction, we need address only two issues presented in the appellant's brief.
Just before the first witness was called to testify, the following occurred in open court:
"The Court: Bill, [prosecutor] call your first witness.
"Mr. Weathington (prosecutor): Judge, at this time we offer the city's adopting ordinance.
"Mr. Quick [defense]: Could I have one second?
"The Court: Sure.
"Mr. Quick: We will stipulate, Your Honor.
"The Court: Okay. The ordinance having been stipulated call your first witness."
(R. 4). It is well settled that in a prosecution for the violation of a municipal ordinance, the municipality must properly authenticate the ordinance and introduce it into evidence; otherwise it cannot make a prima facie case for the violation. Maxwell v. City of Mobile,
The appellant argues that, despite his stipulation to the ordinance, the Town of Moody's failure to introduce it is fatal. We disagree. The in-court exchange quoted above makes it clear that the appellant stipulated to the ordinance itself, not just to its authenticity.
Hastings v. State," 'A stipulation is a judicial admission, and, as such, it prevents the party who makes it from introducing evidence to dispute it, and relieves a proponent from the necessity of producing evidence to establish facts admitted therein. Moore v. Humphrey,
247 N.C. 423 ,101 S.E.2d 460 ,467 (1958). A stipulation is a judicial admission, dispensing with proof, recognized and enforced by the courts as a substitute for legal proof. Ritch Realtors, Inc. v. Kinard,45 N.C. App. 545 ,263 S.E.2d 38 ,39 (1980).' "
"The Court: This is hard on y'all too, but after leaving here yesterday, I sat down with the question which you gave to me yesterday afternoon. And I want to give you a little bit further instruction on that question because I think it is hard to make things clear, and at the same time follow the law. But when you get a question like that, many times you answer just as quickly as you can and the answer probably makes things worse. I hate to admit it, but sometimes that happens.
"Let me go back to the question, though, that you asked yesterday and instruct you further as to the applicable law. Here we go. On the occasion which is the subject of the complaint in this case, on that occasion, if you are convinced beyond a reasonable doubt that the defendant was driving the car, and that the weight of alcohol in his blood was .10 or more at the time, then you must find him guilty of driving under the influence of alcohol.
"The Town of Moody is not required to also prove that he was incapable of safely driving his vehicle. And I think that is the — that is the answer to the question. And i'm going to leave it at that and I am going to instruct you at this time. I thought since you were having a hard time that I just really hadn't done, or said it as well as it could be said. It is not necessary to prove both. You can prove it either way.
"So with that instruction, you may retire again to the jury room and deliberate your verdict. . . ."
(R. 141-42.) Rule 22.2, Ala.R.Crim.P., states:
"After the jurors have retired to consider their verdict, if they request to have any testimony repeated, or if they or any party requests additional instructions, the court may recall the jurors to the courtroom and order the testimony read or give appropriate additional instructions. The court may also order other testimony read or give other instructions, so as not give undue prominence to the particular testimony or instructions requested. Such testimony may be read or such instructions given only after notice to the parties."
There is no indication in the record that the parties were given any notice that the trial court was going to reinstruct the jury on the morning of April 22. Such reinstruction should have occurred in open court and in the presence of the parties and counsel. Webb v. State,
While the trial judge was justifiably disturbed that the parties and counsel were not present at the time he had set to begin, other means were available to properly discipline them. See, e.g., Rule 33, Ala.R.Crim.P.; §
The Sixth Amendment to the United States Constitution guarantees a defendant's right to counsel — that right includes the presence of counsel at every critical stage of a criminal prosecution that might result in imprisonment. Berryv. State,
Therefore, we reverse the appellant's conviction and remand this cause for a new trial.
REVERSED AND REMANDED.
All the Judges concur.