Nichols v. StateNichols v. State
The appellant, William Bruce Nichols, was found guilty of hindering prosecution in the first degree after a jury trial and was sentenced as follows: four years’ imprisonment suspended, except for 200 days, which was to be served in 100 consecutive weekends; probation for three years; a $1,000.00 fine and $1,000.00 payment to a victim‘s compensation fund; and 200 hours of community service. The appellant filed a motion for a new trial. It was denied, whereupon he gave timely notice of appeal.
I.
The appellant alleges that the trial court erred by not permitting him to except to the court‘s oral charge until after the jury had reached its verdict. Just prior to the reading of the verdict, the following transpired:
“THE COURT: Before we receive anything, I understand you want to submit some objections to the charge; is that correct?
“MR. PRESTWOOD: We want to make some exceptions, your honor. But now that they have reached a verdict, I don‘t know if its timely or not, but we‘ll still make them.
“THE COURT: Go ahead and do them.”
The appellant relies on Temporary Rule 14 of the Alabama Rules of Criminal Procedure to substantiate his claim. That rule provides that “Opportunity shall be given to make the objection out of the hearing of the jury.” The law on this issue is well settled:
” ‘The orderly conduct of a trial requires some sort of rule of procedure. The rule should afford the party a fair opportunity to take exception to the charge if the party desires to do so . . . In the instant case, defendant and his counsel were present in court. They heard the oral charge. Defendant then had the burden and the opportunity to state defendant‘s objections to the court before the jury retired to determine their verdict.’ ” Hafley v. State, 342 So.2d 408, 411 (Ala.Cr.App. 1977), quoting Cox v. State, 280 Ala. 318, 193 So.2d 759 (Ala. 1967) (Emphasis added in Hafley). See also Ex parte Washington, 448 So.2d 404 (Ala. 1984), on remand, 448 So.2d 409 (Ala.Cr.App. 1984); Sistrunk v. State, 455 So.2d 287 (Ala.Cr.App. 1984).
The appellant had the duty to make his exceptions before the jury retired to deliberate.
II.
The appellant alleges that the trial court erred in admitting evidence of the crime of rape where he was not charged with that crime. He further alleges that statements about the rape made throughout the testimony of both of the State‘s witnesses and comments made on the rape by the prosecutor during his opening statement were “intended to arouse the prejudices of the members of the jury.”
According to
There has been little caselaw expositive of this offense in Alabama. However, it is clear that hindering prosecution is distinguishable from the underlying prosecutorial offense that was alleged to have been committed. Lewis v. State, 414 So.2d 135, 139 (Ala.Cr.App.), cert. denied, 414 So.2d 140 (Ala. 1982). ” ‘These sections, [like] most modern codes, break away from the common-law notion that a person who helps an offender somehow becomes an “accessory” or “accomplice” in the original crime. Instead of proceeding on an “accomplice” theory, the drafters have employed the theory of obstructing justice.’ ” Id., quoting
Despite the fact that in the instant case the offense of hindering prosecution and the offense of rape are separate offenses, as the trial court indicated, an adequate presentation of the facts and evidence in the case would necessitate that some testimony would refer to the underlying prosecution that was alleged to have been hindered; in essence, the appellant is charged with hindering the prosecution of a case of rape in the first degree. It seems clear from the language of the statutes that the State must prove three separate elements to present a prima facie case of hindering prosecution. The actor must “render criminal assistance” as that term is defined in
The State has the burden of proving beyond a reasonable doubt that the person whose prosecution was hindered actually committed the felony. State v. Rodriguez, 7 Conn. App. 470, 509 A.2d 72, 74 (1986). In Rodriguez, the trial court charged the jury to the effect that a person committed murder “and effectively removed an element of the crime for which the defendant was on trial [hindering prosecution] from the consideration of the jury.” 509 A.2d at 75. The court charged: ” ‘In this case it is clear that . . . a murder was committed and I have so charged you. That murder . . . as I recall the testimony, was committed at about 5:30 in the afternoon on December 21st [1982]. The person who did it . . . went to his girl friend‘s house with the defendant.’ ” Id. Thus, the underlying crime is an essential element of the offense of hindering prosecution and must be adequately proved. For other cases wherein evidence of the underlying felony was admitted, see State v. Kelley, 120 N.H. 14, 413 A.2d 300 (1980); State v. Yarbough, 195 N.J. Super. 135, 478 A.2d 432 (N.J.Super.App. Div.), cert. granted, 99 N.J. 195, 491 A.2d 695 (N.J. 1984), and case remanded by, 100 N.J. 627, 498 A.2d 1239 (N.J. 1985), cert. denied, ___ U.S. ___, 106 S.Ct. 1193, 89 L.Ed.2d 308 (1986); State v. Humanik, 199 N.J. Super. 283, 489 A.2d 691 (1985), cert. denied, 101 N.J. 266, 501 A.2d 934 (1985). In People v. Bulger, 52 A.D.2d 682, 382 N.Y.S.2d 133 (1976), a case of hindering prosecution in the first degree in regard to a murder committed by the accused‘s brother, the defendant contended that certain testimony about the murder and exhibits, including a bloody shirt from the murder, were inflammatory and prejudicial. The court held that “[e]vidence that is probative of a material issue in the case will not be rejected even though inflammatory or gruesome. [Citation omitted.] Furthermore, in order to present a prima facie case of hindering prosecution in the first degree, it is necessary for the People to prove that assistance was knowingly rendered to a person who had committed a Class A felony.” Id. at 135.
III.
The appellant contends that the trial court erred in not granting his motion for judgment of acquittal in that the State failed to prove that he committed any of the five acts proscribed by
Where a defendant claimed that the trial court erred in denying his motion for judgment of acquittal because of insufficient evidence to make out a prima facie case of hindering prosecution, the court asserted that “the issue is whether the jury could have reasonably concluded upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt.” State v. Rodriguez, supra, 509 A.2d at 71-72. See also Taylor v. City of Decatur, 465 So.2d 479 (Ala.Cr.App. 1984); Fletcher v. State, 460 So.2d 341 (Ala.Cr.App. 1984); Sullivan v. State, 441 So.2d 130 (Ala.Cr.App. 1983).
IV.
The appellant alleges that the trial court erred in not granting his motion for a new trial because he did not receive a fair trial as a result of the “hostility and prejudice demonstrated by the District Attorney.” However, this court will “not substitute its judgment for that of the jury, and when the evidence, if believed by the jury, is sufficient to sustain a verdict of guilty, it is not error for the trial court to overrule defendant‘s motion for an acquittal, and for a new trial.” Cole v. State, 443 So.2d 1386, 1390-91 (Ala.Cr.App. 1983); McConnell v. State, 429 So.2d 662 (Ala.Cr.App. 1983); Willis v. State, 447 So.2d 199 (Ala.Cr.App. 1983). Moreover, the decision of the trial judge to deny a motion for a new trial will not be disturbed unless there is a clear showing of abuse of discretion, and “this court will indulge every presumption in favor of the correctness of his ruling.” Troha v. State, 462 So.2d 950, 952 (Ala.Cr.App.), reversed, Ex parte Troha, 462 So.2d 953 (Ala. 1984), on remand, 462 So.2d 954 (Ala.Cr.App. 1985); Perry v. State, 455 So.2d 999 (Ala.Cr.App. 1984).
AFFIRMED.
All the Judges concur.