Johnson v. State

500 So. 2d 69
CourtCourt of Criminal Appeals of Alabama
DecidedFebruary 25, 1986
StatusPublished
Cited by30 cases

This text of 500 So. 2d 69 (Johnson v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Johnson v. State, 500 So. 2d 69 (Ala. Ct. App. 1986).

Opinion

500 So.2d 69 (1986)

Gregory Lewis JOHNSON
v.
STATE.

3 Div. 134.

Court of Criminal Appeals of Alabama.

February 25, 1986.
Rehearing Denied July 15, 1986.
Certiorari Denied December 5, 1986.

*70 Bradley E. Byrne, Sr., of Garrett, Thompson & Hines, Atmore, and William Roy Stokes, of Stokes, Jernigan & Stokes, Brewton, for appellant.

Charles A. Graddick, Atty. Gen., and Cecil G. Brendle, Jr., Asst. Atty. Gen., for appellee.

Alabama Supreme Court 85-1286.

TAYLOR, Judge.

Gregory Lewis Johnson institutes a joint appeal from his convictions in two separate criminal prosecutions. On October 8,1984, the appellant entered a plea of guilty to charges of receiving stolen property (2nd degree), theft of property (2nd degree) (two counts), forgery (2nd degree), and criminal possession of a forged instrument (2nd degree). He was later sentenced to fifteen years' imprisonment on each count, with the sentences to be served concurrently. Also on October 8, 1984, the appellant was tried and found guilty of burglary (1st degree) and assault (1st degree). He was sentenced under the Habitual Felony Offender *71 Act to life imprisonment without parole. Five issues are raised on appeal.

I

The appellant's first contention is that the trial court erred to reversal in denying his motion for continuance. The record indicates that on September 27, 1984, the appellant's trial attorney filed a motion for continuance in both of the cases here under review, alleging that he was not adequately prepared to defend the appellant due to the fact that he had several other cases set for trial at approximately the same time. The motion was denied. On October 8, 1984, defense counsel filed another motion, entitled "Motion to reconsider Defendant's Motion for Continuance," in which he argued, among other things, that due to the multitude of charges pending against the defendant and the complexity of each, he lacked sufficient time to prepare for trial. Counsel also argued that the trial should be postponed because several defense witnesses would be absent from the jurisdiction on the scheduled trial date. This motion was also denied.

A

"It is fundamental that counsel must be given adequate time for preparation." Simpson v. State, 465 So.2d 472, 474 (Ala. Cr.App.1984).

"Whether time allowed counsel ... for preparation for trial is sufficient depends upon the nature of the charge, the issues presented, counsel's familiarity with the applicable law and pertinent facts, and the availability of material witnesses." Burton v. State, 43 Ala.App. 249, 187 So.2d 808 (1966).

The number of counts pending against a defendant, as well as the complexity of the case, are certainly factors which may be considered by the trial court in determining whether to grant a defendant's request for a continuance. It is equally well settled, however, that a motion for continuance due to lack of time for adequate preparation is a matter entirely and exclusively within the sound discretion of the trial court and its ruling will not be reversed on appeal absent a plain and palpable showing of abuse. Dawkins v. State, 455 So.2d 220 (Ala.Cr. App.1984). The record indicates that in this case, the appellant's trial attorney had over two months to prepare for trial. This court has previously held 24 hours' preparation to be sufficient. Gosha v. State, 442 So.2d 138 (Ala.Cr.App.1983). See also, Nance v. State, 416 So.2d 437 (Ala.Cr.App. 1982) (two and one-half weeks' preparation held sufficient); Murphy v. State, 399 So.2d 340 (Ala.Cr.App.1981), cert. denied, 399 So.2d 347 (Ala.1981) (two days held sufficient). We have also held, however, that as much as three weeks' time for preparation was not sufficient. Owens v. State, 460 So.2d 305 (Ala.Cr.App.1984). What constitutes a sufficient amount of time for adequate preparation of a defense is a subjective, as well as an objective, consideration. We must give the trial court's decision deference. The judge was there; we were not. The trial court in this case did not abuse its discretion in denying appellant's motion for continuance.

B

The absence of a material witness is a factor to be considered in deciding whether a continuance should be granted. Godfrey v. State, 383 So.2d 575 (Ala.Cr.App.1980), cert. denied, 383 So.2d 579 (Ala.Cr.App. 1980), cert. denied, 449 U.S. 903, 101 S.Ct. 276, 66 L.Ed.2d 134 (1980). But as we noted previously, the decision as to whether a continuance should be granted is within the sound discretion of the trial judge and his ruling will be reversed only where there is a showing of plain and palpable abuse of discretion. Pritchett v. State, 445 So.2d 984 (Ala.Cr.App.1984). Denial of a continuance can never be an abuse of discretion in the absence of a showing as to what the witness would testify to. Fields v. State, 424 So.2d 697, 699 (Ala.Cr.App. 1982). We find no abuse of discretion. It is a rare criminal trial in which there is no request for continuance and not at least one unavailable witness for one side or the other.

*72 II

As an additional claim of error, the appellant argues that the state failed to make out a prima facie case of assault in the first degree because it did not present sufficient evidence that the victim sustained a "serious physical injury." § 13A-6-20(a)(1), Code of Alabama 1975. The sufficiency of the evidence is subject to appellate review only where the defendant challenges the state's lack of evidence by either a motion to exclude, a motion for judgment of acquittal, or a motion for new trial. Slaughter v. State, 424 So.2d 1365 (Ala.Cr.App. 1982). In the present case, the appellant failed to make either a motion to exclude state's evidence or a motion for judgment of acquittal. The record does indicate that at the close of the state's case in chief, the appellant moved for a directed verdict of acquittal on the ground that there was "no evidence submitted in court that the [appellant's] entry into the apartment was for theft of property." However, this court held in McKennie v. State, 439 So.2d 706 (Ala.Cr.App.1982), rev'd on other grounds, 439 So.2d 713 (Ala.1983), that a motion for a directed verdict of acquittal does not preserve for review the question of the sufficiency of the evidence. Under Rule 12, Alabama Temporary Rules of Criminal Procedure, the motion for directed verdict, the motion for affirmative charge, and the demurrer to the evidence have been abolished. They are subsumed and replaced by the motion for judgment of acquittal. Comment, Rule 12, Alabama Temporary Rules of Criminal Procedure. Interpreting appellant's motion for directed verdict as one for a judgment of acquittal, we are still obliged to hold that the sufficiency issue here in question was not properly preserved. The appellant argues on appeal that the state failed to make out a prima facie case of assault in the first degree because there was no evidence that the victim sustained "serious physical injury" as required by § 13A-6-20(a)(1), Code of Alabama 1975. In his motion for directed verdict, however, defense counsel argued only that the state failed to make out a prima facie case of burglary because no evidence was presented that the appellant entered the victim's apartment "with intent to commit theft." The primary purpose of objections is not to "preserve error" for appellate review. Their primary purpose is to give the trial court an opportunity to correct that which might otherwise have been error.

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Bluebook (online)
500 So. 2d 69, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-state-alacrimapp-1986.