Shuler v. State

324 So. 2d 313, 56 Ala. App. 599, 1975 Ala. Crim. App. LEXIS 1381

• Court: Court of Criminal Appeals of Alabama
• Decided: October 1, 1975
• Docket: 8 Div. 610
• Status: Published

Opinions

CATES, Presiding Judge.

This is an appeal from a conviction of voluntary manslaughter with a concomitant jury fixed sentence of eight years. Code 1940, T. 14, §§ 320 & 322.

I

Appellant Shuler, a resident of Ross-ville, Georgia, and his wife on Saturday, February 16, 1974, accepted the invitation of her niece, Mrs. Leon Pendergrass, to spend the weekend with the Pendergrasses at their home in Scottsboro. That evening the Pendergrasses and Shulers went to the Moose Lodge.

At the Lodge there was dancing among other diversions. Around midnight as the evening’s entertainment drew to a close Mrs. Pendergrass invited Mr. and Mrs. Billy Dawson to drop by her home. The Dawsons accepted, arriving at the Pendergrasses ahead of the Shulers and Pendergrasses.

Some animosity seemed to develop between Messrs. Shuler and Dawson, the latter at one point challenged Shuler to Indian wrestling. In the course of this encounter Shuler was plunged against a louvered glass window; next they moved outdoors and got into a scuffle with the result that Dawson threw Shuler to the ground. The host got the parties back into a semblance of quiet and proceeded to walk with the Dawsons to their car which was parked across the road from the Pendergrass house. We quote from appellant’s brief:

“ * * * Mr. Pendergrass walked to the car with Mrs. Dawson and said: ‘Everthing will be all right’. Mrs. Dawson said they needed to go and something was said about the driving. (Tr. p. 81). While he was talking to Mrs. Dawson, he heard a gunshot. At first, he did not recognize it as a gunshot until he heard another shot. (Tr. p. 82). He turned and saw Mr. Dawson falling, his knees were on the ground. He did not see Mr. Shuler. He and Mrs. Dawson went straight to Mr. Dawson’s body. He stayed there until an ambulance arrived.”

Shuler took the stand in his own behalf and testified that he was outdoors and saw Dawson coming toward him fast and that Dawson had something in his hand. There was testimony that Dawson had a pen knife. Shuler fired one shot and it hit the ground. Dawson kept on running. Shuler fired another shot and Dawson fell.

Shuler testified that he was afraid of Dawson and that he fired the two shots because Dawson had had him down on the ground twice. Shuler also testified that he had early in life sustained an injury to his skull with the result that part of the bone in the cranium was missing. Inferably, this made him quite apprehensive of a head injury.

II

The appellant, in brief, has very carefully outlined the adverse rulings of the trial court in accordance with Rule A, 49 Ala. App. XXI. See also, ARAP Rule 28(a) (7) and Form 23.

The first question presented arose out of the question on cross-examination of Leon Pendergrass on which he was asked whether or not he, Pendergrass, was afraid of Dawson. The State’s objection to this question was sustained.

Appellant complains that Shuler was trying to establish that Dawson was a dangerous and violent man who inspired fear. This is an inquiry which would have been valid had it been shown that violence and peril were directed toward the defendant, but in this case it went toward a third party without proof of its being directed to Shuler. See McElroy, Law of Evidence (2d ed.) § 63.01.

Had any hostile acts by Dawson been directed toward Pendergrass in the course of the incident (i. e., the res gestae) within the presence or hearing of Shuler, testimony thereof would have been admissible on the issue of who was the aggressor. Wigmore, Evidence (3d ed.) § 248, cited with approval in Hoomes v. State, 34 Ala.App. 121, 37 So.2d 686. The kinship between Pendergrass and Shuler would, in Judge McElroy’s view, supra, have been a pertinent factor in determining whether menaces to one were a threat to the other. See McCormick v. State, 159 Miss. 610, 132 So. 757.

III

Appellant argues that it was error for the trial court to rule out the exhibition of Shuler’s head injury to the jury.

The jury had already heard extensive testimony from Shuler relating to his head injury and it is our view that exhibition of the old injury would have merely been cumulative and in the nature of a bolstering of testimony which the State did not dispute. This view of relevance finds support in Bryant v. State, 49 Ala.App. 359, 272 So.2d 286. Accordingly, we see no reversible error in this ruling.

IV

One of the defense witnesses was Glenn Pendergrass, the son of Leon Pendergrass. He had previously given a signed statement to the police. As a defense witness the prosecution began cross-examining him with the apparent purpose of predicating a later contradiction from the officer who took the statement.

Thereafter, the State put this officer on the stand as a rebuttal witness. He testified as to the statement elicited from and signed by Glenn Pendergrass. This partially contradicted what the latter testified to as a defense witness.

Defense counsel sought on cross-examination to bring out whether or not the young man had told the officer that at one point it looked as though his father, Leon Pendergrass, was going “to get into it” with Dawson also. The State’s only ground of objection was that the question was not confined to rebuttal. The motion was sustained. This was erroneous under Madden v. State, 40 Ala.App. 271, 112 So.2d 796(5); Coward v. McKinney, 277 Ala. 513, 172 So.2d 538.¹

In this instance, however, the witness answered the question before the trial judge ruled on the objection and the State made no-motion to strike the answer, or to exclude it from the jury’s consideration. Nevertheless, the ruling may have cut off further cross-examination.

V

At the close of the evidence defense counsel moved (a) that the court reporter be instructed to take shorthand notes of the arguments of counsel or (b) that defendant be allowed to bring in another stenographer for this purpose. The trial judge denied both aspects, seemingly on the belief that Code 1940, T. 13, § 262 prohibited the taking of notes by the reporter of argument.

We conceive this to be a misconception certainly where the defendant offers to use an outside reporter or an electronic recording device.² In Mayer v. City of Chicago, 404 U.S. 189, 92 S.Ct. 410, 30 L.Ed.2d 372, the emphasis was not how a court proceeding is recorded, but its truthfulness.

In Alabama, except as limited to cases for rape and assault to rape, court must be held in public. Const.1901, § 169 says:

“In all prosecutions for rape and assault with intent to ravish, the court may, in its direction, exclude from the court room all persons, except such as may be necessary in the conduct of the trial.”

This provision goes with § 6 which guarantees a right to a speedy public trial in all criminal prosecutions.

Since what the lawyers were to argue to the jury was in the public domain it follows that anyone who took notes could have them tendered for settlement as a bystander’s bill of exceptions or under Code 1958, T. 7, §§ 827(l)-827(5). Hence, we view the ruling below as an abuse of discretion. Moreover, without such a transcript or substitute therefor we are unable to say the error was harmless.

The judgment below is reversed and the cause remanded for new trial.

Reversed and remanded.

All the Judges concur.

1 . Compare Hale v. United States, 435 F.2d 737 at 749, f. n. 18; Federal Rules of Evideuce 611(b), scope of cross-examination.

2 . We specifically forewent deciding the question presented in Lyons v. State, 53 Ala.App. 111, 298 So.2d 42.