Slinker v. State
Slinker v. State
Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 1266
Assault with intent to murder; sentence: fifteen years imprisonment. This appeal arises from a gun fight which occurred in Huntsville in the early morning hours of September 24, 1975. On that occasion, the appellant shot two men, James Moss, Sr., and Steve Kirkland. Moss was killed and Kirkland was wounded. The appellant was convicted of second degree murder for killing Moss. This Court's opinion (by Harris, J.) affirming the murder conviction sets out in great detail the facts surrounding the shooting. See: Slinker v. State, Ala.Cr.App.,
"MR. LOFTIN: If I said at any time that a pistol was in Mr. Steve Kirkland's pocket, then I made a mistake, because going through the trial twice there has never been but two pistols —
"MR. CLOUD: Now, we object to that, if the Court please as not being a correct statement and we object to that.
"THE COURT: Well, I sustain.
"MR. CLOUD: And we move for a mistrial.
"THE COURT: Denied.
"MR. CLOUD: We except."
Appellant assigned no specific ground for objection, only that such was "not a correct statement." The trial court, nevertheless, sustained the objection. Appellant then moved for a mistrial without assigning any ground at all. The trial court will not be put in error for overruling objections or motions where no specific or proper legal grounds are stated. Generally, specific objections are necessary before the ruling of the trial judge is subject to review. McClary v. State,
We distinguish the circumstances of the instant case from those in Stennett. In that case, there was a clear reference to another crime and another indictment. In the instant case, the reference to two trials was ambiguous and its prejudicial effect was not such that mandate a mistrial. In our opinion, if any error resulted, it would fall within Rule 45, Alabama Rules of Appellate Procedure, as being harmless error. It should likewise be noted that in Stennett, supra, there was a motion for a mistrial setting out specific and detailed grounds, unlike the instant case.
"MR. SIMPSON: That file right there is public record about this murder and this shooting and he can get it any time he wants to and to come up here and try to —
"MR. CLOUD: If the Court please, we object to that. He has argued that is his work product and has argued it several times.
"THE COURT: Well, I overrule.
"MR. CLOUD: We except."
The appellant now contends that the State's attorney deliberately injected a reference to the prior murder trial into the case. However, a reading of the above colloquy reveals that this was not appellant's objection at trial. Specific grounds of objection waive all grounds not specified, and the trial court will not be put in error on grounds not assigned.Rogers v. State,
The Canons of Judicial Ethics, adopted by the Alabama Supreme Court effective February 1, 1976, in pertinent part are as follows:
"CANON 3
"A JUDGE SHOULD PERFORM THE DUTIES OF HIS OFFICE IMPARTIALLY AND DILIGENTLY
* * * * * *
"C. DISQUALIFICATION.
"(1) A judge should disqualify himself in a proceeding in which his disqualification is required by law or his impartiality *Page 1268 might reasonably be questioned, including but not limited to instances where:
"(a) He has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
"(b) He served as a lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer in the matter, or the judge or such lawyer has been a material witness concerning it." (Emphasis added.)
The motion to recuse must be addressed to the judge challenged, and his decision will not be reviewed on appeal in the absence of clear evidence of bias. Ex parte White,
The appellant must present evidence to prove the personal bias of a judge, or else his motion cannot prevail. Johnson v.State, Ala.Cr.App.,
The record does not reflect that the letter was ever introduced into evidence during the trial on the merits or that it was ever submitted to the jury. From aught that appears in the record, the letter was included in the record as an exhibit in the hearing on the motion to recuse, which took place prior to the trial on the merits of the case. Absent an objection to the introduction or submission of the letter and a ruling thereon by the trial court, we have nothing to review. Review on appeal is limited to matters on which rulings are invoked in the trial court. Frazier v. State,
"Do each of you understand the witnesses for the Defendant are not permitted to be called at the request of the Defendant to testify before the Grand Jury?"
On objection by the State, the court then stated:
"If you will clarify your question Mr. Cloud, I may allow it. At this point I will sustain the objection."
Whereupon, counsel for appellant excepted, but then restated the question as follows:
"Do each of you understand that only the witnesses called by the State of Alabama testify in the Grand Jury?"
The State's objection to that question was then overruled by the trial court, however, for reasons not apparent in the record, defense counsel excepted to that ruling which was favorable to his client.
We certainly find no prejudicial error in the ruling by the trial court in this regard. It may be that counsel for appellant mistakenly thought that the trial court had ruled in favor of the State, however, the record clearly shows the ruling to be in favor of the appellant.
On further voir dire, counsel for appellant asked the following question:
*Page 1269"Do you understand and accept that several people may inform you by their testimony that a particular event occurred in this case, however, unless those individuals can persuade you by the weight of the evidence that those events occurred in the manner and method in which the prosecution has stated they occurred, then you must acquit the defendant?"
The State objected on the ground that such was not a correct statement of the law, and the trial court sustained the objection.
It appears that counsel for appellant was attempting to instruct the jury on the law at this point of the trial which is clearly the prerogative of the trial judge in giving his oral charge to the jury and written requested charges. We will not put the trial court in error for sustaining such an objection. The scope of voir dire examination is within the sound discretion of the trial court. Bowens v. State,
During voir dire examination by the prosecution, the following occurred:
"MR. LOFTIN: All right. Have any of you ever been a witness against the State of Alabama or a witness for a Defendant, in other words, in a criminal case."MR. CLOUD: If the Court please, we object to that form of the question — `witness against the State of Alabama.'
"THE COURT: As it was rephrased I will overrule the objection."
Almost the identical question was asked and objection made in the prior trial for the murder of Moss. This Court found no error in the ruling of the trial judge in that instance, and neither do we in this instance. See: Slinker, supra.
"The Court charges the jury that the jury may look to the fact, if it be a fact, that Steve Kirkland used abusive or insulting language to Richard Slinker at or near the time of the difficulty and such language may be taken in mitigation or justification of the offense as the jury may determine."
The above was fully, adequately, and substantially covered in the trial court's oral charge which was in pertinent part as follows:
". . . On the trial of any person for an assault or an assault and battery he may give in evidence any opprobrious words or abusive language used by the person assaulted or beaten at or near the time of the assault and such evidence shall be good in extenuation or justification as the jury may determine. As I said, that has only to do with assault or assault and battery. That is Title 14, Section 37, Code of Alabama 1940, Recompiled 1958."
Therefore, the trial court did not err in refusing the above requested charge. Title 7, § 273, Code of Alabama 1940.
AFFIRMED.
All the Judges concur.
Reference
- Full Case Name
- Richard A. Slinker v. State.
- Cited By
- 66 cases
- Status
- Published