Nelson v. State
Nelson v. State
Opinion
Joseph Langston Nelson was indicted for the offense of attempted murder. The jury found the appellant guilty of the lesser included offense of assault in the first degree. The appellant was sentenced to 20 years' imprisonment.
The appellant does not challenge the sufficiency of the evidence and, therefore, the facts of the case will be briefly stated. On the evening of February 1, 1990, in the Reedtown Community of Russellville, Alabama, Anthony Winston was stabbed twice in the chest by the appellant as a result of a disagreement over money. One of the stab wounds penetrated Winston's heart. Surgery was required to repair this wound and Winston would have died without surgical intervention.
Hold v. State,"An accused is not deprived of due process of law when he offers 'little more than undeveloped assertions that the requested assistance would be beneficial.' Caldwell v. Mississippi [472] U.S. [320, 324] n. 1,
105 S.Ct. 2633 ,2637 n. 1,86 L.Ed.2d 231 [(1985)]. See also Ake v. Oklahoma [470] U.S. [68],105 S.Ct. 1087 ,84 L.Ed.2d 53 (1985); Ex parte Grayson,479 So.2d 76 (Ala. 1985)."
"As a general rule, the prosecution may not take the initiative, in its case in chief, to introduce any kind of evidence as to the accused's evil character, disposition or reputation in order to establish probability of guilt." C. Gamble, McElroy's Alabama Evidence § 27.02(1) (3d ed. 1977).See Headley v. State,
With regard to the prosecutor's questions to the police officers concerning their prior dealings with the appellant in their capacity as police officers,
Lowe v. State,"[i]t is well settled law that the prosecution may not introduce evidence of a defendant's prior crimes for the purpose of showing the defendant's general bad character or his propensity to violate the law. Ex parte Weeks,
456 So.2d 404 (Ala. 1984); Ex parte Baldwin,456 So.2d 129 (Ala. 1984). Although the questions asked by the prosecution in this case do not constitute a direct comment on the appellant's prior criminal record, the jury could have reasonably inferred that the appellant had previously been arrested for a different offense."
United States v. Shelton,"Where the 'other crime' alleged is not specified, it is more difficult for the defendant to refute the charge or to demonstrate its insignificance. Where the evidence is presented by innuendo, it is less likely that the jury will guard against manipulation. Therefore, the likelihood that a jury will draw an improper inference is even greater in a case like the one before us than it is in the traditional 'other crimes' case."
However, the trial court's error in admitting this evidence was rendered harmless by the appellant's subsequent admission during his testimony that he had been convicted of assault in the second degree. Lowe (error in allowing evidence of defendant's prior dealings with bonding company was harmless where defense brought out the fact that defendant had previously been arrested for burglary). See also Burlison v.State,
"MR. HARGETT: It wasn't shown that Anthony was convicted of any felony, and who is guilty of being a violent person.
"MR. BEASON: I object, again. That's not the purpose that's offered.
"THE COURT: I sustain the objection.
"MR. BEASON: Request a mistrial.
"THE COURT: I overrule the motion for mistrial." (R. 461.)
The appellant argues that the trial court should have granted his motion for mistrial. We disagree. The defense introduced evidence that the appellant had been convicted of the offense of assault in the second degree. Further, on cross-examination by the prosecutor, the appellant stated, "I am violent." Defense counsel did not object to this testimony by the appellant. Therefore, the appellant cannot now object to the prosecutor's comment upon evidence to which he, himself, testified. Burlison. This issue is without merit.
"[T]he evidence in the case [is] that the defendant has a conviction, a prior felony conviction for assault in the second degree, *Page 509 and our law says that where a person has been convicted of an offense involving moral turpitude such as this, that there is no longer a presumption that when he takes the oath to tell the truth, the whole truth and nothing but the truth and takes the stand and testifies, that there is no longer a presumption that he is telling the truth. Ordinarily every witness who takes the stand when he swears to tell the truth and testifies, there is a legal presumption that he or she will testify truthfully. But when it has been shown that a witness has been convicted in the past of a crime involving moral turpitude, then that presumption of truthfulness no longer exists and is no longer binding on you." (R. 468.)
The appellant contends the trial judge's charge on this matter was reversible error. As the appellant correctly points out, there is no presumption of truthfulness in Alabama, and such an instruction "is a derogation of the jury's exclusive right to determine the credibility of witnesses," Williams v.State,
" '[T]he fact that isolated instructions are erroneous or misleading is no ground for reversal where the instructions as a whole present the case properly.' " Sosa (quoting Williams). We have reviewed the court's instructions as a whole and find that any error in the charge quoted above was harmless as it was cured by the other portions of the court's oral charge.Sosa; Holifield; Touart.
"The trial court may properly refuse a written requested charge which is not applicable to the evidence as presented at trial." Scanland v. State,
The appellant further contends that the trial court erred by failing to instruct the jury on the offenses of menacing and reckless endangerment as lesser included offenses of attempted murder. Section
"A defendant may be convicted of an offense included in an offense charged. An offense is an included one if:
"(1) It is established by proof of the same or fewer than all the facts required to establish the commission of the offense charged; or
". . . .
"(4) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interests, or a lesser kind of culpability suffices to establish its commission."
The offense of attempted murder is established by showing that, with intent to commit murder, the appellant did some overt act toward the commission of that offense. §
"A person commits the crime of reckless endangerment if he recklessly engages in conduct which creates a substantial risk of serious physical injury to another person." §
The judgment of the trial court is affirmed.
AFFIRMED.
All the Judges concur.
Reference
- Full Case Name
- Joseph Langston Nelson v. State.
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- 7 cases
- Status
- Published