Maness v. State Court Opinion

    120 Ala.

tn rc Dewron Bry COTTINGHAM
't Y.

STATE.

Ex perlc Dewron Ray Cottlngham.

EC 1730.

Supreme Court of Alabama.

April 2, 1976.

Certiorari to the Court of Criminal Ap-
Peals.

Philip P. Nelson, Wilder & Nelson,
Birmingham, for petitioner.

No appearance for the State.

ALMON, Justice.

Petition of Dawson Ray Cottingham for
Certiorari to the Court of Criminal Ap-
peals to review and'revise the judgment

and decision of that Court in Cotthtglan v.
Stote,57 Ala.App. 

-,38 
So2d 116.

WRIT DENIED.

HEFLIN, C. J., and BLOODWORTH,
FAULKNER and EMBRY, JJ., concur.

J.n, Drvld tlANEeg
Y.

8TATE.

8 Dlv. C6.

'Court ol Crlmlnal Appeale of dabama.

Jan. 20, 19?6.

Reheorlng Deiled Fbb. 17, 1Yr6.

Dcfendant wss convicted beforc the
Circuit Court, Jackson County, John B.
Tally, J., of manslaughter in first degree,

329 SOUTEER,N REPORTER, 2d SEBIES

and he appealed. The Court of Criminal
Appeals, Tyson, J., held that photographs
of deceased, notwithstanding appearance of
surgical incisions, were properly admitted
as tending to shed light on the acts, motive
and intent of defendant; that unsigned
notes did not amount to a statement oI
prosecution witness, but merely represented
work product of county investigator's in-
terview of a prospective witness, and as

such were not subject to defendant's mo-
tion to produce; that trial court properly
overruled defendant's motion for mistrial
based upon claimed improper questions of
prosecutor; that court properly denied
mistrial based on allegedly improper argu-
ment of district attorney that "The State
has one chance, The State cannot ap-
peal."; and that error, if any, in court's re-
fusal of defendant's requested charges de-

lineating his duty to retreat vel non bcfore
using nondeadly force to defend himself
wa, rendered harmless.

Affirmed. :#

claim
wher,
and i
ly sl
charg
thoug

4. Crlr

Cr

on allr
attorn€
The 

-q

court il
were t(
stateme
whether
gard th<

S. Crlm,

Cun
er quest
improper
such as
sphere o
fendant,
tained dr
ished jur
matter.

6. Homlclr

In prr
of victim I

ror, if an.
ant,s reque
to retreat
force to
harmless, r
by their ve
fendant hEr
deadly, fofr
did not shor
of Appellatc

j
i-
.),
a,

I*. & L*
Wiliamt

Daniel Er[
State. .{

req so.ra_

'g

certiorari denied, D5 Ala. _, 3n
So.Zd 126.

l. Crlmlnal Lew e438(O)

In prosecution for murder of victim by
striking him with his fists, photographs of
deceased, notwithstanding appearance of
surgical incisions, were properly admitted 1..

as tending to shed light on the acts, mo-

tive, and intent of defendant, where marks .;...

resulting from surgery were sufficicotly .,$.

pointed out to jury. ij

Unsigned notes did not aruount !t,l .*t,
statement of prosecution witncss, but acf+ .il1
ly represented work product of county in'- i1t

vestigator's interview of a prospective wit' .,$

ness, and as such were not subjcct to &
fendant's motion to produce.

& Gelnlrrl Lew Gr730(3)

Trial court properly overmled

2. Crlmltrrl tey @a,647.5(6), 62rJ(3)

8nt's motion for mistrial bsscd



UANESS v. STATE
Clte ae 329 So.2d lm

Af8.

claimed improper questions of prosecutor, TYSON, Judge.
where neither of questions was answered
and in each instan'ce trgal court immediate- The appellant was indicted for the first
ly sustained defendait's objection and degree murder of W. L. Neeley "by strik-
charged jury to disregard question even ing him with his fists." At trial, the jury
though no answer had been elicited. found the appellant guilty of manslaughter

in the first degree and fixed punishment at

4. Crlmlnat L8w @730(!) ten years imprisonment. The trial court

court properry denied mistriar based l:1J"1?r::T,i',tff:ffitins 
sentence

on allegedly improper argument of district
attorney that "The State has one chance. Dr. Frank Haws testified that he exam-
The State cannot appeal.,', where trial ined W. L. Neeley in the Huntsville Hospi-
court immediately instructed jury that they tal emergency room at approximately 8:30
were to totally disregard district attorney;s P. m. on the night of December 19, 1971, at
statement and court further inquired as to which time the patient was deepty uncon-
whether any juror was not able to disre- scious, having been transferred from
gard the statement. Scottsboro for the treatment of a head in-

jury. Dr. Haws stated that Neeley,s con-

s. crtmhrt Law @230(t) dition deteriorated thereby necessitating
certain surgical procedures; tracheotomy,

cumulative effect of allegedly improp- arteriogram, and craniotomy, each or
er questions of prosecutor and atlegedly which he described in court. Dr. Haws
improper argument of prosecutor was not explained tlrgt in spite of his efforts, the
such as to create an ineradicable atmo- patient did not improve and passed away at
sphere of prejudice and bias toward de- 5:55 a. m. (m December zl, lgz4. Dr.
fendant, where court in each instance sus- Haws concluded his testimony by stating
tained defendant's objections and admon- that death was a result of cerebral contu-
ished jury to disregard allegedly improper sion, complicated by suMural hematoma,matter. fracture of the nasal bone, and multiple

contusions of the face.
6. Homloldc F3,O(4)

rn prosecution for first-degree murde, ..ji|]tjr';tt"'.1;":t11:tJ[j ;: :|! il:of victim by striking him with his fists, er- appellant were riding around in appellant,sror, if any, in court's refusal of defend- truck. He stated that around 5:00 p. m.ant's requested charges delineating his duty they noticed W. L. Neeley,s car parked lnto retreat vel non before using nondeadly front of Bob Creed,s house in Davistownforce to defend himself was rendered
harmress, where jury round, as evidenced il t:::$ ,?UffT,;'fi'j:,t,T.u,T$by their verdict of mansraughter, that de- pu,ed in. presley said that Neerey and hisfendant had used deadly, rather than non- daughter came out of the house and Neeteydeadly, forc.e against victim and evidence
did not show ariassaurt and,battery. Rures *l,fil,j'" :l1tr,lT*il;: "11 ::lof Appellatc Procedure, rule;45. that at an intcrsection, not far from

+_ 
Creed's house, Neetey got out of the car
his daughter was driving and walked back

Lee & Lce, Scottsboro, for appellant. and got into the truck with them because
his daughter wanted to go and see her boy-

- 
william J. Baxlcy, Atty. Gcn., and G. fricnd. prcsley stated that hc and appel-

Daniel Evans, Asst. Atty. Gen., for the lant had been &inlcing beer and that theyState. offered one to Neeley. He enplained that
,29 So.2(F€la

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329 SOUTEEB,N REPOBTEB' 2'I SERIES
122 Ala.

the three men drove about two uriles and

iien prtted over to the side of the road to

;;ilr'. themselves. The witness continued

L, t"ring that, while staqding at 
.the..bacl

oi the truck, he heard a "commotton" ano

*"ff..a around the side of the truck and

found Neeley lying on his back on the

,iirra.t ot it,e road rvith appellant bent

ore, t i-, st'inging at him with his fists'

He said that he intervened and "raised ap-

p.if"", up," that the appellant then offered

io t"f.. 
- 
Neeley home, but that Neeley

refused, saying, "Hell, no, let me stay

here." Presley stated that the appellant

carried him home where his father' Jim

Pr.rl"y, told appellant to go on home' that

i. *ouia go back and see about "W' L'"

ii. *itn..t said that he and his father

ii.. *"", back to the scene of the fight'

pi.t.a up Neeley, and headed tou'ard the

i".prlr in Scoitsboro' Presley testilied

th"t prio, to the fight he had noticed only

one small mark on the deceased]s forehead'

husband had been laid off from work' at

which time he began drinking'

Another dePutY sheri{f , Mike Wells'

iaentiiiea sereral photographs of the body

oi tft. deceased that were taken in his

presence in the Scottsboro Funeral Home'

Th.r. photographs were then admitted into

evidence ", 
it"t.'t Exhibits Nos' 1-3'

At this point the State rested and appel-

lant's motion to exclude u'as denied'

The first witness called by the defense

was Walter Goggans' Mr' Goggans stated

that he operated a store in Jackson County

*i.r" ,t,. deceased traded' He said that

Neelel' came by the store on the afternoon

oi O....t.t 
-19, 

1974, at which time he

had bruises "all over his face'" Goggans

added that Neeley had been drinking'

The appellant's, Jerry Maness" testimony

..t.",i"fiy was the same as that of the

lr;;;;t key witness, JohnnY PresleY' AP-

oetlant adied however, that when he got

;;; tt. tt["t to so to the bathroom' he

the effect that N
and that he, tht
fists in defendinl
ed that he notice
pellant's hands a:

where appellant
kicked him.

In rebuttal for

testified that hr
after supper on

1974, at which ti
gle small scratch

Appellant's w

firmative chargt
tion for a ne\\'
hearing thereon.

tll Appellar:

court erred in z

tographs o{ tht
Exhibits Nos.
photographs art
of ttre "surgical

ln McKee zt.

2d781, the Cour

.t.* * * 1

the physical t

mislead, the
matter befort
that the obje'
in exactly th
time of the r

it is intended
ment would r
inadmissible i

it is hardlY
conditions ex

no error in a

tograph of tl
performance
the Photogra
sions made :

topsy, the at

to the jurY t
examination.

Here, Prior
photogrePhs i

Deputy Sheriff Claude Morgan testified

il il'met the car driven by Jim Presley

which was carrying W' L' Neeley to re-

..1r. *.ai."f "li. 
He stated that he called

"rr- "rntrt"n.e 
and then checked Neeley and

air"""*.a that he had quit breath.ing'

M;-tt", said that he administered artificial

,..pit"tion until the ambulance arrived'

Mrs. W. L. Neeley, wife of the deceased'

testified that she was a licensed practical

"rtt. ", Jackson County Hospital and that

;;-;"t on duty the evening of Decernber

\i, ,ic, whe" het. husband' face badlY

bruised and unconsclous, was brought into

the emergency room at approximately / :w

;:; M"rs. Neeley stated that on the rec-

lrril"na"tion of Dr' Jones' her husband

wis transfcrred to Huntsville where he

*"t ,t""t.a by Dr' Haws; but' nonetheless'

died without ever regaining consciousness'

She said that her husband weighed De-

i*".tlrqO and 150 pounds and stood 5'5"

tall.

On cross-examination' Mrs' Neelcy said

that several weeks prior to his death' her

iJi-N..r.y that he wanted to talk wittt*:

tlrn 
"tou,'tome 

obscene phone calls that

ni., "*.t,"rt's, 
mother had received' Ap-

p.ii*'"",.a that Neeley admitted-making

the calls and then further vilified his

mother. He explained that Neeley svrung

fi.rt and that the fight lasted only a very

,iott *ftif. before Johnny Presley- inter-

;;. Appellant also said that Neeley's

face was already severely bruised rvhen he

sot in the truck with Presley and hrm' ano

in",'"f,.t the fight he did not realize that

N"et.Y had been seriouslY- *j:t{: il

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'."*uiaJi, ."Ying that aft* h" ]:"I{ 
':i

"i'N".r.y't 
a""itt, ht turned hlry:tf in at 

':i
ii.-]""tto" County Sheriff's Office'

On cross-examination, the appellanl t::dj
that at the time of the fight' he welgneq-

Officer Max Robertson of the Jackson

C*",, Sf,"tiff's Departm*t lt"ili:d, Y ,
;; 

"i;;;; 
of December 2r' Le74' Ln.e i;

;ilrr* ;;t.i"a o..sn *tl t 

-:-.' I'-T- iH
iir o* volition and made a



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![A![ESS v. STATE
Clte a8 320 So.2d 120

Ala.

the effect that Neeley had started the fight Haws had already testified, therein de-
and that he, the appellant, used only his scribing each of tire three operations that
fists in defending himrelf. Robertson add- he had performed upon w. L. Neetey.
ed that he noticed a scab on one of the ap- Furthermore, the trial court instructed the
pellant's hands and a bruise on his forearm jury to limit their consideration of the
where appellant claimed that Neeley had photographs to those areas unaffected by
kicked him. the surgery.

tat

In.rebuttal for the State, Jimmy McKee
testified that he had seen W. L. Neeley
after supper on the night of December lg,
1974, at which time he observed only a sin-
gle small scratch on Neeley's face.

Appellant's tvritten request for the af-
firmatire charge r,r'as refused, and his mo-
tion for a nerv trial was overruled after a
hearing thereon.

I

tll Appellant first contends the trial
court erred in allowing into evidence pho-
tographs of the deceased, marked State's
Exhibits Nos. l-j. He argues that the
photographs are highly prejudicial because
of the "surgical incisions" that appear.

ln IvIcKee z'. State,253 Ala. 235, {4 So.
2d781, the Court stated:

" ' t * * The sole question is whether
the physical evidence will assist, and not
mislead, the jury in understanding the
matter before them. It is not necessary
that the object sought to be admitted be
in exactly the same condition as at the
time of the occurrence of the fact that
it is intended to illustrate; such a require-
ment would make evidence of this nature
inadmissible in practicatty all cases, since
it is hardly ever possible to reproduce
conditions exactly. There was
no error in admitting in evidence a pho-
tograph of the deceased, taken after the
performance of an autopsy, even ttrough
the photograph showed marks of inci-
sions made for the purposes of the au-
topsy, the autopsy surgeon pointing out
to the jury the marks resulting from his
examination.' . . .,,

Here, prior to the introduction of the
photographs into evidence, Dr. Frank

We are of the opinion that the marks re_
sulting from surgery were suff iciently
pointed out to the jury. Gaddis a. State,
39 Ala.App. 630, 106 So.2d 268; Meats a.
State, 5l Ala.App. 8, Zg2 So.2d 356, cert.
denied Dl Ala. 792, nZ So.2d 359; Mc-
Kee u. Slofe, supra.

The photographs in question were prop-
erly admitted as they tended to shed light
on the acts, motive, and intent of the ap-
pellant. Snead a. State,2Sl Ala. 624, 3g
So.2d 576; Massey v. State,49 Ala.App.
34l, 272 So,Zd 267, cert. denied ?g Ala.
747,272 So.Zd 270; Mea*t zt. State, supra.

I

II

tzl During the cross-examination of
the State's eyewitness, Johnny presley, ap-
pellant's counsel moved the trial court to
order the prosecution to produce an alleged
"statement" given to State authorities by
Presley and the court refused.

ln Coohs u. State, 50 Ala.App. 49, 226
So.2d 634, cert. denied 290 Ala. 363, 226
So.2d 640, it was held:

"The first requisite necessary to secure
for inspection production of a ,statement'

of a witness for use on cross examina-
tion of the witness is that the statement
must be one in writing prepared by him
or prepared by anothcr at his instancc
and signed by him or otherwise authenti-
cated by him. In the instant case there
was nothing to indicate by query of the
witness by the defense or otherwise that
the witness had given to any officer e
written statement signed or authenticated

;, by her. There was not'laid in the evi-
dence any showing that any statement
made by the witness to officers before



rul Ala. g2g SOUTEEBN REPOBTEB, 2d SERIES

After a review of the evidence adducedat the hearing on appellant,. ,notion-ior-"'
new trial, we are clear to tf,e con.lrrion
that the unsigned notes in question Aid noi
amount to a statement as defined in Coohs,supra, but merely represented the workproduct of a county investigator,, i;;
view of a prospective witness, and as suchwere not subject to appellant,s motion to
llgdl..: Mabry a. State,,t0 AIa.App. 129,

110 
s9'2-d 250; Thispen a. Stare, cb alu.'.App. 233, 270 So.2d 666; ForteiOrrry"lr'.

State, 55 AIa.App. t, 3t2 So.Zd Sii;'^"i
Cools, supra.

III
Appetlant next cites us to three instances

in the record where he insists that tf,. trl"i
court committed reversible error in over_
ruling his motions for a mistrial

During the cross-examination of defense
witness Walter Goggans, the district atto;_
ney asked, "You know about him having
other figh-ts, and you are scared of him,
aren't you ?,, tR. p. g6]

Later, during the dirr
state,s rebuttar .,.,rn.r, 

tl.""amination 9f tr
, Jrmrny Moore, tlr!district attorney asked ihe *i,".1r,you knorv the general reputation 

-i,

community out there of Mr. Jeny
Y::.rO as to peace and quiit7,,'
12s)

t3] Neither of these questions were.hn-srvered. In each instance, the trial ioiJ,immediately sustained appellant,s objelit,
:::",,.^YT:1 llre 

jurr io a;...s";;'ffi
question even though no ans\t.er ;;d b;elicited. The trial court therefor" or.,rI
overruled appellant's motions ior'"-ffi,::)., 

!::,2,. Sta.te,48 Ala.A;;. 

^,W
So.2d 529; Crourh. 2,. Sralc, fj O,".iir.
??! ?2 So.2d 305, cert. denied Zs; rt:718, D9 So.2d .112.

. In his ctosing arg.ument for thethe district attorney commented,
State has one chance. The State
appeal." [R. p. 13]

f4i {gain, appellant,s obieqip
sustained and the trial court'i;;
instructed the jury that they were toly disregard the district 

"ito.n.y,.ment. The court added that the jlry,s I
responsibility u.as to determine the guilt
innocence of the defendant of the-char
in the indictment, and that whether or
the State could appeal had absolutety n

trial differed in any respect from state-
ments made to the jury during trial.
See Bellew a. State of Uns*s;ip;, ZiiMiss. 734, 106 So.2d r+0, .rr.J ,iii "ilproval in the Mabry case, supra. Nei-
lher.was there'any'.r.h ,ho*jng oi ;_consistency in testimony given by thewitness at a preliminr.y ti"rlng i..r;_ously held and the testimony g1"." lryher on the trial before the jury. There
is-no showing that the statement request_
ed, if any, was of such nature tfrat witfr_
out it the defendant's trial would be fun_
damentally unfair. The production io,inspection of any such statement as
above defined lies within the sound dis-creticin of the court and we find no
abuse of that discretion ;n ti,e .utin!
here made. See Annotation, Right o;
Defendant in Criminal Case to ;rp.;:
tion of Statement of prosecution,, ilili_
ness for Purpose of Cross Examination
or_Impcachment, 7 A.L.R.3d, pp. igi;
217, 219, 213 citing the Mabry 

"*., .rlpra, and the authorities.therein noted.,,

t&r

crcatc all
dice and
rs here,
trined thr

nronished
ll c.4ltistct
S.-r.2d 862.

ln view
cotlrt, err(
A uthoritie,
Ala..{pp. t

J9{ ;\la. 78

ljrnalll. :

cuilrt conln
irrg his reqr
21, rlealing
es it relat,
Though not
of these cl
proposition
rpplicd to s,

Clde, i. c., n
epplicable to
aasault and
slightly diff
retreat befo
one's own dt

Appellant
murder indic
verdict findir
in the first d
trial court cl
recond degrer
grce manslaur
Thc triat c-o,,,
tlrr taw of sel
ddc, but feile
gta8lt end.ba

tOl It is t,
{oa,v. Sklte,

ing to do with the case. The triat
concluded by asking the jury, ,.Is there
one of you who feels that they are mtiito disregard that statementi I atcl
that no person had signified affirmr
th-at you can all disregard the statd
There was no response from
The court was correct in
lant's motion for a mistrial based
proper argument by the district

!-It

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ljyiae a. Stote, 279 Ata. nt, fi
9\.G::!0, a. State,5a Ata.i,pp
So.2d 908; Adait a. Srrrr, 5i-.d
651,288 So.2d 187.

tsl Neither do we betievc
mulative ef fect of the a
questions and statement was



fa
the

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UANESS v. STATE
Clte as 329 So.2d 120

Ara. 125

crcate an ineradicable atmosphere of preju-
dice and bias toward the appellant when,

as here, the court itt each instance sus-

tained the appellant's objections and ad-

monished the jury to disregard such.

IficAllister a, State, 44 Ala.App. 5ll, 214

So.zd 862.

Iir view of the prompt action of the trial
court, error to reversal is not here shown'

Authorities cited, and Lllest a. Stote, 34

Ala.App. U7, 312 So2d 45, cert. denied

D4 Ala.78,312 So.Zd 52.

IV

Finally appellant argues that the trial
court committed reversible error by refus-
ing his requested charges, Nos. 19, 20, and
21, dealing with the defense of self-defense

as it relates to an assault and battery.
Though not all worded exactly alike, each

of these charges stands fot the general

proposition that the doctrinc of retreat, as

applied to self-defensc in a criminal homi-
cide, i. e., murder or manslaugtrter, is not

applicable to the right of self-defense in an

assault and battery situation, or stated

slightly differently, one is not required to
retreat before using aon-deadly force in
one's own defense.

Appellant was tried on a first degree

murder indictment and the jury returned a

verdict finding him guilty of manslaughter
in the first degree. In its oral charge, the

trial court charged the jury on first and

second degree murder, first and second de-

gree manslaughter, crd ossatb and baltery.
The trial court then charged the jury as to
the law of sclfdefensc in a criminal homi-
cide, but failed to do so with rcslrcct to an

assault and battcry.

t6l It is to be noted that, unlike l/cl-
doa o. Srote; SO,Ala-App. 4V, N So2d

183, relied upon so heavily by appellant in
brief, the jury in the instant case was

charged as to the lesser included offense
of assault and battery and could therefore
have returned a verdict finding appellant
guilty of such lesser charge only. Horv-
ever, the jurl' made a finding of fact as

evidenced by their verdict, that the appel-

lant used deadly rather than non-deadly
force against Neeley. That being the case,

any error by the trial court in rcfusing ap-

pellant's charges delineating his duty to re-
treat vel non before using noa-deadly fotce
to defend himself was rendered harmless.

Under Rule 45, Alabama Rules of Appel-
late Procedure, we have carefully consid-

ered the entire testimony, and conclude

that, in view of the severe beating admin-
istered to the deceased, which, in the opin;
ion of Dr. Haws, was the contributing
cause of death, the possibility of death

being attributable to a prior encounter was

onty theo'retical. Accordingly, the trial
judge, in giving a charge as to assault and

battery as a lesser included offense, gave

the defendant a possible benefit to rvhich
he was not legally entitled under the evi-
dence. Therefore, the refusal of these

charges, Nos. 19, 20, and 21, lvas not error
since, in our opinion, assault and battery
was not shown.

Ivloreover, the jury, by its verdict, chose

not to give credence to any hypothesis

based upon assault and battery or involun-
tary manslaughter.

We have carefutly examined this record

and find same to be free from error. The
judgment of the trial court is due to bc

and tlre same is hereby

AF"IRMED, ,'

All the Judges concur.

ii

ti

ii