Maness v. State Court Opinion
Working File
January 20, 1976

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Case Files, Bozeman & Wilder Working Files. Maness v. State Court Opinion, 1976. 8bba5e98-ee92-ee11-be37-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/c27e2520-650a-44b8-8140-b3935eac116d/maness-v-state-court-opinion. Accessed July 09, 2025.
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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 l2t rl ,s f d e d f d t- s ,- v il rf rd t- le P. e- rC tf .&', , _.rIs by of of ed (} ks 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 t. Jl .I,{ .rir.. :,' !rt i, :' ir F rf I ir r.. l'r '."*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 ' .-i, ry le p- ot 1e th at p- rg ris ng ry :r- r's he nd lat lIc 'cdat i, Y s :. o ,e d v rt rn le ls DN hrt pr OI ![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 .i .t .,| ; .: L ;i H i 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 Do lhe vid p. an- urt ion the een :rly ris- 267 'Pp. \la. ate, Ihe rnot , was tely rtal- ate- Q. "!.I'* 'i.i'r3' rf &t dt. .!c, ;. .lt^ sole : tor rrge not ourt any :., able eit ,dy' nt ?" urllri llll- agf r 00(: 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