Bythewood v. Alabama Court Opinion

    Affirm

2r<r<Oe un- azrrz-u.LnoM -
1170 Ala, 373 SOT]THT]RN REPORTER, 2d SERIES

IAiLure 1_o

U-ru$,U/9

admissible, and (4) defendant, who failed to
request proper limiting instruction that his
prior statement was admissible solely for
impeachment purposes since it contained no
inculpatory material, could not be heard to
complain for first .i*uin ffiIL.-

l. Criminal Law e706(3)
State's question to brother of defend-

ant, who was on trial for first-degree mur-
der, as to whether brother had prior to trial
told police that defendant did not kill victim
in self-defense was l)roper, and did not seek
to elicit witness' opinion as to whether or
not killing was done in selfdefense.

2. Witneaees ea379(2)

Trial court's decision to allow testimo-
ny of police officer on rebuttal that brother
of defendant, who was on trial for murder,
had told him that defendant did not kill
victim in selfdefense, which was contrary 1
to brother's testimony at'trial, *". p.op"r 

I
impeachment of witness' credibility by use I
of prior inconsistent statement. '{
3. Criminal L&w 6414

Where police officer testified that tran-
scription of tape recording of statement by
defendant, who was on trial for murder,
was accurate, tape recording itself was
available to judge for his consideration,
tape recording was played for jury but jury
did not see transcription, and proper predi-
cate for introduction of defendant's state-
ment was laid by State, trial judge did not
abuse his discretion in considering unaigned
transcription of tapc rccording of defend.
ant'g statement in making determination on
voir dire that defendant's statement was
admissible.,--V@

Defendant, who failed to request prop-
cr limiting instruction at trial to effect that
his urctritl Btrtcmcntrwas admissiblo sololvr-\

f<lr impcachment puriroaes since it con-
tained no inculpatory material, could not be ll
heard to complain of failure to give suchll
instruction for first time on appeal.

"r&.|[#
tnvrzu_e_T,lJTw

the petitioner. Rule 39(k), A.R.A.P. It is
thus that the decision of the Court of Crimi-
nal Appeals is due to be affirmed.

AFFIRMED.

TORBERT, C. J., and MADDOX,
FAULKNER, ALMON, SHORES and EM-
BRY, JJ., concur.

JONES and BEATTY, JJ., concur in the
result.

Junius BYTHEWOOD, Jr., alias

Y.

STATE.

6 Div. ?37.

Court of Criminal Appeals of Alabama.

April 1?, 1979.

Rehearing Denied May 22, L979.

Defendant was convicted before the
Circuit Court, Jefferson County, Charles
Nice, J., of first-degree murder. Defendant
appealed. The Court of Criminal Appeals,
Tyson, J., held that: (1) State's question to
defendant's brother as to whether he had
previously told police that defendant did
not kill victim in selfdefense was proper;
(2) admission of police officer's testimony
on rebuttal that defendant's brother had
prcviously told him that defendant rlid not
kill victim in self<lefonse, which was con-

Itrary to brother's testimony at trial, was

I not error but was proper impeachment of

i witness's credibility by use of prior incon-
lsistent statements; (3) where police officer
testified that transcription of defendant's
statement was accurate, and tapc rceorrling
of gtatcment was uvliltblo to jurlgr: for his
consirleration, trial court did not abuse its
discretion in considering transcription of de-
fendant's statement in making determina-
tion on voir dire that such statement was

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who failed to
't.ion that his
,le solely for
contained no
t he heard to
cal.

l(t 1175.

:r of defend-
t-degree mur-
i prior to trial
not kill victim
rl did not seek
,r whether or
'rfense.

tllow testimo-
I that brother
rl for murder,
t did not kill
was contrary

,1, was proper
libility by use
,t.

iied that tran-
statement by
I for murder,
rg itself was
e,rnsideration,
jury but jury
proper predi-
n,lant's state-
iudge did not
ring unsigned
,rg of defend-
ormination on
l.atement was

request prop-
to effect that

rrrissiblo solcly
rirrce it con-
l, could not be

to give such
,ppeal.

5. Criminal Law e824(8)

Ab-rrnkJl4,ucsy for propcr limiting
instruction to effect that rlefen<lant's prc-
trial statement was admissible solely for
impeachment purpo$es since it contoined no
inculpatory matdrial, f{f9_!9"_Cry9__E!ch
instruction was Dror)cr.

Georgc Michael Stripling, Carol J. Milli-
can, Birmingham, for appellant.

Charles A, Graddick, Atty. Gen., and Wil-
lis E. Isaac, Asst. Atty. Gen., for the State,
appellee.

TYSON, Judge.

The appellant was charged with the first
degree murder of one Roy Washington, Jr.,
"by stabbing him with a knife" (R, p. 189).

The jury returned a verdict of guilty of
first degree murder, fixing punishment at
life imprisonment. The trial judge then set
sentence accordingly. From the denial of
his motion to exclude the State's evidence
and the refusal of the requested affipns&i1'e.
charse, both .!gllr!g!rg_j!u lg!{igglgy_gftjr-S:!a*qt@
appeal.

Mrs. Viola Washington, mother of the
deceased, testified that she last saw her son

alive on August 4 before his death on Sep-
tember 3, 1977. Mrs. Washington saw her
son lying dead on September 3, 1977, in the
yard of Patricia Woods.

Mrs. Elizabeth Woods testified that she
and her daughter, Patricia, lived at 1812

15th Street, Southwest, Birmingham, Jef-
ferson County, Alabama. On the evening
of September 3, 1977, Mrs. Woods an<l her
daughter were at home when they hearrl a
disturbance in thc street in front of their
house. Mrs. Worxls stated that shc saw the
apllellant and the rleccaserl arguing while
the allpellant's brothcr, James Bythewood,
watche<I. Mrs. Woorls hear<l the rlcccascrl
say, "Givo mc my stuff, mtn" (ll. p. 1l).
Mrs. Woorls stw rt stir:k in thr, rlt,ccrrscrl's
hunrl, buL shr: rlirl not sec hirn strikc l,hc

appcllant with it. Mrs. Wrxxls tcstificd
that she saw the appcllant'begin to stab the
deceased with a knifc rr:scmbling a small

IIYTHEWOOD v. STATE
Clte !r, AhCr,App.,37S So.2d I t70

Ala. 117I

butcher knife. Mrs. Woods etated that the
deceased ran into her yard with the appel-
lant chasing him. Mrs. Woode said that she
trierl to stop the appellant by ehouting at
him, but hc continued to etab the deceased
with the knife even after the deceased had
fallen to the ground. Mrs. Woods identified
sevcral photographs taken by the police at
the scene where the deceaged's body lay,
These photographs were then admittcd into
evidence by the trial judge.

According to Mrs. Woods, the appellant
walked away from the scene after the inci-
dent. Soon thereafter the paramedical unit
and the police arrived.

Jay M, Glass, medical examiner with the
J ef f er"son Cou nty Coroner'g Off ice, testified
that, on September 3, 19?7, he performed a
post-mortem exsmination on the body of
one identified to him as Roy Washington.
Mr. Glass was shown to possess the qualifi-
eations and experience in his field necessary
to qualify him as 8n expert. Mr. Glass
stated that his examination of the deceased
revealed three stab wounds to the body.
There was one wound in the deceased's
back, one wound to the right shoulder and
one wound in the central chest. Mr. Glass
testified that the wound in the central chest
penetrated the deceased'E he8rt, thereby
causing death. Mr. Glass identified several
photographs taken by him of the deceased
during the post-mortem exsmination at
Cooper Green Hospital. These photographs
were subsequently admitted into evidence
by the trial judge.

Patricia Ann Woods testified that she
lived with her mother, who previously testi-
fied, at l8l2 15th Street, Southwest, Bir-
mingham, Jefferson County, Alabama. Ms.
Woods testificrl that she saw the appellant,
his brother and Roy Washington in front of
her house on the evening in question. Ms.
Woods stated that the appellant and Roy
Washington were arguing with each other.
In arlrlition to hctring Roy Washington say,

"(]ivc mc rny stuff, man," Mr. Woods hcard
thc alrpcllanL reJrly, "l'm not going to give
you nothing" (lt. p. 48). At this point, the
appellant stabbed the decea^sed, who fled
into the Woods' yard. The appellant chased



and caught thc <leceaserl, who fell to the
ground. The appellant stood over the de-
ceased and stabbctl him repeatedly.

-- 
After the appcllant left on foot, Ms.

Woods callerl the lxrlice anrl an a.brlon.o.
Ms. Woods stated that the ambulance ar_
rived within fifteen minutes. Ms. Woods
identified a photograph, which showed the
front of her housc in rclttion to thc locntion
where the rleccaserl was founrl by the police.
This photograph was admitted into uuia"n.u
over objection.

Officer Roy L. Williams, Jr., a patrolman
with the Birmingham police Deirartment,
testified that, in resl)onse to a police radio
dispatch, he proceeded to the scene of the
incident in question at about 6:00 p. m. on
September 3, 1977. When he arrived, the
paramedical unit was alreariy on the scene.
Officer Williams irlentifierl a photograph,
subsequently admitted into evidence, .f.,u*_
ing the deceased lying where he was found.
This photograph also showed a stick lying
beside the decease<I.

Officer Jerry Dale Frazier. a patrolman
with the Birmingham police Department,
testified that, in response to a police radio
communication, he proceedetl to 1?01_B
14th Wuy, Southwest, in Birmingham.
There he arrestetl the appellant at about
8:30 p. m. on September B, 192?. Officer
Frazier stated that, at the time of his ar_
rest, the appellant appeared to be sober.

' At the close of Officer Frazier's testimo_
ny, the State rested its case. The defense
moved to exclude, which motion was denied

,bV tt" trial judge.

The case for the defense consisted of the
testimony of the appellant anrl his brother.
The appellant testified that he had known
the deceased for about three months prior
to the incident in question. On September
3, 1977, the appellant, his brother and the
deceased met about 8:00 a. m. Together
they went to the store and purchaseJrorn"
wine and beer. From there the thrce went
to thc vacant lot across thc strect from Mrs_
Woorls' house whcrc thcy s;rcnt thc entire
day talking and rlrinking. 'Ihe aplrcllant
said that about fifteen minutes untii 6:00 p.
m., the deceased demanded of the appellant

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ll72 Ala. 373 SOI,ITHERN REPORTER, 2d SERIT]S

that he furnish more drink. When the ap-)
pellant could not provide anything further/
to drink, the decease<l picked up a stict ana\
began to beat the appellant with it. The I
al4rellant stated that he responded UV \throwing bricks at the deceased. - )

On cross-examination, the appellant ad_
mitted that he stabbed the deceased about
three times. The uppellant stated that the
actual stabbing occurred in Mrs. Woods'
yard. However, the deceased was still
standing and using the stick to fight when
the wounds were inflicted, according to the
appellant. After the stabbing, the appel_
lant dropped the knife on his way out oiitre
yard.

The appellant recalled that he was arrest_
ed later that night at home and taken to
the Ensley Precinct. There he was photo_
graphed and questioned by Sergeant C. M.
Melton. At this point, a voir dire examina_
tion of the appellant was held to establish
the requisite predicate for any discussion of
the appellant's statement.

On voir dire examination, the appeltant I
stated that he could not remember being I
given the Miranda warning, informins him I

of his constitutional rights. Sergeant-Mel-t
ton, a detective with the Birmingham poliere
Department, was called to the stand. Ser_
geant Melton testified that he and Coroner
Jack Helton were present during a taped
interview with the appellant at about g:48
p. m. on the night of September B, Lg77.
Sergeant Melton stated that, prior to the
appellant's interview, no threats of force,
promises, inducements, hope of reward, or
any improper influences were made or of-
fered in order to get the appellant to make
a statement. Sergeant Melton testified
that the appellant was informed of his
rights under the Constitution by reading to
him a standard Miranda card warning used
by members of the Birmingham police De_
partment. Sergeant Melton stated that the
appellant said he understood his righta.
The intervicw with the appellant *". i"p"
recorded anrl transcribe<l. Sergeant Melton
later checked the transcription against the
tape for accuracy and found it to be accu-
rate.



/hcn the ap-
hing further
t, a stick and
.'ith it. The
sponded by

,1.

'r,pellant ad-
,t,ased about
rtcd that the
\lrs. Woods'
.rl was still
,r fight when
,rrding to the
11. the appel-
'ay out of the

rri WaS arfest-
rrnd taken to
,r., was photo-
'rgeant C. M.
lire examina-
I to establish
rliscussion of

the appellant
rt,mber being
nforming him
lergeant Mel-
:ngham Police
r stand. Ser-
'itnd Coroner
rring a taped
at about 9:45
rnber 3, 1977.

, prior to the
,'irts of force,
of reward, or
' made or of-
.llant to make
Iton testified
rrmed of his
by reading to
warning used

rrm Police De-
tated that the
,rl his rights.
'lirnt was tapc
rgcant Melton
,n against thc
it to be accu-

IIYTIIIiWOOD v. STATE
Cltc as, Ala.Cr.App., 373 So.2d I 170

At thc close of Scrgcant Mclton's testi- statement he allegcdly made to the police
mony on voir dire, the trial judge ruled that on September 9, 1977. The witness denied
the appellant's statement was voluntarily saying to the police that the appellant did
given. At this point, the jury was returned not kill Roy Washington in selfdefense.
to the courtroom and Lhe cross-examination The witness recalled that he had been
teg{mony oi tne appeii;mf,imo.- drinking wine all day on rhe day of rhe

-=-kThe remainder oi-tne cross_examlnatton incident in question. Finally, the State

I of the appellant consisted of attempts to brought out that James Bythewood had

\ impcach the appellant, using specifir: ques- been convicted of burglary on a prior occa'

I-tions anrl answers given in the statemenl. sion' 
t

In his statement to the police, the appellant After the testimony of James Bythewood, 
I

usually responded by saying, "I don't the trial judge again instructed the jury on 
\

know." On cross-examination, when asked the proper consideration of evidence of pri- \
whether, on September 3, 19??, he made a or offenses. Thereafter, the defense rested. _l
certain specific response to a certain specif- On rebuttal, the State called Birmingham
ic question, the appellant would either an- police Evidence Technician Robert Zeanah,
swer in such a way as to indicate that he who testified that he photographed the ap-
clearly did not understand the question or pellant at the Ensley precinct on the night

, !h" appellant would answer, "I don't of September B, 19??. The photographs
( know_" Finally, by way of impeachment, *"." ud-itt"d into evidence. The appel-
I the State brought out that the appellant lant had stated earlier on cross-examination

I had been eonvicted on three occasions in the that he did not recall being photographed at

.l nu.t of grand larceny (R. p. 113). the police station.

C t .Following 
the appellant's testimony,.the Further rebuttal evidence w&s heard

Ala. 1173

, t4- I '"""""'6

i\){" - d trial. judge, sua:pnt1 instructed the jury from Sergeant Melton, who had previously
Y ^{ | on the proper purpose of impeachment tes- testified. Sergeant Melton testified to the
,4* ftimony. The judge cautioned the jury that same facts which had earlier led to the trial

it should consider the testimony relating to judge's ruling that the appellant's state-
prior grand larceny convictions solely as an ment was voluntarily and intelligently giv-
aid in evaluating the witness' credibility. en. Sergeant Melton identified 8 cassette
"Such testimony," the judge warned, tape, marked State's Exhibit Eleven, as be-
"should not be used in determining the de- ing the recording he made of the interview
fendant's guilt or in fixing his punishment with the appellant at about 9:4S p. m. on
if found guilty" (R. p. 115). September 3, 19?7, at the Ensley Precinct.

James Bythewood, brother of the appel- Sergeant Melton stated that the tape re-
lant, testified that he witnessed the alterca- cording had been in his exclusive custody
tion between his brother and Roy Wash- and control continuously since that date.
ington on September 3, 197?. The witness Sergeant Melton identified State's Exhibit
stated that the deceased struck the appel- Twelve as being a typed transcription of
lant a couple of times with a stick before the appellant's interview, which he had ear-
the appellant stabbed the deceased. The lier checked for accuracy. The State was
witness stated that he thought the argu- then allowed, over objection, to play for the
ment was about some eight track tapes. jury the tape marked as State's Exhibit
James Bythewood testified that his only Eleven while Sergeant Melton followed the
involvemcnt in the incident was his verbal text of the transcript with instructions to
attempt to stop it. After thc stabbing oc- point out any discrepancies between the
currcrl tnrl tht: ayrpellant htrl gonc, thc wit- transcrillt an<l the tape recording.
ness wtil,crl tt thc sccne until [he amltu-
rance an<r the l,orice arriverr. ,.:T?}|,\'jfl,::l[1J]i;,11.ttr ril-

On cross-examination, the Statc attempt- wood, brother of the appellant, in his home.
ed to impeach the witness concerning a On that occasion, according to Sergeant



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Ll74 Ala. 373 SOUTHERN REPORTER,2d SERIES

Melton, James Bythewood said that the
stabbing of Roy Washington was not done
in self-defense. During a subsequent inter-
view, on Septembet 72, 1977, at City Hall,
Sergeant Melton recalled that James Bythe-
wood said he had "grabbed" his brother in
an effort to break up the dispute.

statement of the witness being
impeached. ." Gamble, McEI-
roy's Alabama Evidence, S 157.01(1) (8d
Ed. 1977) and cases therein cited.

II
t3l Appellant asserts that the trial

judge relied on incompetent and inadmissi-
ble evidence in making the determination
on voir dire that appellant's statement was

admissible. The evidence presented was

the testimony of Sergeant Melton and the
unsigned transcription of the tape recording
of the interview. It is noteworthy that
Scrgeant Melton testified that the tran.
scription was accurate and that the tape
recording itself was available to the judge

for his consideration. The jury did not s€e

the transcription; the tape recording was

played for the jury. Moreover, as has been

shown hereinabove, the proper predicate for
the introduction of the appellant's stste-
ment was laid by the State.

ln Carter v. State, 53 Ala.App. 43, n7
So.2d 175 (1974), this Court stated:

The voluntariness of an al-
leged confession is a question of law for
the court and should be decided by the
trial court upon preliminary proof, show-
ing the circumstances surrounding the al-
leged confession, taken outside the hear-
ing of the jury, and such finding will not
be disturbed unless it eppears contrary to
the great weight of the evidence or is

manifestly wrong. ."
We find that the trial judge did not abuse

his discretion in considering the transcrip
tion of appellant's stat€ment. Further-
more, nothing in the record indicates that
the judge's action was either contrary to
the great weight of the evidence or mani-
festly wrong. Thus, there is no merit to
appellant's assertion of error in this regard.

III
Appellant argues that hie statement wa!

admissible solely for impeachment purpoEe!

since it contained no inculpatory matcrial.
Appellant, therefore, was entitled to havil
given to the jury a limiting instruction even 

\

Following Sergeant Melton's testimony
on rebuttal, the State rested. The trial
judge then gave his oral charge to the jury,
to which no exceptions were taken. There-
after, the jury retired to consider its ver-

. dict.

I

tU Appellant contends that his brother
was improperly compelled by the trial judge
to give his opinion when such constituted a
legal conclusion or the application of a legal
definition. Appellant has misinterpreted
that portion of the record wherein he alleg-
es error. The State's question was framed
in terms of whether James Bythewood had
previously told the police, on September 9,
1977, that his brother did not kill Roy
Washington in self-defense. The appropri-
ate response was either "Yes" or "No."
The question clearly did not seek to elicit
the witness' opinion as to whether or not
the killing was done in self-defense.

l2l Appellant collaterally asserts error
occurred when the trial judge allowed Ser-
geant Melton to state on rebuttal that
James Bythewood told him, on September
9, 1977, that his brother did not kill Roy
Washington in self-defense. We find no
error in the above-described questioning of
the witness, James Bythewood, and the wit-
ness, Sergeant Melton. On the contrary,

1 the strategy used by the State was a classic

\ example of impeachment of a witness' cred-

I iUitity by the use of a prior inconsistent
I statement. Lawson v. State, 36 Ala.App.
[6a, sz so.za-oaa (19s?l-..---..-.---.-...-.-

'f>Wl.n a witness, on cross-examination,

i denies that he marle a statemcnt out of
I court which is inconsistent with his testi-

I mony on direct examination, the only

I available move for the impeaching party

I is to bring on an impeaching witness who

\ can testify as to the prior inconsistent
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,is being
tit', McEl-

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the trial
' inadmissi-
crmination

'ement wes
rented was
on and the
,e recording
.'orthy that
' the tran-
rt the tape
,r the judge
did not see

'ording was
es has been

'redicate for
ant's state-

.pp. 43, N7
'ed:

: of an al-
r of l6q' 1'o"

ided by the
rlroof, $how-
rrling the al-
lo the hear-
ling will not
contrary to

,rlence or is

rid not abuse
,e transcrip-
. Further-
rrlicates that
contrary to

rce or mani-
no merit to
this regard.

rtcment w&g
,)nt purposes
,ry material.
t led to have
ruction even

though none was requested. Despite this JON
assertion, aplrcllant cites us to cases where-
in such limiting instructions were rerluested
and denietl. See Joncs v. State,23 Ala.App.
3911, 126 So. 178 (1930); Baugh v. State,ZtS
Ala. 619, ll2 So. 157 (1927\. Thcse cases
provide no support for appellant's argu-
ment.

IIcLOYD v. STATE
Cite as, fa.Cr.App., 373 So.2d I f 25

Ara. ll75

Raymond Ray McLOYD, alias

v.

STATE.

4 Div. 699.

Court of Criminal Appeals of Alabama.

May 22, 1979.

Rehearing Denied June 26, 1g?9.

Defendant was convicted in the Circuit
Court, Houston County, Forrest L. Adams,
J., of having forcibly ravished a woman,
and he appealed. The Court of Criminal
Appeals, Tyson, J., held that: (l) certain
issues were not properly preserved for ap-
pellate review where defense failed to state
grounds on which objections were based;
(2) there was no error associatcd either with
pretrial lineup identification or with in-
court identification of defendant, and (3)
State positively showed that defendant was
not injured as result of separation of one
juror from remainder of jury during delib-
erations.

Affirmed.

Writ denied, Ala., 373 So.2d 1185.

l. Criminal Law e-164312;

Hearcay issue relating to testimony of
lxrlice officer conccrning details of prosecu-
trix's comgrlaint was not properly presented
for appellate review where objection by de-
fense to testimony was merely "I object to
that information."

h t4l*dt Statc.s v. Diaz, i8i F.Zd 116
(5th Cir. l9?8); anrl in W{l^I'Stot", u.

Beasley, 513 F.2(l 309 (5th Cir. tg?b),
rchearing <lenicrl, 521 F.2d 815, ap1rcal after
remand, 545 F.z(l 403, rehearing, 568 F.2d
1225, Lhe United States Court of Appeals
for the Fifth Circuit found error where
such li m i ti ng i nrt.r.tirif-u.-,ffi1G-
sua sponlc. However, the lacts in cach of
these cases are distinsuishab-!e from the
circumstances of the instant case. Diaz,
supra, and Beasley, supra, are, therefore,
inapposite to the facts of the instant case.

[4,5] The appellant, having failed to re-
quest the proper instruction below, cannot
now be heard to complain for the first time
on appeal. S,linkcr v. State, Ala.Cr.App.,
344 So.2d lz$ (7977). Absent a request for
the proper limiting instructions, failure to
give them is proper.

We have carcfully reviewed the record in
this cause an<l finrl same to lle free of error.
The judgment is duc to be and is hereby

AFFIRMED.

All the Ju<lges concur.

Ex parte Junius IIYTHEWOOD, Jr.

78-596.

Sullreme Court of Alab:rma.

Aus. 31, 1979.

Certiorari to the Court of Criminal Ap-
peals,373 So.2d 1170.

TORBERT, C. J., and MADDox,
SHORES and BEATTY, JJ., concur.