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11/12/86 CHARLES BRACEWELL v. STATE

November 12, 1986

CHARLES BRACEWELL, ALIAS CHARLES HOWARD BRACEWELL
v.
STATE



Appeal from Covington Circuit Court

Bowen, P.j.

The opinion of the court was delivered by: Bowen

BOWEN, PRESIDING JUDGE

In 1978, Charles Bracewell was convicted for the capital murder-robbery of Rex Carnley and sentenced to death. That conviction was eventually reversed on appeal after remandment from the United States Supreme Court. Bracewell v. State, 475 So.2d 616 (Ala.Cr.App. 1984). In 1986, Bracewell was again convicted but was sentenced to life imprisonment without parole. He now appeals from that conviction and presents five issues.

I

Bracewell contends that the trial court erred in not permitting his brother, James Bracewell, to testify that the reason why he did not testify in Bracewell's first trial was because "he had been pressured by the District Attorney's Office not to do so." Appellant's brief, p. 2.

On appeal, Bracewell asserts that he called James to testify in his defense in order to prove that he had not left the state after the crime "as had been contended by the State." Appellant's brief, p. 1. However, the issue of flight was not disputed at trial.

Carnley was murdered sometime during the early morning hours of August 15, 1977. State witness Jimmy "Eddie" Robinson testified that, on the evening of the 15th, Bracewell told him that "that Carnley boy got killed over in Opp and I will be the first one they come after." However, when asked, Bracewell denied "doing it."

The State introduced into evidence a confession Bracewell gave the police after his arrest. In that statement, Bracewell admitted that he told Robinson that he and his wife "were going to have to go to Florida because Rex Carnley had been robbed and killed and the law would be looking for us." Bracewell stated that "we left the next morning [the 16th] and went to Florida and stayed 4 or 5 days."

The defense called Robinson as its first witness and established that Bracewell was not at Robinson's house on August the 14th, as Bracewell had stated in his confession. On cross examination by the District Attorney, Robinson testified that on August 15th, Bracewell "didn't say nothing about going to Florida then" but said "e was going to have to get out of Opp" because "the law would be looking for him."

Nadine Bracewell, Bracewell's sister, testified that she saw Bracewell on August the 15th and the 18th but did not see him for the next two weeks. When asked if Bracewell was "in Florida there in June, July and August; along in there," she replied, "He was in Florida most of the time."

On direct examination, James Bracewell testified that he saw Bracewell in Opp on August 16th, 21st, and 24th. He stated that he "heard" that Bracewell and his wife went to Florida but did not know that "for a fact." After that testimony, the following occurred:

"CROSS-EXAMINATION

"BY MR. LANIER [district attorney]:

"Q. Mr. Bracewell, you are James' brother?

"A. Yes, sir.

"Q. You didn't testify in the first trial, did you?

"A. No, sir.

"MR. LANIER : No other questions.

"REDIRECT EXAMINATION

"BY MR. SIKES [defense counsel]:

"Q. The District Attorney asked you why you testified in the first trial?

"MR. LANIER No, sir, I asked him if he testified. I didn't ask him why.

"MR. SIKES : I know you didn't ask him why. I'm going to ask him why.

"MR. LANIER: We object to asking him why he didn't have an opportunity to come up here and testify.

"Q. Did the District Attorney ask you not to testify?

"MR. LANIER We object.

"THE COURT I sustain the objection.

"Q. Did you have a conversation with the District Attorney ...


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