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05/05/95 ORLANDO EUGENE LONG v. STATE

May 5, 1995

ORLANDO EUGENE LONG
v.
STATE



Appeal from Talladega Circuit Court. (CC-93-013). Jerry Fielding, Trial Judge.

Rule 39(k) Motion Denied July 28, 1995. Rehearing Denied July 28, 1995. Released For Publication February 20, 1996.

McMILLAN, Judge. All Judges concur; Long, J., recuses.

The opinion of the court was delivered by: Mcmillan

ON RETURN TO REMAND

McMILLAN, JUDGE

This cause was remanded to the trial court with instructions that the trial court follow the guidelines and evaluate the relevant factors in determining whether the appellant had established a prima facie case of discrimination in the prosecutor's use of his peremptory strikes. Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), and Ex parte Branch, 526 So. 2d 609 (Ala. 1987). Long v. State, 668 So. 2d 54 (Ala.Crim.App. 1994). The trial court, having complied with those instructions, has returned an order stating that after considering all of the Ex parte Branch factors that might indicate discrimination, it finds no inference of purposeful race discrimination. Because the standard of review of a trial court's determination of whether a prima facie case of discrimination under Batson and Ex parte Branch was established affords the trial court with "considerable deference," Harrell v. State, 571 So. 2d 1270 (Ala. 1990), and in light of the total record, Ex parte McNair, 653 So. 2d 353 (Ala. 1994) cert. denied, 115 S. Ct. 1121, 130 L. Ed. 2d 1084 (1995), there was no error in the trial court's determination. See Vanderslice v. State, 1995 Ala. Crim. App. LEXIS 11, [CR-93-1174, January 13, 1995] So. 2d (Ala. Cr. App. 1995).

The appellant raised seven other issues in his original brief on appeal. A Discussion of those issues follows.

I

The appellant argues that the trial and subsequent conviction should be declared void because, he says, the trial court was without jurisdiction to try the case. More particularly, he contends that because his motion to withdraw his guilty plea, granted on June 30, 1993, had already been denied by operation of law on June 13, 1993, the trial court lacked jurisdiction to try the case on August 16, 1993. The appellant's sentence had been imposed four mouths earlier on April 14, 1993.

The record indicates that on July 7, 1993, this court dismissed the appellant's appeal on grounds that the trial court had granted the appellant a new trial. Although the appellant's motion to withdraw his plea was denied by operation of law on June 13, 1993, pursuant to Rule 24.4, A.R.Cr.P., he filed notice of appeal on May 26, 1993. Therefore, pursuant to Rule 24.1(b), A.R.Cr.P., this Court obtained jurisdiction over the case when the motion was denied by operation of law. Because the trial court had granted the appellant the relief which he sought on appeal, his appeal was dismissed and the case was remanded to the trial court. Thus, the trial court had jurisdiction at the time of trial.

II

The appellant argues that the trial court erred in allowing a medical examiner, Dr. Kenneth Warner, to testify concerning the results of the autopsy performed on the victim. He argues that Dr. Warner's testimony was inadmissible because, he says, the State failed to prove a proper chain of custody as to the victim's body; specifically, he says, the State failed to establish that the body had not been tampered with between the time it was placed in the cooler in the medical examiner's office on June 12, 1992, and the autopsy was performed by Dr. Warner on June 13, 1992.

The pertinent evidence presented by the State is as follows: Murray Mitchell, an employee of the Alabama Department of Forensic Sciences ("DFS"), testified that he received the victim's body from Culivere Terry, the owner of Terry's Metropolitan Mortuary, on June 12, 1992. He testified that the body was kept in the same condition and under his exclusive custody and control until it was placed in the evidence locker at the DFS. He testified that he locked the body in the cooler until the pathologist could examine it.

Dr. Warner testified that he received the victim's body from Murray Mitchell on June 13, 1992. He testified that, from the time he received the body until he performed the autopsy, the body was under his exclusive custody and control. Dr. Warner testified that it was common practice for the contract drivers, such as Murray Mitchell, to place the bodies in a locked cooler overnight. He further testified that he sent Mitchell to pick up the body and, therefore, that he knew the exact time Mitchell was dispatched and when he returned and placed the body in the cooler. This evidence was sufficient to prove to a reasonable probability that the victim's body was in the same condition as, and not substantially different from, its condition at the beginning of the chain. Ex parte Williams, 505 So. 2d 1254 (Ala. 1987); Howell v. State, 627 So. 2d 1134, 1142 (Ala. Cr. App. 1993). Thus, because the State established to a reasonable probability that there had been no tampering with the evidence, Suttle v. State, 565 So. 2d 1197, 1199 (Ala. Cr. App. 1990), the trial court properly overruled the appellant's objection.

Additionally, the appellant argues that Dr. Warner was not qualified as an expert and should not have been permitted to testify to the distance between the barrel of the gun and the victim's body. The record reveals that Dr. Warner testified that the injury to the victim was not a "contact wound." He further testified that, based on his experience, his training, the examination of the victim, and his having performed over 500 autopsies on gunshot victims, he was of the opinion that the distance between the weapon and the victim at the time of the shooting was between two and three feet. Because the prosecution laid a proper foundation for the receipt of that testimony by establishing Dr. Warner's credentials, Dr. Warner was qualified to testify as an expert and give a proximate range. C. Gamble, McElroy's Alabama Evidence § 127.01(5)(b) (4th ed. 1991); Williams v. State, 620 So. 2d 82 (Ala. Cr. App. 1992).

III

The appellant argues that Clarence Haynes, a deputy coroner, was erroneously allowed to testify to the cause of death. More particularly, he argues that Haynes was a lay person and therefore was not qualified to testify to the cause of death.

Haynes testified that he had been the deputy coroner for Talladega County since 1975. He testified that, on June 11, 1992, he went to the victim's house where he observed that the victim had received a gunshot wound to the head. He testified that it was his opinion, based on his training, education, and experience as a deputy coroner, that the victim died as a result of the gunshot wound.

It is well established that a coroner can testify as to the cause of death. See Woodard v. State, 401 So. 2d 300 (Ala. Cr. App. 1981); Swanson v. State, 346 So. 2d 1166 (Ala. Cr. App. 1977); Vaughn v. State 347 So. 2d 582 (Ala. Cr. App. 1977). Additionally, Haynes's testimony was cumulative of other testimony of qualified witnesses that the cause of the victim's death was the shot fired from the appellant's gun; therefore, no error prejudicial to the appellant occurred. Rule 45, Ala.R.Cr.P.; Johnson v. State, 459 So. 2d 982, 987 (Ala. Cr. App. 1984).

IV

The appellant argues that the trial court erred in denying his motion for a judgment of acquittal because, he says, there was insufficient evidence presented by the State to sustain his murder conviction. More particularly, he argues that the State failed to prove that he had the intent to murder the victim, an element of murder, § 13A-6-2, Code of Alabama 1975.

The evidence presented by the State tended to show the following: Alvin Ragland testified that, on the night of the incident, he and the appellant had had a few drinks together. He testified that the appellant, who was his neighbor, went home. He further testified that approximately 20 minutes later, the appellant came running toward his house yelling and crying, "I've done shot my baby," and "I killed my lady." Ragland testified that while he was calling the police, the appellant fled into the woods and was not apprehended until the next morning.

Carlton Dark, the victim's son, testified that on the night of the incident, he was awakened from his sleep to find the appellant standing in the living room crying, "Oh, I've done shot my baby."

Dr. Kenneth Warner testified that he performed the autopsy, which revealed that the victim died as a result of a shotgun wound to the face.

When reviewing a challenge to the sufficiency of the evidence, this Court must view the evidence in the light more favorable to the State and cannot substitute its judgment for that of the jury. Wells v. State, 619 So. 2d 228 (Ala. Cr. App. 1993); Marks v. State, 581 So. 2d 1182 (Ala. Cr. App. 1990). In Jones v. State, 591 So. 2d 569, 574 (Ala. Cr. App. 1991), this court stated:

"'The element of intent, being a state of mind or mental purpose, is usually incapable of direct proof, [and] it may be inferred from the character of the assault, the use of a deadly weapon and other attendant circumstances.' Johnson v. State, 390 So. 2d 1160, 1167 (Ala. Cr. App.), cert. denied, 390 So. 2d 1168 (Ala. 1980). Accord, Fears v. State 451 So. 2d 385, 387 (Ala. Cr. App. 1984) Young v. State, 428 So. 2d 155, 158 (Ala. Cr. App. 1982)."

Additionally, in Bishop v. State, 482 So. 2d 1322, 1326 (Ala. Cr. App. 1985), this court held:

"'Intent may be presumed from the act of using a deadly weapon. McArdle v. State, 372 So. 2d 897 (Ala. Crim. App.), cert. denied, 372 So. 2d 902 (Ala. 1979), and from the character of the assault, including the nature and amount of force used in the fatal injury. Flint v. State, 370 So. 2d 332 (Ala. Crim. App. 1979).'

" Chaney v. State, 417 So. 2d 625, 627 (Ala. Crim. App. 1982). 'However, this evidence must be sufficient to allow the jury to conclude, by fair inference, that the appellant was shooting at the person (named in the indictment) in particular with the intent to murder him.' Free v. State, 455 So. 2d 137 (Ala. Crim. App. 1984). In Underhill on Criminal Evidence, § 540 (3d ed. 1923), we find the following statement regarding proof of intent in an attempted murder charge:

"'Thus, as a general rule, the force or violence which was employed must be proven to have been intentional.... The intention to do great bodily harm, to murder or commit any other crime by means of an assault, may be inferred from the circumstances. Circumstantial evidence is usually the only available evidence of intention aside from the declarations of the accused. The intention may be inferred from the force or direction, or from the natural or contemplated result of the violence employed, from the weapon or implement used by the accused, from his threats or prior conduct towards the person assaulted, and generally from ...


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