
    Walter Lee MORGAN v. STATE.
    CR-99-1972.
    Court of Criminal Appeals of Alabama.
    May 25, 2001.
    Certiorari Denied Aug. 31, 2001 Alabama Supreme Court 1001590.
    
      Glenn L. Davidson, Mobile, for appellant.
    Bill Pryor, atty. gen., and Joseph G.L. Marston III, asst. atty. gen., for appellee.
   On Application for Rehearing

McMILLAN, Presiding Judge.

This Court’s unpublished memorandum of April 27, 2001, is withdrawn, and the following is substituted therefor.

The appellant, Walter Lee Morgan, was found guilty of murder, and the trial court sentenced him to life imprisonment. Evidence at trial tended to show the following: On the night of June 27, 1999, Rose Marie Gibbs watched a movie with her sister, and then went with her to clean the “Wings Over Jordan” church. They finished cleaning shortly after midnight and drove to her sister’s house. The appellant, who was her sister’s estranged husband, drove up and got out of his car. The sisters drove away and went to their mother’s home. When they arrived, the appellant again drove up behind them and go out of his ear. He began cursing at his estranged wife and asking her to return a spare tire that he had earlier lent to her brother. Ms. Gibbs went into the house to get the tire. As she was returning, she saw the appellant pull a gun from his pocket and heard her sister yell, “He’s got a gun, run.” Ms. Gibbs saw the appellant fire two shots into the truck before she ran inside the house and locked the door. The medical examiner subsequently recovered four bullets from her sister’s body. He testified that the victim had died from multiple gunshot wounds.

Earl Casher, the mother’s next-door neighbor, testified that he saw the appellant drive by the house several times. He then heard an argument and looked out his window to see the appellant cursing outside the victim’s truck. Casher saw the appellant put his hand into the window of the victim’s truck and start shooting. The appellant called several witnesses and also testified in his own behalf. Carrie Lee Washington, the appellant’s former landlady, testified that she had heard the appellant and his wife fighting frequently and that the victim was the aggressor and was physically abusive. She, Pat Gulley, and Isaiah Washington testified that the appellant seemed to be in another world and in danger of having a nervous breakdown. The appellant then testified that he did not remember the shooting. He also testified that he did not know what he was doing or whether it was right or wrong.

I.

The appellant contends that the trial court violated his right to due process by refusing to allow defense witness Larry Hallett to testify as to his opinion of the appellant’s mental condition. He argues that the testimony directly related to the defense plea of not guilty by reason of mental disease or defect and was admissible as lay opinion testimony on the issue of the appellant’s mental state at the time of the offense.

• The appellant’s counsel made the following proffer with regard to Hallett’s testimony: Hallett -had represented the appellant in a divorce from his first wife in 1994. When Hallett saw the appellant in 1998, he noticed that the appellant had changed, that he “had gotten thin[,] that he seemed to be troubled and that he was disconnected with regard to the circumstances of their conversation.” Counsel further told the court that “Mr. Hallett is not going to testify much differently from what the other witnesses were saying; that he [the appellant] lost weight; that he was — to use what Mr. Hallett is going to say — he became disconnected. Other people have said that he’s gone crazy; other people have said he was having a nervous breakdown. But that’s what I’m going to proffer to the court.”

Determining the relevance of evidence is within the sound discretion of the trial court. Borden v. State, 522 So.2d 338 (Ala.Crim.App.1988). Here, the victim’s sister testified that the victim married the appellant in April or May 1997, that she lived with him for about a year, and that she moved out in August 1998. The shooting occurred on June 27, 1999. The appellant’s counsel did not indicate when in 1998 Hallett had seen the appellant, but Hallett’s observation clearly took place between 6 and 18 months before the shooting. The trial court did not abuse its discretion by determining that Hallett’s testimony was not relevant with regard to the appellant’s mental condition at the time of the offense.

Furthermore, the evidence that the appellant wanted to elicit from Hallett was cumulative. The trial court had already allowed five witnesses, including the appellant, to testify to the same behavior the appellant expected Larry Hallett to testify to. It is within the trial judge’s discretion to exclude cumulative evidence. Lewis v. State, 414 So.2d 470 (7ya.Crim.App.1982).

Thomas Martin, the appellant’s longtime employer, testified that, for approximately two years before the appellant was incarcerated for the shooting, he had exhibited “different behavior,” including losing weight, seeming not to care about work and reporting late for work. Carrie Lee Washington, the appellant’s landlord and his neighbor, testified that, after the appellant married the victim, he stopped speaking and “looked like his mind would be some place else.” She also said that he would shake all over and that he was “on his way to a nervous breakdown.” Washington was unclear as to when the appellant had moved from her property, but she said that he visited her at least once afterward and that there was “something wrong” and that he was “shaking all over.” The appellant’s sister testified that she saw her brother change shortly after he married the victim. She said that she saw him try to get away from the victim’s physical attacks and that he would be “getting away screaming and, you know, like he was crazy and out of his mind.” She also said that her brother was “[having a njervous breakdown, going crazy, wouldn’t eat, wouldn’t talk, basically, off to hi[m]self like he was in another world.” She testified that this behavior lasted up until the time of the victim’s death. Isaiah Washington, Carrie Washington’s grandson, testified that he saw the victim yelling and screaming at the appellant in May 1998 and observed in later visits that the appellant “seemed very withdrawn or something, as if he was kind of — I don’t know. I say in another world or something. He wasn’t as talkative as he used to be.” Washington did not state when his visits with the appellant had ended.

The appellant testified that his problems with the victim began when they got married and included physical abuse. He said that he could not sleep, eat, or concentrate, and that he developed a “shaking problem.” He also said that he had gotten medication from a doctor after experiencing hallucinations and that his sister had called Charter Hospital on one occasion when he felt suicidal. The appellant stated that these medical incidents had occurred before the shooting, but he did not indicate the dates. He said that he remained in contact with the victim after she moved out and that she continued to abuse and upset him.

Based on the record, Larry Hallett could not have testified to the appellant’s mental condition at the time of the shooting. He also could not have testified to any behavior by the appellant that was not already in evidence. Therefore, the trial court did not abuse its discretion by refusing to allow Hallett to testify.

II.

The appellant also contends that the trial court erred by refusing to instruct the jury on the lesser-included offense of manslaughter. He argues that the facts warranted the requested charge because he testified that he had not intended to kill the victim.

A defendant is entitled to have charges given if these charges are not misleading or incorrect, and if they are supported by any evidence, however weak, insufficient, or lacking in credibility. Ex parte Chavers, 361 So.2d 1106 (Ala.1978). However, a requested instruction is properly refused if it is not applicable to the facts of the case. Bogan v. State, 529 So.2d 1029 (Ala.Crim.App.1988). A person acts “recklessly” with regard to a result or a circumstance when he is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. § 13A-6-2(3), Ala.Code 1975. Here, the appellant requested a charge on reckless manslaughter, but he failed to offer any evidence that he had recklessly or carelessly caused the death of the victim.

It is not error for the trial court to refuse to charge on manslaughter where the evidence clearly shows that the accused, if sane, is guilty of murder. Gray v. State, 482 So.2d 1318 (Ala.Crim.App. 1985). Here, the evidence showed that the appellant left his car, pulled out a gun, and deliberately shot the victim at least four times. The appellant then offered as a defense that he did not know what he was doing, how many times his gun shot, or if his actions were wrong. The trial court properly determined that, under the facts of this case, the appellant was not entitled the requested manslaughter instruction.

UNPUBLISHED MEMORANDUM OF APRIL 27, 2001, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED; APPLICATION FOR REHEARING OVERRULED.

BASCHAB, SHAW, and WISE, JJ„ concur. COBB, J., dissents, with opinion.

COBB, Judge, dissenting.

The majority upholds Walter Lee Morgan’s murder conviction. I disagree with the majority’s analysis concerning the trial court’s refusal to allow defense witness Larry Hallett to give his opinion of Morgan’s mental condition.

I believe that the trial court erred by refusing to allow Morgan to present testimony from Lawrence Hallett, Morgan’s attorney during his divorce. Morgan wanted Hallett to testify to show Morgan’s state of mind before the murder. The trial court refused to allow Hallett to testify, stating that his testimony would be cumulative to that of Morgan’s 98-year-old neighbor and landlord, her 49-year-old grandson, and Morgan’s sister. “It is within the trial court’s discretion to exclude cumulative evidence.” Williams v. State, 710 So.2d 1276, 1327 (Ala.Crim.App.1996), aff'd, 710 So.2d 1350 (Ala.1997). “Matters resting in the sound discretion of the trial court will not be disturbed, absent a clear abuse of discretion.” Pressley v. State, 770 So.2d 115, 133 (Ala.Crim.App.1999). Each of these witnesses essentially testified to changes in Morgan’s demeanor after his marriage to the victim. They testified that Morgan acted distracted, withdrawn, as if he was about to have a nervous breakdown, and acted like he was in “another world.”

Hallett had represented Morgan in Morgan’s 1994 divorce. In 1998 Hallett saw Morgan again and noticed a marked change in Morgan’s demeanor from 1994. When the defense attempted to question Hallett about that change in Morgan, the trial court sustained the State’s objection. The following transpired at trial.

“Q. [By Mr. Brutkiewicz, defense attorney]: Please state your name.
“A. My name is Lawrence Hallett.
“Q. Mr. Hallett, you’re a licensed practicing attorney in Mobile, are you not?
“A. I am.
“Q. To get to the point, you practice primarily domestic relations law; correct?
“A. That’s correct.
“Q. Do you know Mr. Walter Morgan? “A. Ido.
“Q. When did you first begin to know Mr. Walter Morgan?
“A. According to my file, I first met Mr. Morgan in 1994.
“Q. Just briefly, why were you — what was the purpose of your encounter with him?
“A. His family had retained me to represent him on a divorce case.
“Q. And, at that time, did you have an opportunity to speak with Mr. Morgan and talk to him and—
“A. I did.
“Q. Did you go to Court with him?
“A. I did.
“Q. Around 1998 or thereabouts, did you have occasion to see Mr. Morgan again?
“A. I did.
“Q. Had he, in your opinion, changed?
“MR. NAMAN [(the prosecutor)]: Judge, I object.
“THE COURT: Sustained.
“MR. BRUTKIEWICZ: Okay. Strike that. Your Honor, I’ll make a proffer that Mr.—
“THE COURT: Not in the presence of the jury.
“MR. BRUTKIEWICZ: All right, sir. May we approach the bench?
“THE COURT: Do you want this on the record?
“MR. BRUTKIEWICZ: I don’t need it on the record, Judge.
“THE COURT: Okay.
“(BENCH CONFERENCE, OFF THE RECORD.)
“(BENCH CONFERENCE CONCLUDED.)
“THE COURT: Would the jury please retire to the jury room for just a moment, please.
“(JURY NOT PRESENT)
“MR. BRUTKIEWICZ: Prior to Mr. Hallett beginning his testimony, we had a sidebar. Mr. Ñaman had spoken to Mr. Hallett and Mr. Ñaman told you that in his opinion the only thing that Mr. Hallett knew was that he had represented Mr. Morgan in 1994 and that he had some troubles understanding the legal process and that sort of thing. And I told you that Mr. Ñaman was misunderstanding the purpose for which I was offering Mr. Hallett’s testimony.
“Mr. Hallett would testify, I proffer, that in 1998, that he noticed a marked change in Mr. Morgan from when he represented him in 1994; that he had gotten thin; that he seemed to be troubled and that he was disconnected with regard to the circumstances of their conversation, and the situation at the time, without going into it much further. But Mr. Hallett will give the opinion that he thought Mr. Morgan was disconnected; that he had changed; that there was a marked change in him and that Mr. Hallett was concerned about his well-being.
“Now, I think the 1998 encounter, which is close in time to the events that have been — to which there has been testimony throughout this trial is certainly relevant about Mr. Hallett’s observations of his client. The reason why I wanted to get into, briefly, his observations of him and his perceptions of him, and that being Mr. Morgan in 1994, is to show the contrast. Now, if Mr. Ñaman objects to the testimony about the interactions of Mr. Hallett with Mr. Morgan in 1994 and the Court is going to sustain that, well, then, I still need to and I want to elicit, from Mr. Hallett, what Mr. Morgan’s condition was in '98 and the change in his condition. And the change in his appearance is germane to the issue of whether or not he was suffering from mental disease or defect. That’s already been testified to by other witnesses. And Mr. Hallett is not going to testify much differently from what these other witnesses were saying; that he lost weight; that he was — to use what Mr. Hallett is going to say — he became disconnected. Other people have said that he’s gone crazy; other people have said he was having a nervous breakdown. But that’s what I’m going to proffer to the Court.
“THE COURT: You’ve made your showing for the record. Who’s your next witness?
“MR. BRUTKIEWICZ: You’re not going to allow Mr. Hallett to testify to any of those things; is that correct?
“THE COURT: That’s correct.
“MR. BRUTKIEWICZ: Then I have— we have no other witness. We rest.”

R. 33A-37.

The trial court excluded the evidence because it held that the evidence was cumulative. Cumulative evidence, has been defined as evidence “that supports a fact established by the existing evidence,” Black’s Law Dictionary 577 (7th ed.1999); “as additional evidence of the same general character as evidence received on the trial to the same fact or point,” Thompson v. State, 444 So.2d 899, 900 (Ala.Crim.App.1984); and as, “[e]vidence of the same kind to prove the same probative fact,” 66 C.J.S. New Trial § 143 (1998).

The proffer made concerning the testimony of Morgan’s former counsel may have contained descriptions of Morgan’s abnormal behavior that was similar to the testimony of other witnesses, but the possible additional credibility that it would be given certainly removes it from the typical definition of cumulative evidence. Hallett was an attorney, a professional person who conceivably had had contact with many mentally and emotionally disturbed people. The jury could have found his testimony to have much more weight because of his level of education and his lack of bias. “ ‘ “[T]he weight of the evidence” refers to “a determination [by] the trier of fact that a greater amount of credible evidence supports one side of an issue or cause than the other.” ’ ” Houston v. State, 798 So.2d 704, 708 (Ala.Crim.App.2000)(quoting Zumbado v. State, 615 So.2d 1223, 1241-42 (Ala.Crim.App.1993), in turn quoting Tibbs v. Florida, 457 U.S. 31, 37-38,102 S.Ct. 2211, 2216, 72 L.Ed.2d 652, 457 U.S. 31 (1982)).

The defendant “ ‘has the burden of proving the defense of insanity by clear and convincing evidence.’ ” Montgomery v. State, 781 So.2d 1007, 1015 (Ala.Crim.App.2000)(quoting § 13A-3-1, Ala.Code 1975). Thus, the burden rested squarely on Morgan to prove that he suffered from a mental disease or defect. The trial court should not have curtailed his ability to meet that burden. Morgan attempted to meet his burden by presenting testimony from various witnesses — relatives and friends — who had observed his behavior. The testimony of these witnesses was similar to the proffered testimony. However, because “ ‘[t]he credibility of witnesses and the weight or probative force of testimony is for the jury to judge and determine,’” Houston v. State, 798 So.2d at 709, it could be argued that Hal-lett was an essential witness for Morgan in this case because he was the witness with the least appearance of bias for Morgan. In this position, his testimony also added credibility to the testimony of those witnesses close to Morgan.

This court has reversed convictions based on distinguishing the characteristics of a particular witness even though the testimony proffered would have been similar to, or could have corroborated, the testimony of other witnesses. In Nettles v. State, 683 So.2d 9 (Ala.Crim.App.1996), this Court found that exclusion of testimony to be given on behalf of the appellant was not harmless error.

“We acknowledge the rule that ‘[t]he exclusion of admissible evidence does not constitute reversible error where the evidence “would have been merely cumulative of other evidence of the same nature, which was admitted.” ’ Houston v. State, 565 So.2d 277, 281 (Ala.Cr.App.1990). Nonetheless, while the excluded testimony supported the appellant’s own testimony, it was not ‘merely cumulative.’ ‘In Dickerson [v. Alabama, 667 F.2d 1364, 1370 (11th Cir.1982), cert. denied, 459 U.S. 878, 103 S.Ct. 173, 74 L.Ed.2d 142 (1982)], the Eleventh Circuit held that the testimony of an absent witness, a police officer, “could not be considered cumulative of similar testimony by Dickerson’s relatives and friends” because “testimony by a police officer would have lent a new aura of credibility to Dickerson’s alibi defense.” ’ Barton v. State, 494 So.2d 943, 950 (Ala. Cr.App.1986).”

Nettles v. State, 683 So.2d 9, 13-14 (Ala.Crim.App.1996).

I believe Hallett’s testimony could have been viewed by the jury as being in a different class or of a different quality than the other cumulative evidence. Unlike the prior witnesses, Hallett was a professional, with no perceptive personal bias in favor of Morgan — he was neither neighbor nor relative. It is entirely possible that the jury could have afforded more weight to Hallett’s testimony than other witnesses who presented similar testimony.

I recognize that the abuse-of-discretion standard would be more readily met if a stronger proffer had been made. Nevertheless, I still maintain that Morgan’s right to a fair trial was violated when the trial court prohibited him from calling his former legal counsel as a witness. Although the trial court has authority to limit cumulative evidence, I do not believe that rejection of Hallett’s testimony was harmless to Morgan.

It is for the above reason, that I respectfully dissent. 
      
      . The appellant’s sister testified that the victim moved in with the appellant about two years before the date of trial, which was May 8 and 9, 2000. However, she also testified that the victim moved out at least 10 months before she was killed in June 1999.
     