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Jerre CHATOM
vs.
STATE
 
Case:
No. 1 Div. 688
 
Location:
Court of Criminal Appeals of Alabama
 
Date:
October 26 1976
 
Court:
Cates P. J. and Tyson and Bookout JJ. concur. Harris and DeCarlo JJ. dissent. Harris J. files dissenting opinion.
 
Author:
The Hon. Justice Per Curiam
 

To clarify this opinion and make the holding of this Court explicit we make two points:

First the conviction of appellant was not reversed due to insufficiency of the evidence.

Secondly reversal was due to the introduction into evidence of the atomic absorption test without a proper predicate.

We can perceive under no stretch of the imagination how admission of the unpredicated test could be proper. Our opinion on that point is clear and unequivocal. However the dissent and the State's brief on rehearing suggest that the circumstantial evidence was sufficient to go to the jury under the conspiracy theory and thus admission of the test resulted in harmless error (Rule 45 A.R.A.P.) We disagree.

In deciding whether error is prejudicial we may not merely determine that other evidence presented is sufficient for conviction and then disregard the illegal evidence. If this was the case prosecutors could fill the record with all types of prejudicial hearsay irrelevant and unpredicated material and never suffer a reversal if in addition thereto they made out a prima facie case.

Juries in criminal cases do not function under the "equity rule" where it is assumed that they disregard illegal evidence and base their verdict solely on the legal evidence as a Court sitting in equity does.

Here the jury may have been unimpressed with the circumstantial evidence as to the conspiracy theory but may have seized upon the scientific test results. They may have very well concluded from the test that Wilson did not fire a weapon and that appellant therefore personally murdered the deputies and Wilson. That they may have based their verdict on the test or given it great weight in arriving at their verdict cannot be said to be non-prejudicial or immaterial.

Appellate courts must reverse convictions where over proper objection evidence of a material and prejudicial nature to an accused is wrongfully admitted.

Section II of the opinion was intended as a helpful comment directed to the District Counsel pointing out obvious weaknesses in the remaining circumstantial evidence at the first trial. By those comments we have not given an advisory opinion as to our holding on a subsequent appeal if a retrial results in conviction. It is entirely possible that upon a proper presentation of the evidence in a new trial the prosecution may meet its burden of proof.

We emphasize that reversal results solely from admission of the improperly predicated test. On retrial the prosecution should pay more careful attention to the established rules of evidence.

OPINION EXTENDED; APPLICATION OVERRULED.

CATES P.J. and TYSON and BOOKOUT JJ. concur.

HARRIS and DeCARLO JJ. dissent.

HARRIS J. files dissenting opinion.

Dissenting: HARRIS

Upon further consideration of the entire four-volume record in this case I would grant the application for rehearing and affirm the conviction.

In the majority opinion it is stated: "The record as we perceive it minus the results of the atomic absorption test would not support a conviction for murder. Even if the results of the test were properly presented and admissible there would be an extremely close question as to whether a prima facie case had been established."

The above broad statement in my judgment does not find support in the record. I believe that Court DeCarlo in his dissenting opinion succinctly stated the law applicable to this case.

I therefore respectfully dissent.