Smith v. State12/22/2000
. 80, 43 So. 365 (1907); Stevens v. State, 133 Ala. 28, 32 So. 270 (1902); Eaton v. State, 8 Ala. App. 136, 63 So. 41 (1913).
"The general rule on requiring the accused to demonstrate an encounter, action, or position on cross-examination is stated at 171 A.L.R. 1144, 1190.
"'The right of the prosecution, upon cross-examination of a defendant, to require him to give some physical demonstration of matters such as his actions or position at the time of the alleged offense, where he has voluntarily testified concerning those matters on his direct examination, has been sustained as proper cross-examination in quite a variety of circumstances, as shown by the following cases. While not all of them mention the question of constitutional privilege, the general import of these cases appears to be that by voluntarily testifying to and opening up the matter on his direct examination, or perhaps merely by voluntarily becoming a witness in the case, the defendant had waived such privilege as he may have originally had against giving the particular demonstration.'
"In Lumpkin v. State, 19 Ala. App. 272, 97 So. 171 (1923), it was held not error to require, upon cross-examination, a defendant in a homicide case, who had become a witness in his own behalf, to illustrate before the jury how the fatal fight occurred by showing the motions and actions of the parties to the encounter, with the State's attorney taking the part of the deceased. Also in Coates v. State, 253 Ala. 290, 45 So. 2d 35 (1950), it was held not error to permit the appellant, at the request of the State during its cross-examination and over the objection of defense counsel, to leave the witness stand and sit in a chair, in view of the jury, so as to better demonstrate the manner in which the appellant contended he was holding the gun at the time of its discharge.
"The scope and extent of cross-examination rest in the sound discretion of the trial court, Bridges v. State, 284 Ala. 412, 225 So. 2d 821 (1969), as do the scope and extent of experiments and demonstrations. Campbell, supra; McElroy, §§ 81.01(3), 81.02(1). As a general rule experiments and demonstrations should be permitted to be made in the courtroom in the jury's presence where it reasonably appears that the experiment will aid the jury in ascertaining the truth, where there exists a substantial similarity of conditions and where the experiment will not unfairly prejudice the defendant." Ivey v. State, 369 So. 2d 1276, 1279-80 (Ala. Crim. App. 1979).
On direct examination, the appellant testified to the events surrounding the killings. Specifically, he testified that he "just kept shooting" Flournoy, but that he did not remember pulling the trigger or how many times he shot him; that he "just pointed the gun and shot" Helms, but, likewise, did not remember how many times he shot her; and that he "just shot" Bennett, but again did not remember how many times. The appellant's testimony was clearly aimed at impressing upon the jury that he did not intend to commit the murders, but rather that he just "snapped." Cross-examination upon these matters, including calling for the appellant to demonstrate the manner in which he held the rifle when he shot the victims, was proper. The trial court did not abuse its discretion in allowing the demonstration.
XX.
The appellant contends that the trial court's jury charge was improper because it did not clearly require the jury to unanimously find that the appellant intended the death of two or more people. He bases his argument on a portion of the following instruction. We have put the contested instruction in the context of the court's entire charge.
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