defendant, who was convicted of two counts of capital murder and sentenced to death, was estopped because he alleged error in the admission of a witness's statement that was made in response to defense counsel's question
How later courts described this case
- defendant, who was convicted of two counts of capital murder and sentenced to death, was estopped because he alleged error in the admission of a witness's statement that was made in response to defense counsel's question
- "`Consequently, a witness, who has had an opportunity to observe (sees, hears, feels, tastes, or smells ...) the facts concerning which he is to testify, may testify on his "belief," his "best recollection," or his "understanding." A witness may also testify that something "looked like" or "seemed like" something.'"
- "The trial court's sustention of either a specific or general objection will be affirmed on appeal if the evidence excluded was subject to any legal objection."
- court, in affirming, noted that its holding was not to be construed as either acceptance or rejection of rationale that Court of Criminal Appeals used in reaching its decision
Written by the judges who cited it.
The opinion
I concur in that part of the majority opinion that affirms McGahee's conviction of two counts of capital murder. I respectfully dissent from that part of the majority opinion that vacates McGahee's death sentence and remands the case for a new sentencing hearing.
The basis for the majority's remand is the sentencing hearing testimony of Roy Brown, one of the victim's brother. The majority reasoned that Roy's testimony was irrelevant because it did not tend to prove the aggravating circumstance of Ala. Code 1975, § 13A-5-49 (3), for which it was offered. While this may be true, I believe that any such testimony did not rise to the level of prejudice expressed in Booth v. Maryland , 482 U.S. 496 , 107 S.Ct. 2529 , 96 L.Ed.2d 440 (1987).
In view of the foregoing and because evidence of other aggravating circumstances was presented that would support the sentence of death, I believe that both the conviction and the sentence should be affirmed.