Deutcsh v. State
| Decision Date | 24 July 1992 |
| Citation | 610 So.2d 1212 |
| Parties | Arthur DEUTCSH v. STATE. CR 90-1587. |
| Court | Alabama Court of Criminal Appeals |
J. Mark White of White, Dunn & Booker, Albert C. Bowen, Jr. of Beddow, Erben & Bowen, Robert L. Wiggins, Jr. and Elizabeth A. Evans of Gordon, Silberman, Wiggins & Childs, Birmingham, for appellant.
James H. Evans, Atty., and Joseph G.L. Marston III, Asst. Atty. Gen., for appellee.
Arthur Deutcsh, the former Chief of Police of the City of Birmingham, appeals his conviction for the misdemeanor offense of tampering with governmental records. He received the maximum sentence of 12 months' hard labor in the county jail and was fined $2,000. His conviction must be reversed because the trial court failed to clarify the jury's expressed confusion over the major issue submitted for its decision--Deutcsh's legal and criminal liability for the acts of others.
Initially, this Court must determine the exact charge of which Deutcsh stands convicted. The necessity for this determination indicates the confusion which apparently plagued the trial of this case.
Deutcsh was charged with the criminal offense of tampering with governmental records, a Class A misdemeanor. That offense is defined by Ala.Code 1975, § 13A-10-12, which provides:
The two-count indictment charged:
"ARTHUR DEUTCSH ... knowingly made a false entry in or falsely altered a governmental record, to-wit: records of the Birmingham City Jail and Police Department in violation of Section 13A-10-12(1) of the Alabama Criminal Code.
"2nd: ... ARTHUR DEUTCSH, ... knowing he lacked the authority to do so, did intentionally destroy, mutilate, conceal, remove or otherwise substantially impair the verity or availability of a governmental record, to-wit: records of the Birmingham City Jail and Police Department, in violation of Section 13A-10-12(2) of the Alabama Criminal Code." R. 1802.
Prior to trial, in response to Deutcsh's motion for a more definite statement pursuant to Rule 15.2(e), A.R.Crim.P.Temp. (now Rule 13.2(e), A.R.Crim.P.), the prosecution identified the governmental records involved in this case: 2
"[T]he State specifies that the records of the Birmingham City Jail and Police Department alluded to in the indictment are the page from the jail docket book listing the arrest of Erica Arrington, the computer data base record listing the arrest of Erica Arrington, the fingerprint card and the fingerprint log concerning the arrest of Erica Arrington and the photograph of Erica Arrington made during the course of the 'booking' process." R. 1832.
At the charge conference on the instructions to be given the jury, the trial judge stated that he was going to submit both counts of the indictment to the jury in the alternative. During his charge, the trial judge instructed the jury that "there could be only one verdict in this case," R. 1418, and submitted only three verdict forms to the jury--guilty of Count One, guilty of Count Two, and not guilty. However, the oral charge does not make it clear that the jury could only find Deutcsh guilty of either Count One or Count Two, and that they could not find him guilty of both Counts One and Two.
The jury returned verdicts finding Deutcsh guilty as charged in both counts of the indictment. Immediately after the jury had been discharged, the trial judge announced that he was "only going to consider it as one case," and informed Deutcsh, "The jury, even going beyond the instructions of this Court, found you guilty in Count 2." R. 1437. When defense counsel requested a mistrial based on the verdicts, the trial judge responded, R. 1438. The trial judge then "adjudicate[d]" Deutcsh "guilty of tampering with government records" without reference to either count. R. 1438. At sentencing, the trial judge announced that he had treated the "second verdict" involving Count Two "as being surplusage," and imposed only one sentence. R. 1448. The jury's verdicts on both counts are listed on the case action summary.
No objection was made to the action of the trial judge in treating the "second" verdict as "surplusage" until the motion for new trial. In arguing that motion, defense counsel stated: R. 1508.
We agree with defense counsel's argument. Assuming for purposes of this issue that there was some evidence to support both verdicts, the trial judge had no authority to set aside either verdict at his discretion. Yet, after the jury had returned two verdicts contrary to the trial judge's instructions (however indefinite those instructions were), there was never a request for the trial judge to instruct the jury to conform its verdict to those oral instructions. Therefore, the error has not been preserved for review. 3
"Defendant's right not to be convicted of both [offenses] can be safeguarded by requesting that the jury be instructed to specify the count under which they find the defendant guilty, and in situations where no evidence is presented as to a particular count, a directed verdict can be requested as to that count."
Ex parte Wilcox, 401 So.2d 794, 796 (Ala.1981). "The grounds urged for a new trial must ordinarily have been preserved at the trial by timely and sufficient objection." Fuller v. State, 365 So.2d 1010, 1012 (Ala.Cr.App.1978), cert. denied, 365 So.2d 1013 (Ala.1979).
Based on these considerations and the action of the trial court, we find that Deutcsh has been adjudicated guilty and convicted of tampering with governmental records only as charged in Count One of the indictment which states a violation of Ala.Code 1975, § 13A-10-12(a)(1).
The singular predominate characteristic of the instructions of the trial judge and the deliberations of the jury is confusion. Deutcsh's conviction must be reversed because the trial judge failed to respond to the confusion expressed by the jury over the question of Deutcsh's legal and criminal liability for the actions of others.
The jury began its deliberations at 11:16 a.m. At 12:00 noon the jury reported that "there is some confusion between Count One and Count Two." R. 1421. In response, the trial judge reread the statute defining the offense. The jury continued its deliberations at 12:05 p.m. At 1:30 p.m., the jury returned to the courtroom and again indicated its confusion.
To continue reading
Request your trial
-
Ex parte Scott
...79 L.Ed.2d 703 (1984)). The two requests made by the jurors did not indicate confusion as to a legal issue. See Deutcsh v. State, 610 So.2d 1212, 1218 (Ala.Cr.App. 1992). Rather, the requests seemed to be, as the State argues, requests to rehear a substantial portion of the case. The trial ......
-
Daniels v. State
...presence were admissible against the appellant under the co-conspirator exception to the hearsay rule. See Deutcsh v. State, 610 So.2d 1212, 1222-23 (Ala.Cr.App.1992); Parker v. State, 587 So.2d 1072, 1092 (Ala.Cr.App.1991), affirmed, 610 So.2d 1181 (Ala.1992), cert. denied, 509 U.S. 929, 1......
-
Davis v. State
...extent and character of additional instructions are matters within the sound discretion of the trial court.'" Deutcsh v. State, 610 So.2d 1212, 1218 (Ala.Cr.App.1992). We do not believe the trial court's instruction created pressure on the jury to reach a verdict. The trial court did not in......
-
Griffin v. State
...the existence of the conspiracy and in the furtherance of a plan or design, is admissible against the accused."' Deutcsh v. State, 610 So.2d 1212, 1222 (Ala.Cr.App. 1992), quoting Charles W. Gamble, McElroy's Alabama Evidence, § 195.03(1)(4th ed. 1991). "`[T]he principle is that by conspiri......