Armstrong v. State

• Decision Date: 15 July 1986
• Docket Number: 6 Div. 816
• Citation: 516 So.2d 806
• Parties: Roderick ARMSTRONG v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 806

516 So.2d 806

Roderick ARMSTRONG v. STATE.

6 Div. 816.

Court of Criminal Appeals of Alabama.

July 15, 1986.

On Rehearing June 30, 1987.

Appeal Dismissed Oct. 13, 1987.

James M. Kendrick, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen. and Helen P. Nelson, Asst. Atty. Gen., for appellee.

McMILLAN, Judge.

This appeal follows the conviction of the appellant for the offense of theft in the second degree, in violation of § 13A-8-4, Code On June 7, 1984, the appellant, Roderick Armstrong, removed a drill from a shelf in Zayre's Department Store and attempted to leave the store with it. He was observed, however, by the store security manager, who stopped him; after being stopped, he was arrested for shoplifting. The security manager testified that he recovered the box from which the drill was removed and that the price on the box was $39.95. He further testified that he placed the box and drill in a stapled bag and stored it until it was taken to a preliminary hearing in District Court.

of Alabama (1975), and a sentence of seventeen years' imprisonment. For the reasons outlined below, the decision of the trial court is due to be affirmed.

I.

Appellant contends that the trial court erred by allowing the security manager to testify as to the value of the drill. " 'Testimony as to market value is in the nature of opinion evidence. A witness need not be an expert or dealer in a particular article in order to testify as to its value, if he has had the opportunity to form a correct opinion.' " Sales v. State, 435 So.2d 242, 244 (Ala.Cr.App.1983), quoting Lankford v. State, 396 So.2d 1099 (Ala.Cr.App.1981.) "The opinion of a non-expert 'is to be considered like other evidence in connection with all the facts and circumstances and in the light of the knowledge and experience of the jury in finding the true value.' State v. Crawford, 277 Ala. 568, 173 So.2d 109 (1965)." Blackburn v. State, 448 So.2d 470, 471 (Ala.Cr.App.1984). "The only predicate necessary for receipt of such testimony is that the witness has had an opportunity to form a correct opinion of the market value which is a question to be determined by the trial court. State v. Self, 293 Ala. 541, 307 So.2d 11 (1975)." Tice v. State, 386 So.2d 1180, 1186 (Ala.Cr.App.), cert. denied, Ex parte Tice, 386 So.2d 1187 (Ala.1980). Further, the competency of the non-expert witness is also a question for the trial court, and the opportunity that this witness may have had for forming his opinion goes to the weight of the evidence rather than to its admissibility. Daniel v. State, 439 So.2d 206, 208 (Ala.Cr.App.1983). "The trial court's determination will not be reversed on appeal unless its ruling is shown to be clearly unjust. Thomas v. State, 338 So.2d 1045 (Ala.Cr.App.1976); Morris v. State, 25 Ala.App. 494, 149 So. 359 (1933)." Tice v. State, supra, at 1186. Moreover, this court has stated, per Judge Taylor, that "[o]n appeal, in assessing the sufficiency of the evidence [a non-expert's testimony as proof of value], we are required to view the evidence in the light most favorable to the prosecution." (Citations omitted.) Blackburn v. State, supra, at 471.

Case law has carved out an exception to a non-expert's testimony as proof of value where the witness's testimony is based solely on his observation of a price sticker. "Store security officers are not qualified to testify as to the value of stolen merchandise where their knowledge is based solely on the price ticket." (Citation omitted.) DeBruce v. State, 461 So.2d 889, 891 (Ala.Cr.App.1984). This rule, however, is not applicable where the security officer's testimony is also based on some personal knowledge or experience. Id. Although the exact nature of this personal knowledge or experience has not been defined, it is clear that his opinion cannot be "based on what someone else told him." Orr v. State, 462 So.2d 1013, 1015 (Ala.Cr.App.1984); State v. Love, 147 Ariz. 567, 711 P.2d 1240, 1242 (1985). This court has indicated that the security guard-witness must have something "to do with the pricing of goods in the store." Orr, supra, at 1015. Thus, a witness who was in charge of a cosmetics counter is competent to testify as to the value of stolen cologne, Roper v. State, 491 So.2d 1055 (Ala.Cr.App.1986), and a co-manager may testify as to the value of a stolen television set, Sales v. State, supra. However, a police officer has been held competent to testify as to the value of a stolen gun, despite his lack of involvement with pricing, because he owned and handled firearms as part of his official duty. Blackburn v. State, 448 So.2d 470, 471 (Ala.Cr.App.1984). The rationale behind requiring personal knowledge or experience of security guards in order to Moreover, in the present case, the box which contained the drill had been marked with a price tag and, during the trial, the box was admitted as evidence. This court has heard a case wherein the sole issue was whether a manager should have been allowed to testify as to the value where he had "no 'personal knowledge of said value.' " Oliver v. State, 479 So.2d 1385 (Ala.Cr.App.1985). Quoting DeBruce v. State, supra, the court held that " 'in a shoplifting case, a price tag attached to the stolen property at the time of the theft is sufficient circumstantial evidence of value, where totally uncontradicted, to support a conviction grounded upon the marked price of its value.' " Oliver v. State, supra, at 1385. Thus, even if the security manager's testimony as to the value had been inadmissible, the error would have been harmless.

                testify as to value is "because the [item or product] could have been mismarked and the guards would not have known.  They knew what the tag said, but that was not necessarily the value of the [product]."  Eldridge v. United States, 492 A.2d 879, 883 (D.C.App.1985).  In the present case, the security guard had personal knowledge and experience as to pricing the merchandise apart from his observation of the price tags.  He testified that part of his job responsibilities was to do "competitive shopping" and "go around and find mispriced merchandise."   These activities are sufficient to render him competent to testify as to the value of the drill and, thus, the jury may consider his testimony
                

II.

The appellant contends that the trial court erred in not sustaining objections to the prosecutor's remarks during closing. First, he says the prosecutor indicated that the appellant may be guilty of crimes not charged in the indictment; second, he says the prosecutor adversely commented on the appellant's character, although no evidence of the appellant's character had been introduced; last, he says the prosecutor claimed that the appellant would have introduced rebuttal evidence had the State's proof of value not been accurate. The first two aforestated implications made by the prosecutor were derived from the same comment made twice during closing; for that reason, they will be treated concurrently.

During the prosecutor's closing argument, he stated:

"He [defendant] says probably he made a mistake that he was sorry and all that ... He didn't seem too concerned back on June the 7th, 1984, when he told the security guard, well, you've done a good job, you're good at your job. This sounds like he may know, may have some experience."

Upon the defendant's objection to this statement, the trial court issued jury instructions that lawyers were allowed to "draw any inferences they could draw from the evidence." Subsequently, the prosecutor repeated his comment, whereupon the defense made an objection and moved for a mistrial; both were overruled.

The prosecutor's statements are not evidence. Henry v. State, 468 So.2d 896, 899, (Ala.Cr.App.1984), cert. denied, 468 So.2d 902 (Ala.1985). Further, prosecutors are to be allowed a wide latitude in their exhortations to the jury. Varner v. State, 418 So.2d 961 (Ala.Cr.App.1982). "Statements of counsel in argument must be viewed as in the heat of debate and must be valued at their true worth rather than as factors in the formation of the verdict." Orr v. State, 462 So.2d 1013, 1016 (Ala.Cr.App.1984).

Moreover, " '[a] motion for mistrial should not be granted where the prejudicial qualities of the comment can be eradicated by action of the trial court.' Nix v. State, [370 So.2d 1115 (Ala.Cr.App.), cert. denied, 370 So.2d 1119 (Ala.1979) ] at 1117." Henry v. State, supra, at 901.

"A motion for a mistrial implied a miscarriage of justice and should only be granted where it is clearly manifest that justice cannot be afforded. [Citations omitted]; Section 12-16-233, Code of Alabama (1975). A mistrial does not serve the same function as a mere objection or motion to strike and is not ordinarily used to indicate a mere erroneous In the present case, the statement made was not so injurious as to deprive the appellant of a fair trial. Diamond v. State, supra, at 112-13; Price v. State, 348 So.2d 517 (Ala.Cr.App.1977). " '[T]he general rule is that prejudicial statements, even though improper, are capable of being eradicated by the trial judge in sustaining objections thereto or by appropriate instructions to the jury or both.' " (Citations omitted.) Sales v. State, 435 So.2d 242, 245 (Ala.Cr.App.1983), quoting Meredith v. State, 370 So.2d 1075 (Ala.Cr.App.), cert. denied, 370 So.2d 1079 (Ala.1979). Thus, this court has held that a prosecutor's improper comment indicating that a defendant was stealing for a living was cured by the trial judge's instruction to the jury. Sales v. State, supra. Where the State referred to a defendant as a "drunk dope addict," the Supreme Court of Alabama opined that the comment had no ineradicable influence on the jury "in light of the entire record and in light of other cases." Ex parte Wilhite, 485 So.2d 787, 789 (Ala.1986). "If it can be said with fair assurance 'that the error did not influence the jury, or had but very slight effect, the verdict and...