Ballard v. State

• Decision Date: 28 August 1984
• Docket Number: 6 Div. 595
• Citation: 461 So.2d 899
• Parties: Edward Eugene BALLARD v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

Page 899

461 So.2d 899

Edward Eugene BALLARD v. STATE of Alabama.

6 Div. 595.

Court of Criminal Appeals of Alabama.

Aug. 28, 1984.

Rehearing Denied Oct. 9, 1984.

Certiorari Denied Dec. 21, 1984

Alabama Supreme Court 84-115.

Arthur Parker and George H. Jones, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen. and Thomas K. Brantley, Asst. Atty. Gen., for appellee.

TYSON, Judge.

Edward Eugene Ballard was charged in separate indictments for sodomy in the first degree and robbery in the first degree. These cases were consolidated for trial and the jury found the appellant "guilty as charged in the indictment" in each case. Following a sentencing hearing the trial judge sentenced appellant to 20 years in the penitentiary for each case, such sentences to run concurrently.

Cynthia Townsend Lane indicated that in January, 1980, she lived with Joe Lane and her three-year-old son in Birmingham, Alabama. She stated that at the time of this incident, she and Joe Lane were not married. She said that Mr. Lane was the manager of Gordon's Jewelry Store in the Century Plaza Mall. On Friday, January 10, 1980, Mr. Lane went to work at approximately 9:00 a.m. At this time they owned two cars, a 1978 Dodge Colt and a 1978 Plymouth. Mr. Lane drove the Dodge to work. Around 8:00 p.m. that night, she and her son drove to the Century Plaza Mall so she could call her sister. They went to Gordon's Jewelry and used the phone. She stated that Mr. Lane was with a customer when she finished her telephone conversation, so she walked around the mall for a short while waiting for him to finish. She then returned to the store but Mr. Lane was still working with the customer. She decided to go home and wait for Mr. Lane to get off work.

Mrs. Lane testified that she and her son left the mall at 8:30 p.m. and walked to the Plymouth car, which was parked just outside the Sears store. As she was attempting to back out of the parking space, a man opened the door of her car and told her to move over. She said that he pulled a gun from under his coat. The man told her that if she made a wrong move, she would be a "dead broad". This man went through her purse and wallet, and then took a diamond necklace from her. The man then drove the car to a secluded spot in the parking lot. She said he slammed on the brakes, and her son hit his nose, causing it to bleed. She cleaned the blood off her son's face with some socks, then placed him in the back seat at the request of the man. The man then started kissing her and unfastened her bra and pants. He then unfastened his pants and pulled them down a little. At this point the man made her have oral sex with him for just a short time. The man then exited the car and walked back toward Sears. She then drove home. She further stated that she made a complaint to Mr. Lane about the incident, but was afraid to call the police. She said that Mr. Lane drove her to Tennessee to see her sister. She returned on Sunday morning.

She further testified that on Monday morning Mr. Lane found a checkbook in the Plymouth car and called the police. She stated that she had several interviews with Sergeant Howard Miller after the checkbook was found. She described her assailant as wearing a three piece suit, white shirt and sporting a goatee. She identified the appellant as the man who entered the car. She also identified a pistol stating "it appears to be the same gun used that night."

Joe Lane testified that he was the manager of Gordon's Jewelry Store in the Century Plaza Mall and in January of 1980 he was living with Cynthia Townsend and her son. He said that he gave her a one-quarter carat diamond pendant for Christmas in 1979. He said that on Friday, January 10, 1980, Cynthia came to the store to make a telephone call to her sister. He said they were going to Tennessee the following day. He said she made the call, then left the store. He closed the store around 9:15 p.m. and went home. After he had been home for approximately 15 minutes, Cynthia and her son arrived. He said she was upset and crying and that there was blood on her pants and on the little boy's face. They left the apartment and checked with some of his co-workers, then drove to her sister's home in Tennessee. He left her in Tennessee, then went back and got her on Sunday. He said that on Monday morning, he found a checkbook on the front seat of the Plymouth automobile and then called the police.

Vincent Campanella, Jr. testified that he was the general manager of the store which employed Mr. Lane. On January 10, 1980, he observed Mr. Lane, Cynthia, and her son at approximately 10:30 p.m. He stated that Cynthia appeared pale and that her son had dried blood on his face.

Norman Staff testified that he was an officer with the Birmingham Police Department. He responded to a call, talked with Mr. Lane and Ms. Townsend about a robbery complaint and received a checkbook found in a 1978 Plymouth automobile.

Tony Biskup testified that he was employed by the San Jose, California Police Department. On January 15, 1980, he talked with Howard Miller of the Birmingham Police Department concerning a complaint in Birmingham. He went to the appellant's home in California and talked with a person who identified herself as the appellant's wife. He informed her of the Birmingham complaint and she offered to show him some pistols which her husband owned. He stated that he examined and photographed a western style pistol. He talked with the appellant on the telephone while at the appellant's residence and the appellant told him he would come see him at the police station. He stated that the appellant did, in fact, come to the police station and that he took a statement from him after informing him of his Miranda rights. This interview took place on January 16, 1980. He made a photographic lineup, which included the appellant's photo, and sent it to Birmingham.

Sergeant Biskup further stated that he talked to the appellant again on March 11, 1980, and told him to come in to the police station. The appellant asked him if he should bring the pistol with him. At this time the appellant turned himself in to Sergeant Biskup and surrendered the pistol.

Howard Miller testified that he was employed as a detective with the Birmingham Police Department. He had discussed this case with Ms. Townsend (Lane), Sergeant Biskup and Officer Staff. He received a manila folder with photographs in it from Sergeant Biskup. He testified that he showed this photographic lineup to Ms. Townsend (Lane).

The appellant testified in his own behalf. He stated that he was in Birmingham on January 10, 1980, but that he did not have a gun with him. He indicated that he had gone to the Century Plaza Mall looking for an Oriental restaurant. While at the mall he saw Mrs. Lane and asked her if there was such a restaurant in the mall. She told him there was not but that she could show him where one might be. They walked out of the mall together, and Mrs. Lane told him to get in her car and she would point one out. He said he got in her car on the passenger side. He denied having a pistol, driving her car, touching her in any manner, unzipping his pants and making her have oral sex with him. He stated that she wanted to sell him some jewelry and he took out his checkbook. She refused to take a check so he laid the checkbook down on the seat of the car and looked at the jewelry again. He stated that she then drove her car to the exit and showed him how to get out of the mall area. She then drove him to his car where he got out. He went back to his hotel. The next morning he made some business calls, then flew back to California.

I

The appellant contends that the trial court erred in overruling his motion to suppress evidence discovered in the appellant's home. Specifically, he argues that the evidence was the product of an illegal search and seizure. The State argues that the search in question was a valid warrantless search of the appellant's residence, consented to by the appellant's wife.

Under the Fourth and Fourteenth Amendments, a search without a warrant not based upon probable cause is per se unreasonable, subject only to a few specifically established and well-delineated exceptions: (1) in plain view; (2) with consent voluntarily, intelligently and knowingly given; (3) as incident to a lawful arrest; (4) in "hot pursuit" or emergency situation; (5) where exigent circumstances exist coincidental with probable cause; and (6) in "stop and frisk" situations. Daniels v. State, 290 Ala. 316, 276 So.2d 441 (1973); Scott v. State, 337 So.2d 1342 (Ala.Crim.App.1976); Baker v. State, 340 So.2d 854 (Ala.Crim.App.), cert. denied, 340 So.2d 860 (Ala.1976).

The State contends that the search in this case was upheld under the consent exception to such warrantless searches. It is well recognized that some third parties may validly consent to a search of premises or the effects of an absent defendant, if such third party shares with the defendant "common authority over or other sufficient relationship to the premises or effect sought to be inspected." United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); Myers v. State, 55 Ala.App. 404, 316 So.2d 235 (1975); Scott, supra. Further, this court has held on numerous occasions that the wife of an absent defendant can validly consent to a search of the premises or effects of the defendant. Cobb v. State, 355 So.2d 741 (Ala.Crim.App.1978); Liptroth v. State, 342 So.2d 959 (Ala.Crim.App.), cert. denied, 342 So.2d 961 (Ala.1977), cert. denied, 434 U.S. 869, 98 S.Ct. 210, 54 L.Ed.2d 147 (1977); Mickens v. State, 428 So.2d 202 (Ala.Crim.App.1983). See also, Jackson v. State, 414 So.2d 1014 (Ala.Crim.App.1982); Bartlett v. State, 387 So.2d 886 (Ala.Crim.App.), cert. denied, 387 So.2d 890 (Ala.1980), cert. denied, 451 U.S. 1016, 101 S.Ct. 3004, 69 L.Ed.2d 388 (1980); Cobb, supra.

In this case the transcript shows that the appellant's wife...