Bates v. State

• Decision Date: 26 March 1985
• Docket Number: 8 Div. 195
• Citation: 468 So.2d 207
• Parties: Cecil Eugene BATES v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 207

468 So.2d 207

Cecil Eugene BATES v. STATE.

8 Div. 195.

Court of Criminal Appeals of Alabama.

March 26, 1985.

John E. Mays, Decatur, for appellant.

Charles A. Graddick, Atty. Gen., and Mary Ellen Fike Forehand, Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

Cecil Eugene Bates was charged in a two-count indictment with burglary in the second degree and burglary in the third degree. Immediately prior to trial, the defendant pled guilty to the third degree burglary. Sentence was thirty years' imprisonment as a habitual offender. Counsel has filed a letter of no merit with regard to the appeal of that conviction.

A jury convicted the defendant of burglary in the second degree as charged in count two of the indictment. Sentence was fifty years' imprisonment as a habitual offender. Two issues are raised on the appeal of that conviction.

I

This Court holds that in order to commit the crime of burglary in the second degree when the accused is "armed with ... a deadly weapon," the deadly weapon need not be used, threatened, or displayed.

Throughout the trial, the defendant admitted that he was guilty of the third degree burglary of the Riverside Shell Service Station but emphatically denied that the burglary rose to the level of second degree. The defendant admitted stealing a pistol during the burglary but maintained that it was never used in any manner and that during the course of the burglary he never removed it from the box with the stolen cigarettes, where he had initially placed it.

The defendant's testimony directly contradicted the testimony of Decatur Police Officer Jimmy Vincent, who stated that the defendant drew a pistol from his pocket, turned and pointed the pistol at him and said, "You're going to f______ up." The defendant then made his escape.

After the jury had been deliberating, it asked the trial judge this question: "Is the defendant considered armed when he has in his possession a deadly weapon, such as a gun, or must he show an act of using a gun, such as pointing the gun?"

The judge answered the question by stating:

"A person is deemed to be armed if that person has on his person in his actual possession or his immediate possession a deadly weapon as defined in this case. The act of using the weapon or pointing the weapon or doing anything with the weapon is not necessary for the person to be armed."

"A person commits the crime of burglary in the second degree if he knowingly enters or remains unlawfully in a building with intent to commit theft or a felony therein and, if in effecting entry or while in the building or in immediate flight therefrom, he or another participant in the crime: (1) Is armed with explosives or a deadly weapon," Alabama Code 1975, § 13A-7-6(a)(1) (emphasis added). Burglary in the second degree is also committed when one "[u]ses or threatens the immediate use of a dangerous instrument." § 13A-7-6(a)(3). The statute implicitly recognizes the difference between being "armed" and "using" or "threatening to use."

The controlling principles were enumerated in People v. Tracey A., 97 Misc.2d 1053, 413 N.Y.S.2d 92, 95 (1979):

"A person 'arms' himself when he is furnished or equipped with weapons of offense or defense. The word 'armed' applies to any situation where a gun or deadly weapon is within the immediate control of a person and is available for his use."

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"A burglar who steals an unloaded revolver as part of his loot does not 'arm himself with a deadly weapon.' People v. Ford, 60 Cal.2d 772, 36 Cal.Rptr. 620, 388 P.2d 892, cert. denied, 377 U.S. 940, 84 S.Ct. 1342, 12 L.Ed.2d 303; People v. Black, 73 Cal.App. 13, 29, 238 P. 374; People v. Harris, 266 Cal.App.2d 426, 72 Cal.Rptr. 423.

"However, where a burglar takes a revolver in a house broken into and loads it with bullets also found there, this is equivalent to 'arming himself' within the meaning of California Penal Code, Section 460. People v. Tittle, 258 Cal.App.2d 518, 65 Cal.Rptr. 576.

"Being 'armed' with a deadly weapon is an element of a crime which can rarely be established by the prosecution unless it is fired or immediately recovered. People v. Archie, 85 Misc.2d 243, 249, 380 N.Y.S.2d 555, 562."

See also Meadows v. Commonwealth, 551 S.W.2d 253, 255-56 (Ky.Ct.App.1977). Here, there was testimony that the pistol was loaded. The owner testified, "There was one shell in the chamber. * * * I kept it in there so all I had to do was pull the hammer back and you could have shot it."

The judge's answer to the jury's question was proper and stated a correct principle of law.

II

In his closing argument to the jury, the prosecutor stated:

"I do not know what kind of deal Cecil Bates was offered when he plead guilty to robbery in Illinois. I do not know what type of deal Cecil Bates was offered when he plead guilty to Third Degree Burglary in Lawrence County, Alabama. However, I suggest to you today that the only reason he is trying this case is because we wouldn't offer him any kind of deal."

Defense counsel's motion for a mistrial was overruled and the trial court instructed the jury that statements of counsel were not evidence and that that remark should not be...