Beals v. State, 7 Div. 955

• Decision Date: 14 June 1988
• Docket Number: 7 Div. 955
• Citation: 533 So.2d 717
• Parties: Marchal A. BEALS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 717

533 So.2d 717

Marchal A. BEALS v. STATE.

7 Div. 955.

Court of Criminal Appeals of Alabama.

June 14, 1988.

Rehearing Denied July 19, 1988.

Certiorari Denied Oct. 28, 1988

Alabama Supreme Court 87-1306.

Jerry N. Quick of Quick & Battles, Trussville, for appellant.

Don Siegelman, Atty. Gen., and Andy S. Poole, Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

The appellant, Marchal A. Beals, was convicted for driving under the influence of alcohol, fined $250, and sentenced to one year's imprisonment in the county jail. Three issues are raised on this appeal from that conviction.

I

Beals argues that the trial court erred in denying his motion for a "more complete record."

Five days before Beals' appellate brief was due to be filed in this Court, he filed a "motion for a more complete record on appeal" before the circuit court. In that motion, he alleged that the record either did not reflect his objection and argument or his entire objection and argument on four particular matters: (1) the improper amendment of the U.T.T.C.; (2) the failure of the U.T.T.C. to state an offense; (3) the omission from the record of a copy of the U.T.T.C.; and (4) the omission of defense counsel's argument in support of the motion for a judgment of acquittal at the close of the State's case.

The trial judge conducted an evidentiary hearing on this motion, ordered that the U.T.T.C. be included in the record, and found "all other motions, objections and grounds are contained in the record and that portion of said motion is hereby denied." We find that the trial judge did not abuse his discretion in this matter.

With regard to the alleged improper amendment of the U.T.T.C., the record reflects the following:

"(A Jury being duly empanelled, struck, sworn and instructed by the Court and recessed to the Jury Room outside the presence and hearing of the Courtroom while the following proceedings were had and done:)

"MR. QUICK [Defense Counsel]: I want to argue my motion.

"THE COURT: Why was this motion not made prior to the Jury being selected?

"MR. QUICK: I thought the matter would be taken care of before the Jury was struck. I brought it to Mr. Holladay's attention yesterday.

"THE COURT: The rules say you should put this in writing if I am going to rule on it. I'll let you argue it now.

"MR. QUICK: I didn't really know I would have this motion until the District Attorney would not do anything about this Solicitor's Complaint. I brought this up twice before the Jury was struck and empanelled. What I'm saying in District Court, this man was charged by UTTC-1. According to that, this man was charged with violation of 32-5A-191A-1, which is being .10 or better. Now the Solicitor came back almost two years later and filed a solicitor's complaint and filed under 32-5A-191A-2, which is under the influence of alcohol. Those are separate offenses. They can't try him in District Court for one, and come back in Circuit Court, under a Solicitor's Complaint and change what he was initially charged with.

"THE COURT: There was a Waiver of Arraignment filed. Did you file any objection at that point?

"MR. QUICK: I think I can make this objection at any time.

"THE COURT: All you did was enter a plea of not guilty.

"MR. QUICK: I'm alleging that they can't come forth now and change it.

"(At this time, there was further argument of said motion and objection by the defendant's attorney and the district attorney.)

"THE COURT: Your motion is overruled."

Rule 21(b), Temp.A.R.Cr.P., provides: "In all non-capital cases, the court reporter shall take full stenographic notes of the arguments of counsel if directed to do so by the judge." This rule supercedes that part of Alabama Code 1975, § 12-17-275, which provides that "[t]he official court reporter ... shall take full stenographic notes of the oral testimony and proceedings, except argument of counsel, ..." Here, there is no allegation that defense counsel made a contemporaneous request that the trial judge direct the court reporter to record his argument.

The record contains no transcript of the hearing on the motion to correct the record. "When there is no showing to the contrary, the presumption is always in favor of correct action on the part of the trial judge." Ballard v. State, 236 Ala. 541, 542, 184 So. 260, 261 (1938). "Our cases are legion to the effect that the burden is on the party alleging error to show it affirmatively by the record." Fuller v. State, 269 Ala. 312, 324, 113 So.2d 153, 163 (1959), cert. denied, Fuller v. Alabama, 361 U.S. 936, 80 S.Ct. 380, 4 L.Ed.2d 358 (1960). The comments of our Supreme Court in Washington v. State, 259 Ala. 104, 65 So.2d 704 (1953), involving a similar situation, are applicable here.

"It is argued for appellant that this court should adjudge that an exception was taken to said ruling because of a post-trial hearing before the presiding judge of that circuit, in which counsel for the defendant testified that exception was reserved, whereas the assistant solicitor and the court reporter testified to the contrary or that they had no recollection of such fact. After [the] hearing the judge stated that he was unable to determine whether an exception was or was not taken and that therefore he could not adjudge that the same was taken. This court is certainly no better advantaged to determine the question than was the trial court. The burden is on the appellant to establish the fact contended for and to show error, and in the state of the record here he has not discharged that burden." Washington, 259 Ala. at 107, 65 So.2d at 707-08.

Under the facts and circumstances here presented, we must presume that the objections and the grounds for those objections appearing in the record are the only objections and grounds asserted in the circuit court.

We find that the objection to the complaint was delinquent because it was made after the jury had been selected and empaneled. The general rule is stated in Ex parte Tomlin, 443 So.2d 59, 62-63 (Ala.1983), cert. denied, Tomlin v. Alabama, 466 U.S. 954, 104 S.Ct. 2160, 80 L.Ed.2d 545 (1984): "By appearing and entering a plea at his arraignment, the petitioner waived any irregularities in the indictment unless the indictment was so defective that it left the accused unaware of the nature and cause of the charges against him." See also Rule 16.2, Temp.A.R.Cr.P.

Here, Beals waived arraignment and pleaded not guilty by filing a printed form. Contained in that form is the following reservation:

"But, the Defendant specifically and expressly reserves the right upon filing hereof to hereafter, but before trial or before such date as may be set by the Court, to Interpose any special pleas or additional pleadings which the Defendant had the right as a matter of law or rule to Interpose in this cause, prior to the filing hereof. * * * Both myself [defense counsel] and the defendant understand that I am responsible for ascertaining what date, if any, has been set by the Court for the making or filing of any additional pleadings or special pleas." [Emphasis added.]

"Once the jury was impaneled and sworn and the indictment was read, jeopardy had attached...." Ex parte Beverly, 497 So.2d 519, 525 (Ala.1986). Therefore, when Beals made his objection his trial had already begun. Although, defense counsel stated, "I brought this up twice before the Jury was struck and empaneled," it must be assumed that he "brought this up twice" with the district attorney because defense counsel also stated, "I brought it to Mr. Holloway's attention yesterday." There is nothing in the record to show that this matter was brought to the trial judge's attention before the jury had been selected. The portion of the record quoted above indicates that this matter was first raised after the trial had started. Consequently, we find that the motion was properly denied on procedural grounds alone.

The substance of Beals' motion was that the U.T.T.C. charged him with driving with a blood-alcohol level of 0.10% or greater in violation of subsection (a)(1) of § 32-5A-191, while the complaint charged him with driving under the influence of alcohol in violation of subsection (a)(2). These are separate offenses. Collier v. State [Ms. 1 Div. 427, November 10, 1987], (Ala.Cr.App.1987); Sisson v. State, 528 So.2d 1151 (Ala.Cr.App.1987). A complaint must not vary from the charge as laid in the affidavit for the warrant. Horn v. State, 22 Ala.App. 459, 461, 117 So. 283, 284 (1928).

However, the record does not show which offense Beals was convicted of in the district court and the U.T.T.C., while not void, is unclear. The U.T.T.C. charged Beals with "unlawfully operating a motor vehicle ... in violation of 32-5A-191." In the portion of the U.T.T.C. styled "description of offense" appears the following:

"Driving while under the influence of:

"[x] Alcohol BAC: .1250"

The U.T.T.C. is dated July 7, 1985, and is the "old form." See Sisson, 528 So.2d at 1154; Rule 19, A.R.Jud.Adm., as amended October 28, 1985, effective January 1, 1986. "When this particular form of the U.T.T.C. is used to charge a violation of § 32-5A-191, it is unclear whether the defendant is being charged with subsection (a)(1) or (a)(2) of the statute where the arresting officer determines the defendant's blood alcohol content to be .10 percent or above and notes it on the U.T.T.C." Sisson, 528 So.2d at 1154. Such a U.T.T.C. will support a charge for either driving under the influence or driving with a blood-alcohol level of .10% or greater. Compare Corum v. City of Huntsville, 491 So.2d 1091, 1092 (Ala.Cr.App.1986).

The record contains no indication that Beals ever challenged the sufficiency of the U.T.T.C. "The plea or demurrer of defendant is to the complaint as filed by the solicitor, and not to the original affidavit, unless the original affidavit is void and charges no offense...." Nailer v. State, 18 Ala.App. 127, 128, 90 So. 131, 132 (1921). "[A] defendant ... can even...