Beaver v. State

Decision Date12 June 1984
Docket Number1 Div. 448
Citation455 So.2d 253
PartiesRex Paul BEAVER v. STATE.
CourtAlabama Court of Criminal Appeals

Stephen K. Orso, Mobile, for appellant.

Charles A. Graddick, Atty. Gen., and Richard L. Owens, Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

Beaver was indicted and convicted for theft of property in the first degree in violation of § 13A-8-3, Code of Alabama 1975. Sentence was twenty years' imprisonment. Six issues are raised on appeal.

I

Beaver claims he was denied his Sixth Amendment right to a speedy trial. The pertinent events are set out below:

February 27, 1981 Arrest.

August 18, 1981 Indictment.

September 10, 1981 Pro se motion for discharge

based on denial of speedy

trial.

September 25, 1981 Pro se motion denied; oral

motion for speedy trial

made by counsel and

granted by trial court.

April 28, 1982 Written motion for speedy

trial filed.

May 14, 1982 Motion granted.

May 31, 1982 Two defense motions filed:

motion to dismiss for denial

of speedy trial and motion

for extension of time to

research, investigate, and

file pretrial motions.

June 11, 1982 Motion to dismiss denied;

motion for extension

granted.

June 16-17, 1982 Trial.

Applying the four-part test of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), we conclude that Beaver was not denied his constitutional right to a speedy trial.

Length of the Delay--The nearly sixteen-month delay between Beaver's arrest, see Dillingham v. United States, 423 U.S. 64, 96 S.Ct. 303, 46 L.Ed.2d 205 (1975), and trial may be considered "presumptively prejudicial", Barker v. Wingo, 407 U.S. at 530, 92 S.Ct. at 2192, so as to "trigger" an inquiry into the remaining factors. United States v. Jenkins, 701 F.2d 850, 856 (10th Cir.1983).

Reasons for the Delay--The record in this case gives us no hint of the cause for the delay. With the exception of a six-month lapse between arrest and indictment, the delays appear to have been minimal.

Defendant's Assertion of Rights--Although there were two speedy trial demands and two motions to dismiss for the alleged denial of a speedy trial filed by Beaver or his attorney, none of the motions included a request for an evidentiary hearing, compare Lewis and Blake v. State [Ms. 2 Div. 391, March 20, 1984], (Ala.Cr.App.1984), and the arguments of counsel, if any, on these motions are not reported. Furthermore, we note that Beaver's last pretrial pleading, a motion for extension of time to prepare for trial, was at odds with his speedy trial demand filed the same day. One of the grounds of this request was that "[t]he defendant's attorney has not had time to adequately research all factual materials concerning the indictment filed." Following the Barker court's suggestion that we "weigh the frequency and force of the objections as opposed to attaching significant weight to a purely pro forma objection", 407 U.S. at 529, 92 S.Ct. at 2191, we find that Beaver's pleadings directed to the speedy trial issue were primarily perfunctory objections unaccompanied by any showing of prejudice.

Prejudice to the Defendant--The record contains absolutely no evidence of any prejudice to Beaver, and apart from the obvious detriments suffered by any defendant incarcerated prior to trial, see Barker v. Wingo, 407 U.S. at 532-33, 92 S.Ct. at 2193, we cannot assume that he was harmed from the delay here. Under these circumstances and inasmuch as the request for extension of time was granted, we find that Beaver was not prejudiced by the delay of his trial and was not denied a speedy trial.

II

Beaver contends that there was a fatal variance between the indictment charging a theft of property from John Henry Dickson and proof showing ownership in John Perry Dickson. A variance in the victim's middle name, however, is immaterial. James v. State, 246 Ala. 617, 21 So.2d 847 (1945); Turner v. State, 406 So.2d 1066 (Ala.Cr.App.), cert. denied, 406 So.2d 1069 (Ala.1981).

III

Beaver argues that the State failed to prove a prima facie case of theft because it did not establish venue in Mobile County and because its evidence was "purely circumstantial". However, the record shows that the State proved venue when the trial court allowed it to reopen its case for this very purpose after it had rested. There was no error here. See Harris v. State, 283 Ala. 148, 214 So.2d 843 (1968); Alabama Code § 15-14-4 (1975).

The State's evidence established that on February 23, 1981, Mr. John Dickson's 1971 Dodge pickup truck, with a Charter Arms .38 caliber revolver in the glove compartment, was stolen. The evidence pointing to Beaver's guilt included the fact that, on February 27, 1981, after he was apprehended following a high speed chase by the Mobile police on suspicion of another offense, he dropped a set of keys into a trash can. When the police questioned him about the keys and whether the vehicle to which they belonged was stolen, Beaver answered, "Well, you know me; if I see one I'm going to take it." Beaver then stated that the keys matched a 1971 Dodge truck which was parked near the Haystack Apartments off Airport Boulevard in Mobile. At the time of his arrest, Beaver also had in his possession a pawn ticket for a Charter Arms .38 caliber revolver. When questioned about the gun, Beaver told the police it "came out of the truck that he had taken." Mobile authorities recovered the truck and determined that it was Mr. Dickson's. From the foregoing facts, it is clear that the State presented a prima facie case of theft of property in the first degree. Alabama Code § 13A-8-3(b) (1975).

IV

Prior to trial, Beaver filed a motion to suppress certain statements made to the Mobile police and he requested the trial court to empanel a special jury to determine the following issues: (1) whether the defendant knowingly waived his right to counsel before making a statement; and (2) whether the statement was induced by physical violence, threats, or promise.

The trial judge denied the request to empanel a special jury and heard testimony on the motion to suppress, out of the presence of the trial jury, during a recess at the appropriate point in the trial.

Initially, we note that Beaver had no right to have a special jury empaneled to determine the voluntariness of his statement to the Mobile police. "The issue of voluntariness is a question of law to be resolved by the trial judge in the first instance outside the hearing of the jury." Snider v. State, 422 So.2d 807, 809 (Ala.Cr.App.1982); Balentine v. State, 339 So.2d 1063, 1070 (Ala.Cr.App.), cert. denied, 339 So.2d 1070 (Ala.1976). Once the trial judge rules a confession admissible, the jurors may then accord it whatever weight and credibility they deem proper, taking into account the circumstances under which it was made. Lewis v. State, 295 Ala. 350, 329 So.2d 599 (1976); Duncan v. State, 278 Ala. 145, 176 So.2d 840 (1965).

In the case before us, the State established that Beaver was informed of his Miranda rights, was neither forced, threatened, promised nor induced to make a confession, and thereafter willingly made a statement to Mobile police officers. To contradict this, Beaver testified that after he was apprehended one of the officers grabbed him, threw him to the ground and then beat his head against the truck he was driving. He also said that he asked for a lawyer before being questioned but was never given the opportunity to contact one. As this Court stated in Snider v. State, supra,

"It is not unusual for conflicting testimony to be presented during a voluntariness hearing. When this conflict arises, great weight will be given to the trial court's judgment if he determines the confession to be voluntary. The trial judge's decision will be upheld unless his conclusion is palpably contrary to the great weight of the evidence and manifestly wrong."

422 So.2d at 809.

Here, the court's ruling was supported by substantial evidence, Morgan v. State, 363 So.2d 1013, 1016 (Ala.Cr.App.1978), and will not be disturbed on appeal.

V

Beaver maintains that the introduction of evidence of his high speed flight from the Mobile police in another stolen vehicle was reversible error because it constitutes evidence of a crime not charged in the indictment. Our examination of the record convinces us, however, that this issue was not preserved for review.

Prior to trial, Beaver argued two issues to the trial court: the involuntariness of his statements to the police and the inadmissibility of the collateral crimes evidence. He did not style his request as a "motion in limine" or expressly move the court to prohibit the State from referring to the allegedly objectionable evidence. He stated the following:

"I also am going to object to the State getting into incidents that took place before he was in the Police Department making these statements.... We have got four cases. I'm sure you are aware of that. We are just trying one today. We're trying the theft of a 1971 Dodge truck. The statements were made after he was picked up on other charges, and that should be all the State should be allowed to get into. Anything further than that is attempting, I think, to purposely prejudice this case."

The trial court did not rule on Beaver's pretrial objection to the introduction of other crimes in evidence. During the trial itself, Beaver did not object to the testimony relating to his collateral misconduct. In the absence of pretrial ruling by the trial court, or a defense objection to the court's failure to rule, see Whorton v. State, 422 So.2d 812, 813 (Ala.Cr.App.1982), or a timely objection at trial, see Hammes v. State, 417 So.2d 594, 596 (Ala.Cr.App.1982), we have nothing before us for review.

Moreover, we find no error in the admission of this evidence even if Beaver had obtained an adverse ruling on a proper objection.

"In a criminal prosecution the state may prove that the accused engaged in flight to avoid prosecution .... as...

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