Blackburn v. State
| Decision Date | 26 June 1979 |
| Docket Number | 3 Div. 48 |
| Citation | 372 So.2d 908 |
| Parties | Wilton Mason BLACKBURN, alias v. STATE. |
| Court | Alabama Court of Criminal Appeals |
George W. Cameron, Montgomery, for appellant.
Charles A. Graddick, Atty. Gen., and Mary Jane LeCroy, Asst. Atty. Gen., for the State, appellee.
The indictment consists of a first count charging burglary in the second degree, a second count charging grand larceny, and a third for buying, receiving and concealing stolen property. Pursuant to a verdict of guilt, the court imposed a sentence of ten years imprisonment.
The evidence indicates that appellant-defendant, a white male, and Darrell Busbin, an Air Force enlistee, were present on December 4, 1977, in the home of Sergeant Wayne Nakatsuka where appellant rented a room. The three played cards for a while.
According to Busbin's testimony (who admittedly was in need of money), he and appellant, at the latter's invitation, took an automobile ride that afternoon of December 4, 1977, to Hope Hull in Montgomery County where appellant showed him Henderson's T.V. and Appliance Sales and Service that was vulnerable to burglary. In the early morning hours of December 5, 1977, the two burglarized the store and carried away five microwave ovens and four Zenith television sets, one of which was a twenty-three inch set described in the indictment.
Entrance into the store was gained by firing a pellet gun at a back window. The gun was used to set off any burglar alarm that may happen to be in the store. Appellant, after breaking the window with a crowbar, crawled through and opened the back door through which the witness Busbin entered. They both then proceeded to steal the ovens and the television sets.
When they were unable to load all the appliances into the one automobile, the appellant contacted his sister by telephone. She and his wife drove to the scene where the appliances were loaded in the two cars and transported to Montgomery. All or part of the appliances were taken to the house of Sergeant Nakatsuka. Only one of the appliances was described in Counts 2 and 3 of the indictment, namely "one twenty-three inch Zenith television." It was left in the den and was not taken to the appellant's room in the house.
An investigation by law enforcement officers led to the discovery of the twenty-three inch television in the den. The investigation also led to the sale of some of the appliances by witness Busbin, who at first denied any implication in the offenses alleged in the indictment. Several months later, Busbin elected to give a confession that implicated the appellant. He also elected to appear as a witness for the State.
George W. Henderson, who was the operator of the burglarized store and the owner of the stolen appliances, testified about the break in and the broken window. He also testified as to finding some gun pellets in the burglarized area. The testimony of Mr. Henderson fully established the corpus delicti of the burglary and theft charged in the indictment. We note that the television stored in the den was properly identified as an appliance that was stolen from Mr. Henderson's store as alleged in the indictment. The jury returned three specific verdicts of guilt:
"We, the jury, find the defendant guilty of buying, receiving, or concealing stolen property; we, the jury find the defendant guilty of grand larceny; we, the jury find the defendant guilty of burglary."
Appellant here asserts that there was a fatal variance between the indictment and the proof. Contention is made that the grand jury knew the serial number, which does not appear in the indictment. We are not convinced that there was any variance. The two counts (2 and 3) adequately describe the stolen television set. In Lucious v. State, 44 Ala.App. 497, 214 So.2d 706, it was held by this court that the words "one Poulan chain saw" appearing in an indictment for larceny were a sufficient description to enable the jury to decide whether the chain saw in evidence was one upon which the indictment was founded. In Peters v. State, 100 Ala. 10, 14 So. 896, it was held that the words "two bales of cotton" in an indictment were a sufficient description of the stolen property. In an indictment for larceny of an animal it was held not to be necessary to describe the animal by designating its sex. Also in Jones v. State, 19 Ala.App. 646, 99 So. 922, charging larceny of "one set of truck tools" was a sufficient description. However, it does not appear in the record that there was a proper objection, demurrer, or motion for a new trial raising the point. Waters v. State, Ala.Cr.App., 360 So.2d 358, cert. denied, Ex parte Waters, Ala., 360 So.2d 367.
It appears in the evidence of Deputy R. D. Bryan that he went to the home of Sergeant Nakatsuka in furtherance of an investigation of the burglary. There he found a television in the den. In pursuing the investigation, he knocked on the bedroom door of the appellant and asked him if the television belonged to him. He answered in the affirmative. This answer was admitted in evidence over appellant's objection that no predicate was laid.
We think it clearly appears from the record that the deputy's activities at that time were investigative and that accusation had not been focused on the appellant. It also appears that appellant had not been taken into custody by detention or arrest. Under such circumstances, there was no lawful requirement for a predicate. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. Miranda becomes operative to protect constitutional rights only upon a custodial interrogation during which detention, restraint or arrest of the accused by an officer is "significant." United States v. Montas, 421 F.2d 215 (5th Cir. 1970), cert. denied, 397 U.S. 1022, 90 S.Ct. 1262, 25 L.Ed.2d 532. Miranda defines "custodial interrogation" as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." The trial court did not err in overruling defendant's objection to the evidence.
The third contention of error asserts that the trial court erred in refusing the affirmative charge as to the burglary accusation (Count 1) in the indictment. Appellant contends that the State's evidence consisted solely of the uncorroborated testimony of two accomplices, Busbin and Nakatsuka, which will not...
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