Bombailey v. State

• Decision Date: 30 November 1990
• Citation: 580 So.2d 41
• Parties: Mildred BOMBAILEY, alias, and Daniel Sutley v. STATE. CR 89-1177.
• Court: Alabama Court of Criminal Appeals

Page 41

580 So.2d 41

Mildred BOMBAILEY, alias, and Daniel Sutley v. STATE.

CR 89-1177.

Court of Criminal Appeals of Alabama.

Nov. 30, 1990.

As Corrected on Denial of Rehearing Jan. 18, 1991. ^*

Certiorari Denied May 17, 1991

Alabama Supreme Court 1900649 and 1900650.

Vivian M. Hernandez, Birmingham, for appellant Mildred Bombailey.

Steven R. Sears, Montevallo, for appellant Daniel Sutley.

Don Siegelman, Atty. Gen., and James F. Hampton, Spec. Asst. Atty. Gen., for appellee.

TYSON, Judge.

Mildred Bombailey and Daniel Sutley were indicted for willful abuse of a child under 18 years of age, in violation of § 26-15-3, Code of Alabama 1975. Bombailey was also indicted for failure to report child abuse, in violation of § 26-14-3, Code of Alabama 1975. The appellants were jointly tried, and the jury found Sutley guilty of assault in the third degree and found Bombailey guilty of aiding and abetting assault in the third degree. Sutley was sentenced to 12 months in the county jail, split to 180 days in the county jail and 2 years' probation. Bombailey was sentenced to 12 months in the county jail, split to 60 days in the county jail and 2 years' probation. Both appellants were fined $2,000. Each of the appellants raise different issues on appeal. The issues raised by Bombailey will be addressed in Section A of this opinion, and the issues raised by Sutley will be addressed in Section B.

The victim in this case, Bombailey's son, testified that he was nine years old at the time of trial and eight years old on October 23, 1987. On that day, the victim brought home a note from his teacher. After reading this note, Sutley, who was living with Bombailey at the time, hit the victim on the back and neck and legs with a belt. Sutley continued to hit him after the victim asked him to stop and when the victim tried to pull away. Sutley also hit the victim on the lip with his fist. Bombailey was present when the spanking occurred. After the appellant spanked the victim, he made the victim stand in the corner. Later that day, the victim was taken to the hospital for treatment for the injuries sustained in the beating.

Angela Pope testified that on October 23, 1987, she lived at Valleydale Trailer Park in Pelham. That afternoon, Pope heard screams coming from the trailer in which the appellants lived. She heard a man's voice screaming "shut up" and a child's voice saying "stop it" and "help." Pope called the Pelham Police Department and reported that she suspected that the appellants were abusing a child.

Officer Scott Tucker of the Pelham Police Department went to the appellants' trailer in response to Pope's call. When he knocked on the door, Sutley opened the door. Tucker saw the victim standing in the corner, and he asked Sutley if he could speak to the victim. The victim seemed upset at the time, but he was not crying. Tucker noticed a swelling of the victim's lip, and he called the paramedics. When Tucker asked Sutley what had happened, Sutley said that the victim was being punished. Sutley also stated that he did not punish the child unless Bombailey was present.

Paramedics Sam Douglas and Joey Nelson responded to the call. They testified that when they arrived, the victim seemed upset and scared. They noticed that the victim had a swollen lip and that he had old and new bruises all over his body. Douglas and Nelson stated that the victim's bruises were consistent with having been hit hard with a belt. They then transported the victim to the Shelby County Medical Center.

Elisa Pineheart, an emergency room nurse at the Shelby County Medical Center, stated that she attended to the victim on the date in question. She testified that the victim had old and new bruises on his body which were "linear in nature." At some point that evening, Sutley entered the victim's room and the victim drew up into a fetal position. Pineheart noticed that Sutley was wearing a belt with a big metal buckle.

Dr. William Phillip Smith testified that he examined the victim on the day in question. Smith stated that he found "parallel bruising" to the victim's neck, back, buttocks, and lower extremities and that the bruises were at different stages of development. Some of the bruises were as old as 10 days and some were recent. The parallel bruising suggested being hit with a belt, and the lip injury suggested a blunt blow with a blunt object.

A

I

Bombailey contends that a mistrial should have been granted in this case because one of the jurors was observed talking to a third person. She asserts that the trial court should have interrogated this juror to determine whether she and this third person were discussing the case. It appears from the record that this third person was the juror's husband, who happened to be a member of the jury venire.

"This court in Woods v. State, Ala.Cr.App., 367 So.2d 974, 980, reversed on other grounds, Ala. 367 So.2d 982 (1978), stated:

" '[T]he granting of a mistrial in cases of private communications between jurors and third persons is largely within the discretion of the trial judge, and his decision is subject to reversal only where that discretion has been abused. Tillman v. United States, 406 F.2d 930 (5th Cir.1969); Green v. State, 252 Ala. 513, 41 So.2d 566 (1949).

" 'This discretion of the trial court to grant a mistrial includes the discretion to determine the extent and type of investigation requisite to a ruling on the motion. United States v. Flynn, 216 F.2d 354, 372 (2nd Cir.1954); Lewis v. United States, 295 F. 441 (1st Cir.1924); Tillman, supra; Killilea v. United States, 287 F.2d 212 (1st Cir.1961); United States v. Khoury, 539 F.2d 441 (5th Cir.1976). A full evidentiary hearing at which witnesses and jurors can be examined and cross examined is not required. Tillman, supra, 406 F.2d at 938....' "

Cox v. State, 394 So.2d 103, 105 (Ala.Crim.App.1981).

In addressing this matter at trial, the court stated:

"BY THE COURT: What was observed? Tell me what was observed more than a juror talking to another person who was on the venire. It was represented to me that her husband was here listening to testimony when I inquired. Everybody knew he was on the venire. I inquired and he said no I was a member of the venire. They will strike a jury next door and he was here listening to testimony. Why should I bring her out and subject her to something based upon conjecture? I could take every juror and every time they speak to someone and ask him if they were talking about the case. And I don't plan to do that." (R. 340-41.)

In light of the above colloquy, we do not find that the trial judge abused his discretion under these particular facts. See also Flanagan v. State, 533 So.2d 637 (Ala.Crim.App.), writ. quashed (Ala.1987).

II

During the appellants' trial, portions of Sutley's testimony at a dependency hearing concerning the victim were read from the transcripts of that hearing. Bombailey argues on appeal that admitting this testimony was error because, she argues, those proceedings were confidential. She further alleges that because this evidence was admitted, her right against self-incrimination was violated because she was forced to testify at this trial to clarify portions of the transcript of the dependency hearing. Although the appellants raised numerous objections to the admission of this evidence at trial, the specific objections now raised on appeal were not brought to the attention of the trial court. Thus, there is nothing before this court to review. Lokos v. State, 434 So.2d 818 (Ala.Crim.App.1982), aff'd, 434 So.2d 831 (Ala.1983). Furthermore, we find that there is no merit to Bombailey's assertions. The confidentiality rules which govern juvenile proceedings and records and which are set out in § 12-15-65, § 12-15-72(b), § 12-15-100, and § 12-15-101, Code of Alabama 1975, and Rules 18 and 19, A.R.J.P., are designed to protect the juveniles in juvenile proceedings, not the witnesses. Furthermore, we fail to see how the introduction of this testimony "forced" Bombailey to testify at this trial; the transcript of the testimony from the dependency hearing was Sutley's testimony, not Bombailey's.

III

Bombailey contends that the State failed to establish a proper chain of custody with respect to the tapes of the juvenile hearing and the transcript of those tapes.

Sharon Cooper, an employee of the Shelby County clerk's office, testified that she tape-recorded the hearings in the matter of [the victim], Mildred Bombailey Sutley, mother v. Department of Human Resources. After the hearing, Cooper put the tapes in a safe in the clerk's office, where they remained until she gave the tapes to Judy McKleroy, another employee of the clerk's office.

McKleroy testified that she was appointed to prepare the transcript of the hearing in the above matter. She stated that she prepared the transcript by listening to tapes of the hearing given to her by Cooper. She then certified the transcript and filed it with the Court of Civil Appeals. McKleroy testified that the transcript fairly and accurately reflected what was on the tapes. The tapes were always in her custody until she finished transcribing them and returned them to Cooper.

Bombailey contends that a proper chain of custody was not established because the safe in the clerk's office, in which the tapes were kept when they were not in McKleroy's possession, was left unlocked during the day.

"The State need only prove to a reasonable probability that the object is in the same condition as, and not substantially different from, its condition at the commencement of the chain. Sommer v. State, 489 So.2d 643, 645 (Ala.Cr.App.1986)." McCray v. State, 548 So.2d 573, 576 (Ala.Crim.App.1988). "The evidence need not negate the most remote possibility of substitution, alteration, or tampering with the evidence." Slaughter v. State, 411 So.2d 819, 822 (Ala.Crim.App.1981), cert. denied (Ala.1982). We find that the State established a proper chain of...