Buchannon v. State

• Citation: 554 So.2d 477
• Decision Date: 12 May 1989
• Docket Number: 5 Div. 426
• Parties: Anthony Carl BUCHANNON v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 477

554 So.2d 477

Anthony Carl BUCHANNON v. STATE.

5 Div. 426.

Court of Criminal Appeals of Alabama.

May 12, 1989.

Rehearing Denied June 16, 1989.

Thomas E. Jones, Auburn, for appellant.

Don Siegelman, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for appellee.

BOWEN, Judge.

Anthony Carl ("A.C.") Buchannon was convicted of first degree burglary and sentenced as a habitual offender to ninety-nine years' imprisonment. Three issues are raised in this appeal from that conviction.

Melanie McKee and her parents left the trailer in which they resided around 10:30 or 11:00 a.m. on October 14, 1987. They returned around noon to find that the trailer had been broken into and that several items of personal property, including a television camera, and 12-gauge shotgun, were missing. Melanie and her mother spotted a black male driving a gold colored automobile out of the woods near their trailer. Melanie followed the gold car in her mother's automobile, then signaled a police officer and informed him of the burglary. Several police officers took up the chase, which ended when the gold car crashed into a tree. The driver of the gold car exited the wrecked car and ran away. Police officers followed the driver on foot and apprehended him.

After being captured, the driver, identified as Buchannon, made a statement in which he admitted that he and an accomplice broke into the trailer and that he stole the television set. He also acknowledged that "he was the one that was being chased by the people that owned the house." The stolen items were later recovered from the trunk of the gold car, which was titled in the name of Buchannon's sister. Palm prints lifted from the television and shotgun were identified as Buchannon's. Buchannon did not present an affirmative defense.

I

Buchannon argues that the trial court erred in admitting into evidence (1) finger and palm print records taken in connection with a criminal offense other than the burglary for which he was on trial and (2) the testimony of a fingerprint expert who identified prints lifted from the stolen goods. Buchannon was arrested for the instant offense on October 14, 1987. He was fingerprinted at that time by one Cooter Plant, who died prior to trial. The prints taken by Plant and the prints lifted from the stolen items were sent to the Alabama Bureau of Investigation ("ABI") for comparison. Two palm prints lifted from the stolen items were determined to be Buchannon's.

When preparing for trial, the assistant district attorney realized that he had no witness to testify concerning the prints taken by Plant. He requested the Opelika Police Department to send other fingerprints of Buchannon to the ABI for comparison. Another fingerprint card for Buchannon was located in the police department files and was sent to the ABI. These prints had been taken by Opelika Police Sergeant Thomas Paul Barnes on July 28, 1987--approximately ten weeks before the present crime was committed. The ABI confirmed that these prints also matched prints lifted from the stolen goods. A photostatic copy of the July fingerprint card and expert testimony regarding the match between those prints and the prints lifted from the stolen goods were introduced at trial over Buchannon's objection.

A

Buchannon first asserts that the July fingerprint record should not have been admitted because it indicated that he had a prior criminal record.

"Generally, evidence of other crimes which a defendant has committed is not admissible at his trial on a particular offense. McElroy's Alabama Evidence, § 69.01(1), Third Edition (1977)." Baldwin v. State, 456 So.2d 117, 121 (Ala.Cr.App.1983), affirmed, 456 So.2d 129 (Ala.1984), affirmed, 472 U.S. 372, 105 S.Ct. 2727, 86 L.Ed.2d 300 (1985). The effect of this rule on the admission of fingerprint cards was addressed by this court in Woodson v. State, 405 So.2d 967 (Ala.Cr.App.), cert. denied, 405 So.2d 969 (Ala.1981), wherein we stated:

"The general rule ... is that the admission of a defendant's fingerprint identification card is not impermissibly prejudicial to the defendant where the card was altered prior to its introduction so that it did not disclose the defendant's criminal record. See Annot. 28 A.L.R.2d 1115 at Section 12 (1953). No prejudicial error has been found where the card does not indicate any prior criminal record or where such has been deleted or obliterated. United States v. Mancini, 396 F.Supp. 75 (E.D.Pa.1975); State v. Ralls, 167 Conn. 408, 356 A.2d 147 (1974); Bradshaw v. State, 132 Ga.App. 363, 208 S.E.2d 173 (1974); Edmonds v. State, 5 Md.App. 132, 245 A.2d 618 (1968); State v. Jackson, 284 N.C. 321 200 S.E.2d 626 (1973); Lester v. State, 416 P.2d 52 (Okl.Cr.1966); Burton v. State, 471 S.W.2d 817 (Tex.Cr.App.1971).

"....

"Each case of alleged error in the admission of a fingerprint record taken pursuant to another criminal offense and prior to the charge for which the accused is presently on trial must be judged upon its own merits." Woodson, 405 So.2d at 968-69 (emphasis added).

The fingerprint card in Woodson was found to be properly admitted because it did not indicate the defendant's connection with any other criminal offense. "The portions of the card that would indicate a prior arrest and disposition [had] been carefully covered with 'State's Exhibit' identification stickers in such a manner that it [was] not obvious that the stickers [were] concealing information." Woodson, 405 So.2d at 968.

In contrast, this court held in Brown v. State, 369 So.2d 881 (Ala.Cr.App.1979), that a fingerprint card which contained the date of the prior arrest, a list of five aliases, and an FBI number should not have been admitted because "it subtly suggested guilt of other offenses." Brown, 369 So.2d at 884. In Ex parte Johnson, 507 So.2d 1351 (Ala.1986), our Supreme Court held that the trial court erred in admitting a fingerprint card which bore "the name of the appellant Johnson, a series of police numbers and an FBI number, the fingerprints themselves, and the signature of the taker of the impressions, and the date taken." 507 So.2d at 1352. The Supreme Court stated that this card contained "information which clearly revealed the defendant's past contacts with law enforcement agencies" from which "the jury could have readily inferred, at a minimum, that he had been arrested in the past." 507 So.2d at 1357.

In the present case, the State introduced a photostatic copy of the fingerprint card taken in July by Sergeant Barnes. Prior to the photocopying and introduction of this fingerprint card, the date of arrest and the information regarding the charge for which Buchannon was then under arrest were covered by small pieces of paper taped to the card. However, the word "Charge" remains visible, so that the piece of paper appears to (and obviously does) cover information related thereto. Additionally, the card reveals both an FBI and an SID number for Buchannon, the signature of the person who made the prints, and the date the prints were taken. We find no discernible difference between this card and the card condemned by the Supreme Court in Johnson and we conclude that the trial court erred in admitting this card.

However, improperly admitted evidence does not always require reversal. Our harmless error rule, Rule 45, A.R.A.P., provides:

"No judgment may be reversed or set aside, nor new trial granted in any civil or criminal case on the ground of ... the improper admission or rejection of evidence ... unless in the opinion of the court to which the appeal is taken or application is made, after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties." (Emphasis added.)

In addressing an early federal harmless error statute, the United States Supreme Court noted that it is not the function of an appellate court to determine guilt or innocence or to speculate on the probable outcome of a retrial.

"But this does not mean that the appellate court can escape altogether taking account of the outcome. To weigh the error's effect against the entire setting of the record without relation to the verdict or judgment would be almost to work in a vacuum. In criminal causes that outcome is conviction. This is different, or may be, from guilt in fact. It is guilt in law, established by the judgment of laymen. And the question is, not were they right in their judgment, regardless of the error or its effect upon the verdict. It is rather what effect the error had or reasonably may be taken to have had upon the jury's decision. The crucial thing is the impact of the thing done wrong on the minds of other men, not on one's own, in the total setting.

"This must take account of what the error meant to them, not singled out and standing alone, but in relation to all else that happened. And one must judge others' reactions not by his own, but with allowance for how others might react and not be regarded generally as acting without reason. This is the important difference, but one easy to ignore when the sense of guilt comes strongly from the record.

"If, when all is said and done, the conviction is sure that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand, except perhaps where the departure is from a constitutional norm or a specific command of Congress. But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand."

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