Burell v. State, CR-94-1945
Decision Date | 08 March 1996 |
Docket Number | CR-94-1945 |
Citation | 680 So.2d 975 |
Parties | Jason Daniel BURELL, Alias v. STATE. |
Court | Alabama Court of Criminal Appeals |
Andrew A. Smith, Northport, for appellant.
Jeff Sessions, Atty. Gen., and Rosa Davis, Asst. Atty. Gen., for appellee.
The appellant, Jason Daniel Burell, was convicted of burglary in the first degree, a violation of § 13A-7-5, Code of Alabama 1975. He was sentenced to 10 years' imprisonment.
The appellant first contends that the trial court erred in denying the appellant's motion for a judgment of acquittal. He alleges that the prosecution failed to present a prima facie case of burglary because, he says, it did not prove that the appellant went inside the residence that was burglarized or acted in concert with someone who did. The appellant also alleges that the prosecution did not prove that the appellant intended to commit a crime.
Powe v. State, 597 So.2d 721, 724 (Ala.1992).
The state presented sufficient evidence to prove a prima facie case of burglary. The record shows that the owner of the burglarized residence testified that he had known the appellant for about three months before the burglary. He also testified that he recognized a grey Pontiac automobile parked in a neighbor's driveway as one customarily driven by the appellant and his brother. He testified that when he returned to his house the day of the burglary he saw the back screen door closing and saw the appellant running across his backyard. When he went inside, another person who was in the house hit him in the face and then ran from the house in the same direction as he had seen the appellant run. The owner testified that he found a duffel bag apparently left by the burglars on the floor of his house and that that bag was filled with his property.
" "
Ennis v. State, 671 So.2d 142, 144 (Ala.Cr.App.1995), quoting Breckenridge v. State, 628 So.2d 1012, 1018 (Ala.Cr.App.1993).
The state also satisfied its burden of showing that the appellant intended to commit burglary.
"While intent is an important and indispensable element of burglary in the first degree, it is also the law that the jury may reasonably infer necessary intent to steal or commit a felony from the mere presence of the accused under circumstances showing breaking and entering."
Gaskin v. State, 53 Ala.App. 64, 297 So.2d 388, 390 (Ala.Cr.App.1974), cert. denied, 292 Ala. 721, 297 So.2d 391 (1974).
There was sufficient evidence from which the jury could find that the appellant was in the house or that he knew the other individual was in the house, and thereby was an accomplice, and that the appellant and this other individual had entered the house with an intent to commit a crime. The trial court did not err in denying the appellant's motion for a judgment of acquittal.
The appellant next contends that the trial court erred in receiving into evidence a duffel bag found on the floor of the house where the burglary occurred. The appellant asserts that because no evidence was presented that directly connected the duffel bag to the appellant, it was not relevant to the prosecution's case and should not have been received into evidence. The duffel bag, which the owner of the house testified did not belong to him, was found in his house filled with his property. The bag was found immediately after the burglars had run out the back door.
As this court held in Banks v. State, 647 So.2d 46 (Ala.Cr.App.1994):
647 So.2d at 52. The duffel bag was relevant because it tended to show the intent to commit a crime within the house.
As this court further stated in Land v. State, 678 So.2d 201, 210 (Ala.Cr.App.1995) (quoting Parker v. State, 587 So.2d 1072, 1090 (Ala.Cr.App.1991):
" "
The trial court did not err in allowing the duffel bag to be received into evidence.
The appellant also asserts that the trial court erred in denying the appellant's motion for a mistrial based on juror misconduct. He alleges two specific instances of juror misconduct. First, he alleges that one juror read a copy of the Tuscaloosa News during the course of the trial that contained an article on the case. The record shows that when this juror was questioned by the court, she acknowledged she had scanned the newspaper but said she did not read anything in it that concerned the appellant's case.
Robinson v. State, 577 So.2d 928, 931 (Ala.Cr.App.1990).
The appellant's second allegation of juror misconduct stems from the fact that one juror notified the court that six years earlier he had known the appellant's brother, Jody Burell, socially. This happened on the third day of the trial. This juror, however, testified that he came forward as soon as he realized Jody Burell's connection to the appellant. Nothing in the record indicates that the prospective jurors were questioned during voir dire about whether they knew Jody Burell. As this court stated in Marshall v. State, 668 So.2d 891, 894 (Ala.Cr.App.1995):
When questioned by the court, this juror testified that his ability to be fair and impartial would not be affected by his prior acquaintance with the appellant's brother.
" "
Riddle v. State, 661 So.2d 274, 276 (Ala.Cr.App.1994).
The court did not abuse its discretion in denying the appellant's motion for a mistrial.
The appellant next asserts that the trial court erred in failing to grant a mistrial when the state questioned defense witness Charles Pierce about his advice to the appellant not to answer the questions posed by the police without having an attorney present. The record shows the following remarks were made on cross-examination:
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