Burkett v. State

Citation439 So.2d 737
Decision Date31 May 1983
Docket Number3 Div. 677
PartiesRobert F. BURKETT v. STATE.
CourtAlabama Court of Criminal Appeals

L.H. Walden and Horace N. Lynn and C. Michael McInnish, Montgomery, for appellant.

Charles A. Graddick, Atty. Gen., and James F. Hampton and J. Anthony McLain, Sp. Asst. Attys. Gen., for appellee.

SAM W. TAYLOR, Judge.

Child abuse; sentence: six years' imprisonment.

On July 11, 1982, Cecilia Melton and the victim, her five-year-old daughter Juanita, visited appellant at his residence in Montgomery. During the course of the visit, the victim was severely beaten which caused severe bruises and contusions over a large portion of her body. The child's condition was reported to the police on July 12, by Teresa Hyatt, a babysitter. She was taken into protective custody and remained therein throughout the course of the instant proceeding.

I

Appellant first challenges the sufficiency of the State's evidence, specifically contending that he was not a "responsible person ... who has the permanent or temporary care or custody or responsibility for the supervision of a child," under § 26-15-2 Code of Alabama 1975.

Juanita Melton testified that on July 11, her mother and she went to appellant's house where she watched television and then went into another room and fell asleep. Juanita stated that she was awakened by appellant and whipped on her face, hands, abdomen, and legs because she had fallen asleep. She stated that during her visit with appellant, he had given her a beer to drink. Later that evening at her home, Juanita exhibited her injuries to her mother. The victim testified that her mother did not inflict them.

Dr. Maurice White testified that on July 12, he examined the victim in the emergency room of St. Margaret's Hospital. He described the victim's injuries in detail as well as the treatment prescribed therefor. White stated that the bruises "appeared to be at least a day old, and they were severe and generalized, and in a severe nature."

Cecilia Melton testified that she had known appellant since January, 1981. On July 11, she and the victim visited appellant at his residence. Melton stated that she and appellant were watching television while her daughter was in the living room listening to music. Melton and appellant had a couple of drinks and appellant gave the victim a beer to drink. Melton testified that she fell asleep, then awakened only long enough to go into the bedroom. She stated that she heard Juanita crying but she thought that she was dreaming. Afterwards, appellant and the victim awakened Melton and appellant told her that he had spanked Juanita "because she had lied to him about changing her panties, because I [Melton] told her not to." Melton testified that appellant told her that he had spanked the victim with a belt.

Later that evening, after Melton and the victim returned home, the child complained about her injuries and Melton observed the bruises. She did not take the victim to the hospital. The next day, Melton left her daughter with Teresa Hyatt, a babysitter. When she called Hyatt to check on her, Hyatt told her that the police had come and taken her daughter. Melton testified that she called appellant and informed him of such, at which appellant instructed her "not to tell anybody that we were seeing each other."

Melton testified as follows:

"Q So you and Nita went over there... Let me ask you this. Does Robert have--in the past and around this time, has Robert had responsibility for supervising Nita?

....

"A He has watched her, yes.

"Q Okay, and he--have you ever left her with him before?

"A Yes, on several occasions.

"Q And he has had temporary care for her?

"A Yes." (R. 46-47)

Reviewing the evidence presented by the State prior to appellant's motion in the light most favorable to the State, we find that it raised questions of fact for the jury to determine as to whether the appellant was a "... person who has the ... temporary care ... of a child." The evidence, if believed by the jury, is sufficient to sustain a conviction and, thus, the denial of appellant's motion to exclude the State's evidence does not constitute error.

Appellant admitted to giving Juanita a "simple spank." A question of fact existed from the appellant's own testimony on this aspect of the case; the trial court properly denied appellant's request for the affirmative charge as well as his motion for a new trial on this ground. Gullatt v. State, 409 So.2d 466 (Ala.Cr.App.1981).

II

Appellant contends that the trial court erred in denying his motion to suppress admission of a belt taken from him while at police headquarters.

Montgomery Police Youth Aid Division investigator F.T. Brock testified that pursuant to a complaint lodged by the victim's babysitter, he investigated this incident. After Officer Rushing brought the victim to the police station, Brock observed the child's injuries. He interviewed both the victim and her mother and determined that appellant had caused the injuries. Based upon such, he obtained a warrant for appellant's arrest on the charge of assault in the second degree. He served the warrant on appellant at appellant's home, advised him of his constitutional rights, and transported him to the police station. There appellant was again advised of his rights, but refused to sign a waiver or make a statement. Brock testified that during his interview of the victim, she had told him that appellant had whipped her with a belt. He stated that the injuries on the victim were of the same general width as the belt on appellant when he was arrested. After appellant had refused to make a statement, Brock asked some general information questions which appellant answered. During the course thereof, Brock informed appellant of the charge against him and that the victim had accused him of beating her with a belt. At that point, Brock removed a western-style belt from appellant and marked it as evidence.

Appellant testified that after he was arrested, he requested to call his father who was an attorney. The request was refused at that time and appellant was told that he could contact him from the police station. Appellant was then transported to the police station. Appellant admitted being given his Miranda rights at both his home and the police station. He refused to sign or say anything and requested an attorney. Appellant stated that he answered Brock's general information questions and was read the complaint filed against him. During this period of time, appellant was handcuffed to the chair in the office. Appellant stated that Brock informed appellant of the victim's allegation concerning the belt. He stated that Brock then removed his belt and seized it as evidence. Brock prepared a receipt for the belt which appellant refused to sign. Afterwards, appellant was allowed to call his father. Subsequent thereto, he was processed and placed in jail.

Based upon the above testimony, the trial court denied appellant's motion to suppress.

At trial, Brock testified in substance to that which he had testified at appellant's motion to suppress. He produced and identified the belt he had taken from appellant and he stated that the belt had been in his custody since its seizure. Upon its offer into evidence, the trial court initially admitted it. However, appellant objected contending that there had "been no evidence that this belt was the belt that was used to spank this child, or beat her, ..." The trial court reversed its prior ruling and sustained appellant's objection. Appellant did not move to exclude the above testimony.

After the close of all the evidence and prior to the oral charge of the trial court, appellant moved to exclude the belt from the evidence. The trial court noted that the belt had never been admitted. Appellant then requested to have the jury instructed that the belt was not admitted into evidence. No ruling was made on appellant's request and appellant did not object to the failure of the trial court to rule.

In its oral charge, the trial court instructed the jury that in addition to the sworn testimony of the witnesses, it could consider as evidence "exhibits ... if they are introduced into evidence.... If they have not been admitted into evidence for one reason or another, then you are not to consider them."

Although the arrest warrant was not made a part of the record on appeal, there is no doubt, as evidenced by the testimony recited above, that Brock had probable cause to arrest appellant. See generally Nance v. State, 424 So.2d 1358 (Ala.Cr.App.1982). In addition, Brock had gained information from the victim concerning the manner in which she had been abused and had personally observed her injuries. With such knowledge he had cause to suspect that the instrumentality which inflicted the victim's injuries was the belt being worn by appellant at the time of his arrest. Thus, it is reasonable to conclude that Brock could have seized the belt at the time of appellant's arrest rather than postpone such until after reaching the police station. Furthermore, while not clear from the record, it appears that there was not an inordinate passage of time between appellant's arrest and the seizure of his belt. When seized, Brock was in the process of obtaining the necessary information for administrative processing and jailing. As stated in United States v. Edwards, 415 U.S. 800, 807-8, 94 S.Ct. 1234, 1239, 39 L.Ed.2d 771 (1974):

"[O]nce the accused is lawfully arrested and is in custody, the effects in his possession at the place of detention that were subject to search at the time and place of his arrest may lawfully be searched and seized without a warrant even though a substantial period of time has elapsed between the arrest and subsequent administrative processing, on the one hand, and the taking of the property for use as evidence, on the other. This is...

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