Burton v. State

• Decision Date: 13 November 1984
• Docket Number: 5 Div. 878
• Citation: 487 So.2d 951
• Parties: Anthony BURTON v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 951

487 So.2d 951

Anthony BURTON v. STATE.

5 Div. 878.

Court of Criminal Appeals of Alabama.

Nov. 13, 1984.

On Rehearing Feb. 12, 1985.

On Return to Remand Dec. 10, 1985.

Rehearing Denied April 22, 1986.

Terry G. Davis, Montgomery, for appellant.

Charles A. Graddick, Atty. Gen., and Jane LeCroy Brannon, Asst. Atty. Gen., for appellee.

LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal from a judgment of conviction and sentence in a trial against this appellant only on an indictment charging that this appellant and Clarence Burton:

"... Did in the course of committing a theft of ninety dollars ($90.00), ... the property of Lonnie Hooks ... use force against the person of Lonnie Hooks, with intent to overcome his physical power of resistance, while the said Clarence Burton and Anthony Burton were armed with a deadly weapon, to-wit: a pistol, in The only eyewitnesses as to the alleged crime were the alleged victim and Ms. Ida Mae Kit.

violation of Section 13A-8-41 of the Code of Alabama...."

According to the testimony of the alleged victim, he was at his home at Shorter, Alabama, on February 20, 1982, at about 6:00 P.M. when Ida Mae Kit came by and asked to use his telephone to report the fact that the automobile she was in had broken down and that, "we want to use the telephone and make a telephone call for somebody to come pick us up." He said that he then "let her on in" and that when he did so, "Anthony Burton and Clarence Burton come in." He further testified that "Anthony throwed his gun on me and said where is the money?" His testimony continued in part as follows:

"Q. What happened next?

"A. So Clarence he said where is the money. He said you got a wallet? You know you got one. He pulled his gun out.

"Q. So both of them had guns?

"A. Both had guns. And it come to me where my wallet was. It was in my coat pocket in my truck. So I told him where it was. And Clarence said go get it. He said no, don't you go get nothing. You stay here. He caught hold of me.

"....

"Q. Anthony went and got the wallet?

"A. He got the wallet and brought it back and handed it to Clarence. And Clarence got the money out. And that time--

"Q. About how much money was in your wallet?

"A. The best I could count was $90."

According to further testimony of the victim, the indictees tied him up and took him into his bedroom where they burned his feet and told him that if he did not have more money when they came back he would be killed. They ransacked his house before they left. He was found by his cousin some time after midnight and then called the police and reported that he had been robbed.

We deem it appropriate to accept the summary of the testimony of Ida Mae Kit that is contained in appellant's brief and quote therefrom as follows:

"Ms. Kit testified that on February 20, 1982, Anthony Burton and Clarence Burton came to her house. She stated that Clarence and Anthony were cousins. They told her that they wanted her to go with them to Mr. Hooks' house. When they arrived at Mr. Hooks' house she knocked on the door and told him that she would like to come in to use the phone because she was having car trouble. Anthony and Clarence came into the house with her when Mr. Hooks let them in. She testified that she tried to use the phone and that it was busy when she picked it up because they have a party line. After a few minutes Anthony pulled a gun on Mr. Hooks. He told Mr. Hooks to give him his money. Clarence had his gun out also. Mr. Hooks told them that his wallet was outside in the truck. Anthony went outside and got a coat out of the truck. The wallet was in the coat and contained ninety dollars. After Anthony came back into the house, he pushed Mr. Hooks onto the bed and he and Clarence taped his arms and legs behind his back.

"Ms. Kit further testified that Anthony and Clarence weren't satisfied with the amount of money they had and started pulling out the chest-of-drawers in his bedroom and looking in the kitchen for more money. After they couldn't find any more money, one of them got a fire started with some paper and began to burn Mr. Hooks' feet. Clarence snatched the phone out of the wall and Anthony fired shots into the floor. Clarence told Mr. Hooks that he'd better have more money the next time they came back.

"Ms. Kit stated that several days after the incident she talked with a deputy from the Macon County Sheriff's Department. She told them what happened and "On cross-examination Ms. Kit testified that she is related to Ms. Hooks. She stated that it was not her plan but she did help them to get into his house. She did not go home that night and stayed with Clarence and Anthony. She did not receive any of the money.

gave them the names of the persons involved.

"Ms. Kit further testified that she was not indicted or arrested even though she participated in the crime."

I.

The following is the first issue presented in appellant's brief:

"WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN REFUSING TO ALLOW APPELLANT TO CROSS-EXAMINE DEPUTY SHERIFF ON DEPARTMENT POLICY CONCERNING TREATMENT OF ACCOMPLICES."

The issue is directed at a ruling of the trial court sustaining the State's objection to the last question asked by defendant's attorney on cross-examination of the State's witness Major Wardel Pearson, a deputy sheriff of the Macon County Sheriff's Department, who had testified that in his official capacity he responded to the call on the morning of February 21, 1982, to go to the residence of Lonnie Hooks. He testified:

"When I walked in the front door of the trailer there the living room was all ransacked. The trunk was open and some clothes were scattered all about in the living room. Then I proceeded to the bedroom where Mr. Lonnie Hooks was. He was lying on the bed. He had a piece of tape, duct tape, across his eyes, his hands were tied with tape. His feet was tied with tape.

"Q. What did you do then?

"A. I took the tape off his feet and his hands. And his son Vandervile he took it off his eyes.

"Q. Did Mr. Hooks make a complaint to you at that time, Mr. Lonnie Hooks?

"A. He did.

"Q. What complaint did he make to you?

"A. He advised me that he had been robbed by two black males that at the present time that he didn't know who they were. Also a lady was involved. And he said that he didn't know her name, but she was supposed to be related to him. He knew her mother.

"....

"Q. Now, at some time later were you given the name of anyone of the people involved?

"A. Yes, I was.

"Q. And who gave you the name?

"A. Ida Kit.

"Q. Who gave you her name?

"A. Ida Kit gave me the names.

"Q. How were you directed to Ida Kit?

"A. Well, after Mr. Hooks told me that this Ida--at that time he didn't know--her mother's name, I went to her mother and asked to speak to Ida.

"....

"Q. What did you ask Ida Kit?

"A. Well, I first advised her of her rights. Then I asked her was she at Mr. Lonnie Hooks' house on the morning of--well, that afternoon of the 20th around 6:00. She advised me she was.

"Q. Did she give you the names of the other people that were involved?

"A. Yes, she did.

"Q. Did you have to force her to give you those names?

"MR. THOMPSON [Defendant's attorney]: We object to leading the witness, Your Honor, suggesting the answer.

"THE COURT: Sustained.

"Q. Did you have to threaten her to give you the names of the other people involved?

"MR. THOMPSON: Object, leading the witness.

"THE COURT: Sustained.

"Q. Did she cooperate with you in telling you exactly what happened on that night?

"MR. THOMPSON: Your Honor, I would object.

"MR. JONES [Attorney for the State]: Your Honor, I have no more questions.

"THE COURT: Counsel, I sustain two objections in a row to patently leading questions and you deliberately continued. And I'll admonish you not to do that again as a trial tactic or any other tactic in my courtroom.

"MR. JONES: Yes, sir, Your Honor.

"BY MR. JONES:

"Q. Was Ida Kit charged with robbery in this case after the conversation that you had with her?

"A. No, she was not."

Defendant's cross-examination of Major Pearson was brief, and we quote it in its entirety:

"Q. Major Pearson.

"A. Yes, sir.

"Q. Did Ida Kit turn herself in to you?

"A. No, sir.

"Q. Did she call you on the phone to come talk to her?

"A. No, she didn't.

"Q. You got to her only because Mr. Hooks gave you sufficient information to locate her?

"A. Yes.

"Q. And was Mr. Clarence Burton arrested?

"A. No, he wasn't.

"Q. Was Ida Kit arrested?

"A. No, she wasn't.

"Q. She was never placed under arrest?

"A. Not by me.

"Q. Just what you know. Is it the practice of the police department to let participants in robberies go?

"A. Police Department?

"Q. I mean the Sheriff's Department.

"MR. JONES: I object.

"THE COURT: Sustained.

"MR. THOMPSON: No further questions."

The State's redirect examination of the witness, consisted of only two questions and answers, as follows:

"Q. Why was Clarence not arrested?

"A. He skipped the city. We never did catch up with him.

"Q. He skipped town?

"A. Yes, sir."

No further testimony was presented by either party after the two questions and answers last quoted.

In his argument in support of the first issue presented in appellant's brief, his attorney relies upon the "right of cross-examination, thorough and sifting" that is guaranteed "to every party as to the witnesses called against him" by Code of Alabama, § 12-21-137. He relies heavily upon the following from Green v. State, 258 Ala. 471, 474-5, 64 So.2d 84 (1953):

"It is always competent on cross-examination to make such interrogation of a witness as would tend to test his interest, bias or prejudice or to illustrate or impeach the accuracy of his testimony. Both our appellate courts have approved of the principle stated in 2 Wigmore on Evidence, 2d Ed., § 949, p. 332: 'The range of external circumstances from which probable bias may be inferred is infinite. Too much refinement in analyzing their probable effect is out of place.' [Citations omitted.]

"And...