Carter v. State

• Citation: 435 So.2d 137
• Decision Date: 20 April 1982
• Docket Number: 1 Div. 281
• Parties: Jay Moore CARTER v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 137

435 So.2d 137

Jay Moore CARTER v. STATE.

1 Div. 281.

Court of Criminal Appeals of Alabama.

April 20, 1982.

Rehearing Denied May 18, 1982.

Certiorari Denied July 23, 1982

Alabama Supreme Court 81-727.

On Return to Remand March 29, 1983.

Rehearing Denied May 31, 1983.

Certiorari Denied July 22, 1983

Alabama Supreme Court 82-852.

Virginia A. Johnstone, Mobile, for appellant.

Charles A. Graddick, Atty. Gen., and Cedric R. Perry, Asst. Atty. Gen., for appellee.

BOWEN, Judge.

The defendant was indicted and convicted for the first degree robbery of George G. Watson, a pharmacist at Skyland Drugs in Mobile. Alabama Code 1975, Section 13A-8-41 (Amended 1977). Sentence was 15 years' imprisonment.

I

The defendant argues that there was no probable cause for his arrest because information gained from an accomplice is not worthy of belief, and consequently the veracity prong of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), was not satisfied.

Five days after the robbery occurred, Gregory Allen Manning was arrested and voluntarily admitted his participation in the crime and implicated the defendant. Based on the information given by Manning in his confession, which corroborated in detail the facts of the initial robbery complaint by the victim, Mobile Police Detective Thomas H. Smith issued an order for the defendant's arrest.

Detective Smith testified that he had had "prior dealings" with Manning and knew that Manning had a "long record for a young man of violating the law." Smith stated that in these prior dealings Manning "has always been straight with me with what he has told me."

When probable cause is based wholly or partly on an informant's statements, the two-pronged test of Aguilar is used to determine the existence of probable cause. Here there is no dispute that the first prong of Aguilar, the basis of knowledge, has been satisfied.

Courts have been "most willing" to find the veracity prong of Aguilar satisfied where the informer is a participant in a serious crime who identifies his accomplice. W. LaFave, 1 Search And Seizure, Section 3.3 at 527 (1978). However, there seems to be a general agreement that, in the case of the accomplice-informant, an admission against penal interest, without more, is not enough to justify a finding of probable cause and is insufficient, in and of itself, to establish the reliability of the informant. United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971); United States v. Martin, 615 F.2d 318, 325 (5th Cir.1980); United States v. Ashley, 569 F.2d 975, 981-2 (5th Cir.1978). "Concededly admissions of crime do not always lend credibility to contemporaneous or later accusations of another." Harris, 91 S.Ct. at 2082.

The existence of probable cause must be determined from the particular facts of each case. Consequently, courts have found that the veracity prong of Aguilar was satisfied and the informant credible where the accomplice-informant's information was not vague but contained a particular description of the "utmost precision", Bernard v. United States, 360 F.2d 300 (5th Cir.1966); where the accomplice-informer related the "underlying circumstances" of the offense which were corroborated by information obtained from eyewitnesses, United States v. Mendoza, 441 F.2d 1107 (9th Cir.1971); where the participant's tip was against his penal interest and was substantially corroborated by other informants, Martin, supra; and where the participant's information was independently corroborated and verified, Ashley, supra; United States v. Sporleder, 635 F.2d 809 (10th Cir.1980); United States v. Hampton, 633 F.2d 927 (10th Cir.1980), cert. denied, 449 U.S. 1128, 101 S.Ct. 950, 67 L.Ed.2d 116 (1981); see 70 Georgetown L.J. 467, 479, n. 61 (1981).

The issue presented by the veracity prong of Aguilar is whether the informant is "credible" or his information "reliable". Aguilar, 84 S.Ct. at 1514. It has been suggested that, where the "credibility" of the informer is not established in that there is no "track record" of past performance or its equivalent, the veracity prong may still be satisfied, without any resort to independent verification by other circumstances reasonably guaranteeing the reliability of the information on the particular occasion of its being furnished.

"A genuine declaration against penal interest would probably qualify in this regard, even when we know nothing about the source as a person, or even where he is characteristically non-credible. A source's furnishing of information, under clearly apprehended threat of dire police retaliation should he not produce accurately, might also well qualify as such a circumstantial guarantee." Moylan, Hearsay And Probable Cause: An Aguilar And Spinelli Primer, 25 Mercer L.Rev. 741, 762 (1974).

For a comprehensive treatment of statements against penal interests, see Taegue, Perils of the Rulemaking Process: The Development, Application, and Unconstitutionality of Rule 804(b)(3)'s Penal Interest Exception, 69 Geo.L.J. 851 (1981).

The issue in this case, simply stated, is what is there to show that the accomplice-informer was a "truthspeaker"; what is there that would "induce a prudent and disinterested observer to credit these statements." Harris, 91 S.Ct. at 2082. Probable cause is concerned with "probabilities", that "are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949).

In this case there are three "indicia of credibility", Harris, 91 S.Ct. at 2082, which, when combined, are sufficient to support the finding of probable cause. First is the fact that the accomplice-informant's information constituted a clear admission against his penal interest. Second are the facts that the information itself was not only highly detailed, but corroborated and independently verified by the victim's account of the robbery. Third is the fact that the informant already had a track record of sorts for honesty with Detective Smith. While no single factor would be sufficient when divorced from the others to establish the veracity of the accomplice-informant, the combination is sufficient to lead a reasonable and prudent man to believe that Manning was telling the truth.

Because the police had probable cause to arrest the defendant, his subsequent confession was not inadmissible under Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979).

II

The defendant contends that the trial court acted arbitrarily and without authority in setting aside its prior order granting the defendant's request to be treated as a youthful offender.

The minute entries of the court reveal the following:

October 6, 1980: "(T)he defendant in open court on this day having waived trial by jury, requested to be treated as a Youthful Offender.

"It is ordered by the court that an Investigation be made to determine if the defendant should be treated as a Youthful Offender and case reset for Youthful Offender Report on January 6th, 1981."

January 7, 1981: "This day in open court came the State of Alabama by its District Attorney and the defendant in his own proper person and with attorney, Virginia Johnston, and thereupon in open court on this day; It is ordered and adjudged by the court that the defendant's request of October 6th, 1980, to be treated as a Youthful Offender by and the same is hereby granted."

February 11, 1981: "This day in open court came the State of Alabama by its District Attorney and the defendant in his own proper person and with his attorney, Barry Hess, and thereupon in open court on this day; It is ordered and adjudged by the Court that the Court order of January 7th, 1981, be and the same is hereby set aside in that no final order was made on the request for Youthful Offender status, due to the fact that there was an error by the secretary of the Court's order on the daily criminal docket sheet.

"After due consideration of the Youthful Offender Investigation report and upon being advised of a subsequent offense having been made against the defendant; It is ordered and adjudged by the Court that the defendant's request for Youthful Offender treatment be and the same is hereby denied."

The defendant was arraigned at this time. On February 17, 1981, defense counsel filed a "Motion for Reconsideration." Attached to that motion was the affidavit of defendant's attorney, Virginia A. Johnston, stating that on January 6, 1981, she appeared in open court with the defendant for a hearing regarding the granting of Youthful Offender status.

"On that date, in open Court, Judge Hogan called the case and held a report in his hand regarding the Defendant. After reviewing the file and record of the Defendant, Judge Hogan granted Jay Moore Carter Youthful Offender status."

The affidavit also includes the alleged reasons and comments made by Judge Hogan in granting treatment as a youthful offender. The affidavit further states that Judge Hogan "explained the...