Carter v. State, 6 Div. 748
| Decision Date | 04 October 1983 |
| Docket Number | 6 Div. 748 |
| Citation | 442 So.2d 150 |
| Parties | Bobbie Jean CARTER, alias v. STATE. |
| Court | Alabama Court of Criminal Appeals |
William M. Dawson, Jr., Birmingham, for appellant.
Charles A. Graddick, Atty. Gen., and Rivard Melson, Asst. Atty. Gen., for appellee.
Bobbie Jean Carter was tried and convicted for the capital murder of John Doyle Pennington by shooting him with a pistol, during the course of a robbery, in violation of § 13A-5-31(a)(2), Code of Alabama 1975. After a separate sentencing hearing for consideration of aggravating and mitigating circumstances, the jury fixed his punishment at life imprisonment without parole. In accordance with the jury's verdict, the trial court sentenced the appellant to life imprisonment without parole.
On December 19, 1980, two armed men entered George's Grocery in Birmingham, Alabama, shot and killed one of the owners, John Doyle Pennington, and took cash, totaling over $2,700, from Mr. Pennington and the store cash registers. The appellant, Bobbie Jean Carter, was later identified by two eye-witnesses as the gunman who shot and killed Mr. Pennington during the robbery.
The appellant presented an alibi defense. He testified that at the time of the robbery-murder he was at his girlfriend's home. His girlfriend, Barbara Player, and her friend, Sonya Winborn, testified that they were with the appellant for most of the day except for a period between 3:00 and 5:10 p.m., when they left the appellant at Player's home while they went to the laundromat. Player testified that, although she was not with the appellant between 3:00 and 5:10 p.m., she did call her home during that period and talk with him on the telephone.
In light of this alibi testimony, the jury found the appellant "guilty of the capital offense as charged in the indictment."
During its cross-examination of the appellant, the prosecution asked him if he had related his alibi to the investigating police officers. The appellant answered "yes," that he had given his alibi information to the police after his arrest. Over appellant's objection, the state was allowed to pursue this issue with the appellant and was later allowed to impeach the appellant with Sergeant Gaut's testimony that the appellant never told the police investigators about his alibi.
The appellant argues that the trial court erred to reversal in permitting this line of questioning. He contends that, in accordance with the Miranda warnings, he had a right to remain silent at the time of arrest and the state should not have been allowed to use such silence against him at trial.
The general rule in this regard was stated in Houston v. State, 354 So.2d 825 (Ala.Cr.App.1977), cert. denied, 354 So.2d 829 (Ala.1978), as follows:
See also, Dickey v. State, 390 So.2d 1177 (Ala.Cr.App.), cert. denied, 390 So.2d 1178 (Ala.1980).
The state asks us to distinguish the instant case from Houston and Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), because there was no evidence in the record that the appellant was even given the Miranda warnings. See, Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982). The state's argument is unfounded and its reliance on Fletcher v. Weir is totally misleading because there is evidence in the record that the appellant was informed of his Miranda rights several times after his arrest.
However, the appellant's reliance on Houston v. State, supra, and Doyle v. Ohio, supra, is unwarranted. In Houston the state made several comments about the defendant's post-arrest silence and introduced, through the testimony of its own witness, the fact that the defendant refused to make a statement after his arrest. In Doyle, the prosecutor, during cross-examination, forced the defendant to admit that he had not told his exculpatory story to the police after his arrest. Under those circumstances the reviewing courts found reversible error, in accordance with the general rule prohibiting evidence of post-arrest silence.
The circumstances of the instant case are materially different from those in Houston and Doyle. The appellant presented three alibi witnesses and then, in his own behalf, confirmed his alibi, that he was at his girlfriend's apartment when the instant offense was committed. The state, through vigorous cross-examination of the appellant, forced him to re-state his alibi with a bit more detail. At the conclusion of this re-statement the following exchange took place (R. 640):
After a discussion that followed and some voir dire testimony from the appellant concerning his alleged post-arrest statements to Gaut, the trial court overruled the appellant's objection, permitted, in the presence of the jury, some additional questioning of the appellant, concerning the circumstances surrounding the statements he, allegedly, made to Gaut, and permitted Gaut to testify in rebuttal that the appellant never disclosed his alibi story to Gaut.
Quite clearly, the triggering question on the issue of appellant's post-arrest behavior was the state's inquiry (quoted above) as to whether or not the appellant told Sergeant W.T. Gaut about his alibi. This question, by itself, was not erroneous because it did not infer post-arrest silence. See, Dickey v. State, supra; See also, Monroe v. State, 396 So.2d 241 (Fla.App.1981). Then, before any objection was made by his attorney, the appellant stated that he had, indeed, told Gaut about his alibi. We need not speculate as to how the trial court would have ruled, had appellant's attorney interposed an objection before the appellant answered. The fact is that the appellant was not forced to admit post-arrest silence. Instead, he claimed that he told his exculpatory story to the police.
Under these circumstances, the instant case falls within an exception to the "post-arrest silence" rule quoted above from Houston v. State. The exception was stated as footnote 11 in Doyle v. Ohio, 426 U.S. 610, 619, 96 S.Ct. 2240, 2245, 49 L.Ed.2d 91 (1976), as follows:
(Emphasis supplied.)
The appellant's claim that he told the alibi story to Sgt. W.T. Gaut after his arrest invited impeachment by the state. Consequently, we find no error by the trial court as regards this post-arrest silence issue. See also, United States v. Quintana-Gomez, 488 F.2d 1246, 1248 (5th Cir.1974); and United States v. Fairchild, 505 F.2d 1378 (5th Cir.1975).
The appellant was positively identified by Mrs. Pennington and Johnny Payne as one of the perpetrators of the instant offense. Mrs. Pennington identified the appellant in a photographic line-up, in a live line-up, and from the witness stand at trial, and testified that the appellant was the triggerman, the robber who shot and killed her husband. Johnny Payne identified the appellant in a live line-up and from the witness stand at trial.
At trial the appellant moved to suppress the pre-trial identifications and raised timely objections to prevent the identifications in court. The appellant argues that all of these identifications were inadmissible because they were the "fruits of an illegal detention," that the line-up identifications were inadmissible because they were unduly suggestive, and that the in-court identifications were inadmissible because they were "tainted" by the out-of-court identifications. We disagree.
With all due respect to the appellant and his arguments on appeal, we, simply, cannot find in the record before us any support for these contentions.
There is no evidence that the appellant was illegally arrested or detained. The robbery-murder of Mr. Doyle Pennington occurred on December 19, 1980. Descriptions of the two robbers and the "getaway car" were obtained by the investigating police officers from Mrs. Pennington, Johnny Payne and other witnesses at the scene. Through what appears to have been normal and efficient detective work by the Birmingham Police Department, the details of which were not disclosed at trial, the appellant was identified as a possible suspect. On December 23, 1980, just four days after the crime, Mrs. Pennington and Johnny Payne, the two key eyewitnesses to the robbery-murder, were, independently, shown a photographic line-up which included a photograph of the appellant. Although Johnny Payne could not positively identify the appellant from his photograph, Mrs. Pennington positively and unequivocally identified the appellant as the triggerman, the robber who shot and killed her husband.
Based, primarily, upon Mrs. Pennington's positive identification from the photographic line-up, the appellant was "picked up" that day as a suspect in the instant offense. He was placed in a line-up the following day and was positively identified, independently, by Mrs. Pennington and Johnny Payne.
The trial court concluded, and we agree, that there was absolutely no evidence of an illegal arrest or detention. Therefore, appell...
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Lambert v. City of Henagar
...general reputation for peace and quiet or for violence is admissible to establish that Gant was the initial aggressor. Carter v. State, 442 So.2d 150 (Ala.Crim.App.1983); C. Gamble, McElroy's Alabama Evidence § 33.01(3) (4th ed. 1991). Here, however, the appellant attempted to question Gant......
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Carter v. State
...the possibility of parole. We affirmed his conviction and sentence on direct appeal in an opinion issued on October 4, 1983. See Carter v. State,1 442 So.2d 150 (Ala.Cr.App.1983), cert. denied, 467 U.S. 1228, 104 S.Ct. 2682, 81 L.Ed.2d 877 (1984). Carter filed the present petition in the Ci......