Coburn v. State
| Decision Date | 12 October 1982 |
| Docket Number | 1 Div. 352 |
| Parties | James Edward COBURN v. STATE. |
| Court | Alabama Court of Criminal Appeals |
W. Donald Bolton, Jr., Foster, Brackin & Bolton, Foley, for appellant.
Charles A. Graddick, Atty. Gen., and Jane LeCroy Brannon, Asst. Atty. Gen., for appellee.
James Edward Coburn was indicted by a Baldwin County grand jury in July of 1981 for burglary in the first degree. He was convicted and was sentenced to 30 years. Hence this appeal.
Mrs. Patricia White left her home in Daphne, Alabama, about 8:30 p.m. on March 27, 1981, to attend to some personal matters. Upon returning to her home about two hours later, Mrs. White discovered two strange men in the bedroom portion of the home in the process of ransacking the home and putting articles into a pillow case. When she called out to them, one of the men grabbed Mrs. White, threw her against the door (breaking her arm), and ran out the front door. The other man, carrying the partially filled pillow case, ran out the back door. Mrs. White went out the front door and sought the help of a neighbor who happened to be in the vicinity. The neighbor apprehended the man who went out the front door and returned him to Mrs. White's residence. The suspect, Gary Stephen Easterling, was subsequently turned over to the sheriff's department.
Easterling, who implicated the appellant as the man who burglarized the home with him, subsequently pleaded guilty to second degree burglary.
Appellant denied his involvement in the burglary, testifying that he was with his mother at the time at which the burglary occurred. Appellant's mother corroborated his testimony.
The first issue presented for review relates to Mrs. White's in-court identification of appellant.
About two hours before the beginning of the trial, the district attorney staged an impromptu line-up, which was viewed by Mrs. White, without the knowledge or consent of appellant's counsel. Mrs. White identified appellant in the line-up as the man who ran out the back door of her home on the date of the burglary.
Obviously, the line-up occurred at a critical stage of the prosecution, after appellant was arraigned on the charge and was represented by counsel. Both appellant and his counsel should have been notified by the district attorney of the impending line-up, and counsel's presence should have been a requisite to the holding of the line-up, in the absence of an intelligent waiver. See United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). The record is silent as to any waiver.
Therefore, the question now presented is whether the denial of appellant's motion to exclude Mrs. White's identification testimony constitutes error requiring reversal. We conclude and find that the admission of Mrs. White's in-court identification of appellant, without first determining that it was not tainted by the line-up but was of independent origin, would be a constitutional denial of appellant's right to counsel. Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967).
On voir dire examination, prior to the in-court identification and out of the presence of the jury, Mrs. White testified as follows:
Additionally, Mrs. White testified on direct examination that she got a good view of appellant at the scene of the robbery, that she and appellant at one point were only about three feet apart, and that she observed him for about ten seconds as he unlocked and opened the exit door. The burglary incident was about eight months before the trial date.
Based on Mrs. White's opportunity to observe appellant at the scene about eight months prior, as shown by her direct testimony, and the voir dire colloquy between the trial judge and the witnesses, we hold that the in-court identification of appellant by Mrs. White was based on her independent recollection and was not tainted by the illegal line-up. Accordingly, we find that the trial court properly denied appellant's motion to exclude.
Appellant urges a fatal variance between the date alleged in the indictment and the date proved at trial.
The charging part of the indictment provides:
"The Grand Jury of said County charge that before finding this indictment on to-wit: March 4, 1981, James Edward Coburn whose name is otherwise unknown to the Grand Jury other than as stated, did, knowingly and unlawfully enter or remain in a dwelling of Pat White with intent to commit a crime therein to-wit: Theft of Property and while in immediate flight therefrom said defendant did cause physical injury to Pat White by knocking her to the ground and breaking her arm in violation of Title 13A-7-5 of the Code of Alabama, against the peace and dignity of the State of Alabama."
The record before us reveals that the indictment was returned in July 1981, and that the offense occurred on March 27, 1981.
It is not necessary to state the precise time at which an offense was committed in an indictment, but it may be alleged to have been committed on any day before the finding of the indictment, or generally before the finding of the indictment, unless time is a material ingredient of the offense. Section 15-8-30, Code 1975.
Time is not a material ingredient in the charge of burglary. Time would be a material ingredient of the offense only if it were a new offense, or when the grade of an offense has been raised from a misdemeanor to a felony and covers a period both when the act was and was not an offense, or when it was of a lesser grade. Such is not the case here.
Inasmuch as time is not a material ingredient of the offense charged in this indictment and since the indictment charges that the offense occurred "before finding this indictment," we hold that the allegation of a specific date in the indictment is mere surplusage and that the terminology of the indictment gave sufficient notice to the appellant of the accusation he was called on to answer.
Appellant relies on Brown v. City of Tuscaloosa, 196 Ala. 475, 71 So. 672 (1916), as authority for the proposition that the variance is fatal. In that case, the offense proved at trial occurred after the date the defendant was charged, which divested the trial court of jurisdiction. In the instant case, the offense occurred prior to the time the indictment was returned; therefore, Brown has no application.
Appellant contends that the trial court erred to reversal by depriving him of the right to cross-examine witnesses against him.
Gary Stephen Easterling, who identified appellant as the one who burglarized the house with him, had previously pleaded guilty to burglary in the second degree in this incident and was awaiting sentencing at the time of this trial. Easterling initially invoked the privilege against self-incrimination and refused to testify concerning appellant's alleged involvement in the burglary. The State then made known its desire to call Easterling as a hostile witness. On voir dire examination by appellant on the issue of hostility, Easterling changed his prior position, indicating that he intended to...
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