Crittenden v. State

• Decision Date: 29 November 1983
• Docket Number: 4 Div. 180
• Parties: Robert Lee CRITTENDEN alias Bean Crittenden v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 626

476 So.2d 626

Robert Lee CRITTENDEN alias Bean Crittenden v. STATE.

4 Div. 180.

Court of Criminal Appeals of Alabama.

Nov. 29, 1983.

On Return to Remand Jan. 8, 1985.

Rehearing Denied Feb. 12, 1985.

Allen Edward Cook, Andalusia, for appellant.

Charles A. Graddick, Atty. Gen., and Janet A. Wade, Asst. Atty. Gen., for appellee.

TAYLOR, Judge.

Appellant was convicted of attempted rape in the first degree and sentenced to

ten years and one day; he appeals, asserting three grounds.

I

Appellant contends that he was erroneously prevented from testifying as to the details of former difficulty between himself and the mother of the victim in this case. Appellant and the victim's mother had once lived together but had separated some months before the warrant was taken out. The purpose of this proposed testimony was to prove that the victim's mother bore ill-will toward the appellant.

The arrest warrant was taken out after a social worker took the victim, a nine-year-old girl to a doctor, who determined that she was infected with gonorrhea. The doctor testified that the most common way to become infected with gonorrhea was through sexual contact and that females might be carriers of the venereal disease for an indefinite period without the appearance of any symptoms.

The record indicates that the appellant did testify as to the cohabitation with Sara Frances Jackson, that he and she had quarreled and separated. In addition it was shown that all this happened before Miss Jackson sought a warrant against appellant. Appellant further testified that the victim's mother threatened him at the time he separated, saying she was going to get him in some way or another; he concluded that she brought these charges in an attempt to get back at him. The court only disallowed testimony concerning the details of their quarrels.

In deciding this issue there are several controlling authorities.

In Eddy v. State, 352 So.2d 1161 (Ala.Cr.App.1977), testimony was admitted that there had been fights between the defendant and the victim on previous occasions. The court, however, declined to allow the state to go into details concerning these fights. C. Gamble, McElroy's Alabama Evidence, § 45.06(1) (3d ed. 1977) states:

"In a charge of crime, the state may prove former acts of hostility by the accused towards the victim for the purpose of showing motive in the accused and malice, if malice is an element of the offense. If the evidence in a charge of homicide or assault warrants a finding of accused's justification under the right of self-defense, he may prove former acts of hostility by the victim towards the accused as tending to show a motive in the victim to aggress against the accused and as tending to show apprehension of peril by the accused. When the act of hostility consists of a former difficulty, such as a quarrel or a fight between the accused and the victim, uncertainty prevails with respect to the extent to which the facts of such former difficulty or quarrel may be proven. The general rule in this area, however, is that the moving party may show the fact, but not the details, of the former difficulty." (emphasis supplied)

The trial judge is vested with wide discretion when deciding how far counsel may go in eliciting "details of a former difficulty"; he should be allowed to determine when to let counsel run and when to rein him in. See, Padgett v. State, 49 Ala.App. 130, 269 So.2d 147 (Ala.Cr.App.), cert. denied, 49 Ala.App. 138, 269 So.2d 155 (Ala.1972); Davis v. State, 331 So.2d 813 (Ala.Cr.App.1976).

In this instance it appears that the points sought to be made by the appellant were in fact testified to by him. See, Hill v. State, 366 So.2d 296 (Ala.Cr.App.1978), aff'd, 366 So.2d 318 (Ala.1979). The court did not err in its decision to circumscribe the testimony concerning the details of the quarrel.

II

Appellant contends that the court erred in not compelling the state to elect between Count I and Count II of the indictment. The appellant was charged with sexual abuse and with attempted rape. This issue was dealt with by our court, speaking through Judge Tyson, in Wilcox v. State, 401 So.2d 789 (Ala.Cr.App.1980), aff'd, 401 So.2d 794 (Ala.1981), wherein the case of "A careful solicitor should always frame the indictment with as many counts as may be necessary to meet the different phases the evidence may assume. Embezzlement and larceny, burglary and larceny, larceny and receiving stolen property, and offenses of like character may properly be joined in separate counts in the same indictment."

Orr v. State, 107 Ala. 35, 18 So. 142 (1895), was quoted:

Judge Tyson continued in Wilcox:

"As noted by our Supreme Court in Deason v. State, 363 So.2d 1001 (Ala.1978), '[T]his is permissible under our statute [§ 15-8-52, Code of Alabama 1975] ... and places no obligation upon the prosecution to elect beforehand which of those offenses it intends to prove.' This situation is to be distinguished from one in which the indictment alleges one offense and different instances of that offense are made the subject of proof by the prosecution; in such instances the court should compel election:

'The court will not exercise its power to compel an election unless it appears either from the indictment or the evidence that an attempt is made to convict the accused of two or more offenses growing out of separate and distinct transactions. Mayo v. State, 30 Ala. 32; Wooster v. State, 55 Ala. 217, Butler v. State, 91 Ala. 87, 9 So. 191.' Brooms v. State, 197 Ala. 419, 425, 73 So. 35, 37 (1916) (Mayfield, J. concurring); Deason v. State, supra."

Our Supreme Court held in Flournoy v. State, 251 Ala. 285, 37 So.2d 223 (1948), quoting Mayo v. State, 30 Ala. 32 (1857), that:

"Where two distinct felonies are charged in different counts, it is not a matter of legal right pertaining to the accused, that the state should be compelled to elect for which one of the offenses it will prosecute; nor will the court compel such election, where the two counts are joined, in good faith, for the purpose of meeting a single offense. It is a practice sanctioned by common custom, and by the law, to charge a felony in different ways, in different counts of the indictment, so as to provide for the different phases which the evidence may present upon the trial; and where such is the bona fide purpose of the joinder of counts, the court never exercises its power of quashing the indictment, or compelling an election."

The state is not required to elect between counts in circumstances such as presented in this case.

III

Appellant contends that the statement of the appellant in this case was illegally obtained and should not have been admitted into evidence; specifically he asserts that the statement was obtained by a custodial interrogation following an illegal arrest. He contends that the arrest was illegal because the affidavit authorizing the issuance of the warrant was insufficient to support a finding of probable cause. The Constitution of the United States, Fourth Amendment, states:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches, and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The Alabama Constitution, Art. 1, Sec. 5, states:

"The people shall be secure in their persons, houses, papers and possessions from unreasonable seizure or searches, and that no warrants shall issue to search any place or to seize any personal thing without probable cause, supported by oath or affirmation."

The provision of each constitution regarding the issuance of warrants applies to arrests of persons as well as to the search of persons and premises. This court in Malone v. State, 51 Ala.App. 19, 282 So.2d 367, writ. quashed, 282 So.2d "Before me, Clerk or Magistrate of District Court, this day personally appeared Sara Jackson and made oath that he has probable cause for believing and does believe that within twelve (12) months before the making of this affidavit that Robert Lee Crittenden, a/k/a "Bean", whose name is otherwise unknown to the affiant, he being sixteen years of age or older, did subject to sexual contact [the victim], who was less than twelve years of age, in violation of § 13A-6-66 of the Code of Alabama, against the peace and dignity of the State of Alabama. SEXUAL ABUSE--First Degree § 13A-6-66 which said offense has been committed against the peace and dignity of the State of Alabama."

371, 291 Ala. 789 (1973), dealt with a search warrant issued on an affidavit similar to the one in this case. The affidavit in this case states:

This affidavit, like that in Malone, is couched in the language of the statute itself and amounts to nothing more than a recitation of the statutory language, adding names. It is merely "the affiant's conclusion that the individual named therein had perpetrated the described offense." Malone, supra. No facts are stated in support of the conclusion. Applying the precedents as set out, we conclude that the arrest warrant was issued on the basis of insufficient probable cause so far as the record shows. However, "in passing on the validity of an arrest warrant, the reviewing court is not restricted to examining the four corners of the affidavit." Holderfield v. City of Birmingham, 380 So.2d 990, 993 (Ala.Cr.App.1979), cert. denied, Ex parte Holderfield, 380 So.2d 994 (Ala.1980). Here, the affiant was the mother of the nine-year-old victim, who had been examined by a physician the day before the affidavit was signed. It appears that we do not have before us the information the issuing authority had before it.

Accordingly, we remand this cause for an evidentiary hearing to determine what, if any, testimony was presented to the magistrate at the time the warrant was issued and in...