D.D.P. v. State

• Decision Date: 20 September 1991
• Docket Number: CR-90-135
• Citation: 595 So.2d 528
• Parties: D.D.P., M.M.A., R.D.P., and R.R.G. v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 528

595 So.2d 528

D.D.P., M.M.A., R.D.P., and R.R.G. v.STATE.

CR-90-135.

Court of Criminal Appeals of Alabama.

Sept. 20, 1991.

Rehearing Denied Oct. 25, 1991.

Certiorari Denied Jan. 24, 1992

Alabama Supreme Court 1910274 and 1910276.

Paul R. Cooper of Cooper & Cooper, Montgomery, for appellant D.D.P.

William R. Blanchard of Blanchard, Calloway & Campbell, Montgomery, for appellant M.M.A.

C. Michael McInnish of McInnish & Bright, Montgomery, for appellant R.D.P.

John W. Hartley, Jr., Montgomery, for appellant R.R.G.

James H. Evans, Atty. Gen. and Melissa G. Math, Asst. Atty. Gen., for appellee.

BOWEN, Judge.

This is a consolidated appeal by four juveniles from orders of the juvenile court transferring them to circuit court for prosecution as adults in crimes involving kidnapping, rape, and robbery.

At 8:30 p.m. on August 23, 1990, Wanda Smith was walking towards her car in the parking lot of Bruno's Supermarket on McGehee Road in Montgomery when she was accosted by four young black males.One of them brandished a gun and told her to get into her car.Instead, she screamed and ran, and the four youths ran away in the direction of Looney's Skating Rink.Ms. Smith could not identify any of the appellants at the transfer hearing.

Lisa Nix was in the parking lot of Looney's Skating Rink about 9:00 that night.She and her four-year-old son were walking to her car when she saw four young black males.One of them grabbed Ms. Nix by the hair, put a gun to her throat, and demanded money.One of the youths took her purse, which contained $18, removed her car keys, and asked which car was hers.Nix pointed out her vehicle, and three of the youths opened her car and got in.When the fourth attempted to pull her into the automobile, Ms. Nix grabbed her son and fled.At the transfer hearing, Nix testified that she recognized Rodney ¹ as the assailant with the gun, but that she was unable to identify any of the other appellants.

Later that same evening, V.T. was opening the door to her car at 10:50 p.m. in the parking lot of the Delchamps store on Perry Hill Road when three black males approached her.One of them pointed a gun at her, told her to get into the car, and threatened to kill her if she said a word.She moved into the front passenger seat while one of the assailants positioned himself in the driver's seat and the other two assailants sat in the back.The youths drove away with V.T.They stopped twice in isolated areas, where they took turns raping and sodomizing her.V.T. was left, naked, in a wooded area as the three assailants drove off in her automobile.At the transfer hearing, V.T. pointed out Rodney as one of her assailants, but she was unable to identify any of the other appellants.

In the early morning hours of August 24, 1990, V.T. reported the offenses and gave the police the tag number and description of her vehicle.Law enforcement authorities spotted and pursued that automobile at 3:00 that same morning.During a high speed chase, V.T.'s car was wrecked, and three black males emerged from the disabled vehicle.The police apprehended one of them, Reginald, and the other two escaped.

After his arrest, Reginald gave the police a statement incriminating himself, Rodney, and Montoya in the kidnapping, rape, and robbery of V.T.The statement appears, in question-and-answer form, in the record before us.Reginald was not asked, nor did he mention, anything about the incidents involving Ms. Smith and Ms. Nix.

After learning that they were being sought by the police, Darryl and Montoya came to the juvenile section of the Montgomery Police Department on the afternoon of August 24, 1990.Each was accompanied by a parent.Darryl made a statement to the police, implicating himself and the other three appellants in the offenses against Ms. Smith and Ms. Nix.

Rodney was "picked up on the streets"² and brought to the juvenile division of the police department.However, neither he nor Montoya made any statements to the police.

Darryl was charged with three offenses: the attempted kidnapping of both Ms. Nix and Ms. Smith, and the robbery of Ms. Nix.Reginald, Rodney, and Montoya were each charged with the same six offenses: the attempted kidnapping of Ms. Smith; the attempted kidnapping and the robbery of Ms. Nix; and the kidnapping, rape, and robbery of V.T.

I

At the transfer hearing, the juvenile court admitted, over objection by all four appellants, a report comparing the fingerprints lifted from V.T.'s automobile with the appellants' known prints.The appellants objected on the grounds that the report was hearsay and that its admission denied them their rights to confront and to cross-examine the creators of the report, the officer who lifted the fingerprints from the car and the evidence technician who compared the "lifts" with the known prints.The juvenile court held that hearsay was admissible at a juvenile transfer hearing and overruled the objections.That ruling constitutes error.

In O.M. v. State, 595 So.2d 514(Ala.Cr.App.1991), this Court noted that "[e]vidence admissible over a hearsay objection may be inadmissible because it violates the right of confrontation and cross-examination."O.M. v. State, 595 So.2d at 516.We held that "a juvenile has the rights of confrontation and cross-examination in a transfer hearing by virtue of Rules 11(H) and (I), Ala.R.Juv.P.," and concluded that "an extrajudicial statement which violates the right of confrontation ... is, by virtue of [Ala.Code 1975,] § 12-15-66(b), inadmissible at a juvenile transfer hearing."O.M. v. State, 595 So.2d at 519.As we observed in that case, the Confrontation Clause limits admissible hearsay in two ways:

" ' "First, ... the Sixth Amendment establishes a rule of necessity.In the usual case ..., the prosecution must either produce or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant."Second, once a witness is shown to be unavailable, "his statement is admissible only if it bears 'adequate indicia of reliability.'Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception.In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness." ' "

"Idaho v. Wright, 497 U.S. 805, ----, 110 S.Ct. 3139, 3146, 111 L.Ed.2d 638(1990)(quotingOhio v. Roberts, 448 U.S. 56, 65, 100 S.Ct. 2531, 2538-39, 65 L.Ed.2d 597(1980)).See alsoGrantham v. State580 So.2d 53(Ala.Cr.App.1991);Fortner v. State, 582 So.2d 581(Ala.Cr.App.1990)."

O.M. v. State, 595 So.2d at 519.

Defense counsel elicited testimony that both the officer who made the fingerprint lifts and the evidence technician who performed the print comparison were still employed by the Montgomery Police Department.The prosecution did not show that either officer was "unavailable."Therefore, the admission of the fingerprint comparison report was error because it denied the appellants their right to confront and cross-examine the witnesses against them.SeeGrantham v. State, 580 So.2d 53(Ala.Cr.App.1991)(wherein this Court held that admission of toxicology report, admissible under public record exception to the hearsay rule, denied accused the right to confront and cross-examine toxicologist who did not testify).

A denial of the right of confrontation may, in some circumstances, constitute harmless error.Delaware v. Van Arsdall, 475 U.S. 673, 680-84, 106 S.Ct. 1431, 1436-38, 89 L.Ed.2d 674(1986).In this case, the denial of the right was harmless as to Darryl, Rodney, and Reginald.

The improper admission of the fingerprint report was harmless as to Darryl because his fingerprints were not found on V.T.'s automobile and because he was not charged with any offense against V.T.The improper admission was harmless as to Rodney because V.T. identified Rodney as one of her assailants and that identification, alone, was sufficient to establish probable cause.The improper admission was also harmless as to Reginald, because Reginald's statement, corroborated by testimony that Reginald was apprehended after he emerged from V.T.'s wrecked vehicle, established probable cause without the fingerprint evidence.However, the denial of confrontation was not harmless as to Montoya.Therefore, the transfer orders involving Montoya in the following three cases must be reversed: JU-88-0373.07 (kidnapping of V.T.), JU-88-0373.08 (robbery of V.T.), and JU-88-0373.09 (rape of V.T.).

II

All four appellants challenge the consolidation of their cases for a single probable cause hearing.

Neither the statutes relating to juvenile transfer proceedings nor the Rules of Juvenile Procedure address the issue of consolidation.Rule 1, Ala.R.Juv.P., states that "[i]f no procedure is specifically provided in these rules or by statute, the Alabama Rules of Civil Procedure shall be applicable to the extent not inconsistent herewith."Rule 42(a), Ala.R.Civ.P., sets out the following criterion for consolidation of civil cases:

"When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay."

The consolidation of these cases for jury trial would present problems under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476(1968).SeeHolsemback v. State, 443 So.2d 1371, 1379(Ala.Cr.App.1983).However, while it might be beyond "the capacity of ... jurors to follow the court's instructions and to collate and appraise the independent evidence against each defendant solely upon that defendant's own acts,"Holsemback v. State, 443 So.2d at 1378, the juvenile court judge is presumed to perform that task as a matter of course.SeeWhisenhant v. State, 555...