Epps v. State
Decision Date | 29 December 1981 |
Docket Number | 8 Div. 526 |
Citation | 408 So.2d 562 |
Parties | Terry Lee EPPS v. STATE. |
Court | Alabama Court of Criminal Appeals |
Clark E. Johnson, III, Arab, for appellant.
Charles A. Graddick, Atty. Gen. and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
Theft, second degree; four years.
On or about July 20, 1980, two window air conditioners were taken from the Wesley Chapel Church of God in Marshall County, Alabama. After a reward was offered for information leading to the return of the air conditioners, appellant's wife called a member of the church and said she could produce the air conditioners if the church would not notify the police. After arrangements were made for the return of the air conditioners, the appellant's wife took the air conditioners to a church member's house where sheriff's deputies placed her under arrest. The appellant, claiming that he and his wife had found the air conditioners, heard of the reward, and wanted to return them, was subsequently arrested. The appellant made a statement to law enforcement officers which was introduced at trial, along with the testimony of a co-defendant, Thomas Boozer.
Investigator A. G. Lang of the Marshall County Sheriff's office testified he saw the air conditioners when they were in the trunk of appellant's car and they were "fairly new." Further, he stated he had seen similar air conditioners advertised, new and used, and it was his opinion that the combined value of the two units would exceed five or six hundred dollars.
The appellant contends that the trial court committed reversible error when it refused to allow Thomas Boozer, the co-defendant, to invoke his Fifth Amendment right not to testify after Boozer had pleaded guilty but before he had been sentenced.
Boozer was called by the prosecution as a witness against the appellant and, with his attorney present, he asserted his privilege against self-incrimination. His request to remain silent was denied by the trial court on the grounds that Boozer had waived his right against self-incrimination when he pleaded guilty to the offense charged.
In Beauvoir Club v. State, 148 Ala. 643, 42 So. 1040 (1907), the Supreme Court of Alabama stated:
(Emphasis added, citations omitted.)
Also in Gamble, McElroy's Alabama Evidence, § 376.03 (3d ed. 1977), we find:
"An erroneous denial by the trial court of a claim of the privilege by a witness who himself is not a party is not error of which a party can complain on appeal."
Under the foregoing authorities, Boozer was the only one who had the right to invoke the privilege and the only one who had a right to complain that the trial court's action was improper. The appellant could not claim the privilege for Boozer, who was not a party in the case being tried, and cannot maintain error on this point on appeal. During trial the appellant made no objection to the court's ruling regarding Boozer's privilege.
The appellant insists that the trial court committed reversible error when it admitted incriminating out of court statements made by the appellant's wife. He argues that the statements of the wife were hearsay and that the wife's privilege not to testify against her husband was violated.
The complained of testimony appears as follows:
....
The hearsay rule applies only to a statement offered for the truth of its contents. Meriweather v. Crown Investment Corp., 289 Ala. 504, 268 So.2d 780 (1972). A statement offered for some purpose other than to prove the truth of its factual assertions is not hearsay. Bryant v. Moss, 295 Ala. 339, 329 So.2d 538 (1976). See also Cory v. State, Ala.Cr.App., 372 So.2d 394 (1979).
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Bankhead v. State
...Tillis v. State, 469 So.2d 1367, 1370 (Ala.Cr.App.1985); Dent v. State, 423 So.2d 327, 328 (Ala.Cr.App.1982); Epps v. State, 408 So.2d 562, 564 (Ala.Cr.App.1981); Crews v. State, 375 So.2d 1291, 1294 Both at trial and in his earlier statement to the police, appellant denied any knowledge th......
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Henderson v. State
...testimony was not covered by the marital privilege because of the presence of a third party--Judy Haney. See also Epps v. State, 408 So.2d 562, 565 (Ala.Cr.App.1981); Bailey v. State, 398 So.2d 406, 412 Perhaps anticipating our response to his argument, the appellant also seeks to distingui......
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Graham v. State
...privilege."However, the marital privilege for confidential communications has no application here. This court in Epps v. State, 408 So. 2d 562, 565 (Ala. Cr. App. 1981), held that:" ‘The privilege exists only for confidential communications or "acts performed with the confidence of the marr......