Ex parte Hamm

CourtSupreme Court of Alabama
Writing for the CourtALMON; ALMON
Citation564 So.2d 469
Decision Date23 March 1990
PartiesEx parte Doyle Lee HAMM. (re Doyle Lee Hamm v. State). 88-1555.

Page 469

564 So.2d 469
Ex parte Doyle Lee HAMM.
(re Doyle Lee Hamm
v.
State).
88-1555.
Supreme Court of Alabama.
March 23, 1990.
As Modified on Denial of Rehearing June 15, 1990.

Page 471

Martha E. Williams and Hugh C. Harris, Cullman, for petitioner.

Don Siegelman, Atty. Gen., and William D. Little and Sandra J. Stewart, Asst. Attys. Gen., for respondent.

ALMON, Justice.

Doyle Lee Hamm was convicted of the capital offense of murder during a robbery in the first degree and was sentenced to die in the electric chair. The Court of Criminal Appeals affirmed the judgment, 564 So.2d 453, and Hamm petitioned this Court for certiorari review as a matter of right. A.R.App.P., Rule 39(c).

Hamm presents three claims of error: (1) that his indictment failed to properly aver a capital offense under the facts of this case; (2) that the warrant authorizing his initial arrest was issued without probable cause and failed to comply with Ala.Code 1975, §§ 15-9-40 and -42, and that, therefore, his subsequent confession should have been suppressed; and (3) that evidence seized following his arrest should have been suppressed because the search warrant was issued without probable cause.

A lengthy statement of the facts is unnecessary because of the thorough statement contained in the opinion of the Court of Criminal Appeals. Hamm v. State, 564 So.2d 453 (Ala.Cr.App.1989).

Hamm argues that the indictment was defective because it did not allege that the owner of the property that was stolen and the person against whom force was used were the same. However, as the Court of Criminal Appeals pointed out, the statutes that define the elements of first degree robbery do not require that the person against whom force is used be the owner of the stolen property. Ala.Code 1975, §§ 13A-8-41(a) and -43(a); Raines v. State, 429 So.2d 1104, 1106 (Ala.Cr.App.), aff'd, 429 So.2d 1111 (Ala.1982), cert. denied, 460 U.S. 1103, 103 S.Ct. 1804, 76 L.Ed.2d 368 (1983).

One of the functions of an indictment is to adequately inform the accused of the crime charged so that a defense may be prepared. Ex parte Washington, 448 So.2d 404, 407 (Ala.1984). A variance in the form of the offense charged in the indictment and the proof presented at trial is fatal if the proof offered by the State is of a different crime, or of the same crime, but under a set of facts different from those set out in the indictment. Ex parte Hightower, 443 So.2d 1272, 1274 (Ala.1983). Such is not the case here. An incorrect averment of ownership is not always a material variance. McKeithen v. State, 480 So.2d 36 (Ala.Cr.App.1985). Nor is there a material variance when the indictment states that the property was owned by a business and the proof shows that it was taken from an employee of that business, as long as the offense is described with sufficient certainty to identify the act of robbery and to establish that the property was in the immediate actual possession of the person against whom force was used. Moseley v. State, 357 So.2d 390 (Ala.Cr.App.1978). This indictment adequately apprised Hamm of the crime charged.

Hamm was arrested pursuant to a fugitive arrest warrant that was issued for an armed robbery allegedly committed by Hamm in Mississippi. Soon after that arrest, he was charged with the instant robbery and the murder of Patrick Joseph Cunningham. The following day, after signing a waiver form that acknowledged that he understood his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), Hamm gave the police a detailed statement, during which he confessed to those crimes.

Hamm sought to have his confession suppressed, arguing that the arrest warrant was issued without probable cause and did not comply with Ala.Code 1975, §§ 15-9-40 and -42. That motion was denied by the trial court, and that ruling was affirmed by

Page 472

the Court of Criminal Appeals. Although this Court agrees with the Court of Criminal Appeals' decision on this issue, we do not agree with part of the rationale offered by that court in support of its decision. The Court of Criminal Appeals held that Hamm lacked standing to challenge the validity of the arrest warrant because he did not show that he was legally in his nephew's trailer at the time he was arrested. Hamm v. State, supra, at 458.

This Court does not agree with that court's interpretation of the safeguards against unreasonable arrests in the fourth amendment to the Constitution of...

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35 practice notes
  • Dobyne v. State, CR-91-1840
    • United States
    • Alabama Court of Criminal Appeals
    • 15 April 1994
    ...brought to the attention of the trial court; thus the plain error doctrine applies. As the Alabama Supreme Court stated in Ex parte Hamm, 564 So.2d 469, 471 (Ala.), cert. denied, 498 U.S. 1008, 111 S.Ct. 572, 112 L.Ed.2d 579 "[T]he statutes that define the elements of first degree robbery d......
  • Johnson v. State, CR-90-109
    • United States
    • Alabama Court of Criminal Appeals
    • 31 January 1992
    ...arrested without a warrant because the police had reasonable cause to believe that he had committed a capital murder. Ex parte Hamm, 564 So.2d 469 (Ala.1990), cert. denied, 498 U.S. 1008, 111 S.Ct. 572, 112 L.Ed.2d 579 (1990). The appellant's claim that counsel should have been present duri......
  • Rieber v. State, CR-91-1500
    • United States
    • Alabama Court of Criminal Appeals
    • 17 June 1994
    ...it cannot be said that the individual left his residence voluntarily. Hamm v. State, 564 So.2d 453, 458, n. 2 (Ala.Crim.App.1989), aff'd 564 So.2d 469, cert. denied, 498 U.S. 1008, 111 S.Ct. 572, 112 L.Ed.2d 579 (1990). It is clear that the appellant's arrest occurred only after the SWAT te......
  • McWhorter v. State
    • United States
    • Alabama Court of Criminal Appeals
    • 27 August 1999
    ...penalty, do not render Woodall's death sentence disproportionate"). See also Hamm v. State, 564 So.2d 453, 464 (Ala.Cr.App.1989), aff'd, 564 So.2d 469 (Ala.1990) ("although appellant's co-defendant, who was initially charged for the capital offense as well, ultimately received a life senten......
  • Request a trial to view additional results
36 cases
  • Dobyne v. State
    • United States
    • Alabama Court of Criminal Appeals
    • 15 April 1994
    ...brought to the attention of the trial court; thus the plain error doctrine applies. As the Alabama Supreme Court stated in Ex parte Hamm, 564 So.2d 469, 471 (Ala.), cert. denied, 498 U.S. 1008, 111 S.Ct. 572, 112 L.Ed.2d 579 "[T]he statutes that define the elements of first degree robbery d......
  • Johnson v. State
    • United States
    • Alabama Court of Criminal Appeals
    • 31 January 1992
    ...arrested without a warrant because the police had reasonable cause to believe that he had committed a capital murder. Ex parte Hamm, 564 So.2d 469 (Ala.1990), cert. denied, 498 U.S. 1008, 111 S.Ct. 572, 112 L.Ed.2d 579 (1990). The appellant's claim that counsel should have been present duri......
  • Rieber v. State
    • United States
    • Alabama Court of Criminal Appeals
    • 17 June 1994
    ...it cannot be said that the individual left his residence voluntarily. Hamm v. State, 564 So.2d 453, 458, n. 2 (Ala.Crim.App.1989), aff'd 564 So.2d 469, cert. denied, 498 U.S. 1008, 111 S.Ct. 572, 112 L.Ed.2d 579 (1990). It is clear that the appellant's arrest occurred only after the SWAT te......
  • McWhorter v. State
    • United States
    • Alabama Court of Criminal Appeals
    • 27 August 1999
    ...penalty, do not render Woodall's death sentence disproportionate"). See also Hamm v. State, 564 So.2d 453, 464 (Ala.Cr.App.1989), aff'd, 564 So.2d 469 (Ala.1990) ("although appellant's co-defendant, who was initially charged for the capital offense as well, ultimately received a life senten......
  • Request a trial to view additional results

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