Ex parte Randle

• Decision Date: 30 June 1987
• Parties: Ex parte David RANDLE. (Re David RANDLE v. STATE of Alabama). 85-1388.
• Court: Alabama Supreme Court

Page 1131

554 So.2d 1131

Ex parte David RANDLE.

(Re David RANDLE v. STATE of Alabama).

85-1388.

Supreme Court of Alabama.

June 30, 1987.

G. Houston Howard II of Howard, Dunn, Howard & Howard, Wetumpka, for appellant.

Charles A. Graddick, Atty. Gen., and Robert B. Rinehart, Asst. Atty. Gen., for defendant.

ADAMS, Justice.

The appellant, David Randle, an inmate of the Alabama prison system, was convicted of first degree escape on July 26, 1984, and sentenced to life imprisonment under the Habitual Offender Act. The conviction was affirmed by the Court of Criminal Appeals on May 27, 1986, and Randle filed an application for a rehearing. The Court of Criminal Appeals then remanded the case to the Circuit Court of Elmore County because of improper sentencing. 554 So.2d 1124. Randle's principal argument is that the Court of Criminal Appeals erred when it found that no fatal variance existed between the indictment for escape and the proof offered by the State. He asks this Court to reverse his conviction for escape. We affirm.

The facts reveal that Randle was serving a sentence at the Staton Correctional Facility for receiving stolen property. At the time of the escape, however, Randle was at the J.F. Ingram State Technical School, a facility where prison inmates receive vocational training. A Department of Corrections employee testified that Randle was found to be missing on September 29, 1983, after a roll call and was captured a short time later.

The indictment alleged:

"The Grand Jury of said County charge that before the finding of this indictment, David Randle, whose true name is to the Grand Jury unknown, otherwise than as stated, having been convicted of a felony, to-wit: Receiving Stolen Property, did escape, or attempt to escape from custody imposed pursuant to that conviction from a penal facility, to wit: J.F. Ingram State Technical School, in violation of Section 13A-10-31 of the Code of Alabama."

J.F. Ingram State Technical School is not a facility where prison inmates are housed; it is located some five miles from Staton Correctional Facility, the facility at which Randle was in custody at the time of the escape. The sole function of the school is to provide vocational instruction. Randle argues that a fatal variance occurred when the State failed to prove that J.F. Ingram State Technical School was a penal facility and that he was in the school's custody on September 29, 1983.

It has been held previously that a fatal variance existed between an indictment that charged that the defendant had escaped from a prison camp and proof that he had actually escaped from the custody of a prison guard while working in a road gang 12 miles from the prison. Owens v. State, 46 Ala.App. 591, 246 So.2d 478 (Crim.App.1971). In Owens, Judge Almon (then sitting on the Court of Criminal Appeals) wrote:

"No proposition of law is more fundamental than the one requiring that the proof at trial must correspond with the material allegations of the indictment. Stone v. State, 115 Ala. 121, 22 So. 275; Prentice v. State, 24 Ala.App. 587, 139 So. 437; Garner v. State, 3 Ala.App. 161, 57 So. 502; Ashby v. State, 24 Ala.App. 466, 136 So. 483; State v. Plunket, 2 Stew. [Ala.] 11."

Id., 46 Ala.App. at 591, 246 So.2d at 478. In Brantly v. State, 340 So.2d 902 (Ala.Crim.App.1976), a fatal variance was found to exist between the indictment that alleged the defendant had escaped or had attempted to escape from the State penitentiary and the proof that he had, in fact, escaped from the Shelby County Jail. Id., at 903. In Ex parte Behel, 397 So.2d 163 (Ala.1981), this Court held that because the indictment failed to allege that the defendant had been convicted of any criminal offense and had been sentenced to the State penitentiary, he could not be convicted of escape under Ala.Code (1975), § 13-5-65. Id., at 164.

Randle argues that the provision in his indictment referring to J.F. Ingram as a penal facility, and implying that he had escaped from the custody of the J.F. Ingram State Technical School, was a material part of the indictment not proved by the State and, therefore, that there was a fatal variance. We agree with Judge Almon's observation in Owens that "proof at trial must correspond with the material allegations of the indictment"; however, in the present case, we do not believe that the reference in the indictment to the J.F. Ingram State Technical School as "a penal facility" was a material allegation. In Summers v. State, 348 So.2d 1126 (Ala.Crim.App.), cert. denied, 348 So.2d 1136 (Ala.1977), cert. denied, 434 U.S. 1070, 98 S.Ct. 1253, 55 L.Ed.2d 773 (1978), Judge Harris wrote of the elements required in an indictment to assure due process:

"An indictment should be specific in its averments in four prime aspects to insure this guaranty: (a) to identify the accusation lest the accused should be tried for an offense different from that intended by the grand jury; (b) to enable the defendant to prepare for his defense; (c) that the judgment may inure to his subsequent protection and foreclose the possibility of being twice put in jeopardy for the same offense, and (d) to enable the Court, after conviction, to pronounce judgment on the record."

348 So.2d at 1132. In the present case, Randle was in the custody of the State Department of Corrections at all times prior to his escape. The indictment for escape states clearly that Randle had been convicted of a felony, namely receiving stolen property, and that he escaped or attempted to escape "from custody imposed pursuant to that conviction." Appellant argues that because he was not in the custody of J.F. Ingram State Technical School, but was assigned to Staton Correctional Facility, a fatal variance existed between the indictment and the proof. We disagree. Randle was present at J.F. Ingram State Technical School immediately before his escape. Unlike the indictment in Owens, the indictment in this case did not incorrectly state that the appellant had escaped or attempted to escape from the prison. Although the indictment does improperly identify J.F. Ingram State Technical School as a penal facility, it does not say that Randle was in the custody of the school, only that he escaped from the school while in custody pursuant to his conviction for receiving stolen property. We agree with the Court of Criminal Appeals on this point:

"By the second part of the argument of counsel for appellant, he contends that 'Defendant was in the custody of Staton Correctional Facility, not J.F. Ingram State Technical School at the time of the alleged escape.' Even though there is some merit also in the second contention of appellant's attorney, we are not persuaded that there was a fatal variance between the indictment and the evidence. The undisputed evidence shows that the conduct of the defendant that constituted the alleged escape or attempt to escape from custody occurred at J.F. Ingram State Technical School. The averment of the name of the place of the escape or attempted escape as J.F. Ingram State Technical School served no good purpose other than to inform defendant, as it did and should have done, of the location of the alleged escape or attempt to escape."

We conclude, therefore, that the appellant's reading of the indictment is incorrect and that it does not identify J.F. Ingram State Technical School as Randle's custodian at the time of his escape. The reference in the indictment to J.F. Ingram State Technical School as a penal facility, although incorrect, is not a material allegation of the indictment and does not create a fatal variance. The State proved that Randle was in custody pursuant to his felony conviction for receiving stolen property and that he escaped from custody while he was at J.F. Ingram State Technical School. The indictment in this case satisfies the criteria set forth in Summers and did not deny the appellant due process.

The appellant also alleges: (1) that the trial court erred in permitting Betty Taylor, the Department of Corrections' Director of Inmate Records, to testify that Randle was serving a 15-year sentence for receiving stolen property; (2) that the trial court erred in admitting a trial docket sheet from Jefferson County; and (3) that the Court of Criminal Appeals erred in holding that Act No. 1071, 1971 Ala. Acts, is valid.

At trial, appellant's counsel, G. Houston Howard, objected to Ms. Taylor's failing to testify that it was within the regular course of business for the Alabama Department of Corrections to make such a memorandum or record of whether David Randle was an inmate of the Alabama Prison System on September 29, 1983, as provided in Ala.Code (1975), § 12-21-43. The trial court allowed the State to conduct the following exchange on direct examination:

"Q. I ask you to look into that file and tell me whether or not David Randle was an inmate in the Alabama prison system on September 29, 1983?

"MR. HOWARD: Your honor, we object. That's not the best evidence. It has not been shown that it was the regular course of business to keep this and that it was kept in the regular course of business.

"THE COURT: Overrule objection. Let's proceed.

"Q. On September 29, 1983?

"A. Yes, sir, he was.

"Q. Okay. What sentence was he serving? What was the charge?

"MR. HOWARD: We object to that, Your Honor. That's not the way to prove a conviction. That's not the best evidence.

"THE COURT: She can testify whether or not he was serving at that time.

"MR. HOWARD: You overrule the objection?

"THE COURT: I didn't say that. I said the best evidence is what he was convicted of. You asked that [sic] that was not the best evidence.

"MR. HOWARD: Yes, that question--

"THE COURT: If she had a record, she can testify from the record.

"MR. HOWARD: So you overrule the objection?

"THE COURT: Yes, I do.

"MR. HOWARD: Okay.

"Q. According to your records, was David Randle an inmate on September 29, 1983?

"MR. HOWARD: We renew the objection.

"THE COURT:...