Garrison v. State
| Citation | 521 So.2d 997 |
| Decision Date | 13 May 1986 |
| Docket Number | 6 Div. 901 |
| Parties | Nathaniel Murray GARRISON v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Richard S. Jaffe, Birmingham, for appellant.
Charles A. Graddick, Atty. Gen., and P. David Bjurberg and William D. Little, Asst. Attys. Gen., for appellee.
This appeal follows a conviction for the offense of murder during the commission of a burglary and a sentence of life imprisonment without parole. For the reasons outlined below, this case is remanded to the trial court, with directions.
An initial examination of the record on appeal fails to establish that the appellant was informed of his right to be treated as a youthful offender under Alabama law. For this reason, this case is remanded to the trial court for a hearing on this issue. Tatum v. State, 405 So.2d 951, 952 (Ala.Cr.App.1981), appeal after remand, 405 So.2d 952 (Ala.Cr.App.1981), cert. denied, 405 So.2d 954 (Ala.1981).
We remand this case to the trial court with directions to conduct a hearing to determine whether, prior to trial, the appellant was apprised of his right to be treated as a youthful offender. A copy of the record of the hearing, along with the trial court's order setting out written findings of fact and conclusions of law, should then be filed with this court. Because we are remanding this case to the trial court for a hearing, we will not consider the additional issues raised in this appeal at this time.
REMANDED WITH DIRECTIONS.
All the Judges concur.
ON RETURN TO REMAND
The appellant, Nathaniel Garrison, was found guilty of murder during the commission of burglary in the second degree and was sentenced to life without parole.
James Jackson testified that he worked as a security guard and was scheduled to work from 10:30 p.m. until 6:30 a.m. at Cavalier Homes. He testified that when he arrived at Cavalier Homes, he could not get in the front door, and, therefore, walked around to the gate, which had been "busted wide open." Jackson walked in and observed, about 20 or 30 feet from the entrance, the gun of Floyd Bartlett, one of the guards on duty during the previous theft. He continued walking and observed blood all over the hall leading to the bathroom, after finding the bathroom door locked. Thereafter, he went to call the police. Later, Bartlett's body was discovered in the bathroom, leaning over the commode. His hands and feet had been taped, but he had managed to free his hands before he died.
A two-by-three board was discovered in an office across the hall from the bathroom. Sixteen microwave ovens, seven refrigerators and a dump truck were missing from Cavalier Homes. The production superintendent testified that he gave the serial numbers of the microwave ovens and refrigerators to an A.B.I. Criminal Investigator. The truck was subsequently located near the residence of J.W. Tubbs in Franklin County. After following tire prints leading to Tubbs's barn, approximately half a mile from his house, investigators found refrigerators and microwave ovens with serial numbers matching those stolen. Tubbs was questioned, and a warrant was then executed for the appellant's arrest. He was found inside his sister's apartment in Leeds, Alabama, sleeping on the couch. He was placed under arrest and read his constitutional rights. The appellant signed a waiver form and gave a written statement relating the specifics of the crime. The defense counsel, at trial, stipulated to the voluntariness of the statement. The appellant, in his statement, admitted that Randy Self, Kenny Garrison (the appellant's brother), and he went to Cavalier Homes in order to steal the refrigerators and microwave ovens and sell them to Tubbs. He claimed that they had no intention of hurting anyone and spent a good deal of time insuring that there were no guards present. He indicated that one of them was carrying a board in case a guard approached them. He stated that, just before they turned a corner, "the guard kind of popped up on us and we didn't have nothing to do but hit him." The appellant admitted to taping the guard and stated that he was bleeding severely out of his ear. He claimed that he attempted to stop the bleeding so that the guard would not die. They dragged the guard into the bathroom and locked the door. Thereafter, he stated, they loaded the merchandise on the truck.
Randy Self, who is under indictment for felony murder arising out of the facts of this case, testified that it was the appellant's suggestion to break into Cavalier Homes and steal the merchandise. He testified that, prior to entering the plant, the appellant told the others that "he would take care of" anyone whom they encountered. They scouted the premises for security guards approximately 25 minutes before entering the building. He further testified that Kenny Garrison walked down the hallway and returned, stating that someone was there. He stated that the appellant had picked up the board and that he had picked up a roll of black duct tape prior to entering the building. He testified that they had planned for the appellant to knock out any guards and that Self was to tape the guard's hands and feet. Self testified that he entered the office and thereafter "heard a[n] 'unk,' " walked out of the office, and observed the guard lying on the floor. He testified that he handed the appellant and Kenny Garrison the tape and left. He further testified that neither of them had the board in his hands. Self stated that he then ran out back, but returned to help load some appliances. They then left the premises of Cavalier Homes.
The appellant argues that the trial court erred in failing to notify him of his right to apply for "youthful offender" status, as the appellant was 19 years old at the commission of the offense. This court remanded this cause to the trial court in order to conduct a hearing to determine whether the appellant was apprised of his right to be treated as a youthful offender prior to trial. The trial court, in compliance with this order, conducted the hearing and returned a copy of the record of the hearing, along with the trial court's order setting out written findings of fact and conclusions of law. The trial court found that the appellant was apprised of this right, and the probation officer's report was introduced without objection and amended. The trial court denied the appellant's application for youthful offender treatment, based upon the report of the probation officer and the nature of the offense. Tatum v. State, 405 So.2d 952 (Ala.Cr.App.1981), appeal after remand, 405 So.2d 952 (Ala.Cr.App.1981), cert. denied, 405 So.2d 954 (Ala.1981).
The appellant argues that reversible error occurred when he was sentenced on a charge and conviction of capital murder but the verdict returned was not a verdict for capital murder. Specifically, he argues that although he was sentenced to life without parole, he was never convicted of a capital offense. The verdict returned was as follows "We, the jury, find the defendant guilty of murder during the commission of burglary in the second degree as charged in the Indictment."
It is clear that this verdict follows the language of § 13A-5-40(a), Code of Alabama (1975), which addresses capital offenses and states in pertinent part:
The jury returned a verdict of guilty in the form which the trial court instructed for a finding of guilt of the offense of murder during the commission of burglary in the second degree, as opposed to the form which the trial court instructed was to be used should the jury find the appellant guilty of murder. The trial judge further charged the jury that the difference between murder "and capital murder is that in order to find the defendant guilty of murder under [ § 13A-6-2] is that there only has to be a death caused by the defendant or some other person without any intent being necessary." Thus, the jury was aware that intent was required for a finding of guilt of the capital murder charge.
The appellant argues that reversible error occurred from the failure of the indictment to charge a capital offense, from a fatal variance in the indictment, and from the failure of the indictment to adequately apprise the appellant of the charges against him. Count two of the indictment charged appellant with capital murder, stating:
"The Grand Jury of said County charge, before the finding of this indictment, NATHANIEL GARRISON and KENNY DALE GARRISON, whose names are otherwise unknown to the Grand Jury, did intentionally cause the death of FLOYD BARTLETT, by striking him in the head with a board or other blunt instrument and NATHANIEL GARRISON and KENNY DALE GARRISON caused said death during the time that NATHANIEL GARRISON, KENNY DALE GARRISON AND RANDY SELF knowingly and unlawfully entered or remained or attempted to enter or remain, unlawfully in a building of CAVALIER HOMES, INC., with intent to commit theft of property, 1st degree, a felony, therein, and while effecting entry or while in said building or in immediate flight therefrom, NATHANIEL GARRISON and KENNY DALE GARRISON, did use or threaten the immediate use of a board or other blunt instrument, a dangerous instrument, in violation of Section 13A-7-6(a)(3) of the Code of Alabama, against the peace and dignity of the State of Alabama."
The appellant alleges that this indictment fails to charge a capital offense in that there is no specific use of the term "capital offense" and because it refers to a violation of § 13A-7-6(a)(3), which charges burglary in the second degree. It is clear from a reading of this count of the indictment that the first section...
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...This instruction is presently consistent with Alabama law. See DeRamus v. State, 565 So.2d 1167 (Ala.Cr.App.1990); Garrison v. State, 521 So.2d 997 (Ala.Cr.App.1986). Nevertheless, the appellant maintains that such instructions violate the United States Supreme Court's holding in Sandstrom ......
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