George v. State
| Decision Date | 23 November 1982 |
| Docket Number | 3 Div. 578 |
| Citation | 423 So.2d 335 |
| Parties | James Wesley GEORGE v. STATE of Alabama. |
| Court | Alabama Court of Criminal Appeals |
James Wesley George, pro se.
Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellee.
James Wesley George was indicted for robbery in the first degree pursuant to § 13A-8-41, Code of Alabama 1975. The jury found the appellant guilty "as charged in the indictment" and he was sentenced to life imprisonment in the penitentiary, without parole under the Habitual Offender Act. The appellant's trial began on May 11, 1982. Just before trial, the appellant filed a formal request with the trial judge, asking that he be allowed to wear civilian clothes during the trial, particularly since he was going to represent himself at trial. The request was denied by the trial judge.
The State's only witness was the victim, James Gibson. Gibson testified that on December 20, 1981, he was an employee of the Alabama Board of Corrections at Holman Prison. On that day, at approximately 3:00 p.m., he was patrolling the main hall of the prison when he was approached by an inmate who said he was having trouble with the ice machine. Gibson went to the ice room with the inmate and saw the appellant at the ice machine flicking the switch up and down. When Gibson stooped to look at the machine, another inmate, Billy Joe Moore, placed a prison-made knife in his back and said, "Don't make a sound, don't make a move or I'll kill you right where you're at." (R. 8).
The appellant then put a handkerchief in Gibson's mouth and wrapped masking tape around his head. The inmates then took Gibson into the bathroom in the Chaplain's office, took his uniform off and tied his feet and hands. Another inmate put on Gibson's uniform.
They then took Gibson's billfold, which contained his American Express card and a twenty dollar bill, his keys, his pocketknife and some change from his pockets.
After the inmates left, Gibson managed to free his feet and kick open the door to get to the telephone in the Chaplain's office. He pushed the receiver off the hook and dialed central control with his hands tied behind his back. Gibson removed the gag from his mouth and told central control there was an escape in progress and to lock the prison.
The appellant put Billy Joe Moore on the witness stand. He testified that Gibson had agreed to help the inmates stage an escape and the events of that afternoon were part of a pre-arranged plan which was unsuccessful.
The appellant testified to basically the same facts as Billy Joe Moore. On cross-examination, the appellant testified to twenty prior convictions which he, the appellant, had for burglary, larceny and theft of property, three prior convictions for escape and one prior conviction for crime against nature.
The appellant contends the trial court committed reversible error by failing to grant the appellant's request to wear civilian clothing during the trial itself. We agree with the appellant that in the majority of cases, courts have held that a defendant should not be compelled to attend trial in prison clothing because it would tend to prejudice the jury against the defendant and, thereby, negate the presumption of innocence. Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976). However, "[a] different result may be appropriate where the defendant is on trial for an offense allegedly committed while he was in prison, because the jury would learn of his incarceration in any event." Estelle v. Williams, supra.
The appellant was on trial for an offense committed while he was an inmate at Holman prison. The jury was, therefore, certain to find out that he was in prison at the time he committed the robbery and during the course of the trial. "No prejudice can result from seeing that which is already known." United States ex rel. Stahl v. Henderson, 472 F.2d 556 (U.S.C.A., 5th Cir.1973) , cert. denied, 411 U.S. 971, 93 S.Ct. 2166, 36 L.Ed.2d 694 (1973); Estelle v. Williams, supra.
Therefore, we do not agree with the appellant's contention and therefore hold that he was properly tried in his prison clothing.
The appellant next contends that he was improperly sentenced under the Habitual Offender Act. Immediately after the trial judge excused the jury, the following occurred: (R. 35-36).
And in accordance with the habitual offender act, it appearing from you (sic) own testimony you have been convicted of quite a number of felonies in the past, many over three, and under the habitual offender act it says, 'In all cases where it is shown that a criminal defendant has been previously convicted of any three felonies and after such convictions has committed another felony he must be punished as follows: For a conviction of a Class A felony he must be punished by imprisonment for life without parole.'
The statute doesn't seem to give this court any alternative, therefore I sentence you to life without parole.
Now, of course, even though you have been convicted, you have a right to appeal this matter to the appellate courts of this state. If you need a transcript of the record of this court for the purpose of appeal and you cannot pay for it that will be given at state expense. If you need the assistance of counsel in perfecting an appeal and cannot hire your own lawyer that will be given at state expense. Do you understand that?
The appellant urges that his prior convictions were not properly established. This court has held that the admission of such prior convictions, by the defendant himself, is a proper method of proving those convictions. Lyner v. State, 398 So.2d 420 (Ala.Crim.App.1981); Hope v. State, 381 So.2d 676 (Ala.Crim.App.1980); Palmer v. State, 54 Ala.App. 707, 312 So.2d 399 (1975). The following excerpt from Childers v. Holmes, 207 Ala. 382, 92 So. 615 (1922) has been cited several times by this court:
(Emphasis added, citations omitted).
See Hope v. State, supra; Palmer v. State, supra.
Thus, we hold the trial judge properly considered the testimony of this appellant concerning his prior convictions, and therefore properly sentenced him.
The appellant alleges he was not given a proper sentencing hearing as required by Rule 6(b)(3)(ii) of the Alabama Rules of Criminal Procedure Temporary Rules.
After the opening statements of both the state and the defense, the following occurred outside the presence of the jury. (R. 4-6).
Mr. Caudle says that he does fall under the habitual offender act or that he will.
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Carroll v. State
...of the crime would necessarily inform the jury that the defendant is an inmate." (Carroll's brief, at 113–14.) In George v. State, 423 So.2d 335 (Ala.Crim.App.1982), this Court explained:"The appellant contends the trial court committed reversible error by failing to grant the appellant's r......
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Gratton v. State, 6 Div. 744
...without parole. Consequently, there was no need to delay the sentencing past the time set by the trial court. George v. State, 423 So.2d 335 (Ala.Cr.App.1982). We have reviewed the remaining issues raised by the defendant in brief and find them to be without merit. This cause is hereby AFFI......
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Garrett v. State, 4 Div. 458
...under the Habitual Felony Offender Act is effectuated when the appellant is informed of this fact in open court. See George v. State, 423 So.2d 335 (Ala.Crim.App.1982). In this case, the appellant was informed of the State's intention immediately following the jury verdict. The trial judge ......