Green v. State

• Decision Date: 23 July 2010
• Docket Number: CR–08–0352.
• Citation: 61 So.3d 386
• Parties: Jason Michael GREENv.STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

61 So.3d 386

Jason Michael GREEN

v.STATE of Alabama.

CR–08–0352.

Court of Criminal Appeals of Alabama.

May 28, 2010.Rehearing Denied July 23, 2010.Certiorari Denied Oct. 8, 2010

Alabama Supreme Court 1091507.

Jeffery C. Duffey, Montgomery; and Susan Graham James, Montgomery, for appellant.Troy King, atty. gen., and Tracy M. Daniel, asst. atty. gen., for appellee.WINDOM, Judge.

Jason Michael Green appeals his convictions for three counts of second-degree arson, violations of § 13A–7–42, Ala.Code 1975, and one count of second-degree theft of property, a violation of § 13A–8–4, Ala.Code 1975.

A Montgomery County grand jury issued an indictment charging Green with six counts of second-degree arson and one count of second-degree theft of property. Count I charged Green with second-degree arson for a fire that burned a barn belonging to John McNeil (“the McNeil arson”). Count II charged Green with second-degree arson for a fire that burned a mobile home belonging to Henry Pickett (“the Pickett arson”). Count III charged Green with second-degree arson for a fire that burned part of a house belonging to Marietta Russell (“the Russell arson”). Count IV charged Green with second-degree theft of property for the theft of two shotguns and a camera from a house belonging to Wayne and Joanne Currie (“the Currie theft”). Count V charged Green with second-degree arson for a fire that burned property belonging to Mike Darnell (“the Darnell arson”). Count VI charged Green with second-degree arson for a fire that burned property belonging to Reggie Dubose (“the Dubose arson”). Count VII charged Green with second-degree arson for a fire that burned a house belonging to Wayne and Joanne Currie (“the Currie arson”).

After hearing all of the evidence and being instructed by the circuit court on the applicable law, the jury found Green guilty on the following four counts: 1) count I, the McNeil arson; 2) count III, the Russell arson; 3) count IV, the Currie theft; and 4) count VII, the Currie arson.¹ The circuit court sentenced Green to concurrent terms of: 3 years in prison for McNeil arson (count I); 20 years in prison for the Russell arson (count III); 10 years in prison for the Currie theft (count IV); and 20 years in prison for the Currie arson (count VII).

At trial, the State's evidence tended to establish that on June 1, 2005, Green, Patrick Brassell, and Jason Wilhite attended a meeting for Pike Road volunteer firefighters at the fire station located on Wallahatchee Road. Each of these men was a volunteer firefighter for the Pike Road Volunteer Fire Department. According to Wilhite and Brassell, after this meeting, Green suggested they set a fire because there had not been many recent fires. (R. 130–31, 170.) Green, Wilhite, and Brassell then rode in Green's truck to John McNeil's barn, which was located on Wallahatchee Road. When they arrived at the barn, Wilhite and Green got out of the truck and entered the barn. So that no one would see Green's truck at the barn, Brassell got into the driver's seat and drove down the road. Once inside the barn, Green placed a bottle containing flammable liquid under some hay and ignited it. (R. 132–33.)

After the barn was ablaze, Brassell returned and picked up Green and Wilhite. The three men then drove back to the fire station where they each departed in their own vehicles. Shortly after leaving, the three men received an alarm call regarding the fire at the barn and returned to the fire station to help fight the fire. (R. 133–36.) The firefighters, however, were not able to extinguish the fire, and the barn was a total loss.

On November 16, 2006, Green and Justin Gorman, another volunteer fireman, were at the Pike Road fire station. The two men decided to go across the street to Joanne Currie's house at 3504 Wallahatchee Road and set it on fire. According to Gorman, the two broke in the front door and entered the house. While in the house, Gorman stole two guns and Green stole a camera. (R. 263–64.) Thereafter, Green used gas and candle oil that he found on the Curries' back porch to set the Curries' bedroom on fire. (R. 263, 298, 311–14.) After setting the Currie house on fire, Green and Gorman left with the Curries' two shotguns and camera.

Later that morning, Joanne Currie received a telephone call from a real estate agent informing her that her house was on fire. Currie and her husband, who were 55 miles away at the time, drove to their house and found “fire trucks everywhere.” (R. 234.) Currie described the state of her house after the fire as “a total disaster.” (R. 235.) While examining the fire damage, Currie noticed that her front door had been kicked in and that two shotguns and a camera were missing. (R. 231–35, 238, 245–49.) Subsequently, while executing a search warrant, law-enforcement officers recovered the Curries' camera from inside Green's truck. At trial, Mrs. Currie testified that the camera seized from Green's truck belonged to her. Further, the camera seized from Green's truck contained pictures of the Currie family. (R. 249–51.)

Mrs. Currie also testified that she kept a gas can and a bottle of candle oil on her back porch. After the fire, fire and insurance investigators came to the house to examine the damage. At some point during the investigation, Green arrived and went directly to the bedroom and retrieved the gas can and candle-oil bottle. Green then gave those items to the investigators. (R. 311–14.)

On November 30, 2006, two weeks after the Currie fire, Green and Gorman went to a vacant house that Marietta Russell inherited from her mother, which was located at 4107 Old Pike Road. (R. 207, 209, 267.) Once there, Green and Gorman broke down the back door and entered the house. They then got a couch from one of the front rooms and moved it into a bedroom. At that point, they poured lantern oil on the couch and set it on fire. After setting the couch on fire, Green and Gorman went back to the fire station and “waited for the call to come in.” (R. 267.) When the fire call came in, the two responded to the fire.

Later that day, Mrs. Russell received a call from a neighbor informing her that her mother's house was on fire. (R. 208.) Although the house had been vacant since her mother's death, Russell and her sister checked on it daily to make sure the doors were locked and everything was secure. (R. 208.) Upon learning that her childhood house was burning, Russell immediately drove to the house, where she found the City of Montgomery Fire Department and the Pike Road Volunteer Fire Department fighting the fire. (R. 209.) According to Mrs. Russell, the couch from the living room had been moved into the bedroom, a flammable liquid had been poured over it, and it had been set on fire. (R. 212.)

I.

On appeal, Green first argues that the circuit court erred in denying his motion to suppress evidence in the form of the Curries' camera, which law-enforcement officers found in his truck while executing a search warrant. Specifically, he argues that the stolen camera should have been suppressed because it was not listed in the search warrant as an item to be seized; therefore, the warrant failed to satisfy the particularity requirement contained in the Fourth Amendment to the United States Constitution.

The purpose of the Fourth Amendment particularity requirement is to prevent “[g]eneral exploratory searches.” Palmer v. State, 426 So.2d 950, 952 (Ala.Crim.App.1983). “General exploratory searches and seizures, with or without a warrant, can never be justified and are forbidden and condemned.” Id. (citing Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231 (1927)). In Ex parte Jenkins, 26 So.3d 464, 474 (Ala.2009), the Alabama Supreme Court explained that “the requirements of particularity [of a search warrant] are met if the substance to be seized is described with reasonable particularity which, in turn, is to be evaluated in light of the rules of practicality, necessity, and common sense.” (internal citations and quotations omitted).

Here, the search warrant authorized the officers to search for and to lawfully seize “weapons and any and all illegal items or substances used in the commission of burglary, theft, arson or any other felonies or proceeds thereof.” (C. 73.) (Emphasis added.) The search warrant also defined the area to be searched “to encompass the main building, any vehicles, storage buildings, and curtilage located at 47 Honeysuckle Lane, Cecil, Alabama, 36103.” (C. 73.) (Emphasis added.) The stolen camera clearly was a proceed of Green's illegal activity, i.e., the theft from the Curries. Because the officers discovered the camera in the course of conducting a search pursuant to a valid warrant that adequately described with reasonable particularity what was being sought, the circuit court did not abuse its discretion in denying Green's motion to suppress the camera.

Moreover, even if one were to presume that the warrant was insufficiently particular as to the camera, the circuit court's denial of Green's motion to suppress was proper under the plain-view doctrine. “The plain-view seizure of the items not listed in a search warrant is justified where the officer's intrusion into the residence is pursuant to a valid search warrant and the item seized is of an incriminating nature.” Rowe v. State, 662 So.2d 1227, 1229 (Ala.Crim.App.1995) (internal citations and quotations omitted). When the police, while conducting a lawful search under a warrant, find evidence of another offense not related to the crime for which the warrant was issued, they may lawfully seize that evidence under the plain-view doctrine. Zumbado v. State, 615 So.2d 1223, 1239 (Ala.Crim.App.1993); Baty v. State, 401 So.2d 308, 310 (Ala.Crim.App.1981).

Here, before the search warrant was executed, Gorman told Investigator Griffith about the camera he and Green had stolen. (R. 55.) Later, while executing the warrant, Investigator Griffith lawfully...