Griffin v. State, 2 Div. 491

CourtAlabama Court of Criminal Appeals
Writing for the CourtMcMILLAN
Citation500 So.2d 83
PartiesDouglas GRIFFIN v. STATE.
Docket Number2 Div. 491
Decision Date12 August 1986

Tommy Chapman, Evergreen, for appellant.

Charles A. Graddick, Atty. Gen., M. Beth Slate, Asst. Atty. Gen., for appellee.

McMILLAN, Judge.

This appeal follows from a conviction for the capital offense of murder during the course of committing a robbery and a sentence of life without parole. For the reasons outlined below, the decision of the trial court is due to be affirmed.

On July 15, 1983, the deceased victim, Patrick Dale, accompanied by his mother and a friend, went to the Holiday Inn Lounge in Evergreen. The appellant solicited and procured a ride home with Patrick Dale in exchange for five dollars worth of gas. After their departure from the Holiday Inn Lounge, in Dale's car, the appellant shot and killed the deceased on a Wilcox County road.

The appellant also stole the deceased's car and thereafter drove the car to the Chaparral Club in the Northport-Tuscaloosa area. Upon his arrival, the appellant telephoned Iris Dollar, who later met him at the Chaparral Club. The appellant spent the next two nights with Iris Dollar in Tuscaloosa. Reuben Cunningham, the son-in-law of Iris Dollar, purchased the deceased's car from the appellant for a price of $200.00. Both Cunningham and Dollar testified that they had observed the shotgun in the car prior to his making the purchase. Appellant returned to Evergreen by bus after spending two days in Tuscaloosa.

The appellant later gave a statement outlining these facts to Corporal C.W. Gibson of the Alabama Bureau of Investigation and Sheriff Prince Arnold of Wilcox County. However, the appellant alleged that he was attacked by Dale and that he shot the deceased in self-defense. The appellant was subsequently arraigned, whereupon he entered a plea of not guilty by reason of insanity.


Appellant argues that there is a material variance between the indictment and the proof. He contends that the indictment states that he robbed Patrick Dale of his money, his billfold, and his automobile. Appellant alleges that the record is void of any evidence indicating that a "theft of a billfold, its contents, or a theft of lawful money" occurred. He contends that the absence of such evidence constitutes a failure to prove the essential and material allegations of the indictment. Appellant further argues that the indictment contained naked allegations which resulted in substantial injury to him and that he is entitled to a new trial.

The relevant portion of the indictment reads as follows:

"The Grand Jury of said County charge that before the finding of this indictment Douglas Griffin, whose name is otherwise unknown to the Grand Jury other than as stated, did intentionally cause the death of Patrick Dale, by shooting him with a shotgun and Douglas Griffin caused said death during the time that Douglas Griffin was in the course of committing, or attempting to committ [sic], a theft of lawful money of the United States, an automobile, a billfold and contents, the property of Patrick Dale, by the use of force against the person of Patrick Dale, with intent to overcome his physical resistance or physical power of resistance, while the said Douglas Griffin was armed with a deadly weapon, to-wit: a shotgun, in violation of Section 13A-5-40(a)(2) of the Code of Alabama."

"An indictment must apprise the accused with reasonable certainty of the nature of the accusation against him so that he may prepare his defense and plead the judgment of conviction as a bar to any subsequent prosecution for the same offense." Copeland v. State, 455 So.2d 951, 956 (Ala.Cr App.1984), cert. denied, 455 So.2d 956 (Ala.1984); Thompson v. State, 454 So.2d 1053 (Ala.Cr.App.1984); Wilder v. State, 401 So.2d 151, 160 (Ala.Cr.App.), cert. denied, 401 So.2d 167 (Ala.1981), cert. denied, 454 U.S. 1057, 102 S.Ct. 606, 70 L.Ed.2d 595; United States v. Simmons, 6 Otto 360, 96 U.S. 360, 24 L.Ed. 819 (1877). An accused is constitutionally guaranteed sufficient notice of the charges against him. Such notice is mandatory in order to insure that an accused may properly defend himself at trial on a crime for which he has been indicted. Wilbourn v. State, 452 So.2d 915 (Ala.Cr.App.1984). Proof of the same crime under some other set of facts or proof of some other crime is insufficient. The accused cannot be deprived of the notice that he is constitutionally guaranteed. Abernathy v. State, 462 So.2d 960 (Ala.Cr.App.1984); Ex parte Hightower, 443 So.2d 1272 (Ala.1983), on remand, 443 So.2d 1275 (Ala.Cr.App.1984).

A variance in the indictment and the proof will be deemed fatal when it affects the substantial rights of the accused. Fisher v. State, 453 So.2d 2 (Ala.Cr.App.1984); Jeffers v. State, 455 So.2d 201 (Ala.Cr.App.1984); United States v. Womack, 654 F.2d 1034 (5th Cir.1981), cert. denied, 454 U.S. 1156, 102 S.Ct. 1029, 71 L.Ed.2d 314 (1982). A variance between the indictment and the proof is not necessarily fatal. United States v. McCrary, 699 F.2d 1308 (11th Cir.1983). See also Jeffers v. State, supra; Farley v. State, 437 So.2d 639 (Ala.Cr.App.1983). A material variance exists when the variance misleads the accused or substantially impairs him in making his defense. Talley v. State, 483 So.2d 1369, 1370 (Ala.Cr.App.1985), cert. quashed, 483 So.2d 1372 (Ala.1986); Phillips v. State, 446 So.2d 57, 62 (Ala.Cr.App.1983), cert. denied, 467 U.S. 1254, 104 S.Ct. 3541, 82 L.Ed.2d 845 (1984). However, as this court has ruled many times, a variance will not be deemed to be material when the evidence indicates that the accused committed a substantial offense contained in the indictment.

"[T]here is no material variance where there is proof of so much of an indictment as shows the defendant committed a substantial offense specified therein." House v. State, 380 So.2d 940 (Ala.1979), quoting Dotson v. State, 337 So.2d 83 (Ala.Cr.App.1976).

This court has also said:

"A variance between the indictment and the proof is immaterial when the alleged variance may be treated as surplusage." Dailey v. State, 374 So.2d 414, at 417 (Ala.Cr.App.1979).

See also Edwards v. State, 480 So.2d 1259, 1262 (Ala.Cr.App.), cert. denied, 480 So.2d 1264 (Ala.1985); Dunklin v. State, 436 So.2d 8, 11 (Ala.Cr.App.1983).

The State, in the present case, presented substantial testimony against the appellant regarding the circumstances surrounding the death of Patrick Dale and the theft of his automobile. The State also presented evidence against the appellant concerning the theft of the victim's money and his billfold. The victim's father testified that just prior to his son's death, his son had work-related checks in the amount of $600.00. The record indicates that only $200.00 from those checks was deposited in the deceased's bank account. The record also reveals that when the victim was found, his pockets were turned inside out and that only a few coins were recovered near the body. The State submits that there was sufficient circumstantial evidence to satisfy the other allegations contained in the indictment. The State's basic contention is that the appellant stole Patrick Dale's money after murdering him and, therefore, that the theft proves the gravamen of the indictment.

We must agree with the State that sufficient evidence was presented for a jury determination as to whether the appellant murdered Patrick Dale during the course of committing a robbery. Thus, we find no material variance existed, because there was proof to support the allegation that the appellant committed a substantial offense specified in the indictment. House v. State, supra. We find no variance between the proof and the indictment that is substantially injurious or misleading to the appellant. Therefore, the appellant's argument must fail.


Appellant contends that his statement to Sheriff Arnold and Investigator Gibson was taken in violation of his constitutional rights. He maintains that considering his condition and the totality of the circumstances surrounding his statement, the court committed error by admitting his statement into evidence.

Appellant was admitted to Evergreen Hospital after an apparent suicide attempt by consumption of alcohol and an overdose of drugs. He was discharged from the hospital with instructions to take medication for five days. On July 22, 1983, the day following his discharge, the appellant was arrested. On July 25, 1983, the appellant was interviewed by Investigator Gibson and Sheriff Arnold, and gave a statement, which he signed after making a few corrections. He points out that he was without medication while incarcerated. Appellant specifically alleges that his statement was not voluntary. He contends that he "was maintained at the Dallas County Jail completely without medication or medical attention." He claims that his incarceration without medication was the "equivalent to torture methods of German War Camps." Thus, appellant maintains that, considering the totality of the circumstances, his statement was not voluntary and should have been excluded.

In Minor v. State, 437 So.2d 651 (Ala.Cr.App.1983), the court stated:

"The true test of determining whether an extrajudicial confession is voluntary is whether the defendant's will was overborne at the time he confessed, making the confession the product of irrational intellect and not of a free will. Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963)." Minor, 437 So.2d 651, 655 (Ala.Cr.App.1983).

In the present case, a hearing on the voluntariness of the confession was held outside the presence of the jury and the trial court heard all the circumstances surrounding appellant's confession. The record indicates that Sheriff Arnold, from Wilcox County, and ABI Investigator Gibson were present during appellant's interview. Both of them testified that...

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