Henry v. State, CR-95-1539

• Decision Date: 06 March 1998
• Docket Number: CR-95-1539
• Citation: 714 So.2d 1002
• Parties: Darrell Ray HENRY, Jr. v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1002

714 So.2d 1002

Darrell Ray HENRY, Jr. v. STATE.

CR-95-1539.

Court of Criminal Appeals of Alabama.

March 6, 1998.

Allen G. Woodard, Andalusia, for appellant.

Bill Pryor, atty. gen., and Cedric B. Colvin, asst. atty. gen., for appellee.

McMILLAN, Judge.

This case concerns a revocation of probation. The appellant, Darrell Ray Henry, Jr., had originally been convicted pursuant to a guilty plea to burglary in the third degree on June 22, 1994. He had been sentenced to two years' imprisonment; that sentence was suspended and he was placed on three years' probation. The appellant was subsequently charged with two probation violations and his probation was modified, following a probation revocation hearing. Thereafter, the appellant's probation officer filed another delinquency report, charging the appellant with violating his probation by committing two new offenses--the unlawful possession of a pistol after having been convicted of a crime of violence and menacing. The trial court issued an order for an alias warrant based on those two charges.

At the commencement of the revocation hearing relating to these latter two charges, the appellant's attorney indicated that these charges had been filed against his client in a municipal court but had not yet been resolved. The State then presented evidence through the appellant's probation officer that the appellant had been informed of the conditions of his probation and that the officer had maintained supervision over the appellant at the time of the offenses. The State then presented the testimony of a 12-year-old witness who stated that, on the day of the offenses, he and six friends were on Cawthon Street in Andalusia. He testified that one of these boys, C.M., began running and the appellant then pulled up in an automobile next to the group. The appellant, whom the witness knew, asked who had just run away. The witness testified that he told the appellant that he did not know who it was, because he knew that C.M. and the appellant had "had problems before," and he wanted to protect his friend. The appellant then stated, "I bet it was C.M.," to which the witness responded negatively. He testified that the appellant then pulled a "little" gun from his pants and stated that he was going either to kill C.M. or to put him in the hospital. The appellant then stated, "If I ever catch y'all hanging out with C.M. or telling him what I have told you, I'll kill y'all, too." He later testified that the appellant stated that he would do the same to the boys he planned to do to C.M., that is, kill them or put them in the hospital. A friend of the appellant then came running towards the group, stating that he had seen C.M., and the appellant and his friend jumped in the car and drove off. The witness testified that the appellant drove around the block and stopped by the group of boys a second time. He then stated that he swore "on [his] baby's life" that he was either going to kill C.M. or put him in the hospital, and he began banging the roof of the car with his fists. The appellant then drove away, and the witness went home and told his mother about what had happened. She telephoned the police. On cross-examination, the witness testified that the appellant had held the gun for approximately five minutes while making his threats. He testified that he did not point the gun at the witness or his friends, but that he became frightened when the appellant threatened them if he were to catch them with C.M.

The officer who responded to the call testified at the hearing that he went to the scene to investigate the claim that the appellant was threatening some juveniles with a gun. The officer testified that, when he apprehended the appellant, he asked if the appellant had a gun on his person; he responded that he did not. The officer asked if the appellant would allow him to search his vehicle, to which the appellant responded that he would not. However, the officer testified that when he did search the vehicle he found a gun under the driver's seat and he arrested the appellant. He testified that he asked the appellant whether he had a permit for his pistol, to which he responded that he did not. The officer testified that, at that time, he charged the appellant with possession of a pistol without a license and for being in possession of a pistol when he was forbidden to possess a pistol. After the presentation of this evidence, defense counsel argued that the State had failed to prove that the appellant would fall into the category of "certain persons prohibited to possess a pistol" because it had failed to prove that the appellant's original offense of burglary in the third degree was a crime of violence; they also argued that the State had failed to prove the offense of menacing because the juvenile victim had testified that he did not believe that the appellant was going to shoot him or cause him physical injury. The trial court then stated that it would issue an order after reviewing the cases submitted. On April 12, 1996, the trial court issued a written order revoking the appellant's probation for having committed the offense of being in possession of a pistol after having been convicted of a crime of violence, specifically, burglary in the third degree. ¹ In his order, the trial court stated:

"The Court must reject defense counsel's argument that the State must prove that the underlying burglary was a crime of violence under the circumstances here present. The State did not establish again the facts underlying Defendant's present conviction for Burglary in the Third Degree. The indictment, Defendant's plea agreement and colloquy with the Court established, to the reasonable satisfaction of the Court, that the Defendant acted in complicity with his co-defendants in entering Pleasant Home School and taking in excess of $25.00 in coins and money changers from vending machines. These events were the basis of his plea in the case sub judice, and constitute the conduct for which he is on probation. Upon examining Sections 86, 172 and 174 of the Code of Alabama 1940, the Court is of the further opinion that such conduct constituted burglary in the second degree at the time the predecessor of present Section 13A-11-70(2) was enacted, and does constitute a crime of violence under current law."

Neither the appellant's indictment, plea agreement, nor colloquy concerning this underlying charge and conviction appear in the record; nor is there any indication in the record that these documents were introduced into evidence at the revocation hearing.

I.

The appellant argues that the trial court erred in revoking his probation based on the charge that he was in possession of a pistol after having been convicted of a crime of violence, because, he argues, there was no proof that his prior conviction for burglary in the third degree constituted a crime of violence. Section 13A-11-72(a), Code of Alabama 1975, provides that "no person who has been convicted in this State or elsewhere of committing or attempting to commit a crime of violence shall own a pistol or have one in his or her possession or under his or her control." A "crime of violence" is defined for the purposes of this section by § 13A-11-70, Code of Alabama 1975, as follows:

"Any of the following crimes or an attempt to commit any of them, namely, murder, manslaughter (except manslaughter arising out of the operation of a vehicle), rape, mayhem, assault with intent to rob, assault with intent to ravish, assault with intent to murder, robbery, burglary, kidnapping and larceny."

The language in these two statutes was also in the statutes in effect prior to the enactment of the new Criminal Code; therefore, an offense that had previously been labeled as a "crime of violence" may not be a crime of violence under current law. This has especially been noted in those cases involving offenses that would be included in the "crime of violence" categories of larceny and burglary.

The crime of which the appellant was originally convicted, burglary in the third degree, is defined by § 13A-7-7, Code of Alabama 1975, as follows:

"A person commits the crime of burglary in the third degree if he knowingly enters or remains unlawfully in a building with intent to commit a crime therein."

However, under the predecessor Criminal Code there was no offense of third-degree burglary and second-degree burglary was defined by Title 14, § 86, Code of Alabama 1940 (Recompiled 1958), as follows:

"Any person who in the daytime, with intent to steal or to commit a felony, breaks into and enters any inhabited dwelling house or any other house or building which is occupied by any person lodged therein, or any person who either in the nighttime or daytime, with intent to steal or to commit a felony, breaks into and enters any uninhabited dwelling house, or any building, structure or enclosure ... is guilty of burglary in the second degree and shall on conviction be imprisoned in the penitentiary for not less than one year, nor more than ten years."

Thus, there are a number of...