Hiett v. State

• Decision Date: 29 December 1987
• Docket Number: 7 Div. 853
• Citation: 548 So.2d 483
• Parties: Bill HIETT v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 483

548 So.2d 483

Bill HIETT v. STATE.

7 Div. 853.

Court of Criminal Appeals of Alabama.

Dec. 29, 1987.

On Return to Remand Feb. 24, 1989.

Rehearing Denied April 28, 1989.

Certiorari Denied June 23, 1989

Alabama Supreme Court 88-1034.

Michael D. Cook, Lanett, for appellant.

Don Siegelman, Atty. Gen., and Kenneth Nunnelley, Asst. Atty. Gen., for appellee.

McMILLAN, Judge.

The appellant was convicted of possession of a short-barreled shotgun in violation of Section 13A-11-63, Code of Alabama (1975). He was thereafter sentenced to twenty years' imprisonment pursuant to the Habitual Felony Offender Act. His attorney has failed to file a brief on appeal.

"In Ex parte Dunn, 514 So.2d 1300 (Ala.1987), our Supreme Court held:

" 'We consider the failure to file a brief on appeal to be "[a]ctual or constructive denial of the assistance of counsel," following the reasoning of other courts that have considered this question. [Citations omitted]. Consequently, no showing of prejudice is required under Strickland [v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ], where an attorney fails to file a brief on first appeal as of right, where that appeal is desired by the defendant.' "

Johnson v. State, 528 So.2d 1167 (Ala.Cr.App.1987).

Therefore, because the appellant is entitled to effective assistance of counsel on his first appeal of right, Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985), this case is remanded for the trial court to determine whether the appellant desires to pursue his appeal. If so, the trial court is hereby ordered to appoint new counsel for the appellant, and the time for filing briefs shall run from the date of the appointment.

REMANDED WITH DIRECTIONS.

All Judges concur.

ON RETURN TO REMAND

Judge.

This cause was remanded to the trial court on the authority of Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985), in order for the trial court to determine whether the appellant wished to pursue his appeal and, if so, to appoint new counsel to represent the appellant. The appellant has been appointed representation and a brief has been filed on appeal.

As is noted in the original opinion, the appellant was convicted of possession of a short-barrelled shotgun, in violation of § 13A-11-63, Code of Alabama (1975). He was sentenced to 20 years' imprisonment pursuant to the Habitual Felony Offender Act.

I

The appellant argues that the trial court erred in failing to grant his motion for a continuance. Defense counsel acknowledged that he was informed of the trial date on the Wednesday or Thursday prior to the docket call on the following Monday. Although defense counsel argues that the appellant was not even imprisoned in the county when he learned of the trial date, the appellant was located by his attorney the following day in Kilby Prison and was then returned to the county. On the Monday of docket call, witness subpoenas were issued at the request of the appellant and, on Tuesday, various pretrial motions were filed, including a motion for continuance. On Wednesday, the day of trial, the motions were argued. Defense counsel presented the circuit court clerk as a witness to verify that he had been told that the trial would not appear on the January docket, but rather would be set for the April docket. However, the clerk also testified that defense counsel was notified on the Thursday prior to trial.

In arguing that he did not have adequate time to prepare for trial, defense counsel suggests that he could have arranged for an expert to examine the gun in order to determine when the shotgun was sawed off. He states that that information was important, as the appellant's mother testified that the shotgun was much longer before it was removed from their house. However, defense counsel failed to show that he made any efforts to find such an expert or to secure that testimony.

Defense counsel also argues that the appellant was prejudiced because his parents could not appear to testify, as their daughter and grandchild were hospitalized in critical condition. Defense counsel alleges that testimony of the appellant's father would have contradicted that of a police officer concerning the appellant's admission of possession of the shotgun. However, the appellant's mother did appear to testify for the defense.

The action of a trial court in refusing to grant a motion for a continuance should not be disturbed in the absence of a clear abuse of discretion. Gosha v. State, 442 So.2d 138, 141 (Ala.Cr.App.1983). Absent a clear showing that the trial court has abused its discretion, its refusal will not be reversed on appeal. Owens v. State, 460 So.2d 305 (Ala.Cr.App.1984). "Furthermore, it appears from the record that the appellant's attorney was well prepared and that the appellant was represented skillfully and ably at every phase of the proceedings." Hamilton v. State, 496 So.2d 100, 108 (Ala.Cr.App.1986). Therefore, we find no abuse of discretion by the trial court's denial of the appellant's motion for continuance.

II

The appellant argues that the trial court erred in allowing the shotgun into evidence because he alleges that the chain of custody was clearly broken. The record indicates that Sergeant Traylor, of the Alabama Bureau of Investigation, testified that he found a sawed-off shotgun at the residence of the appellant's parents, in the mother's closet, and wrapped in a pink nightgown. He then identified the shotgun as the same one he had removed from the closet. He further testified that the shotgun was in the same condition as when he removed it, except for a piece of paper on the stock of the gun. The record further indicates that Sergeant Traylor gave the gun to Sheriff Norton on March 19, and that Sheriff Norton returned the gun to Sergeant Traylor on March 20. The gun was then taken to the Department of Forensic Sciences in Birmingham on March 31, 1986, by Sergeant Traylor. He testified that it was locked in a locker at the crime lab. He further testified that, on January 26, 1987, he received the gun back from Martin Yates.

The appellant argues that, because the appellant's mother testified that the gun appeared to have been tampered with, the State should have introduced testimony to prove the chain of custody during the ten months that the gun remained at the Department of Forensic Sciences. He further argues that Sheriff Norton should have testified to the condition of the gun, because the State had shown that he had it in his possession for a day.

"The purpose for requiring that a chain of custody be established is to show a reasonable probability that there has been no tampering with an item of evidence. Fleming v. State, 470 So.2d 1343 (Ala.Cr.App.1985); Gwin v. State, 425 So.2d 500 (Ala.Cr.App.1982), writ quashed, Ex parte Gwin, 425 So.2d 510 (Ala.1983). 'In passing upon the admissibility of such evidence, "the trial judge should consider the nature of the article and the circumstances surrounding its presentation and custody," and permit its introduction where continuity of possession is "sufficiently established." ' Oliver v. State, 479 So.2d 1385, 1390 (Ala.Cr.App.1985), quoting Washington v. State, 339 So.2d 611, 615 (Ala.Cr.App.), cert. denied, 339 So.2d 616 (Ala.1976). ' "The evidence need not negate the most remote possibility of substitution, alteration or tampering with the evidence, but rather must prove to a reasonable probability that the item is the same as, and not substantially different from the object as it existed at the beginning of the chain." ' (Emphasis added.) Fleming v. State, supra, at 1346, quoting Slaughter v. State, 411 So.2d 819, 822 (Ala.Cr.App.1981)."

Armstrong v. State, 516 So.2d 806, 811 (Ala.Cr.App.1986).

A "reasonable probability" was established because the agent who originally removed the gun testified that it was in substantially the same condition as when it was removed. Sumpter v. State, 480 So.2d 608 (Ala.Cr.App.1985); Yarbrough v. State, 451 So.2d 426 (Ala.Cr.App.1984). No error resulted from the trial court's admission of the gun into evidence.

III

The appellant argues that the trial court erred to reversal in its jury charge concerning the appellant's failure to take the stand. During the trial, the appellant did not take the stand to testify. Thereafter, the trial court gave the following charge to the jury:

"Ladies and gentlemen of the jury, the defendant in this case is not required to testify. The Law of Alabama provides that on the trial of all indictments, complaints or other criminal procedures, the person on trial is not required to testify in the case. This is a very real and substantial right that every defendant has under our system. But you may consider his testimony together with all the other evidence in the case in light of the fact that he is the defendant in the case."

Following the charge, defense counsel objected to the trial court's comment on the appellant's failure to take the stand and his comment that the appellant's testimony could be considered and given as much weight as the jury deemed necessary. The defense counsel moved for a mistrial on that ground. The jury was then dismissed. The trial court informed the defense counsel that he was going to bring the jury back in and re-charge them on the appellant's failure to testify. The defense counsel stated that he felt that such a re-charge would unduly emphasize that failure. The defense counsel insisted that he did not ask for a re-charge, but rather a mistrial. Therefore, no re-charge was given.

The trial court may instruct on a defendant's failure to testify where there has been no request for such an instruction. Tucker v. State, 429 So.2d 1165, 1171 (Ala.Cr.App.1983). Even if the trial court's instructions could have been considered confusing to the jury, the trial court offered to give subsequent instructions to clarify any misconceptions. United States v. Brown, 555 F.2d 407, 417 (...