Hollins v. State, 8 Div. 574

CourtAlabama Court of Criminal Appeals
Writing for the CourtHARRIS
Citation415 So.2d 1249
Docket Number8 Div. 574
Decision Date08 June 1982
PartiesChris Edgar HOLLINS, alias v. STATE.

Page 1249

415 So.2d 1249
Chris Edgar HOLLINS, alias
v.
STATE.
8 Div. 574.
Court of Criminal Appeals of Alabama.
June 8, 1982.

Page 1251

Bryce U. Graham, Tuscumbia, for appellant.

Charles A. Graddick, Atty. Gen., and Jan A. Wade, Asst. Atty. Gen., for appellee.

HARRIS, Presiding Judge.

Appellant was indicted by the Colbert County Grand Jury for burglary in the third degree in violation of § 13A-7-7, Code 1975 (Supp.1979). Appellant was arraigned and entered a plea of not guilty. The jury returned a verdict of guilty and the court, pursuant to the Habitual Offender Statute, sentenced appellant to twenty-two years' imprisonment in the State penitentiary.

Charles L. Montgomery testified he returned to his residence in Sheffield, Alabama, on the morning of March 5, 1981, in response to a phone call from a neighbor. Upon his arrival, he discovered the latch on his back door had been broken and the door forced open. The latch was not broken when he left for work.

He testified that two of his three sons owned several long guns, including two shotguns and a rifle. The guns were normally kept in the boys' bedroom in a gun rack and in a closet. The witness stated that he had not given appellant permission to enter his residence at any time.

Steven Nickens, a twelve-year-old next-door neighbor of Mr. Montgomery, testified he was in his residence on the morning of March 5, 1981, when he heard a noise. The noise sounded like somebody kicking something and sounded as if it came from the Montgomery residence. Steven went outside and saw appellant following another person through the Montgomerys' back door. He waited behind a truck and saw appellant come out of the Montgomery residence with some guns wrapped in a blanket which he placed in a white station wagon. Steven stated he said, "Somebody call the police," and then told appellant to put the guns back. The police arrived and placed appellant and an accomplice, Malcolm Green, under arrest. The witness exhibited some confusion on cross-examination by appellant's counsel between his original statement to police and his testimony at trial. The confusion pertained to whether he actually observed Malcolm Green kick the door and enter it ahead of appellant, and whether his brother Bobby was the one who called the police.

Melissa Nickens, Steven's sister, testified she also heard the noise on March 5, 1981, and went outside to the back of the Montgomery residence. She observed a white station wagon parked in the Montgomerys' back yard. After standing there for a time, she observed appellant come out of the Montgomerys' house with two guns wrapped in a blanket which he placed in the back of a station wagon. She told appellant, "You better put them back in the house because the police are on the way." Appellant hesitated, and then reentered the

Page 1252

house with the guns. She stated she had seen appellant and Malcolm Green in the company of Tony Montgomery earlier that morning at the Montgomery residence. She saw the first two men leave the house, and then observed Tony drive away shortly thereafter. She heard the noise within a few minutes after Tony left the house.

Tony Montgomery testified he was at his father's house on the morning of March 5, 1981, when appellant and Malcolm Green stopped by about 9:00 for a drink of water and to use the phone. He told them he had to leave, and they left, and then he left. He stated Malcolm "Bubba" Green was his first cousin. He did not, however, keep frequent company with him or appellant. Tony stated he locked the door when he left the house, and that there was no damage to the back door when he left. He returned thirty minutes later and found the police at his house.

Doug Aycock, a Sheffield policeman, answered a call to the Montgomery residence on March 5, 1981. When he arrived, the police chief, Officer DeMaurice, and appellant were outside. He entered the house and found Malcolm Green lying on a bed in the back bedroom. He brought him outside and placed both Green and appellant under arrest. Green appeared to be under the influence of drugs. Appellant, however, appeared sober. Officer Aycock stated he found a gun in a blanket lying on a bed near the bed where Green was lying. Another gun was found inside a dresser with the stock protruding. The white station wagon was found to belong to Malcolm Green's father. The State rested at the close of Officer Aycock's testimony. Appellant's motion to exclude the State's evidence was denied.

Appellant called Bobby Nickens, who denied having called the police the day appellant broke into the Montgomery residence. On cross examination, he denied having told Officer Aycock that he had placed such a call on the day of the burglary. The appellant rested at the close of Nickens's testimony.

We note first that appellant's attorney presented no citation of authority for any proposition of law argued in his brief. He contends that the transcript is so defectively prepared that it denies him due process of law and a fair and impartial trial. He requests that this court order that a complete, new record be prepared in this case to correct the alleged egregious errors. Appellant fails, however, to delineate with particularity any error or omission in the record other than the misspelled name of one juror.

The appellant and his counsel have the duty to check the record and ensure its correctness before submitting it on appeal. Pope v. State, 387 So.2d 300 (Ala.Cr.App.1980). Tyus v. State, 347 So.2d 1377 (Ala.Cr.App.), cert. denied, 347 So.2d 1384 (Ala.1977). This court is bound by the record, and the record may not be impeached by matters outside of the record, such as mere conclusory allegations of counsel in brief. Tyus, supra. Rule 10(f), ARAP, which provides for the correction or modification of the record on appeal, was not invoked by the appellant. This rule specifically provides for the correction of an omission from the record. Pope, supra. The present record reveals an appropriate arraignment, the interposition of appellant's plea of not guilty, and a proper judgment entry. We can only conclude from the present posture of the case before us, that the record on appeal is correct. Ballou v. State, 365 So.2d 352 (Ala.Cr.App.1978).

Appellant argues that there was no evidence that appellant unlawfully broke into and entered the building in question and hence the State failed to prove its case. Burglary in the third degree is defined as follows:

" § 13A-7-7. Burglary in the third degree.

...

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46 practice notes
  • Mitchell v. State Of Ala., CR-06-0827
    • United States
    • Alabama Court of Criminal Appeals
    • August 27, 2010
    ...of the offense charged, or innocent, the charge on a lesser-included offense is not necessary or proper.'" (quoting Hollins v. State, 415 So. 2d 1249, 1253 (Ala. Crim. App. 1982))). The evidence established that three murders were committed during the course of a robbery, and there was no e......
  • Carroll v. State, CR–12–0599.
    • United States
    • Alabama Court of Criminal Appeals
    • August 14, 2015
    ...of the offense charged, or innocent, the charge on a lesser-included offense is not necessary or proper.’ " (quoting Hollins v. State, 415 So.2d 1249, 1253 (Ala.Crim.App.1982) )). Therefore, this issue does not entitle Carroll to any relief.VIII. Carroll next argues that the circuit court a......
  • Kinder v. State, 6 Div. 633
    • United States
    • Alabama Court of Criminal Appeals
    • December 9, 1986
    ...So.2d 885, 890 (Ala.Cr.App.1985). "The evidence presented demonstrated the completed crime, and nothing short thereof." Hollins v. State, 415 So.2d 1249, 1253 Furthermore, first degree kidnapping is not a lesser included offense of the crime charged, that is, the capital offense of murder d......
  • Moore v. State, 3 Div. 914
    • United States
    • Alabama Court of Criminal Appeals
    • July 17, 1984
    ...by the record. Eaton v. State, 423 So.2d 352 (Ala.Crim.App.1982); Harris v. State, 420 So.2d 812 (Ala.Crim.App.1982); Hollins v. State, 415 So.2d 1249 (Ala.Crim.App.1982). There is nothing in the record before us which supports the claim of the Page 990 The judgment of the trial court is du......
  • Request a trial to view additional results
46 cases
  • Mitchell v. State Of Ala., CR-06-0827
    • United States
    • Alabama Court of Criminal Appeals
    • August 27, 2010
    ...of the offense charged, or innocent, the charge on a lesser-included offense is not necessary or proper.'" (quoting Hollins v. State, 415 So. 2d 1249, 1253 (Ala. Crim. App. 1982))). The evidence established that three murders were committed during the course of a robbery, and there was no e......
  • Carroll v. State, CR–12–0599.
    • United States
    • Alabama Court of Criminal Appeals
    • August 14, 2015
    ...of the offense charged, or innocent, the charge on a lesser-included offense is not necessary or proper.’ " (quoting Hollins v. State, 415 So.2d 1249, 1253 (Ala.Crim.App.1982) )). Therefore, this issue does not entitle Carroll to any relief.VIII. Carroll next argues that the circuit court a......
  • Kinder v. State, 6 Div. 633
    • United States
    • Alabama Court of Criminal Appeals
    • December 9, 1986
    ...So.2d 885, 890 (Ala.Cr.App.1985). "The evidence presented demonstrated the completed crime, and nothing short thereof." Hollins v. State, 415 So.2d 1249, 1253 Furthermore, first degree kidnapping is not a lesser included offense of the crime charged, that is, the capital offense of murder d......
  • Moore v. State, 3 Div. 914
    • United States
    • Alabama Court of Criminal Appeals
    • July 17, 1984
    ...by the record. Eaton v. State, 423 So.2d 352 (Ala.Crim.App.1982); Harris v. State, 420 So.2d 812 (Ala.Crim.App.1982); Hollins v. State, 415 So.2d 1249 (Ala.Crim.App.1982). There is nothing in the record before us which supports the claim of the Page 990 The judgment of the trial court is du......
  • Request a trial to view additional results

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