Huff v. State, 1 Div. 634

• Citation: 452 So.2d 1352
• Decision Date: 20 March 1984
• Docket Number: 1 Div. 634
• Parties: Charles Tobin HUFF v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1352

452 So.2d 1352

Charles Tobin HUFF v. STATE.

1 Div. 634.

Court of Criminal Appeals of Alabama.

March 20, 1984.

Rehearing Denied April 24, 1984.

Certiorari Denied June 22, 1984

Alabama Supreme Court 83-838.

G. Wayne Ashbee, Mobile, for appellant.

Charles A. Graddick, Atty. Gen. and Mark G. Montiel, Asst. Atty. Gen., for appellee.

SAM TAYLOR, Judge.

Charles Tobin Huff was convicted by a Mobile County jury of robbery in the first degree. Applying the Habitual Felony Offenders Act, the court sentenced him to life without parole; from that conviction he brings this appeal.

I

Appellant contends first that his constitutional rights were violated because he was required to open his mouth and show his teeth during his trial. The victim testified that one of the two men who robbed him had a "bigger gap than mine" in the man's upper teeth. The district attorney then asked the victim, "All right. Now, would it aid you in your identification today if you were able to see the Defendant's teeth?" Answer: "Yes, sir." The trial court ordered the appellant to stand up and open his mouth. The appellant contends this violated his 5th Amendment privilege against self-incrimination.

There is no merit in this contention. Appellant's protection against compulsory self-incrimination applies only to evidence of a testimonial or communicative nature. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). This court stated in Jones v. State, 54 Ala. 167, 306 So.2d 33 (1974), that the 5th Amendment

"offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture. The distinction which has emerged, often expressed in different ways, is that the privilege is a bar against compelling 'communications' or 'testimony,' but that compulsion which makes a suspect or accused the source of 'real or physical evidence' does not violate it." Quoting Schmerber.

We can think of no set of circumstances under which the appearance of appellant's teeth could qualify as testimonial rather than physical evidence. See also United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and Suggs v. State, 403 So.2d 303 (Ala.Cr.App.), writ denied, Ex parte Suggs, 403 So.2d 309 (Ala.1981), cert. denied, 455 U.S. 938, 102 S.Ct. 1428, 71 L.Ed.2d 648 (1982).

II

Appellant next contends that the court erred when it considered a previous conviction for sentencing purposes. He contends that the sentencing hearing record fails to show that he entered his plea of guilty to the earlier charge with an understanding of his constitutional rights, the nature of the crime charged in the indictment, the consequences of his guilty plea or that he understandingly and voluntarily waived his constitutional rights and pleaded guilty. In sum, he attacks the colloquy between the court and the accused in that case. He cites Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967). In that case, the records on their face made it apparent that the accused was not represented by counsel, and so the prior conviction could not be used to enhance punishment. In this case, all of the records of previous convictions did demonstrate that appellant was represented by counsel. The convictions were certified to as required by the temporary rules of criminal procedure, A.R.Crim.P., Temp. 6, and the proceedings were in accordance with Highsmith v. State, 55 Ala.App. 272, 314 So.2d 874 (1975).

We find that the requirements under Burgett were met in this case. Cf. Douglas v. State, 406 So.2d 1051 (Ala.Cr.App.), cert. denied, 406 So.2d 1053 (Ala.1981) (in which this court found that a docket sheet showing that a defendant was represented by counsel was sufficient to satisfy the Burgett requirement).

Appellant's challenge of the colloquy between himself and the court during the 1973 sentencing hearing has no place in this appeal. The record of that hearing, to which the appellant refers by page number in his brief, is not part of the record in this case. Even if that earlier colloquy were at issue, the judgment entry from that case, which was introduced at the sentencing hearing in the instant case, indicated that the 1973 trial court ascertained that the appellant understood his constitutional rights. The earlier judgment entry also stated that appellant understood the "nature of the crime charged in the indictment, and the consequences of his guilty plea..." and that he "understandingly and voluntarily" waived his constitutional rights before he pleaded guilty.

In any event, once it had been determined by the trial judge in the instant case that appellant had been represented by counsel at the time he pled guilty to the prior offenses, it was not necessary to inquire further into the colloquy that occurred during the earlier sentencing hearing. As we said in Jones v. State, 431 So.2d 1367 (Ala.Cr.App. 1983),

"... before a trial judge may sentence a defendant following a plea of guilty, he must inquire if the defendant's plea has been given knowingly and voluntarily. However, this rule of law...only applies during the sentencing of ...