Isbell v. State

• Decision Date: 03 February 1976
• Docket Number: 6 Div. 986
• Citation: 57 Ala.App. 444,329 So.2d 133
• Parties: David Michael ISBELL v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 133

329 So.2d 133

57 Ala.App. 444

David Michael ISBELL v. STATE.

6 Div. 986.

Court of Criminal Appeals of Alabama.

Feb. 3, 1976.

Rehearing Denied March 9, 1976.

Charles C. King, Huntsville, for appellant.

William J. Baxley, Atty. Gen., and Ellis D. Hanan, Asst. Atty. Gen., for the State.

BOOKOUT, Judge.

Buying, receiving, concealing, or aiding in concealing stolen property; sentence: three years imprisonment.

The appellant in this case was charged with burglary in the second degree in Count I, grand larceny in Count II, and buying, receiving, concealing, or aiding in concealing stolen property in Count III. The jury returned a verdict of guilty of Count III as charged in the indictment.

Phillip Taylor, the State's first witness, testified that he had gone hunting on November 19, 1974, and that his wife had gone to Huntsville to visit someone. When he returned home on the 21st, he noticed a hole in the back door and found the following items missing from his gun case: a Remington .12 gauge shotgun, Serial No. 5197701; an extra barrel for that gun; an H and R muzzle loader; a .45 caliber gun, Serial No. AL208721; a .22 caliber single shot rifle; a Winchester Buffalo Bill, 30--30 rifle, Serial No. 114567; a Bear Kodiac, Serial No. KT495591; a 52-inch Shakespeare arrow bow; a Universal scope; and a quiver of arrows that was attached to the bow. He estimated the value at $650.00 to $700.00. All of the items belonged to Phillip Taylor except the .22 caliber single shot which belonged to his father.

Taylor stated that he had been knowing the appellant approximately fifteen years, and the appellant had been a guest in his home from time to time. The appellant had been in his home approximately one month before he left on his hunting trip, and he believed that he asked the appellant to go with him.

On cross examination by the defense, Taylor said that he saw the appellant near the Star Cleaners in Arab the day after he discovered the theft. He testified that he knew the appellant was majoring in law enforcement in college. The appellant said that he 'might know something' about the break in and said 'Well, I have some friends, let me ask some questions.' Taylor then asked appellant to let him know if he found out anything about his guns. Taylor testified that he got the guns back, receiving them at the police station in Arab on the morning of November 27, 1974.

When Roy Michael Whisenant was called to the stand, counsel for appellant informed the trial court as follows:

'Your Honor, I have interviewed this witness and his testimony may tend to incriminate him, and I think that he should be advised of his fifth amendment rights before he testifies in this case. . . .'

The above statement was not made as an objection, and the court proceeded with the case. Whereupon, Whisenant testified that he was with the appellant on November 26, 1974, at about 7:00 P.M. when he picked up the appellant at his home. Whisenant had already gone by Ricky Harper's house and picked him up at 6:30 P.M. After leaving the appellant's house, they drove to a dirt road near Thompson Falls. They stopped, and the appellant and Harper got out of the car. Whisenant said he had been awake three days studying for exams and was sleepy and may have dozed off. However, he remembers the appellant and Harper getting back into the car. He stated that he did not see them put anything into the car. After he heard the door shut, he looked in the back and saw a large black plastic bag.

The trio drove back by the appellant's house for him to get his coat. The appellant went into his house, and Ricky Harper stayed in the car with Whisenant. While the appellant was in his house, Whisenant looked in the bag and testified that it contained guns. Ricky Harper did not testify in the trial.

Whisenant said he suggested carrying the guns to show them to his cousin in Morgan City, as his cousin was an avid hunter. Whisenant stated that neither the appellant nor Harper ever mentioned anything about selling the guns. He said the appellant suggested taking the guns to Phillip Taylor's house.

The police stopped Whisenant, on the way to his cousin's house, and arrested him for reckless driving. All three were taken to jail. While in jail, Whisenant signed a sworn statement.

During Whisenant's direct examination, the trial judge stopped the testimony and excused the jury from the courtroom. The trial judge then stated Inter alia:

'But, there is a possibility at this point that you could be guilty if you had knowledge or reason to have knowledge or reason to believe that these were stolen guns, or that they were not the property of the two boys that were with you--either one of them. That at this point after you met the police, if you at that point, it is possible that you could have become possibly guilty of aiding or rather concealing or aiding in the concealing of stolen property. So, I feel it only fair to tell you that and advise you at this point there is a possibility that you could incriminate yourself if you testify further with regard to this case, and that, as such, you have a right to remain silent. You don't have to testify where it comes to incriminating yourself. And, of course, that be the case then, any further questions that the State might ask you, you have a right to refuse to answer them on the grounds that it might tend to incriminate me.'

The prosecuting attorney then stated to the court that the witness had been given immunity, because he had appeared before the grand jury and testified. He stated to the court that the witness had no charges pending against him, and that no charges would be placed against him. The trial judge returned the jury to the courtroom and then recessed the trial for lunch.

After lunch, Whisenant continued his testimony, but when asked how the guns got in the automobile, Whisenant stated that he put them there himself. The prosecution claimed surprise and brought out the fact that Whisenant had just had lunch with the appellant. The prosecution then read the statement which the witness had given to the police chief while in jail. The statement was read over the objection of the defense, purportedly for the purpose of refreshing the recollection of the witness. The statement was as follows:

"I, Roy Whisenant, went to Ricky Harper's house. Ricky and myself went to Mike Isbell's house in Arab. We picked Mike up and drove down to Thompson Falls. Mike and Ricky said they had some guns they needed to sell. Ricky said they had one 30--30 lever action. I told them I had a cousin at Morgan City that would buy it. Ricky Harper and Mike Isbell got out of my car at Thompson Falls and got four guns, another barrel and scope. We left there and come back to Arab. The police stopped us on 10th Street, N.W. We had the guns in the back seat. I did not know the guns in my car were stolen."

After reading the statement, the District Attorney asked the witness if that statement was true. Whisenant stated that the statement was false. He said that he signed it, however, it was false. On cross examination, he explained that he had been awake for approximately three days, studying for college mid-term examinations, when he was arrested. He said that he had taken some 'no-doze' and some prescription pills to stay awake and that he signed the statement so the police would let him out of jail and he could go take his examinations the next morning. Whisenant said that he did not make a statement to the police that the appellant and Ricky Harper said that they had some guns to sell. He further testified that he stopped the car near Thompson Falls, that Harper and the appellant got out to relieve themselves and got back into the car. He did not see them put the guns in his car. Whisenant said that after the appellant saw the guns in the back of his car, the appellant suggested going to Phillip Taylor's house. Whisenant again stated that he put the guns in the car himself.

Chief Jack Banister, of the Arab Police Department, testified that on November 26, 1974, between 8:30 and 8:45 P.M., he saw Mike Whisenant, Robert Harper and he appellant when they were brought to the police station by Officers Bradford and Maze. He stated that he was called out to a car containing some guns which had been driven to the station by Officer Bradford.

Vernon Bradford, a policeman for the City of Arab, was one of the arresting officers. He arrested Whisenant for reckless driving and arrested Harper and the Mike Whisenant, Robert Harper and the Bradford said that he saw the stolen items in plain view inside Whisenant's car at the time of the arrest. Larry Waldrop, a deputy sheriff of Cullman County, and James Maze, a deputy sheriff of Marshall County, both testified to the description of the stolen items and accounted for the chain of custody.

At the end of the State's testimony, the defense moved to exclude the State's evidence on the grounds of failure to prove a prima facie case and the insufficiency of the evidence, which among other grounds, were stated in detail to the trial court. The motion was overruled. The defendant requested the affirmative charge and the affirmative charge with hypothesis, which were refused. Counsel for appellant likewise filed a motion for a new trial, challenging the sufficiency of the evidence and setting forth numerous other grounds. The trial court overruled the motion for a new trial, and counsel for appellant then filed in the record on appeal, thirty-nine assignments of error. Although assignments of error are no longer necessary in a criminal appeal per Title 15, § 389, Code of Alabama 1940, counsel for appellant, out of an abundance of caution, has endeavored to preserve any and all errors possible for review by this Court. By appellant's motion to exclude the State's evidence, his request for the affirmative charge and by his motion for a new trial, the weight and sufficiency of the evidence is indeed...