Johnson v. State, 6 Div. 59

• Decision Date: 20 August 1985
• Docket Number: 6 Div. 59
• Citation: 479 So.2d 1377
• Parties: Thomas Carl JOHNSON v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1377

479 So.2d 1377

Thomas Carl JOHNSON v. STATE.

6 Div. 59.

Court of Criminal Appeals of Alabama.

Aug. 20, 1985.

Rehearing Denied Oct. 22, 1985.

Certiorari Denied Dec. 20, 1985

Alabama Supreme Court 85-141.

Michael Crespi, Headland, and George H. Jones, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., and Rivard Melson, Asst. Atty. Gen., for appellee.

WALTER G. BRIDGES, Retired Circuit Judge.

The appellant, Thomas Carl Johnson, was found guilty of capital murder by a jury on November 19, 1982, and sentenced to imprisonment in the penitentiary for a term of life without parole. From this verdict and sentence, the appellant has appealed. After considering the transcript and briefs, we find no error prejudicially sufficient to warrant a reversal, and the trial court's decision is due to be affirmed.

On Sunday, July 11, 1982, Michael Long, a Birmingham policeman, was working as a security officer for the Sandpiper Apartments on Valley Avenue in Birmingham. The manager requested him to check on Bobby Anderton, who occupied 737-K Barcelona Court in the complex.

After Long and the maintenance man unlocked the apartment door, Officer Long, from experience, recognized the sick, sweet odor of a decomposing body. He walked down the hall and observed in the living room a quilt spread on the floor. He saw the bottom parts of legs protruding from the quilt. The quilt looked like it was made up perfect, like a bed, with no wrinkles. The body under the quilt was that of Bobby Anderton.

Blood was on the walls, the couch, a pillow on the couch, and on the back of the couch. The appellant's glasses were lying on the back of the sofa. Other than the bed being unmade, the apartment appeared fairly neat, and there was no evidence of forced entry.

The victim's body had received 33 wounds to the head, neck, and torso. These wounds were consistent with having been inflicted by an ax or hatchet. The majority of the wounds had been inflicted while the body was in a prone position. The multiple incised wounds were the cause of the victim's death.

There were no defensive-type wounds on the body. This indicated that it was unlikely that the deceased had engaged in a struggle before being chopped to death. The pathologist's opinion was that the victim had been dead somewhere from thirty-six to approximately sixty hours prior to the discovery of his body.

The victim was last seen alive by witnesses other than the appellant on July 9, 1982, at 7:00 a.m. That was at the end of his shift at the University of Alabama Hospital.

On Sunday, July 11, 1982, at approximately 4:20 p.m., the appellant, Thomas Carl Johnson, was arrested on the premises of Tanglewood Park, North Carolina. He was arrested by a park ranger, who also was a deputy sheriff with the power to arrest. The ranger charged him with "trespass after warning" for being on the park property.

Prior to arresting the appellant, the ranger checked with his superior officer who told him that the appellant had been warned to stay off the park property. When the ranger first saw the appellant, he was sitting in the victim's automobile. After the ranger frisked the appellant, he took the car keys from the appellant. Other officers arrived and carried the appellant to jail.

After a wrecker came, the ranger, acting under standard procedure, began to inventory items in the car. This procedure was followed so that the towing service could later account for anything in the car. During the inventory process, the ranger noticed a handle sticking out from underneath the driver's seat. After further examination, he saw that it was a hatchet handle and that the hatchet had blood on it.

The ranger called the Forsythe County, North Carolina Sheriff's Office. After Detective Evelyn Harles arrived, the inventory was completed. In addition to the hatchet, credit card receipts bearing the victim's name, a backpack in which were the victim's car registration and tag receipt, some seed, a quantity of green material in a film container, a stone pipe containing charred or partially burned vegetable material, and a "roach clip" were found in the car.

While inventorying the appellant's personal property on appellant's person at the jail, Mark Little, a deputy sheriff, discovered a Chevron credit card issued to the victim in the appellant's wallet. After the appellant was placed in jail on the trespass charge, Deputy Little arrested the appellant for "marijuana and paraphernalia possession."

The appellant was given the Miranda warnings by Deputy Mark Little in the jail. He made a voluntary statement. In the statement he said he had seen Bobby Anderton the day before in Charlotte, North Carolina, and that Anderton had loaned him the car. He said there was no hatchet in the car. When asked about blood on the hatchet, he again said there was no hatchet.

The appellant had told Fred Borgman, a co-worker at some stables in Tanglewood Park, that he was going to Birmingham to buy a small car from a "brother" who lived in Birmingham. (The term "brother" was used by appellant to mean "friend.") He told Borgman he did not have much money at all.

About a day and half later, between 7:00 a.m. and 10:00 a.m., Borgman received a phone call from the appellant. The appellant told Borgman he was at his "brother's" house in Birmingham and would be coming back in a couple of days. Borgman received another call from the appellant around 2:00 p.m. in which the appellant told him he was in Atlanta and was coming back to North Carolina.

The next day, Saturday, between 10:30 a.m. and noon, the appellant showed up at Borgman's residence in Advance, North Carolina. Later at a Chevron station, while purchasing gas and using a Chevron credit card, the appellant told Borgman, "Watch this forgery." The appellant also showed Borgman a hatchet in the car.

They drank liquor, shot pool, and slept that night in the car. The next morning, Sunday, the appellant took Borgman home.

Three Birmingham police officers went to North Carolina and interviewed the appellant. He gave a voluntary statement in which he said he borrowed bus fare, caught a bus in Winston-Salem, and arrived about 5:30 a.m. on July 9, 1982. He said he had the hatchet in his backpack and that he "had a pretty long hoof up against him." He said he had previously lived in Anderton's apartment with him. He further said they (he and Anderton) got into an argument over money; that he appellant, "just kinda flipped out;" that Anderton tried to raise a hand and that he picked up the hatchet from his bag by the side of his chair and struck Anderton in his back, head, and neck with it. He further said that he then covered Anderton with the blanket, washed blood off himself, took Anderton's watch and wallet, and left in Anderton's car. He further said that before he was arrested, he had washed the blood from the clothes he was wearing when he killed Anderton.

The appellant raises twelve issues as errors, and they are considered as follows:

I.

The appellant contends that the State failed to prove its prima facie case as to the capital offense of murder in the course of committing a robbery in the first degree. The State had the burden of proving beyond a reasonable doubt that the appellant killed the victim during a robbery in the first degree. § 13A-5-40(a)(2), Code of Alabama 1975. Absent that proof, he could be convicted of a crime carrying no greater punishment than murder under § 13A-6-2, Code of Alabama 1975.

Code of Alabama 1975, § 13A-5-39(2), defines "during" as follows:

"... in the course of or in connection with the commission of or in immediate flight from the commission of the underlying felony or attempt thereof."

Even had the appellant killed the victim for some purpose unrelated to the theft, the taking of property from the victim after the murder constitutes robbery, as the murder and the subsequent taking of the property formed a continuous chain of events. Clark v. State, 451 So.2d 368 (Ala.Cr.App.1984), cites Cobern v. State, 273 Ala. 547, 142 So.2d 869 (1962), holding that the fact that the victim was dead at the time of the taking of the property would not mitigate against the crime of robbery if the events of the intervening time between the murder and the time of taking of the property formed a continuous chain of events. The State proved robbery and murder of the victim in the course thereof beyond a reasonable doubt and to a moral certainty.

II.

The appellant contends that the State should have quashed the September 1982 indictment because the State failed to secure the court's permission to abandon the August 1982 indictment before reindictment. The August 1982 indictment accused the appellant of taking "one Chevron credit card, account number 122584656." The subsequent September 1982 indictment is identical except that it corrected the number to "122284656."

On November 15, 1982, the court entered the following order:

"The indictment returned by the August Grand Jury number 87866 is hereby quashed. The court hereby approves of State's reindictment procedures with September, 1982 Session of Grand Jury."

It is true that Alabama Code, Title 15-8-130, says:

"An indictment must not be quashed, dismissed, discontinued or abandoned without the permission of the court, and such permission must be entered of record."

However, it is the better practice to bring the second indictment before the first is quashed. Perkins v. State, 66 Ala. 457, 461 (1880). The appellant's contention is without merit.

III.

The appellant contends that the items seized during the inventory of the car after the appellant's arrest should not have been admitted into evidence. Now, for the first time, he contends that the State failed to prove the North Carolina statute on trespass after warning under which the appellant was initially arrested.

Only the grounds of objection presented to the trial court can serve as a basis for reversal, and even...