Johnson v. State

• Decision Date: 17 March 1981
• Docket Number: 8 Div. 391
• Citation: 398 So.2d 393
• Parties: Jimmy Ray JOHNSON v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 393

398 So.2d 393

Jimmy Ray JOHNSON v. STATE.

8 Div. 391.

Court of Criminal Appeals of Alabama.

March 17, 1981.

Rehearing Denied April 21, 1981.

William R. Hovater and Carl W. Stolsworth, Tuscumbia, for appellant.

Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellee.

LEIGH M. CLARK, Retired Circuit Judge.

A jury found defendant (appellant) guilty on a trial under an indictment charging him with receiving stolen property in the first degree, as proscribed by the Alabama Criminal Code (Code of Ala.1975, Title 13A) 13A-8-16, effective January 1, 1980, which by § 13A-8-17 is classified as a Class B felony.

According to the testimony of the owner of the automobile allegedly stolen, he parked it about noon January 16, 1980, on a downtown street in Sheffield and left the keys in the automobile. At approximately 1:15 P.M. he returned to where he had parked his automobile and discovered it was missing. He immediately reported the incident to the police. That same night, he identified the automobile at the Colbert County Jail; it had been wrecked and sustained damage to the front end.

The State's evidence consisted largely of the testimony of four witnesses, Willodean Patrick, who testified she saw appellant driving the vehicle around 4:00 P.M. the day it was reported missing; Altie Turberville, who said she saw appellant and two others walking away from the automobile; William Lee Croy, who said he saw appellant driving the automobile around 4:30 P.M. the day it was taken; and Virgie Vickers, who testified she saw appellant driving the vehicle about "dusky dark" the same day. All of this was before the automobile was located by the officers and brought to the Colbert County Jail.

After the State rested its case, defendant presented evidence by three witnesses tending to support an alibi. Thereafter, appellant took the stand and positively denied ever stealing or riding in the automobile.

The evidence showed that the other two people whom a witness for the State testified were in the automobile with defendant as shown above had pleaded guilty to "stealing" the automobile.

Appellant complains of the refusal by the trial court of two charges requested in writing by defendant. They are:

"1. That if the jury finds that the defendant without the consent of the owner of the vehicle in question took said vehicle and used it without intending to deprive the owner of it permanently you may find the defendant guilty of the unauthorized use of the vehicle.

"2. That if the jury finds that the defendant was in possession of a stolen automobile and did not intend to permanently deprive the owner thereof of its use you may find the defendant guilty of the offense of unauthorized use of a vehicle."

Appellant says that the misdemeanor of unauthorized use of a vehicle proscribed by Alabama Criminal Code, § 13A-8-11 is a lesser included offense of larceny of a motor vehicle or receiving a stolen motor vehicle. He relies upon Moore v. State, 52 Ala.App. 394, 293 So.2d 309 (1974), in which a conviction for the misdemeanor of taking or using temporarily any animal or vehicle of another without authority as proscribed by Code of Alabama 1940, Tit. 14, § 339 was upheld in a trial on an indictment charging grand larceny of a motor vehicle. Appellant overlooks McMurphy v. State, Ala.Cr.App., 358 So.2d 1065 (1978), and authorities there cited, in which it is held that the unauthorized use of a vehicle as proscribed by § 13A-8-11 is not a lesser included offense of larceny of the vehicle. McMurphy controls, and following it we find that the court was not in error in refusing either of the charges requested. We are of the opinion that the court was not in error in refusing either of said written charges for the additional reason that there was no evidence whatever in the case that tended to prove the commission of the offense that is claimed to be a lesser included offense. In that circumstance, it has been repeatedly held that the failure of the court to instruct the jury as to a lesser included offense is not error. Harvest v. State, Ala.Cr.App., 342 So.2d 1369 (1977). Furthermore, neither charge hypothesized a belief or finding "from the evidence," which of itself justified the refusal thereof. Thompson v. State, Ala.Cr.App., 369 So.2d 50 (1979).

While Investigator Ronnie May, of the Colbert County Sheriff's Office, was testifying as a witness for the State, there were indications that he was using some notes in a file to refresh his recollection. At the end of the testimony of the witness, defense counsel moved as follows:

"I would make a motion at this time that the defense be allowed access and the right to copy all reports, police notations, photographs, witness statements, and all documents contained in the file of Mr. Ronnie May from which he just testified from to refresh his recollection. I would move that the State let me have the right to examine this file, that there might be evidence beneficial to the defendant with which he could defend himself."

The transcript does not show or even indicate that the witness in testifying was referring to "reports, police notations, photographs, witness statements," in his file. Under the circumstances, including an indication in the transcript defendant had been given an adequate opportunity for a discovery of all discoverable material in the possession of the prosecution, the particular motion of defendant was unreasonable and properly overruled. The right of defendant to see and examine material used by a witness while on the stand to refresh his recollection is not an unbridled right but is subject to reasonable limitations. Russell v. State, Ala.Cr.App., 365 So.2d 343, 348 (1978); Cooks v. State, 50 Ala.App. 49, 276 So.2d 634, cert. denied, 290 Ala. 363, 276 So.2d 640 (1973). It appears that the target of defendant's motion was much larger than a combination of the text and context of any information used by the witness while on the stand to refresh his recollection. The motion was properly overruled.

The transcript indicates some connection between the issue we have just discussed and the issue now to be discussed, but as the parties on appeal have treated them as separate and independent issues, we will do so. Appellant asserts that the trial court "committed reversible error by allowing testimony concerning an inculpatory comment to be introduced after granting Appellant's Motion to Suppress the statement and without having determined if the statement was voluntarily given." The reference is to testimony of Investigator Ronnie May as to a statement to him by defendant while he was in custody. Testimony of the witness as to the statement was admitted in evidence, over the objection of defendant, while the witness was testifying on call of the State as a rebuttal witness. Appellant is correct in saying that the testimony of the same witness as to the same statement had been suppressed on motion of defendant. That motion was presented and the ruling thereon made during the presentation of the State's case in chief. The particular testimony in rebuttal was as to an inculpatory statement of defendant offered and received in evidence in impeachment of defendant as a witness for himself. The question asked the witness, defendant's objection, the ruling of the court and the answer of the witness are in the following part of the transcript:

"Q. Did he (defendant) make any statement to you concerning a car or wanting to see a car

"MR. STOLLSWORTH: Your Honor, we object to that on the grounds if for no other reason, it has been ruled upon by the Court.

"BY THE COURT: It has been gone into and I will allow it at this time.

"MR. STOLLSWORTH: We except, Your Honor.

"BY THE COURT: Overruled.

"MR. MAY: He made a verbal statement to me, yes, sir.

"MR. PATTON CONTINUES: Would you tell the Court and jury what he said on that occasion?

"A. During the course of the conversation, he got up from the desk where he was sitting and walked to the window and looked out and said, 'Come and show me the car ya'll got, it might not be the one I stole.'

"Q. Did you ask him any further questions at that time?

"A. Yes I said, what do you mean it might not be the one you stole. And at that time, he said, that's all I am going to say. I'm not going to sign anything or say anything else. I want to see my lawyer."

While defendant was testifying on direct examination, he was asked in detail about the circumstances of his arrest and of the interrogation by law enforcement authorities, including Investigator Ronnie May, in which testimony it was emphasized that notwithstanding some claimed efforts on the part of the officers to get him to make a confession, he had not done so. Among the questions of his attorney on the subject and his answers as a witness were the following:

"Q. Did you tell Mr. May you had stolen any car?

"A. I told him I didn't know nothing about the car and I didn't know why he was questioning me on the car, because I didn't know about it."

It should be explained that the sustention of defendant's motion to suppress evidence of the extrajudicial statement made by defendant to the witness Ronnie May was not based on any conclusion of the trial court that a proper predicate for the admission of a confession or incriminating statement of an accused had not been laid. To the contrary, it appears that such a predicate had been laid but that defendant declined to make any statement, particularly a written statement, other than what he said, as quoted above, until he had a lawyer. Furthermore, the transcript shows that defendant's grounds of objection to the admission in evidence of the oral statement of defendant were:

"... That the same is surprise to the defense, it is prejudicial to the defendant's rights, the only information pertaining to any statement made and the only notes of Mr. May state simply that Johnson denied any knowledge of the stolen...