Johnson v. State
| Decision Date | 18 January 1991 |
| Citation | 584 So.2d 881 |
| Parties | Vaughn Gilbert JOHNSON, Jr. v. STATE. CR 89-843. |
| Court | Alabama Court of Criminal Appeals |
Cecil Matthews, Guntersville, for appellant.
Don Siegelman, Atty. Gen., and Margaret S. Childers, Asst. Atty. Gen., for appellee.
Vaughn Gilbert Johnson, Jr., was convicted on November 2, 1989, for the crime of murder, § 13A-6-2, Code of Alabama 1975, and was sentenced to life imprisonment.
The appellant gave timely notice of appeal. The appellant's brief in this cause originally was due on June 22, 1990. Since that time, appellant's retained attorney has received one seven-day extension and three enlargements of time in which to file his brief.
Appellant is constitutionally entitled to effective assistance of counsel, which includes the filing of an appellate brief on first appeal as a matter of right. Evitts v. Lucy, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985); Ross v. Noffett, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974).
Therefore, the submission of this case is hereby set aside and this cause is remanded to the circuit court for that court to determine whether appellant's retained counsel intends to continue representing the appellant and, if so, to inquire into the reason for the failure to file a brief in this court. The trial court shall take whatever remedial action is deemed necessary to ensure that an appellate brief is filed in this case, including the appointment of new and different counsel. If the trial court should determine that new appellate counsel is required, the court should ascertain whether the appellant is indigent and whether he desires appellate counsel. If so, the trial court shall appoint counsel and aid counsel in obtaining a copy of the appellate record. In this situation, the time for filing briefs shall begin to run from the date of the appointment of new counsel. Due return should be made to this court of the action taken, within 30 days from the date of this opinion.
REMANDED WITH INSTRUCTIONS.
All the Judges concur.
ON RETURN TO REMAND
Vaughn Gilbert Johnson, Jr., was indicted for the offense of murder. The jury returned a verdict of "guilty of murder." A sentencing hearing was conducted at which time the appellant was sentenced to life imprisonment, and his application for probation was denied. Pursuant to § 15-23-17 Code of Alabama 1975, the appellant was assessed a victim compensation assessment of $3,000.00 and court costs were taxed to him.
On April 8, 1989, the appellant, Johnson, picked up the victim, Rebecca Kay Salter Culbert, at her home on Star Route in Albertville, Alabama, in his automobile. They drove to a wooded area one block away from the residence and parked. Sometime during the evening Ms. Culbert either exited the car or was taken out of the car by the appellant. She was subsequently run over several times with the automobile which the appellant had driven to the spot. In addition to wounds incurred when she was run over by the vehicle, reports revealed that the victim had been struck with a blunt instrument over the head and strangled with a pair of nunchakus, a martial arts weapon. She died shortly thereafter.
I(a)
The appellant contends that the trial court committed reversible error in failing to grant his motion for a judgment of acquittal on the grounds that the indictment was fatally defective. Specifically, the appellant argues that the indictment failed to allege the means by which the murder was committed. The indictment reads as follows:
"The Grand Jury of said County charge that before the finding of this Indictment Vaughn Gilbert Johnson, Jr., whose name to the Grand Jury is otherwise unknown, did intentionally cause the death of another person Rebecca Kay Salter Culbert, by multiple blunt force injuries, in violation of § 13A-6-2 of the Code of Alabama, 1975, as last amended."
(R. 609.)
This court in Harrison v. State, 384 So.2d 641, 643 (Ala.Cr.App.1980), held that:
In this case the appellant waived arraignment and pleaded not guilty on August 29, 1989. By order at arraignment the appellant was allowed 14 days to file special pleas or motions. (R. 615.)
However, it was not until November 2, 1989, after the State had rested, that the appellant objected to the indictment as being fatally defective. Again in his motion for a new trial the appellant alleged that the indictment failed to specify the means by which the murder was committed.
According to A.R.Crim.P.Temp. 16.2(a) and 16.3, an objection to a defective indictment must be raised at or before arraignment or by a date set by the trial court. The rules read as follows:
Furthermore, irregularities in an indictment which do not render the indictment void are waived if not raised either before arraignment or by such later date specified by the trial court. Beals v. State, 533 So.2d 717 (Ala.Cr.App.1988); Harrison v. State, 384 So.2d 641 (Ala.Cr.App.1980); Ex parte Horton, 456 So.2d 1120, 1121-22 (Ala.1984).
By order at arraignment the appellant was given 14 days to file special pleas or motions. The appellant failed to meet this deadline.
Therefore, we find no error on the part of the trial court in denying the appellant's motions for judgment of acquittal on this ground.
(b)
The appellant also contends that there was a fatal variance between the allegations in the indictment and the proof presented at trial as to the actual cause of death. A fatal variance exist only where the State fails to adduce any proof of a material allegation of the indictment or where the only proof adduced is contrary to a material allegation in the indictment. Eady v. State, 369 So.2d 841, 843 (Ala.Cr.App.1979), reversed on other grounds, Ex parte Alexander, 475 So.2d 628 (Ala.1985).
The proof was sufficient to support the offense charged in the indictment. See Perry v. State, 549 So.2d 119, 121 (Ala.Cr.App.1988). The indictment alleged that the appellant intentionally caused the death of the victim by inflicting multiple blunt force injuries. The State presented evidence that the appellant inflicted multiple blunt force injuries, and Dr. Embry, who performed the autopsy, testified that, in his opinion, the victim died from these injuries.
II
Next, the appellant contends that the transcript of the conversation between him and his wife that occurred in the Albertville detectives' room in the presence of Detectives Edsel Whitten and Tommy Cole was introduced in violation of the marital privilege. Specifically, he argues that this transcript was improperly admitted because the police did not advise Mrs. Johnson of her marital privilege.
However, the marital privilege for confidential communications has no application here. This court in Epps v. State, 408 So.2d 562, 565 (Ala.Cr.App.1981), held that:
See also Howton v. State, 391 So.2d 147 (Ala.Cr.App.1980), which held that testimony of an investigator concerning contents of a letter defendant's wife had sent to defendant while he was incarcerated did not violate the rule governing privileged communications, in that such rule does not operate to exclude testimony of a third party who overheard private conversation, even if such conversation was overheard while spying or eavesdropping.
In this case, the conversation was not private. It was a conversation in the open presence of Detectives Whitten and Cole.
Furthermore, the record reveals that at some point Mrs. Johnson had been advised of her rights: "They read me my rights and I had no idea what for." (R. 783.) See McCoy v. State, 221 Ala. 466, 129 So. 21 (1930), holding that prior voluntary testimony at a preliminary hearing by the nonaccused spouse, although made without having been advised of her privilege not to testify, may be admitted through a third party who heard this testimony even where the spouse...
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