King v. State

• Citation: 521 So.2d 1042
• Decision Date: 18 August 1987
• Docket Number: 1 Div. 272
• Parties: Bobby James KING v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1042

521 So.2d 1042

Bobby James KING v. STATE.

1 Div. 272.

Court of Criminal Appeals of Alabama.

Aug. 18, 1987.

Rehearing Denied Oct. 13, 1987.

James H. Lackey, Mobile, for appellant.

Charles A. Graddick, Atty. Gen., and Martha Gail Ingram, Asst. Atty. Gen., for appellee.

PATTERSON, Judge.

Appellant, Bobby James King, was indicted in a two-count indictment on October 21, 1985. The first count charged King with the capital offense of murder during a robbery in the first degree or an attempt thereof, in violation of § 13A-5-40(a)(2), Code of Alabama 1975. The second count charged him with the capital offense of murder during sexual abuse in the first degree or an attempt thereof, in violation of § 13A-5-40(a)(8). He was convicted, after a jury trial, of the lesser included offenses of murder in each count and sentenced on February 28, 1986, to ninety-nine years in the penitentiary. He appeals, raising two issues.

Appellant does not question the sufficiency of the evidence to support his conviction, and it would serve no useful purpose to recite the evidence in detail in this opinion; however, we will set out facts where we deem it necessary for a better understanding of the issues raised. Although the evidence of guilt was largely circumstantial, there was ample legal evidence presented by the State from which the jury by fair inference could find appellant guilty. There was sufficient evidence from which the jury could have excluded every reasonable hypothesis except that of guilt beyond a reasonable doubt. Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1978), cert. denied, 368 So.2d 877 (Ala.1979).

On August 28, 1985, Judy Ann McArthur, the night clerk at the Circle K convenience store in the city of Mobile, was brutally murdered in the store by blows to her head and face. Approximately $94 was missing from the cash register, along with a carton of J & B "rolling papers" from the store. There was evidence of rape or attempted rape. Through physical evidence gathered at the scene and information learned in the investigation of an unrelated rape, which had occurred about a week prior to the murder and in the same vicinity, appellant was charged with the crime. At the time he was charged, he was confined in the city jail pursuant to having been arrested on the unrelated rape charge. The issues raised in this appeal arise out of appellant's arrest for the unrelated rape, the search and seizure of certain items of evidence at that time, and statements made by appellant at that time.

I

Appellant first contends that the seizure of items of clothing and other items at the time of his arrest on the unrelated rape charge was unconstitutional and that the items should have been suppressed. In response, the attorney general asserts that the police had probable cause to arrest appellant and that the items seized at the time were not unconstitutionally obtained.

The facts related at the suppression hearing establish that the police had reasonable cause to believe that appellant had committed the crime of rape. These facts were, as follows:

The police were investigating a rape that had occurred one week prior to the capital murder of Ms. McArthur and in the same general vicinity as the murder. According to the rape victim, she was attacked by a white male who had gotten into her truck with her at the Long Branch Bar on Navco Street. The bar was also near the Circle K convenience store and near the scene of the rape. When she passed by the bar, she heard someone holler. When she slowed down, her attacker jumped into her truck and began to shout and scream and ordered her to take him home. He directed her down Venetia Road, where he ordered her to stop. There, he attacked her. He then drove her truck down the road and turned onto a dim lane, where he stopped the truck and repeatedly raped her. He then drove back to the bar, turned on the truck's interior light, and told her to take a good look at him so she would remember what he looked like if she ever saw him in a lineup.

The rape victim later asked a friend to contact an employee of the Long Branch Bar and give her the description of the rapist to see if she knew who he was. The victim was told that a person named "Bob" or "Bobby" fit the description and that he had also been at the Long Branch Bar. Subsequently, a police officer met with the rape victim, and she directed him to the scene of the rape. While they were there, a car came by and stopped. The driver, who identified himself as Dale Cooley, asked them who they were looking for. Cooley explained that the dirt lane they were on led to his residence. The officer told Cooley that he was investigating a rape that had occurred in that driveway. Upon being given a physical description of the rapist, Cooley said, "Sounds like you're talking about my handyman, Bob King." He stated that appellant was at his house and that he had picked him up on the interstate highway and was letting him stay with him because he had nowhere to stay.

At this time, the police had some information about the murder, which had occurred a few hours earlier. They knew of a report that someone named "Bob" had left the Long Branch Bar around 3:00 a.m., which was around the time of the murder, and was last seen walking in the direction of the Circle K convenience store. They also knew that "rolling papers" had been taken from the store. It appears that the officers suspected that appellant might be connected with the murder, but after backup units arrived, they went to Cooley's house to arrest appellant for the earlier rape.

Cooley gave his consent to the police to enter his house and arrest appellant. Cooley warned the police that there were weapons inside his house. He also stated that appellant did not have an automobile. The police then proceeded to Cooley's house, where they entered and placed appellant under arrest for the earlier rape.

An officer may arrest without a warrant where a felony has been committed and he has reasonable cause to believe that the person arrested committed it. Owen v. State, 418 So.2d 214 (Ala.Cr.App.1982); Ala. Code 1975, § 15-10-3(3). In the instant case, we find that the arresting officers had probable cause or reasonable cause as that term is used in § 15-10-3(3), to arrest appellant without a warrant.

We are not confronted here with the question of the right of the officers to enter Cooley's residence to effect the arrest of appellant without a warrant, since Cooley was the lessor and occupant of the house and was, thus, authorized to consent to the entry and the seizure of appellant. Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). Appellant does not raise or argue this question on appeal.

When the officers and Cooley entered the residence, appellant, who was wearing a pair of shorts, came to the door. Officer Boone identified himself and told appellant that he had come to get him. Upon being asked to identify himself, appellant said he was Bobby James King. He continued, "I been expecting you, it's been on the news all day long." Boone then asked him what had been on the news all day long. Appellant stated, "About that woman getting killed up at the store." At this point, Boone read him his Miranda rights. Boone asked him if he had some pants he could put on, and appellant said yes. At that time, they were in a hallway. Appellant stepped from there through a door into a bedroom on their right, which was about six feet from where they had been talking. Boone accompanied him into the bedroom. Appellant picked up a pair of pants from a pile of clothes on the bed and started to put them on. Then, he put them back on the pile and picked up another pair of pants off that pile and began to put those on. Boone asked him if the clothes on the bed were his, and he stated that all of the clothes on the bed were his. The officer then seized all the items which were on the bed and in plain view. When appellant opened a dresser drawer to look for a shirt, the officer saw two or three packs of J & B rolling papers. He also seized these rolling papers, since he recognized these papers as the same size and brand reportedly taken from the store where the capital murder had occurred. The officer also seized a pair of boots that were sitting in plain view by the bed. The boots were wet and muddy, and the officer knew that there were mudholes and water in the areas where the rape and the capital murder were committed and that mud had been found on the murder victim. Appellant was then handcuffed and taken away, along with the items seized.

It was subsequently discovered that there was blood on one of the pairs of trousers seized by the officer and that this blood was the same type as Ms. McArthur's and not the same type as appellant's. This evidence was introduced at trial, along with the rolling papers.

The record indicates that appellant was staying at the Cooley residence on a temporary basis because he had no other place to stay. Cooley stated that he allowed appellant to put his belongings in an extra bedroom and that appellant slept, sometimes, in that bedroom and, sometimes, on the couch in the living room. Cooley stated that the bedroom was not "set aside" for appellant and that he retained the right to enter it at any time.

The attorney general contends that the officers had a right to enter the bedroom, which was being used by appellant, and seize the items belonging to appellant because of the consent given by Cooley to conduct a search of the residence. The record shows that Cooley clearly gave permission to the officers to enter his residence to arrest appellant; however, contrary to the assertion of the attorney general, we cannot find in the record any indication that Cooley specifically consented to a search of the house or the bedroom. He may have expressly consented to the search in...