Knight v. State

• Court: Alabama Court of Criminal Appeals
• Writing for the Court: ELIAS C. WATSON
• Citation: Knight v. State, 280 So.2d 163, 50 Ala.App. 457 (Ala. Crim. App. 1973)
• Decision Date: 26 June 1973
• Docket Number: 5 Div. 82
• Parties: Tommie Lee KNIGHT, alias v. STATE.

Page 163

280 So.2d 163

50 Ala.App. 457

Tommie Lee KNIGHT, alias v. STATE.

5 Div. 82.

Court of Criminal Appeals of Alabama.

June 26, 1973.

Phillip E. Adams, Jr., Opelika, for appellant.

William J. Baxley, Atty. Gen., and Don C. Dickert, Asst. Atty. Gen., for the State.

ELIAS C. WATSON, Circuit Judge.

The Lee County Grand Jury indicted defendant in a two count indictment, charging defendant with burglary and grand larceny. Defendant entered a plea of not guilty to the indictment and was tried and convicted on both counts. He was sentenced therefor to ten years in the State penitentiary.

For a re sume of the facts we quote from the State's brief:

'G. C. Littleton testified that on December 1, 1970, he was the owner and operator of a business known as the Littleton Real Estate and Insurance Agency located at 404 South 10th Street in Opelika, Alabama. Witness testified that on that date he owned and had in his place of business a small York safe of the approximate value of $75.00. He further testified that he also had two cash boxes in the office on that date, one of the boxes containing some small change and a $5.00 bill taped to the top of the box and the other containing some mixed currency and change located in a cabinet safe.

'Mr. Littleton testified that he had locked up the building as usual upon leaving his office on the afternoon of December 1st. The next morning when he arrived around 7:30 A.M. the witness noticed that the building had been burglarized and that the metal side door to the building had been sprung open. Mr. Littleton testified that upon making an examination of the premises, he discovered that the York safe and the cash box containing the $5.00 bill taped to the top was missing. He further testified that the cabinet safe had been pried open and the other cash box emptied of cash. The testimony of the witness was also to the effect that the front door which he had locked the evening before prior to going home for the night was unlocked when he returned to work the next morning.

'Mr. Littleton testified that he did not know the defendant but that he had seen him on several occasions in his office during November seeking a place to rent. Witness further testified that defendant could not have seen the cash boxes nor the York safe on the occasions he was in the real estate office seeking a place to rent.

'Mr. Littleton testified that the property taken from his office consisted of the York safe valued approximately $75,00 and $37.06 in cash.

'On cross examination, Mr. Littleton testified that he handled real estate for other persons and received a commission on the rental of the property. He testified that the $5.00 bill represented money that turned up over the amount of the receipts the office was supposed to have collected on one particular day previously and had been taped to the top of the box to be kept separate from the rest of the money checked in that day.

'On re-direct examination Mr. Littleton testified that he had identified his safe as it was being recovered from a creek out beyond the Farmville Community in Lee County, Alabama.

'Robert fred Lumpkin testified that on the night of December 1, 1970, he was on duty as a police officer for the City of Opelika. He testified that he had seen the defendant at approximately 11:40 P.M. on that night on Clanton Street in Opelika. Officer Lumpkin testified that he and Officer Berry were observing a 1957 blue and white Chevrolet turning off Lake Street onto Clanton Street. As the car turned the corner and stopped, the defendant and another person walked up to the car. The witness testified that as Officer Berry turned on the blue light the defendant and another person ran three or four steps before stopping.

'Officer Lumpkin testified that he had observed the car earlier that evening at the intersection of Avenue C and South 10th Street in Opelika, approximately 100 feet from Littleton Real Estate and Insurance Agency. He testified that it had an out of county tag on it and that it looked suspicious but that he had no reason to stop the car at that time.

'On cross examination Officer Lumpkin testified that the first time he observed the automobile he wasn't able to tell who was driving. Officer Lumpkin testified that the person in the car was driving slowly along South 10th Street and looking in all directions. The witness testified that the next time he saw the car, when he and Officer Berry pulled it over, it was being driven by one Joe Lewis Reed and that the defendant and one Ben Bandy were standing outside the car.

'Detective Abbott testified that on December 1, 1970, he was employed by the City of Opelika as a detective for the Opelika Police Department. The witness testified that he took part in the investigation of the burglary of the Littleton Real Estate and Insurance Agency in Opelika on December 1, 1970, and as a part of his investigation he talked with the defendant on December 4, 1970. At this point the Court excused the jury. Following the jury's exit the district attorney indicated to the court that the wished at this time to introduce into evidence two statements made by the defendant. He stated that the defendant had been advised of his rights on three occasions during the investigation and indicated his desire to go into each of them while the jury was out.

'After the Court had indicated its assent to this proposal, Detective Abbott testified that he had first warned the defendant of his rights at the time defendant was arrested and testified as to how the warnings were administered. Witness further testified that the defendant at this time told the witness that he had completed the ninth grade and could read and write. Detective Abbott further testified that the witness read, stated that he understood, and then signed a form containing the warning of constitutional rights and waiver of the same. No statement was made by defendant at this time, however.

'Witness Abbott then testified that two days later on December 4, 1970, prior to making his first statement, defendant was again warned of his constitutional rights, again read, and stated that he understood, and then signed the waiver of rights form. Detective Abbott further testified that no promises, inducements or threats of any kind were made by himself or anyone in his presence to get defendant to make a statement.

'At this point following a short cross examination by Mr. Adams in which Detective Abbott testified that since he had not been with the defendant the whole time since he had first been arrested he could not say positively that no one at all had ever threatened or induced the defendant to make any statement. The Court ruled that the requirements of Miranda v. Arizona (384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694) had been satisfied and ordered the statement read.'

During the taking of State's testimony in an examination of the witness Abbott, before the reception of any statement by the court in the absence of the jury, Exhibit No. 3 was read and admitted into evidence. In each instance thereafter, Officer Abbott gave testimony that the same questions were asked of the defendant and the same answers made and waiver of rights signed in each instance. Exhibit No. 3 is as follows:

'YOUR RIGHTS

DTX--3

6--9--71

RS

'Place OPELIKA POLICE DEPT.

'Dated 12/2/70

'Time 3:45 PM

'Education 9th GRADE

'Before we ask you any questions, you must understand your rights.

'You have the right to remain silent.

'Anything you say can be used against you in court.

'You have the right to talk to a lawyer for advice before we ask you any questions and to have him with you during the questioning.

'If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish.

'If you decide to answer questions now without a lawyer present, you will still have the right to stop answering at any time. You also have the right to stop answering at any time until you talk to a lawyer.

'WAIVER OF RIGHTS

'I have read this statement of my rights and I understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing. No promise or threats have been made to me and no pressure or coercion of any kind has been used against me.

Signed /s/ Tommie Lee Knight

'Witness Vance N. Abott

'Witness Fred R. Davis

'Time 3:50 PM'

The first statement that the defendant made, according to the testimony of Officer Abbott, was made on December 4, 1970, at approximately 11:10 A.M. and it reads as follows:

'On the night of 12--1--70 me and Joe Louis Reed was together in my car about 8:30 o'clock as near as I can remember the time. I'm not sure of the exact time. Joe said, 'I'm going to break in a place up there if I have to break in it by myself.' I said, 'Well, you're going to have to because I show ain't gone be with you, not breaking in no place.' Joe said, 'Come on, and let me out then.' So I, Tommie Lee Knight, drove up there by Turner Tire and let Joe Louis Reed out of the car. When he got out, he reached in the floor and said, 'Let me get my tools.' I couldn't see what he took out of the car. Joe Louis Reed got out and I drove to the Dixie Vim filling station and a boy in a green Mustang March I wanted to run me, but we didn't run.

'Then I started to go home and I caught Joe walking. He was almost home. He was going up the street facing Jeeter Street School. I stopped and Joe got in the car. Joe said, 'Well, I went in the place, man, and a little old safe thing in there had $21.00 in it and there is a big one in the back and it can be moved because I rolled it around.' I said, 'Well, I damn sure ain't going in there, I ain't even going that way.' Then Joe said, 'Take me to get Ben because Ben will help me.' So we went and got Ben over in a alley across from a school. He wasn't at hom but was across the street from where he lives. Then we come back and turned right almost in front...