McCovery v. State

• Decision Date: 19 December 1978
• Docket Number: 1 Div. 908
• Citation: 365 So.2d 358
• Parties: Johnnie Lee McCOVERY v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 358

365 So.2d 358

Johnnie Lee McCOVERY v. STATE.

1 Div. 908.

Court of Criminal Appeals of Alabama.

Dec. 19, 1978.

Neil L. Hanley, Mobile, for appellant.

William J. Baxley, Atty. Gen. and Elizabeth N. Petree, Asst. Atty. Gen., for the State, appellee.

BOWEN, Judge.

The appellant was indicted and convicted for robbery and sentenced to ten years' imprisonment. He was eighteen years old when the crime was committed.

I

The appellant contends that the trial court wrongfully denied his request for youthful offender treatment and his motion to reconsider. He alleges that the denial was based solely on the nature of the charge.

The supplemental record clearly shows that the trial judge did not run afoul of the rule set forth in Watkins v. State, 357 So.2d 156 (Ala.Cr.App.), cert. denied, 357 So.2d 161 (Ala.1977). There we held that the trial judge may not deny youthful offender status solely on a consideration of the nature of the crime charged. Here the trial judge stated that he was "fully conversant with the facts"; that he had tried a companion case wherein Edward Green was convicted of murder; that he was not denying youthful offender status solely on the basis of the nature of the crime charged; that he had considered all the circumstances; and that he considered the statement allegedly made by the appellant. These statements of the trial judge are sufficient to establish that the denial of youthful offender treatment was not based solely on the nature of the crime charged.

The law is clear that some investigation and examination of the defendant by the trial judge is necessary before a request for youthful offender status can lawfully be denied. However the examination does not have to be lengthy or formal and has no prescribed form. Edwards v. State, 294 Ala. 358, 317 So.2d 512 (1975); Watkins, 357 So.2d at 160. An investigation by a probation officer is not required. Clemmons v. State, 294 Ala. 746, 321 So.2d 238 (1975).

While the trial judge may not deny youthful offender status simply because of the nature or type of crime with which the accused is charged, it is entirely proper for a denial to be based on the manner in which the crime was executed, which would of necessity involve some form of investigation or examination, or any other circumstance which would enable the judge to make an Intelligent determination of whether, in his discretion, the defendant is eligible to be treated as a youthful offender, rather than being tried and, if found guilty, sentenced in the normal criminal process.

II

The appellant's statement made to two police officers after his arrest and while he was in custody was admissible in evidence even though one of the officers who was present when the statement was given did not testify in laying the proper predicate for the admission of the statement.

Detective J. R. Rigby was present during the entire interrogation of the appellant and witnessed every event which transpired. Rigby was the only witness to testify on the motion to suppress. There was nothing disclosed which would have made it the duty of the trial judge to require, as a condition precedent to the admission of the confession, that the prosecution call other officers to testify as it did not appear that the appellant was interrogated at any other place and time.

"(T)he State, having established by the preliminary proof the voluntary nature of the confession, was not required to examine every witness present when the confession was made or to array for interrogation every person who might have had access to or conversation with the prisoner during his incarceration in order to remove the prima facie presumption of involuntariness."

Logan v. State, 251 Ala. 441, 444, 37 So.2d 753, 755 (1948).

Logan was approved and followed in Braggs v. State, 283 Ala. 570, 575, 219 So.2d 396 (1969); Redwine v. State, 36 Ala.App. 560, 565, 61 So.2d 715 (1952); Davis v. State, 42 Ala.App. 374, 382-383, 165 So.2d 918 (1964). This does not affect the rule that where a confession is made in the presence of several officers a proper predicate includes a showing that none of the officers offered any hope or made any threats to the accused to induce his statement. See Bennifield v. State, 281 Ala. 283, 202 So.2d 55 (1967). Thus we conclude that the trial court did not err in admitting the confession and denying the appellant's motion to suppress.

III

During the opening arguments the prosecutor made reference to the fact that the victim of the robbery, Joe McArthur, was stabbed several times. Defense counsel objected and cites as error the following remarks of the trial judge.

"THE COURT: Just a moment, Mr. Pierson. Ladies and gentlemen of the jury, I think that the evidence will show that the victim of this alleged robbery died as a result of these wounds allegedly inflicted by someone. In any event, we are not trying the Defendant for the crime of murder, we are trying the Defendant for the crime of robbery. And, you are not to consider any evidence of the death of the victim in reaching your verdict in this case."

After defense counsel made his opening remarks and the jury was excused for a short recess, defense counsel moved for a mistrial on the basis of the judge's remark.

The trial judge does not invade the province of the jury in a criminal prosecution by stating that there is or is not evidence of particular facts when such is the case. Seibold v. State, 287 Ala. 549, 253 So.2d 302 (1970); Breedwell v. State, 38 Ala.App. 620, 624, 90 So.2d 845 (1957). The trial judge may state to the jury the evidence when it is disputed. Vinson v. State, 29 Ala.App. 234, 194 So. 705 (1940); Section 12-16-11, Code of Alabama 1975. However the court should "scrupulously refrain from injecting the tremendous weight of its office to influence the jury one way or the other". Bolton v. State, 23 Ala.App. 470, 127 So. 255 (1930). A judge may not "sum up" the evidence or charge upon the effect of evidence on his own motion. Pease v. City of Montgomery, 333 So.2d 221 (Ala.Cr.App.1976).

Prior to trial the appellant filed a motion requesting the court to enter an order forbidding the prosecutor from introducing any evidence of the death or murder of Joe McArthur, the robbery victim. In arguing against the motion the prosecutor stated that "the death of Mr. McArthur connected with this robbery is also very relevant because it shows the material element of robbery in force, the amount of force used."

"And, of course, it's highly proper that we show the jury why the victim of this robbery is not testifying."

The trial judge denied the appellant's motion, the propriety of which is considered elsewhere in this opinion. However because of this motion and the arguments presented the judge had notice of what the State was going to attempt to show.

The trial judge's statement to the jury must be viewed within the context of the entire charge. Nixon v. State, 268 Ala. 101, 105 So.2d 349 (1958); Beckley v. State, 353 So.2d 542 (Ala.Cr.App.1977). "(I)solated statements which appear prejudicial when taken out of context may be innocuous when viewed in light of the entire trial." United States v. McCoy, 539 F.2d 1050, 1063 (5th Cir. 1976).

To compound the alleged impropriety of the trial judge's remarks the appellant alleges that there was no evidence that McArthur actually died. During the presentation of the State's case there was testimony that McArthur was "bleeding too bad" to run; that he was bleeding badly; that he had been stabbed about the chest area a number of times and was bleeding about the face; and that there was blood all over his body. Lonnie Prince testified, in connection with the robbery that he remembered the day that "the old white man was killed"; that in the appellant's presence Lorence Green said he was going to kill the man and Donald Robertson said he was going to rob him; and that after the robbery Green said, "He killed him one". Sergeant Rodney Gale Schmitz of the Prichard Police Department testified that on the evening of the same day of the robbery he was present at the University of South Alabama Medical Center when two pictures were taken of the deceased, identified to him as Joe McArthur. The appellant's statement was admitted into evidence. In part it recites that after the robbery Green

"came back to the big house and told all of us that he believed he killed him. He said he was trying to stab him in the heart but his arm got in the way. He said then he stabbed him in the stomach and in the chest."

"Lorence (Green) said he knew he killed him and if anybody go to jail it would be him."

This evidence was sufficient to afford a reasonable inference that McArthur was stabbed to death. Dismukes v. State, 346 So.2d 1170 (Ala.Cr.App.), majority opinion reported at 346 So.2d 1173 (Ala.Cr.App.), cert. denied, 346 So.2d 1177 (Ala.1977).

Thus, while the trial judge should not comment on what the evidence Will show, under the circumstances of this case the error, if any, was harmless, A.R.A.P., Rule 45, as the facts support the judge's comment. Peyton v. State, 40 Ala.App. 556, 120 So.2d 415 (1960).

The judge merely told the jury that He thought the evidence would show death but In any event this was not to be considered by the jury in reaching their verdict. Again if error existed in the comment it was cured by the court's own instructions embraced within and immediately following the comment. Lowe v. State, 54 Ala.App. 280, 307 So.2d 86 (1974).

Additionally we note that the motion for mistrial was due to be denied. A mistrial is only granted in cases of manifest necessity or when required by the ends of justice. Section 12-16-233, Code of Alabama 1975. This comment did not rise to that level of impermissible comment in view of the facts we have stated above.

Remarks by the trial judge may be open to criticism, but they are not error unless they may have affected the result of the trial. Thomas v. State, 126 Ala. 4,...