Milton v. State
| Decision Date | 27 July 1982 |
| Docket Number | 6 Div. 829 |
| Citation | 417 So.2d 620 |
| Parties | Earnest MILTON v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Rocco J. Leo, Birmingham, for appellant.
Charles A. Graddick, Atty. Gen., and William D. Little, Asst. Atty. Gen., for appellee.
Appellant was convicted by a Jefferson County Circuit Court jury of receiving, etc., stolen property in the second degree in violation of § 13A-8-18, Code of Alabama 1975. Appellant was sentenced to two and one-half years' imprisonment.
The State's first witness was Delbert Allen. Mr. Allen came home around 10:30 p. m. on the night of March 2, 1981, and discovered that his house had been burglarized. Among the items missing were two class rings. Mr. Allen testified that one of the rings was a gold high school class ring from Austin High School, with an orange stone. The ring had "1971" on it and in the band of the ring were inscribed the initials "D.J.A." The second ring was a college class ring from Samford University. It was a yellow gold ring with an aquamarine stone. In the band was inscribed "Dell J. Allen" and the date "1975."
Mr. Allen further testified that he had purchased the Austin ring in 1971 for around $55 and the Samford ring in 1975 for $110 to $115. He also testified that both rings were in substantially the same condition when stolen as when they were purchased. When asked to give a fair market value of the rings, Mr. Allen estimated that they were worth "at least $200."
After Mr. Allen reported the burglary to the police, he called numerous gold and silver dealers around Birmingham asking them to be on the lookout for the rings.
On March 6, 1981, an employee of the Gold and Silver Shack called Mr. Allen and said that she had his rings. He went to the dealer and was able to identify his rings by the initials on them. He called Sergeant J. A. Robinson of the Birmingham Police Department who took custody of the rings.
Dell Rogers, an employee of the Gold and Silver Shack, testified that on March 2, 1981, the night Mr. Allen's rings were stolen, he bought two rings from appellant. Appellant had given his name and presented his driver's license for identification. Mr. Rogers described them as two class rings, one from Austin High School and the other from Samford University. Mr. Rogers identified Mr. Allen's rings as the rings appellant had sold to him.
Mr. Rogers also identified a copy of a form he was required to fill out whenever he bought gold or silver. Appellant's name was on the form Mr. Rogers filled out when he purchased Mr. Allen's rings.
Mr. Rogers estimated the value of the rings to be from $100 to $150.
On cross-examination, Mr. Rogers, after initially stating that the value was not less than $100 when he bought the rings, testified it was possible the rings were worth from $75 to $150.
Sergeant J. C. Robinson, a detective for the Birmingham Police Department, testified that he recovered Mr. Allen's rings from the Gold and Silver Shop.
After the State rested, appellant called Anthony Smith to the stand. Mr. Smith testified that he was a neighbor and friend of appellant's and that a little after noon on March 2 he went to appellant's house. He testified that he bought two rings for $50 on March 1, 1981, from a "Charles." He did not know "Charles' " last name. He asked appellant to sell the rings for him because he had no identification. That afternoon he and appellant went to the Gold and Silver Shop, and, after appellant sold the rings, they split the proceeds.
Appellant testified in his own behalf. Appellant stated that he asked Mr. Smith if the rings were stolen and Smith replied that they were not. He also testified that he sold the rings at evening, not during the daylight. He also denied splitting the money with Smith.
Appellant contends that the trial court improperly allowed Mr. Allen, a lay witness, to testify to the value of the rings without a proper foundation being established. He specifically argues that the prosecution did not show that Mr. Allen had an opportunity for forming a correct opinion and did not establish that the witness had indeed formed an opinion.
In Tice v. State, Ala.Cr.App., 386 So.2d 1180, cert. denied, Ala., 386 So.2d 1187 (1980), this court stated:
Mr. Allen testified that he bought the rings and he testified as to what he paid for them. He also testified that the rings were in substantially the same condition when stolen as when he bought them. He was also obviously familiar with the rings, having owned and worn them. We believe that, based on his knowledge of the rings, appellant had an opportunity to form a correct opinion of the market value, and the trial court, in overruling appellant's objection, did not err in deciding so. Thomas v. State, Ala.Cr.App., 338 So.2d 1045 (1976). The prosecution having shown that the witness had an opportunity to form a correct opinion of the rings' value, the proper predicate was established. Tice, supra.
Appellant also contends that the trial court improperly allowed the prosecution to make allegedly prejudicial statements during its closing remarks to the jury.
From the record:
Appellant first contends that the trial court should have sustained his objection to the prosecutor's remarks labeling appellant's witness "a blatant liar."
Counsel for both the State and appellant are allowed wide latitude in drawing reasonable inferences from the evidence in their closing arguments. A prosecutor as well as defense counsel has a right to present his impressions from the evidence, if reasonable, and may argue every legitimate inference. Manigan v. State, Ala.Cr.App., 402 So.2d 1063, cert. denied, Ala., 402 So.2d 1072 (1981).
There was certainly evidence in the testimony of Anthony Smith (appellant's witness) from which a legitimate inference could be drawn that he was not being truthful. He gave a very weak and evasive story as to how he got the rings, saying that a "dude named Charles" sold them to him. He...
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...by the evidence. Moreover, the credibility of a witness is a legitimate subject of comment during closing arguments In Milton v. State, 417 So.2d 620 (Ala.Cr.App.1982), the prosecution called the appellant's witness a "blatant liar"; we held that the prosecutor's argument or comment was wit......
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