Mitchell v. State, 5 Div. 503

• Decision Date: 25 November 1980
• Docket Number: 5 Div. 503
• Citation: 397 So.2d 169
• Parties: Hamlin Bee MITCHELL, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 169

397 So.2d 169

Hamlin Bee MITCHELL, alias v. STATE.

5 Div. 503.

Court of Criminal Appeals of Alabama.

Nov. 25, 1980.

Rehearing Denied Jan. 20, 1981.

Richard D. Lane, Auburn, for appellant.

Charles A. Graddick, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for appellee.

TYSON, Judge.

Hamlin Bee Mitchell was indicted and convicted for the offense of burglary in connection with the nighttime breaking and entering of an uninhabited dwelling house owned by one Jeff Newton. § 13-2-41, Code of Alabama 1975. He was sentenced by the court to serve eight years in the state penitentiary, and now brings this appeal contending that the trial court committed several reversible errors.

The record of the proceedings below indicates that, before the commencement of appellant's trial, his counsel filed a demurrer to the indictment, which was overruled, and two motions to suppress certain evidence, one being directed specifically to certain "statements" allegedly made by appellant to the police, and the other concerning "all tangible items of property" gathered as a result of appellant's arrest. The basis for these motions was apparently that appellant had been arrested illegally, and the trial court deferred hearing and ruling on the motions until the disputed evidence was to be admitted during the trial.

The first witness for the State was Jeff Newton, a resident of Opelika, who stated that, on December 3, 1979, he had left his house, located off Highway 29, around 10:00 o'clock that morning after first closing all of the windows and closing and locking the front and back doors to the house. Mr. Newton testified that he and his roommate, Terry Nelson, returned to the house between 10:30 and 11:00 that night, and that, upon driving down the driveway to the house, they noticed "a strange car" parked at the house. Mr. Newton stated that he then noticed his Pioneer and Jensen brand stereo equipment, normally kept inside the house, resting on the front porch, so he parked his car in such a position so as to prevent the other car from leaving. The witness further testified that he then saw that the front door to the house was open, and decided at that point to look at the second car's license plate, which displayed a Montgomery number, remove the keys from the car, and further remove the car's distributor cap "and stuff off of it" to prevent the subsequent starting of the engine. During this sequence of events, he did not see anyone on either the floor or seats of the car. Mr. Newton and his roommate then left and summoned the police. The witness further stated that, during the course of the subsequent police investigation, an officer gave him a "45" adapter, a small plastic item used on stereo equipment to play "45" records, and that this adapter had previously been in the house. Mr Newton also testified that, after the arrival of the police, he had occasion to see the appellant, who was his "ex-wife's uncle," at the scene.

Under cross-examination by counsel for appellant, Mr. Newton testified that he only knew appellant " 'cause he was kin to my wife" (R. 19), but had not previously socialized with him, although appellant had been to the Newton house before. He also stated that, while he had been searching for the keys in the second car, he had not seen anyone in or around the house, and it was "possible" that appellant could have been sleeping on the back seat of the car.

Mr. Newton stated on re-direct examination that he did not notice anyone in the car, and in his opinion there had been sufficient light from a nearby outside light fixture to have enabled him to see anyone in the car.

Robert W. Meadows, a patrolman for the Opelika City Police Department, testified that, on the night of December 3, 1979, he and his partner, Officer Reeves, had been summoned with another "back-up" police unit to Jeff Newton's residence. Upon arrival, they were met by Mr. Newton at the point where Highway 29 intersects the dirt driveway to the Newton residence, and Newton was then directed to remain at the highway until the officers had investigated what Newton had related to them. Officer Meadows stated that, upon driving down the driveway, he saw a brown Plymouth Valiant automobile near the house and observed appellant "standing in the doorway with a foot on the ground and a foot in the car" (R. 28). Officer Meadows further testified that appellant was standing on the driver's side of the car, and that the car displayed a Montgomery license plate. The officer also stated that he noticed the front door of the house to be open and several items of stereo equipment resting on the front porch, and at that point "read the defendant his constitutional rights" (R. 30). A subsequent examination of the house revealed that the back door was standing open as well, and there were "pry marks" apparently made by "some sharp type instrument" (R. 33) around the door's latch. In the interior of the house, the furniture was in disarray and several rooms had been "ransacked." Officer Meadows further testified that he also had occasion to look into appellant's car as he was handcuffing appellant.

On examination outside the presence of the jury by counsel for appellant, Officer Meadows stated that he arrested appellant for "public drunkenness" in that he had determined during his reading of the appellant's rights that appellant was "intoxicated." The officer testified that he seemed coherent but was intoxicated and "suffering from some type of injury" (R. 38), identified to be a broken collarbone, and thus the officer "didn't want him walking around and we didn't want to let him go from the scene" (R. 38). Further, Officer Meadows stated, "he was in no condition to drive or walk around and he was placed under arrest ... because I thought he was a danger to himself at that time" (R. 38). The officer also stated that appellant was in a "public place" in that he was not inside a car or private residence, but that appellant was on private property, and that at any rate the arrest had been made under the provisions of the Opelika City Code and not the state law. Officer Meadows also stated that appellant "was unsteady on his feet, and belligerent ... was using profane language (and) (y)ou could smell an odor of alcoholic beverage about his person; he reeked of it" (R. 39). Appellant was handcuffed at this point, but not charged with burglary, because the officers were not certain as to what exactly had occurred. Officer Meadows stated that, while in the process of handcuffing appellant, he glanced into appellant's car through its open door and saw a knife on the passenger's side of the front seat, and further examined the area around the car, thereby finding the "45" plastic adapter on the ground behind the trunk. The knife and adapter were pointed out by the officer to another detective, but the officer stated that he did not personally secure the items.

Officer Meadows further testified during this hearing that he questioned appellant about the burglary after again advising him of his rights, which appellant claimed to understand, and at that point appellant denied burglarizing the house, but claimed that he had only come to visit relatives. According to the officer, appellant stated that he had gone to the front door, knocked and when no one responded he started to leave, only then noticing the stereo equipment on the front porch. Appellant returned to his car, could not start it, and subsequently fell asleep on the front seat. Officer Meadows further testified that he was not present when appellant gave any written statement. He also stated that he had advised appellant of his Miranda ¹ rights at least three times, and had advised him that he was being investigated on the burglary charge. According to officer Meadows, appellant acknowledged his rights and seemed coherent. Appellant was charged with the burglary some three days later, and was also subsequently convicted on the drunkenness charge.

The examination of Officer Meadows was then resumed in the presence of the jury, and the officer testified as to a number of the points raised in the hearing outside the jury's presence. No testimony was adduced as to any statements, oral or written, that were allegedly made by appellant.

On cross-examination, the officer testified that, to his knowledge, he was uncertain as to when appellant was actually charged with the burglary. He further stated that the nature of the "pry marks" on the back door to the Newton house indicated to him that the marks were very recent, but that he had not found any tools or implements on appellant's person which might have made the marks, except the knife in appellant's car.

The State rested its case at that point, and the appellant's motion to exclude the State's evidence for failure to prove a prima facie case, and for the prejudicial admission of the knife was overruled. The only witness called by appellant was Edna B. Wiggins, who testified that she was a friend of appellant and had seen him on the night of December 3 around 9:00 o'clock at her residence. According to this witness, appellant did not drink in her presence and did not appear intoxicated. She stated that he stayed at her residence for about two hours and then left, and she was not aware of where he went afterwards.

I

Appellant initially contends that he was illegally arrested on the "drunkenness" charge at the scene of the burglary in that the circumstances did not justify his arrest on that charge under the terms of the applicable statute, and thus the trial court committed reversible error in apparently overruling the two motions to suppress submitted by appellant at trial. While, admittedly, evidence gathered as the result of an illegal arrest or detention is tainted by the prior illegality and may not therefore be constitutionally produced against a defendant, unless the primary "taint" is negated, Wong Sun v. United States,...