Morgan v. State

Decision Date03 October 1978
Docket Number5 Div. 424
PartiesDouglas Keith MORGAN v. STATE.
CourtAlabama Court of Criminal Appeals

W. L. Chenault, Decatur, for appellant.

William J. Baxley, Atty. Gen., and Edwin L. Yates, Asst. Atty. Gen., for the State, appellee.

BOWEN, Judge.

Douglas Keith Morgan was indicted for assault with intent to ravish. A jury found him guilty of assault and battery and fined him five hundred dollars. The trial judge imposed a sentence of six months' hard labor.

I

Morgan was eighteen years of age and on leave from service in the United States Navy when the crime was committed. His application for treatment as a youthful offender was denied.

In urging that the trial judge abused his discretion in denying youthful offender status, appellant's counsel states that "no investigation was made by any probation officer on behalf of the Circuit Court of Lee County, Alabama". Contrary to this assertion the very first witness whose testimony is reported in the record is Jim V. Lord. Officer Lord testified that he was a "State Probation and Parole Supervisor assigned to Lee County, Alabama", and that he conducted an investigation of the appellant pertaining to a youthful offender petition at the request of the Circuit Court of Lee County. Though his recommendation was not requested he did make a report to the court. Prior to ruling on the application the trial judge conducted a full hearing and allowed defense counsel to present whatever evidence he desired.

The Youthful Offender Act vests in the trial judge almost absolute discretion to grant or deny youthful offender status after making an appropriate investigation. McClendon v. State, 341 So.2d 174 (Ala.Cr.App.1976); Section 15-19-1, Code of Alabama 1975. This act does not require a full, formal hearing or an investigation by a probation officer in every case. Clemmons v. State, 294 Ala. 746, 749, 321 So.2d 238 (1975). While we have no indication of why youthful offender status was denied in this case, the trial judge is not required to state his reasons for denying youthful offender status. This court will not overturn that exercise of discretion except where it affirmatively appears that the decision of the trial judge was arbitrary or made without some examination or investigation of the youthful offender. Watkins v. State, 357 So.2d 156 (Ala.Cr.App.), cert. denied,357 So.2d 161 (Ala.1978). It is not for this court to overturn the decision of the trial judge in denying youthful offender status simply because we would not have made that same decision.

The record supports no finding that the decision was arbitrary or constitutes an abuse of discretion. After weighing other factors, the trial judge may have decided that youthful offender status was due to be denied because of Morgan's age, status, and the seriousness of the crime charged. For this reason we cannot overturn the judge's ruling denying youthful offender status.

II

Also the trial court did not abuse its discretion in ruling that the appellant's confession was voluntary and admissible as evidence. While the appellant testified that Detective Edwin D. Downing told him that "things would go easier" if a statement were made, Downing testified that he never made such a statement.

Where the trial court finds on conflicting testimony that the confession was voluntarily made, that finding will not be disturbed on appeal unless it is palpably contrary to the weight of the evidence. Blackburn v. Alabama, 361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 246 (1960); Harris v. State, 280 Ala. 468, 195 So.2d 521 (1967); Thompson v. State, 347 So.2d 1371 (Ala.Cr.App.), cert. denied, 347 So.2d 1377 (Ala.1977); Sullivan v. State, 340 So.2d 878 (Ala.Cr.App.), cert. denied, 340 So.2d 881 (Ala.1976); Jenkins v. State, 337 So.2d 72 (Ala.Cr.App.1976); Botsford v. State, 54 Ala.App. 482, 309 So.2d 835, cert. denied, 293 Ala. 745, 309 So.2d 844 (1974). Even when there is credible testimony to the contrary, if the evidence is fairly capable of supporting an inference that the rules of freedom and voluntariness were observed with respect to an extrajudicial confession, the ruling of the trial court need only be supported by substantial evidence and not to a moral certainty. Elliott v. State, 338 So.2d 483 (Ala.Cr.App.1976).

III

The trial judge denied the appellant's motion to exclude the state's evidence and dismiss the defendant. The grounds of this motion were that

"The State has failed to meet the burden of proof in that they have failed to meet the elements of intent to have intercourse with this woman by force and fear and against her consent."

The appellant was convicted of assault and battery and not for assault with intent to ravish. Where the accused is convicted of a lesser included offense, the accused is not harmed by the refusal of the trial court to give instructions requiring an acquittal of the higher offense. Phillips v. State, 167 Ala. 75, 52 So. 746 (1910); Pittman v. State, 153 Ala. 1, 45 So. 245 (1907); Vaughn v. State, 45 Ala.App. 169, 227 So.2d 801 (1969); Flournoy v. State, 40 Ala.App. 629, 120 So.2d 121, reversed on other grounds, 270 Ala. 448, 120 So.2d 124 (1960); Berness v. State, 40 Ala.App. 198, 113 So.2d 178, cert. denied, 269 Ala. 694, 113 So.2d 183 (1959); Burton v. State, 8 Ala.App. 295, 62 So. 394 (1913). Therefore the failure of the trial court to exclude the state's evidence because of the state's failure to prove...

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53 cases
  • Waldrop v. State
    • United States
    • Alabama Court of Criminal Appeals
    • December 1, 2000
    ..."In determining whether to treat a defendant as a youthful offender, the trial court has nearly absolute discretion. Morgan v. State, 363 So. 2d 1013 (Ala.Crim.App. 1978); see also, Ex parte Farrell, 591 So. 2d 444, 449-50, n. 3 (Ala. 1991). There is no set method for considering a motion r......
  • Hart v. State
    • United States
    • Alabama Court of Criminal Appeals
    • February 28, 1992
    ...or without the benefit of some form of investigation or examination. Reese v. State, 381 So.2d 107 (Ala.Cr.App.1980); Morgan v. State, 363 So.2d 1013 (Ala.Cr.App.1978). In the present case, the trial court conducted the requisite inquiry and thereafter denied the appellant youthful offender......
  • Ready v. State, 1 Div. 162
    • United States
    • Alabama Court of Criminal Appeals
    • September 21, 1990
    ...after an appropriate investigation is conducted." Fairchild v. State, 505 So.2d 1265, 1268 (Ala.Cr.App.1986) (citing Morgan v. State, 363 So.2d 1013, 1015 (Ala.Cr.App.1978)). Moreover, much of the necessity of such discretion being vested in the trial judge lies in the fact that it is he wh......
  • McWhorter v. State
    • United States
    • Alabama Court of Criminal Appeals
    • August 27, 1999
    ...not to accord youthful offender status to an accused person, the discretion of the trial judge is virtually absolute. Morgan v. State, 363 So.2d 1013 (Ala.Cr. App.1978).'" J.F.B. v. State, 729 So.2d 355 (Ala.Cr.App.1998), quoting Goolsby v. State, 492 So.2d 635, 636 (Ala.Cr.App. 1986). Ther......
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