Orr v. State
| Decision Date | 09 October 1984 |
| Docket Number | 6 Div. 451 |
| Citation | 462 So.2d 1013 |
| Parties | Stevie Tyrone ORR v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Miles M. Huffstutler, Homewood, for appellant.
Charles A. Graddick, Atty. Gen., and Mary Ellen Fike Forehand, Asst. Atty. Gen., for appellee.
Stevie Tyrone Orr was indicted and convicted of theft of property in the second degree, § 13A-8-4, Code of Alabama (1975). He was sentenced to 15 years' imprisonment under the Habitual Felony Offenders Act. Three issues are raised on appeal.
This is a shoplifting case involving the theft of a coat from Southeast Zayre Corporation in Birmingham. The appellant contends that the court erred by allowing the security manager to testify to the value of stolen property because his knowledge of value was acquired through inadmissible hearsay. The evidence tends to show that the appellant removed a coat from a rack, put it on, put his own coat on over it, and attempted to leave the store. The security manager, Hence Williams, stopped the appellant and placed him under arrest.
At trial, the only evidence presented on the issue of the value of the coat was the testimony of the security manager. The coat did not have a price tag on it. The security manager testified that he had an employee in the department from which the coat was stolen take the coat and compare it to identical coats on the rack to determine the price. After the police arrived he went to the rack and determined the price by the same procedure.
This case is similar in many aspects to DeBruce v. State, 461 So.2d 889 (Ala.Crim.App.1984). In that case a silver cup was shoplifted from Rich's Department Store in Birmingham. The store detective was the only employee called to testify as to the value of the cup. This court held that she "was not qualified to testify to her opinion concerning the value of the cup" because of "the undisputed fact that her knowledge of that value was based solely on the price tag." We adopted the position that store security officers are not qualified to testify as to the value of stolen merchandise where their knowledge is based solely on the price ticket, and that any such testimony should be excluded as incompetent. State v. White, 37 Conn.Super. 796, 437 A.2d 145 (1981); State v. Coleman, 19 Wash.App. 549, 576 P.2d 925 (1978); DeBruce v. State, supra.
In the present case the security manager testified that he had nothing to do with the pricing of goods in the store. His testimony concerning the value of the coat was based on what someone else told him and on a price tag he observed on another coat. According to this court's ruling in DeBruce, the trial court erred in allowing the security manager to testify as to the value of the stolen property.
The appellant contends that the trial court erred in allowing a state's witness to testify to other property allegedly stolen by appellant near the time of the property made the basis of this case and for which no charge was lodged against appellant.
As a general rule, evidence of other collateral crimes is not admissible as substantive evidence to establish the guilt of the accused in a particular crime. Miller v. State, 405 So.2d 41 (Ala.Crim.App.1981). One well established exception to this rule is where the evidence of other or collateral crimes is relevant as part of the res gestae. Johnson v. State, 335 So.2d 663 (Ala.Crim.App.1976), cert. denied, 429 U.S. 1026, 97 S.Ct. 649, 50 L.Ed.2d 629 (1976). See Schroeder, Evidentiary Use in Criminal Cases of Collateral Crimes and Acts: A Comparison of the Federal Rules and Alabama Law, 35 Ala.L.Rev. 241 at 251 (1984).
A careful review of the record reveals that after the appellant was placed under arrest by the security manager and was apprised of his rights he attempted to gain his release by making a deal with the security manager. Appellant offered to surrender property which he had stolen and taken outside only minutes before he was apprehended while leaving the store with the coat which was the subject of the indictment. We believe that this statement by the appellant served to make it a part of the res gestae and indicated that his actions were close enough in time to show that it was part of one criminal transaction. Evidence of other alleged criminal activity is properly admitted where the episode is part of one continuous criminal transaction. Reeves v. State, 432 So.2d 535 (Ala.Crim.App.1983).
In the case of Howard v. State, 371 So.2d 475 (Ala.Crim.App.1979), this court held that where a defendant was indicted for feloniously taking and carrying away one diamond ring, testimony tending to establish that defendant had committed a similar offense at a store one block away on the same day as the crime charged should properly be admitted as constituting one continuous occurrence or adventure. In the present case the evidence tended to show that the defendant had committed the same offense at the same store only a few...
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