Pack v. State
| Decision Date | 09 October 1984 |
| Docket Number | 6 Div. 117 |
| Citation | 461 So.2d 910 |
| Parties | Danny Lamar PACK v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Gary L. Smith, Birmingham, for appellant.
Charles A. Graddick, Atty. Gen. and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
Appellant, Danny Lamar Pack, was indicted for unlawful breaking and entering a vehicle, pursuant to § 13A-8-11(b), Code of Alabama 1975. Appellant was subsequently convicted of the crime charged in this indictment and sentenced to a term of fifteen years' imprisonment in accordance with the Alabama Habitual Felony Offender Act, § 13A-5-9(c)(1), Code of Alabama 1975, after a finding that appellant had at least three prior felony convictions.
Appellant advances the following arguments: (1) The trial court erred in admitting evidence of appellant's commission of another criminal act just prior to the act for which he was indicted; (2) the trial court erred in allowing the State to impeach defense witnesses by questioning, in regard to criminal convictions, beyond the name of the crime, time and place of conviction, and the punishment; (3) the trial court erred in refusing to give the appellant's written jury charge concerning criminal tampering in the second degree; and (4) the trial court erred in its interpretation of the breaking and entering requirements of § 13A-8-11(b), Code of Alabama 1975, and consequently in denying appellant's motion for judgment of acquittal. We reverse and remand with instructions.
Appellant was arrested on October 17, 1981, at the 31 Package Store, located on Highway 31 in Gardendale, Alabama. On that date, appellant was in the company of his younger brother, Malcom Pack, and a friend, Woodson, a black male.
The State presented evidence through Ms. Martha Watson that between 2:00 and 2:30 on the afternoon of October 17, 1981, she was parking her Toyota Corolla in an area near Main Street and Highway 31 when a pickup truck stopped behind her car, blocking any further ingress or egress from the space. According to Ms. Watson, a black male approached her car and told her to leave the keys in the car because they were going to take it. After the black male opened the car door, Ms. Watson got out and observed a white male standing at the rear driver's side of her car. Ms. Watson later identified appellant as the person standing at the rear of her car. Ms. Watson then called to another person in the parking lot to call the police. The black man looked at appellant and the appellant said, "Let's go." Ms. Watson testified that the two men then ran back to a bronze and beige pickup truck and left at a high rate of speed, almost running into another automobile.
The police arrived shortly thereafter and Ms. Watson gave them a description of her assailants and their get away truck. According to Officer Mosier, he had been informed at approximately 3:05 p.m. to be on the lookout for a "beige and bronze .... pickup truck, late model," occupied by two white males and one black male. Shortly after this alert, Officer Mosier observed such a truck occupied by three individuals at the 31 Package Store. The truck was parked beside a red Toyota Corona, which belonged to the store attendant, Anthony Meeks. Upon further investigation the officer saw two white males sitting in the truck and a black male outside the truck "with a tire tool prying on the door of the red Toyota". All three men, including appellant, were then placed under arrest.
State's witness Anthony Meeks testified that the car window had been chipped and scratched but not broken, chrome stripping on the side of the vehicle had been damaged, and the door was bent where it had been pried by the tire tool. The doors were still locked, and apparently no entry had been made into the interior of the vehicle, the trunk, or the engine compartment.
Appellant testified in his own defense and appellant's younger brother, Malcom Pack, testified on behalf of appellant. The two brothers related the same version of facts. The defense testimony indicated that Malcom and appellant delivered a refrigerator that afternoon and then purchased a bottle of rum. After purchasing the rum, they met the black man, Woodson, and were to give him a ride to Warrior, Alabama. Malcom owned the beige and bronze pickup truck in which they were traveling that afternoon. Both admitted being in the same parking lot as Ms. Watson; however, they did not recall seeing her or, at any time, stopping the truck behind her car. Their testimony indicated that Malcom parked some distance away from where Ms. Watson had parked and that appellant entered a Winn-Dixie store to purchase a bottle of 7-Up to mix with the rum. Woodson got out of the truck and when appellant returned, he observed Woodson in the parking lot some distance from the truck. Appellant called to Woodson, who returned to the truck, and they departed in a normal manner, admitting that they "may" have left quickly. Appellant denied ever standing at the rear of Ms. Watson's car.
Appellant and his brother further stated that, within a matter of seconds after parking at the 31 Package Store, police arrived and arrested all three just as Woodson was departing from the truck. According to the two of them neither appellant nor his brother observed Woodson doing anything to the car parked next to them nor did they observe Woodson with a tire tool before or after the arrest.
Woodson did not testify at appellant's trial. Malcom testified on cross-examination, over appellant's objection, that he had pleaded guilty to breaking and entering a vehicle and had received eighteen months' probation. This guilty plea arose out of the same transaction for which appellant was being tried.
Appellant's first assignment of error regards the testimony of Ms. Watson describing the events which occurred in the Winn-Dixie parking lot just prior to appellant's arrest at the 31 Package Store. The trial judge allowed this testimony to go before the jury, over appellant's objection, with instructions that this testimony was to be considered by them only for the purpose of determining appellant's intent. Intent was clearly in issue at trial; appellant contended that at no time did he participate in any criminal activity.
Appellant correctly points out that, as a general rule, evidence of other acts which themselves constitute distinct and independent offenses are not admissible, if its only purpose is to show bad character, inclination, or propensity of an accused to commit the type of crime charged or to act in conformance with such bad character, inclination, or propensity. Brewer v. State, 440 So.2d 1155 (Ala.Crim.App.1983); Lucy v. State, 340 So.2d 840 (Ala.Crim.App.), cert. denied, 340 So.2d 847 (Ala.1976); C. Gamble, McElroy's Alabama Evidence, § 69.01 (3d ed. 1977). This general rule is not without several well established exceptions. See Lucy v. State, supra; McElroy's, at § 69.01. This court has recently stated:
Carlton v. State, 415 So.2d 1241, 1243 (Ala.Crim.App.1982) (citations omitted).
Thus, one of the established exceptions to the general rule is that the other crime may be used to show the element of criminal intent in the now-charged crime. Whiddon v. State, 53 Ala.App. 280, 299 So.2d 326 (1973). The court in Whiddon, 299 So.2d at 331, quoting McElroy, Law of Evidence, at 168 (2d ed.), stated:
See also Pope v. State, 365 So.2d 369 (Ala.Crim.App.1978).
We find that intent was clearly in issue and thus it was not error to admit the testimony of Ms. Watson; the testimony was not introduced solely for the purpose of showing appellant's bad character, inclination, or propensity to commit the type of crime charged. The testimony was clearly relevant to establish that appellant and his cohorts intended to break and enter a vehicle without the consent of the owner. "If an accused is charged with a crime that requires a prerequisite intent, as in the case sub judice, then prior or subsequent criminal acts are admissible to establish that he had the necessary intent when he committed the instant crime." Jones v. State, 439 So.2d 1308, 1310 (Ala.Crim.App.1983), and cases cited therein.
During the State's cross-examination of Malcom Pack, questions concerning Malcom's conviction for breaking and entering a vehicle, arising out of the same transaction for which appellant was on trial, were allowed by the trial court. Appellant contends that this was improper cross-examination and that the State should have been limited merely to questions concerning the name of the crime, time and place of conviction, and punishment. The trial court permitted this testimony on the theory that the State was allowed to show the witness's bias and so instructed the jury of this narrow purpose. We find appellant's argument to be without merit.
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