Patterson v. State

• Decision Date: 08 September 1987
• Docket Number: 8 Div. 601
• Citation: 538 So.2d 37
• Parties: Billy Vaughn PATTERSON v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 37

538 So.2d 37

Billy Vaughn PATTERSON v.STATE.

8 Div. 601.

Court of Criminal Appeals of Alabama.

Sept. 8, 1987.

Rehearing Denied Oct. 13, 1987.

J. Wilson Dinsmore, Birmingham, for appellant.

Don Siegelman, Atty. Gen., and Rosa H. Davis, Asst. Atty. Gen., for appellee.

McMILLAN, Judge.

The appellant, Billy Vaughn Patterson, was charged by a three-count indictment for violation of § 13A-7-7, Code of Alabama(1975), burglary in the third degree;§ 13A-8-3, theft of property in the first degree; and § 13A-8-17, receiving stolen property in the first degree.The appellant was found guilty of the first two counts: burglary in the third degree and theft of property in the first degree.He was sentenced to a term of 30 years' imprisonment, pursuant to the Habitual Felony Offender Act.

Gerald Weems testified that he was a policeman for the City of Decatur and that, during the early morning hours of December 18, 1982, he was called to the Hudson Oil Company pursuant to a report of a burglary.He further testified that he observed a hole which had been knocked in the interior wall of the ladies' bathroom and noticed that the safe in the building had been opened by destroying the key way of the safe.

Charles T. Kasterson, the district supervisor for Hudson Oil Company, stated that he conducted an audit of the Hudson Oil Company station following the burglary and determined that $3,711.03 had been taken.

James Wilburn Ward, commonly known as "Squirrel," testified that he had entered a plea of guilty in a case concerning this burglary and had received a sentence of 15 years' imprisonment.He testified that he was presently in the penitentiary pursuant to that sentence.He further testified that he had also gotten 15 years on some other cases."Squirrel" Ward was called by the State as a hostile witness.He testified that, after he was arrested for the instant burglary, he did not ask to speak to the City detectives, but was told to do so by Paul Caine, the chief deputy of the Morgan County Sheriff's Department.Thereafter, a waiver of rights form and "Squirrel's" statement were marked into evidence.The court found the witness to be hostile "for the purpose of cross-examination and impeachment.""Squirrel" admitted that he was read his rights and that he had signed the waiver form."Squirrel" further admitted that he voluntarily gave the statement and signed each page.When the prosecutor began to read the statement, the defense counsel objected on the grounds that the prosecutor was using the statement for impeachment purposes, but the witness had not yet testified.The prosecutor responded that he was not impeaching the witness, but was "going to ask him if he made each one of these statements."The trial court allowed the prosecutor to continue, and the prosecutor began to read the witness's prior statement into evidence.The defense counsel again objected, stating that the prosecutor should be asking the witness if what he had previously stated was the truth.The trial court overruled the objection."Squirrel's" previous statement indicated that the appellant, Hollis Mahaffey, known as "Pudgey," and he had all participated in the burglary."Squirrel" admitted at trial that he gave that statement to the officers."Squirrel" testified that thereafter he gave another statement to the appellant's attorney which stated that the appellant was not present during the burglary nor did he participate in the burglary.He further indicated that the reason he had given the previous version was because Paul Caine had threatened him with a life sentence.He further testified that Caine "wanted a charge on Billy and he wanted to question him about a murder case and Billy was gone out of state and he said that was the [only] way he could get him back."The prosecutor asked "Squirrel" which statement was the truth."Squirrel" responded that "Pudgey" and he committed the burglary alone and that the appellant was not involved; nor, he said, did he call the appellant on the night in question, nor did the appellant come to his house on that night.

Deborah Ward, the wife of "Squirrel" Ward, testified that, on the night in question, she was at home with her husband when "Pudgey" came to their house."Squirrel" and "Pudgey" engaged in a conversation which she was unable to hear.Thereafter, "Squirrel" telephoned the appellant, who came to their home.She further testified that the three men talked for a minute and then left.They were gone for an hour or two and then returned to the Wards' house.The three men sat at the dining room table, counting money and dividing it.The following day, Deborah Ward testified that she learned of the burglary and, during the police officers' investigation of the case, she gave them the same statement which she gave at trial.However, approximately two months prior to trial, she gave a different statement to the appellant's attorney.She testified that she gave that statement because the appellant threatened the lives of her son and herself.On cross-examination, Deborah Ward admitted that she made the statement to the appellant's attorney under oath and signed the statement.In that statement, she indicated that her husband had been imprisoned; that she was attempting to get a bond set; that she had felt that she should cooperate with the investigators in order to get her husband out of jail; that after the investigators had brought up the appellants' name on several occasions, she"finally told them that he was involved in one of the crimes"; that such was not true and that her husband had telephoned someone other than the appellant; that the appellant never came to the house on that occasion; and that "I know for a fact that Billy Patterson was not the person called on that occasion, and I just told the investigators that simply because I felt they wanted Billy Patterson, and if I helped them get him I could possibly get my husband out of jail."

Paul Caine testified that he was chief deputy with the Morgan County Sheriff's Department in 1983.He testified that he took "Squirrel" into custody and booked him on burglary charges.He further testified that "Squirrel" sent him a letter requesting the opportunity to talk to him.Caine testified that "Squirrel" gave a number of statements and confessions concerning different offenses committed in Morgan County.Caine further testified that "Squirrel's" statements were voluntarily given.Caine testified that "Squirrel" turned State's witness on a number of co-defendants.

Sergeant John Richard Boyd, Jr., a detective for the City of Decatur, and Sergeant Jep H. Tellent of the City of Decatur Police Department, both testified that they worked on the investigation of "Squirrel" Ward.They each testified that they interviewed him and that his statements were voluntary.They further indicated that "Squirrel" turned State's evidence.

Thereafter, the State rested and the defense counsel made a motion for a directed verdict of acquittal or, in the alternative, for suppression of the State's evidence because the State had failed to make a prima facie case.

The defense counsel called two alibi witnesses.One was "Pudgey," who testified that he was currently imprisoned on a 15-year sentence for the instant burglary.He testified that he pleaded guilty to the offense.He further testified that only "Squirrel" and he were involved in the burglary.He testified that the appellant knew nothing about the burglary and was not involved.The defense rested and the defense counsel renewed his motion for judgment of acquittal on the basis that the State had failed to make out a prima facie case against the defendant.The motion was denied.

The appellant argues that the trial court erred in denying his motions for judgment of acquittal or, in the alternative, for suppression of the State's evidence.The only evidence directly tying the appellant to the burglary was contained in "Squirrel's" prior affidavit.At trial, "Squirrel" was called by the State as a "hostile" witness.Anderton v. State, 390 So.2d 1083(Ala.Cr.App.), cert. denied, 390 So.2d 1087(Ala.1980)."In the usual case a party placing a witness on the stand 'thereby vouches for his credibility, and cannot impeach his own witness.'See, Ward v. State, 376 So.2d 1112, 1116(Ala.Cr.App.), cert. denied, 376 So.2d 1117(Ala.1979)."Wyllie v. State, 445 So.2d 958, 961(Ala.Cr.App.1983).However, the State did not call "Squirrel" as its own witness, but presented him as a "hostile" witness for examination purposes and had him so designated by the trial court.

"Under these circumstances, where a witness has been properly declared 'adverse' or 'hostile,' prior to examination before the jury, that witness may be treated by the calling, or presenting, party as a witness for the opposition.Anderton v. State, [390 So.2d 1083(Ala.Cr.App.1980) ].'This allows the party calling the adverse witness to examine the witness by use of the tools available to him on cross-examination including contradiction and impeachment.'Anderton v. State, 390 So.2d 1083, 1086, supra;see alsoLewis v. State, [414 So.2d 135(Ala.Cr.App.), cert. denied, 414 So.2d 140(Ala.1982) ];Moulds v. State, 426 So.2d 942(Ala.Cr.App.1982)."

Wyllie v. State, supra, at 961.

Thus, the prosecution may elicit from a witness testimony that he in fact made prior contradictory statements and the State may elicit from the witness the contents of the prior statements through questioning.However, the contents of the prior inconsistent statements may be used by the jury only for limited purposes.

"Alabama, as early as 1888, adopted the rule that while a witness may be impeached by the use of prior contradictory statements, that such statement, '... should not be treated as original evidence of the facts of the case, nor be received for any other purpose than that of contradicting or impeaching the witness--Jones v. Pelham, 84 Ala. 208, 4 So. 22....