Petite v. State, 1 Div. 527

• Decision Date: 27 October 1987
• Docket Number: 1 Div. 527
• Citation: 520 So.2d 207
• Parties: James Rubin PETITE v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 207

520 So.2d 207

James Rubin PETITE v. STATE.

1 Div. 527.

Court of Criminal Appeals of Alabama.

Oct. 27, 1987.

Rehearing Denied Jan. 26, 1988.

Karen A. Zokoff, Mobile, for appellant.

Don Siegelman, Atty. Gen., and Dorothy F. Norwood, Asst. Atty. Gen., for appellee.

McMILLAN, Judge.

The appellant, James Rubin Petite, was found guilty of possession of burglars' tools in violation of § 13A-7-8, Code of Alabama (1975). He was sentenced to 25 years' imprisonment pursuant to the Habitual Felony Offender Act.

Officer George William Stafford, Sr., of the Mobile Police Department, testified that he responded to a call on a burglary in progress. Upon his arrival, he observed two men bent over an air conditioner unit. One of the men ran away, while the second individual, later identified as the appellant, remained by the air conditioner with a tire iron in his hand. Officer Stafford told the appellant to drop the tire iron, but he began to walk toward him, with the tire iron still in his hand. Officer Stafford testified that he told the appellant to drop the tool, and had to tell him four times before he did drop it. Officer Stafford further testified that when the appellant began to walk toward him, he pulled a weapon and pointed it at the appellant. The appellant was thereafter handcuffed and placed under arrest. A screwdriver was found inside the air conditioner unit. Although the trial judge allowed the screwdriver into evidence, he instructed the jury that the indictment charged the appellant only with the possession of the tire tool by.

Officer Stafford testified that the appellant made a spontaneous statement before he had been advised of his constitutional rights. He then read the appellant his rights, in the presence of another officer. The appellant made a statement to the effect that he was attempting to take the air conditioner unit in order to sell it. Officer Stafford testified that approximately a minute later, the appellant claimed that "he wasn't doing anything at all, just sitting there" when he was arrested.

The appellant testified that, on the date in question, he was merely sitting on a guard rail by the property when a man approached him and asked if he owned a truck. The appellant said the man informed him that he worked for a man named "Shorty" and that they were to tear down the building. He said the man then told him that he wanted to get the radiator out of the air conditioner to sell it at a junk yard. He testified that the man then walked away and, when the appellant attempted to leave, Officer Stafford drove up and shouted, " 'Hold it.' " The appellant testified that he kept walking until he understood that Officer Stafford was talking to him.

I

The appellant argues that the prosecutor failed to comply with the discovery order, specifically that he was not shown his own statements until the day of the trial. The defense counsel complains that he was placed at a disadvantage in his defense because of the prosecutor's actions. However, the defense counsel fails to show any specific disadvantage he suffered. Furthermore, the defense counsel states that the trial court had the discretion to grant a continuance; however, the record shows that no motion for continuance was ever made. See Alabama Temporary Rules of Criminal Procedure, Rule 18.5. Furthermore, the record indicates that although the defense counsel claimed that he had not been given a copy of the police report containing the appellant's statement, the prosecutor stated that the defense counsel had been given a discovery package containing the substance of the appellant's statement. The defense counsel acknowledged receipt of this package. Thus, the appellant has failed to show that he was prejudiced or denied access to any evidence.

"In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the United States Supreme Court held, that 'the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.' 373 U.S. at 87, 83 S.Ct. at 1196-97, 10 L.Ed.2d at 218. ' "A fair analysis of the holding in Brady indicates that implicit in the requirement of materiality is a concern that the suppressed evidence might have affected the outcome of the trial." United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 2398, 49 L.Ed.2d 342 (1976).' Parker v. State, 482 So.2d 1336 at 1340 (Ala.Cr.App.1985). Thus, where the prosecutor fails to disclose evidence, regardless of its admissibility or its trustworthiness, the crucial question is whether the non-disclosure might have affected the outcome of the trial. State v. Kimberly, 463 So.2d 1106, 1108 (Ala.Cr.App.1984), rev'd, Ex parte Kimberly, 463 So.2d 1109 (Ala.1984)."

Robinson v. State, [Ms. 1 Div. 53, October 14, 1986] (Ala.Cr.App.1986).

Because the defense counsel was provided with a copy of the police record just prior to trial, the appellant's claim concerns the timeliness of the discovery. However, the appellant has not proved that it would have raised a reasonable doubt concerning his guilt, nor has he proven that the State suppressed the evidence. Id. See also Clemons v. State, 491 So.2d 1060 (Ala.Cr.App.1986): Hurst v. State, 469 So.2d 720 (Ala.Cr.App.1985).

II

The appellant argues that there was improper conduct by the prosecutor during his closing argument and that that conduct constituted reversible error. The record indicates that during the prosecutor's closing argument the following transpired:

"[PROSECUTOR]: He [the police officer] asked him [the appellant] to stop three times when he was coming toward him, and [the appellant] pulled out his revolver. I think I would have done the same thing under the same set of circumstances if someone were advancing toward you with a tire iron, especially if you had a belief and an understanding that there was a burglary in progress. Finally, or as a side note, Officer Stafford--

[DEFENSE COUNSEL]: Judge, I'm gonna object and move to strike his last comment that there was a burglary in progress. There's been no testimony whatsoever that there's been a burglary out there at all. And he's constantly referring to that and there's no evidence of any burglary.

"THE COURT: Well you must base your verdict, Ladies and Gentlemen, upon the evidence and the just and the reasonable inferences from the evidence. And the statements made by attorneys in the case are not evidence. So if your recollection of the evidence differs with that in a statement made by an attorney, you would disregard the attorney's statement and accept and be guided by your collective recollection of the evidence."

This court has previously written:

"When improper arguments are made to the jury, they will be considered eradicated by the trial judge if he sustains objections thereto and gives appropriate instructions to the jury. When prejudicial remarks have been made, the action of the trial court in regard to the arguments is reviewed with all presumptions in favor of such actions. There is a prima facie presumption against error where the trial court immediately charges the jury to disregard the prosecutor's improper remarks. Chambers v. State, 382 So.2d 632 (Ala.Cr.App.1980)."

Hammins v. State, 439 So.2d 809, 811 (Ala.Cr.App.1983). See also Burton v. State, 487 So.2d 951, 960 (Ala.Cr.App.1984); Doyle v. State, 487 So.2d 996, 998 (Ala.Cr.App.1986).

A trial judge is in the best position to determine whether the prejudicial effects of an improper comment can be eradicated by instructions to the jury. His determination should be accorded great deference. Wysinger v. State, 448 So.2d 435 (Ala.Cr.App.1983). "There is a prima facie presumption against error when a trial judge immediately instructs the jury to disregard an improper question or remark. Mallory v. State, 437 So.2d 595 (Ala.Crim.App.1983), cert. denied, 464 U.S. 1047, 104 S.Ct. 722, 79 L.Ed.2d 184 (1984); Kelley v. State, 405 So.2d 728 (Ala.Crim.App.), writ denied, 405 So.2d 731 (Ala.1981)." Ringer v. State, 489 So.2d 646, 650 (Ala.Cr.App.1986). The trial judge gave prompt curative instructions regarding the district attorney's remark and thereby cured any prejudice.

III

The appellant argues that the trial court erred to reversal by denying his pre-trial motion to suppress certain inculpatory statements made by him prior to being informed of his Miranda rights. The record indicates that upon being approached by Officer Stafford, the appellant spontaneously stated that he was taking the radiator from the air conditioner to sell it. The appellant gave another statement, after he had been advised of his rights, again stating that he was attempting to take the radiator to sell it. During the examination of Officer Stafford, the trial court sustained the defense counsel's objection to the admission into evidence of the appellant's statement made before he had been read his Miranda rights. The statement made after the appellant was informed of his rights was allowed into evidence.

The United States Supreme Court in Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), held that a confession made after proper Miranda warnings need not be suppressed solely because the police had previously obtained an unwarned admission. The Court stated:

"We must conclude that, absent deliberately coercive or improper tactics in obtaining the initial statement, the mere fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion. A subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement. In such circumstances, the finder of fact may reasonably conclude that the suspect made a rational and intelligent choice whether to waive or invoke his rights."

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