Powell v. State

• Decision Date: 26 March 1993
• Docket Number: CR-91-1593
• Citation: Powell v. State, 624 So.2d 220 (Ala. Crim. App. 1993)
• Parties: Thomas Edward POWELL v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 220

624 So.2d 220

Thomas Edward POWELL v.STATE.

CR-91-1593.

Court of Criminal Appeals of Alabama.

March 26, 1993.

Rehearing Denied May 28, 1993.

Certiorari Denied July 23, 1993

Alabama Supreme Court 1921408.

Robert T. Meadows III, Opelika, for appellant.

James H. Evans, Atty. Gen., and Thomas Leverette, Asst. Atty. Gen., for appellee.

PATTERSON, Judge.

The appellant, Thomas Edward Powell, was convicted after a jury trial of robbery in the first degree, in violation of § 13A-8-41,Code of Alabama 1975.He was sentenced as a habitual offender to life in prison without the possibility of parole.On appeal, he raises nine issues.Because two of these issues are related, we address eight issues in this opinion.

A brief rendition of the facts of this case is necessary for a complete understanding of the issues raised by the appellant.At trial, the evidence tended to show the following facts: On February 24, 1992, at approximately 7:15 p.m., the victim, Katherine Griffin had entered her automobile and was putting on her seat belt when a man she identified in court as the appellant opened the driver's side door to her car door and ordered her to move to the passenger seat.The appellant was wearing glasses and a blue shirt with a gold number "20" on it.He was armed with a knife.The appellant pushed Griffin into the passenger seat, entered the car, and closed the driver's side door.As the appellant attempted to start the car, the victim began to kick the appellant, managed to sound the car horn by using her foot, and began to scream.The appellant moved toward the victim with the knife, but the victim took it away from him.A struggle ensued in which the victim was injured.

Neighbors, Phillip Gingras, Debra and Larry Horne, and "Sissy" Holifield, heard the commotion.Gingras ran to assist the victim.He pulled the appellant from the car and put him in a "headlock."Debra Horne, who had also run to assist the victim, observed Gingras struggling with the appellant.The appellant got away from Gingras and fled into the nearby woods.He was arrested shortly thereafter.

I

The appellant makes three contentions regarding his sentence of life without the possibility of parole.

A.

The appellant argues that the trial court improperly used a conviction for leaving the scene of an accident, a violation of § 32-10-1,Code of Alabama 1975, to enhance his sentence because, he says, that conviction did not occur under Title 13A of the Code of Alabama.This argument, however, is without merit.

State's exhibit no. 2 is the case action summary and certified judgment entry for the appellant's conviction for leaving the scene of an accident.The judgment entry reveals that the appellant was sentenced to five years' imprisonment for that conviction.¹Section 13A-5-9, the Habitual Felony Offender Act, provides that its enhancement provisions apply "[i]n all cases when it is shown that a criminal defendant has been previously convicted of any felony and after such conviction has committed another felony."(Emphasis added.)The words "any felony" have been construed to mean that "all felonies come within the purview of the habitual felony offender statute, regardless of their origin,"Watson v. State, 392 So.2d 1274, 1279(Ala.Cr.App.1980), cert. denied, 392 So.2d 1280(Ala.1981).SeeTurner v. State, 610 So.2d 1198(Ala.Cr.App.1992).Alabama Rule of Criminal Procedure 26.6(b)(3)(iv) provides, in pertinent part: "Any conviction in any jurisdiction, including Alabama, shall be considered and determined to be a felony conviction if the conduct made the basis of that conviction constitutes a felony under ... § 13A-1-2(4)."Section 13A-1-2(4) defines a felony as "[a]n offense for which a sentence to a term of imprisonment in excess of one year is authorized by this title."

In Gibson v. State, 555 So.2d 784(Ala.Cr.App.1989), this court held that the appellant could be sentenced as a habitual offender although one of his prior convictions was for a drug offense, which fell outside the scope of the criminal code.See alsoJusto v. State, 568 So.2d 312(Ala.Cr.App.1990)(trial court used a drug related felony to enhance sentence for rape and burglary conviction);Seritt v. State, 401 So.2d 248(Ala.Cr.App.), cert. denied, 401 So.2d 251(Ala.1981)(trial court used prior felony drug offenses to enhance sentence for robbery conviction).Gibson, Justo, and Seritt are applicable to this case in that they stand for the proposition that felonies provided for outside Title 13A may be used to enhance sentences for felonies provided for by Title 13A.Thus, based on Gibson, Justo, and Seritt, and on the fact that the appellant received a sentence in excess of one year for his conviction for leaving the scene of an accident, the appellant's argument is without merit.

B.

The appellant contends that because he had previously been treated as a habitual offender when he was sentenced for his third conviction and because he was still serving that sentence, he should not have been sentenced as a habitual offender for this conviction.He contends that because his prior convictions were in effect used twice, his sentence violates the double jeopardy clause.This contention is wholly without merit.SeeJohnson v. State, 398 So.2d 393(Ala.Cr.App.1981).

C.

The appellant contends that "[t]he sentence in this case was disproportionate where [he] was 'drunk as a skunk' at the time and nothing was taken from [the victim] and where [the victim's] automobile was never started."This contention is without merit.First, a sentence of life imprisonment without the possibility of parole for a conviction for robbery in the first degree after having been previously convicted of three felonies is not "unduly harsh."Smith v. State, 529 So.2d 1022(Ala.Cr.App.1987).Furthermore, it is mandatory that a defendant who has been convicted of a Class A felony (such as robbery in the first degree) after having been convicted of three prior felonies be sentenced to life in prison without the possibility of parole.Holley v. State, 397 So.2d 211(Ala.Cr.App.), cert. denied, 397 So.2d 217(Ala.1981).

II

The appellant contends that the trial court erred by ruling that he had not proved a prima facie case of discrimination pursuant to Batson v. Kentucky, 476 U.S. 79106 S.Ct. 1712, 90 L.Ed.2d 69(1976).At trial, the appellant objected to the state's exercising two of its six (33%) peremptory challenges to remove two of the seven (29%) black veniremembers.The state, in turn, objected to the appellant's striking one black veniremember.The venire consisted of 28 members.After noting that there were four blacks on the jury, the trial court denied the appellant's Batson motion.

The appellant cites Huntley v. State, [Ms. 1910530, Sept. 19, 1992], (Ala.1992), for the proposition that the trial court should have skipped the determination of whether the appellant had presented a prima facie case of discrimination and instead considered whether the state had exercised its strikes in a racially discriminatory manner because, he argues, there was "an inference of discrimination."However, the appellant misstates the main proposition of Huntley.In Huntley, the Alabama Supreme Court cited with approval cases from this court² wherein this court ruled on the race neutrality of the strikes rather than on the threshold issue of whether the defendant had presented a prima facie case of discrimination where the prosecution had given the reasons for its strikes even though the trial court either explicitly found that a prima facie case had not been established, questioned whether one had been established, or did not even consider whether one had been established.Unlike the trial court in Huntley, the trial court in this case found that the appellant failed to establish a prima facie case, and it did not require the state to give reasons for its strikes.Thus, we need only review the trial court's determination that the appellant failed to establish a prima facie case of discrimination.In our review, we are guided by the Alabama Supreme Court's holding in Harrell v. State, 571 So.2d 1270, 1271-72(Ala.1991), cert. denied, 499 U.S. 984, 111 S.Ct. 1641, 113 L.Ed.2d 736(1991), as follows:

"As we explained in Harrell [v. State, 555 So.2d 263(Ala.1989) ], a defendant cannot prove a prima facie case of discrimination solely from the fact that the prosecutor struck one or more blacks from his jury.A defendant must offer some evidence in addition to the striking of blacks that would raise an inference of discrimination.When the evidence shows only that blacks were struck and that a greater percentage of blacks sat on the jury than sat on the lawfully established venire, an inference of discrimination has not been created.Logically, if statistical evidence may be used to establish a prima facie case of discrimination by showing a discriminatory impact, Harrell, 555 So.2d [at] 267, citingUnited States v. David, 803 F.2d 1567, 1571(11th Cir.1986), then it should also be available to show the absence of a discriminatory purpose."(Emphasis in original.)

Because the appellant offered no evidence of discrimination other than the fact that the state struck two black veniremembers and because there was a greater percentage of blacks on the jury (33%) than on the venire (25%), the appellant's contention is without merit.

III

The appellant argues that the state should have disclosed to the appellant evidence of the appellant's intoxication prior to trial, and that by not doing so, the state violated the principle of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215(1963).During the testimony of Officer Todd Kyser, defense counsel elicited that in Kyser's opinion the appellant"had been drinking a lot" prior to his arrest.At the beginning of the proceedings the day after Kyser testified, counsel moved for a mistrial because he had not been furnished evidence of the...