Randle v. State, 5 Div. 932

• Citation: 554 So.2d 1124
• Decision Date: 27 May 1986
• Docket Number: 5 Div. 932
• Parties: David RANDLE v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1124

554 So.2d 1124

David RANDLE v. STATE.

5 Div. 932.

Court of Criminal Appeals of Alabama.

May 27, 1986.

Rehearing Granted in part, Denied

in part Aug. 12, 1986.

G. Houston Howard II of Howard, Dunn, Howard & Howard, Wetumpka, for appellant.

Charles A. Graddick, Atty. Gen., and Robert B. Rinehart, Asst. Atty. Gen., for appellee.

LEIGH M. CLARK, Retired Circuit Judge.

This appellant was found guilty by a jury on a trial on an indictment that alleged in pertinent part the following:

"David Randle, ..., having been convicted of a felony, to-wit: Receiving Stolen Property, did escape, or attempt to escape from custody imposed pursuant to that conviction from a penal facility, to-wit: J.F. Ingram State Technical School, in violation of Section 13A-10-31 of the Code of Alabama,...."

According to the undisputed evidence in the case as shown by testimony of witnesses for the State, the defendant was an inmate in the Alabama prison system on September 29, 1983, serving a sentence for receiving stolen property, and was at that time assigned to Staton Correctional Facility. We now quote from "STATEMENT OF THE FACTS" contained in the brief of counsel for appellant:

"Walter Craft, an employee of the department of corrections, testified that on September 29, 1983, he was assigned to the J.F. Ingram Trade School. (R. 11-12). A roll call conducted shortly thereafter revealed that the defendant was missing. (R. 17). The defendant was captured a short time later. (R. 21).

"Mr. Craft testified that inmates are not housed overnight at J.F. Ingram, but are brought there on a daily basis to learn trades:

"G. Houston Howard II questioning Walter Craft:

"Q. Is J.F. Ingram State Technical School a place where inmates are kept overnight?

"A. No, sir.

"Q. Are they brought there just on a daily basis?

"A. Yes, sir.

"Q. Why--how far is J.F. Ingram State Technical School from Staton?

"A. I would say approximately five miles.

"....

"Q. What sort of things go on at J.F. Ingram State Technical School?

"A. That is a State Technical School. Like I said, they have several shops there and instructors teaching inmates trades."

Eight issues are presented in brief of counsel for appellant, which we will quote and consider in the order of their presentation and argument in brief of counsel for appellant.

I.

"DID THE COURT ERR IN DENYING DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL BASED ON THE GROUND THAT THERE WAS A VARIANCE BETWEEN THE INDICTMENT AND THE PROOF."

Appellant's attorney argues first that J.F. Ingram State Technical School is not a penal facility. We think that appellant's attorney makes a good argument in support of the proposition stated. Nevertheless, we are not persuaded that such characterization in the indictment of J.F. Ingram State Technical School constitutes a material allegation of the complaint. As reminded by Judge Tyson in Black v. State, 401 So.2d 320, 321 (Ala.Cr.App.1981), it was held in Summers v. State, 348 So.2d 1126 (Ala.Cr.App.), cert. denied, 348 So.2d 1136 (Ala.1977), cert. denied, 434 U.S. 1070, 98 S.Ct. 1253, 55 L.Ed.2d 773 (1978), that the following is sufficient "as to the due process requirements for a sufficient indictment":

"An indictment should be specific in its nature in four prime aspects to insure this guaranty: (a) to identify the accusation lest the accused should be tried for an offense different from that intended by the grand jury; (b) to enable the defendant to prepare for his defense; (c) that the judgment may inure to his subsequent protection and foreclose the possibility of being twice put in jeopardy for the same offense, and (d) to enable the Court, after conviction, to pronounce judgment on the record."

By the second part of the argument of counsel for appellant, he contends that "Defendant was in the custody of Staton Correctional Facility, not J.F. Ingram State Technical School at the time of the alleged escape." Even though there is some merit also in the second contention of appellant's attorney, we are not persuaded that there was a fatal variance between the indictment and the evidence. The undisputed evidence shows that the conduct of the defendant that constituted the alleged escape or attempt to escape from custody occurred at J.F. Ingram State Technical School. The averment of the name of the place of the escape or attempted escape as J.F. Ingram State Technical School served no good purpose other than to inform defendant, as it did and should have done, of the location of the alleged escape or attempt to escape.

II.

The next issue presented by appellant is thus captioned in brief of his counsel:

"THE COURT ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS BASED ON VIOLATION OF SECTIONS 15-9-82 TO 15-9-84 OF THE ALABAMA CODE."

The sections of the Alabama Code cited in said caption are now found in Volume 12A (1982 Replacement Volume) in the identical language contained in Code of Alabama 1975, §§ 15-9-82 to 84, as well as in the 1981 Cum.Supp. thereof. Counsel for appellant argues that "This court's construction of sections 15-9-82 to 15-9-84 advanced in Morning v. State, 416 So.2d "... The sections of the Code relied upon by appellant constitute a codification of Acts 1978, No. 590, §§ 3 and 5. Acts 1978, No. 590, is the Uniform Mandatory Disposition of Detainers Act, and it relates exclusively to problems pertaining to interstate extradition. The sections of the Code relied upon are utterly irrelevant to a prisoner in Alabama unless a territory or state of the United States other than Alabama has lodged in Alabama a detainer against the prisoner. There is nothing in the record proper or the transcript to the effect that defendant has been charged with a crime in any other jurisdiction or that a detainer from any other jurisdiction has been lodged against him. The inapplicability of the statutory law relied upon by appellant is explained in McAlpin v. State, Ala.Cr.App., 397 So.2d 209, 210 (1981), cert. denied, 397 So.2d 211."

                780 (Ala.Crim.App.1982), ignores the plain language of section 15-9-82."   The position taken by appellant's attorney, that "The decision in Morning should be overruled, and this action should be reversed for a hearing on defendant's motion to dismiss" is not well taken.  We continue to hold as we did in Morning v. State, supra, as follows
                

III.

The third issue presented in brief of counsel for appellant is thus captioned:

"THE COURT ERRED IN PERMITTING BETTY TAYLOR TO TESTIFY FROM DEFENDANT'S ALLEGED INMATE RECORDS."

The issue is directed at the following part of the testimony of Ms. Betty Taylor, Director of Inmate Records with the Department of Corrections and custodian of such records, which included a file on David Wayne Randle, while testifying on direct examination by the State:

"Q. I ask you to look into that file and tell me whether or not David Randle was an inmate in the Alabama prison system on September 29, 1983?

"MR. HOWARD: Your Honor, we object. That's not the best evidence. It has not been shown that it was the regular course of business to keep this and that it was kept in the regular course of business.

"THE COURT: Overrule objection. Let's proceed.

"Q. On September 29, 1983?

"A. Yes, sir, he was.

"Q. Okay. What sentence was he serving? What was the charge?

"MR. HOWARD: We object to that, Your Honor. That's not the way to prove a conviction. That's not the best evidence.

"THE COURT: She can testify whether or not he was serving at that time.

"MR. HOWARD: You overrule the objection?

"THE COURT: I didn't say that. I said the best evidence is what he was convicted of. You asked that [sic] that was not the best evidence.

"MR. HOWARD: Yes, that question--

"THE COURT: If she had a record, she can testify from the record.

"MR. HOWARD: So you overrule the objection?

"THE COURT: Yes, I do.

"MR. HOWARD: Okay.

"Q. According to your records, was David Randle an inmate on September 29, 1983?

"MR. HOWARD: We renew the objection.

"THE COURT: Overrule the objection.

"A. Yes, sir.

"Q. And according to your records what was he serving--

"MR. HOWARD: We renew the objection.

"THE COURT: I overrule the objection.

"A. He was serving a 15-year term for receiving stolen property.

"Q. What county was that?

"A. Jefferson County."

In support of the issue now under consideration, counsel for appellant quotes Section 12-21-43 of the Alabama Code as follows:

"Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any The astute, capable counsel for David Randle on the trial and on appeal was correct in calling to the attention of the trial court that the witness Ms. Taylor had not testified that "it was the regular course of the business" of the Alabama Department of Corrections "to make such memorandum or record" of "whether or not David Randle was an inmate in the Alabama Prison System on September 29, 1983," as provided by Section 12-21-43 of the Alabama Code. Nevertheless, we think we can take judicial knowledge of the fact that "it was the regular course of the business" of the Alabama Department of Corrections "to make such memorandum or record at the time of such act, transaction, occurrence or event, or within a reasonable time thereafter." Although the conjunctive requirement relied upon by appellant's counsel is applicable to many businesses, the particular requirement of the statute is tautological when applied to such businesses as that of the Alabama Department of Corrections.

act, transaction, occurrence or event, shall be admissible in evidence in proof of said act, transaction or event if it was made in the regular course of any business and it was the regular course of the business to make such memorandum or record at the time of such act, transaction, occurrence or event, or within a reasonable time thereafter. All other circumstances of the making of such writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect...