Rheaume v. State
Decision Date | 12 February 1993 |
Docket Number | CR-91-1750 |
Citation | 624 So.2d 678 |
Parties | Joseph RHEAUME v. STATE. |
Court | Alabama Court of Criminal Appeals |
Sharon Hoiles, Robertsdale, for appellant.
James H. Evans, Atty. Gen., and Stephen Dodd, Asst. Atty. Gen., for appellee.
The appellant, Joseph Rheaume, was convicted of three counts of receiving stolen property in the second degree, a violation of § 13A-8-18, Code of Alabama 1975. He was sentenced to five years' imprisonment for each offense, the sentences to run concurrently.
The appellant initially contends that the trial court erred in denying his Batson 1 motion. The appellant, who is white, claims that the prosecutor used one of his peremptory strikes to remove a black veniremember because of his race. The United States Supreme Court, in Batson v. Kentucky, held that the exclusion of black veniremembers from a jury trying a black defendant because of the veniremember's race violates the Equal Protection Clause of the Constitution. This principle was later extended to white defendants in Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991). See also Ex parte Bird, 594 So.2d 676, 688 (Ala.1991).
In this case, the prosecutor used one of his three peremptory strikes to remove a young black male from the venire. He used his other two peremptory strikes to remove two young white males from the venire. Two blacks ultimately served on the appellant's jury. After the appellant made his Batson motion, the trial court asked the state to give its reason for the striking the black veniremember. The state gave the following reason:
(Emphasis added.)
The appellant contends that the state's reason for striking veniremember number 84, a young black male, was not a valid race-neutral reason. A majority of this court has repeatedly held that Batson does not extend to gender-based strikes. Fisher v. State, 587 So.2d 1027 (Ala.Cr.App.), cert. denied, 587 So.2d 1039 (Ala.1991), cert. denied, 503 U.S. 941, 112 S.Ct. 1486, 117 L.Ed.2d 628 (1992); Daniels v. State, 581 So.2d 536 (Ala.Cr.App.) (Bowen, J., dissenting), writ denied, 581 So.2d 541 (Ala.), cert. denied, 502 U.S. 914, 112 S.Ct. 315, 116 L.Ed.2d 257 (1991); Dysart v. State, 581 So.2d 541 (Ala.Cr.App.1990), cert. denied, 581 So.2d 545 (Ala.1991) (Bowen, J., dissenting); Stariks v. State, 572 So.2d 1301 (Ala.Cr.App.1990). See also Parker v. State, 587 So.2d 1072 (Ala.Cr.App.1991) (Bowen, J., noting the majority's position on gender-based strikes); Bankhead v. State, 625 So.2d 1141 (Ala.Cr.App.1992) (Bowen and Montiel, JJ., dissenting). Age, however, may be a valid race-neutral reason for striking a potential juror. Ex parte Bird, 594 So.2d 676 (Ala.1991).
No Batson violation occurred here.
The appellant next contends that there was a fatal variance between the indictment and the evidence produced at trial with respect to the ownership of the stolen property, and, that therefore, his motion for a judgment of acquittal should have been granted. Count one of the state's three-count indictment states, in pertinent part, that the appellant illegally received "a VCR [video cassette recorder], the property of Jr. Food Store # 407, Pensacola, Fl." 2 Count two of the indictment states, in pertinent part, that the appellant illegally received "computer equipment, the property of Miguel's Restaurant, Pensacola, Fl." Count three states, in pertinent part, that the appellant illegally received "movies, the property of Bob's Superette, Pensacola, Fl."
The appellant contends, with respect only to counts one and three, that the state failed to prove the rightful ownership of the stolen property, as alleged in the indictment. As to count one, the evidence adduced at trial showed that the VCR stolen from the Jr. Food Store # 407 was actually owned by CBS Company, and that Jr. Food Store # 407 held the VCR as a bailee, and that it rented the VCR to customers. The evidence further showed that Bob's Superette Convenience store held the videotapes as a bailee for a Mr. Thomley, and that it rented the videotapes to customers and received a commission on the rentals.
It is not necessary that the indictment state the name of the ultimate owner of the property; ownership, for purposes of an indictment, is correctly placed in the bailee or the party in lawful possession of the property that is stolen. Estes v. State, 365 So.2d 1259, 1262 (Ala.Cr.App.1978), writ denied, 365 So.2d 1262 (Ala.1979). See also Belue v. State, 362 So.2d 1330 (Ala.Cr.App.1978). An indictment charging either larceny or receiving or concealing stolen goods requires an allegation as to whose property was stolen. Eddy v. State, 353 So.2d 67, 72 (Ala.Cr.App.1977). Id.
This court, in Hubbard v. State, 471 So.2d 497 (Ala.Cr.App.1984), cert. quashed (Ala.1985), stated:
471 So.2d at 500. See also Baker v. State, 574 So.2d 1018, 1022 (Ala.Cr.App.1990).
Therefore, even though the actual owners of the stolen VCR and videotapes were not named in the indictment, it was sufficient that the respective bailees, Jr. Food Store # 407 and Bob's Superette, who were in rightful possession of the property when it was stolen, were named.
The trial court did not err in denying the appellant's motion for a judgment of acquittal.
Last, the appellant contends that the trial court erred in allowing Joyce Carver, the manager of the Beulah Jr. Food Store in Pensacola, Florida, to testify to the fact that the VCR was stolen from Jr. Food Store # 407, and to its value. Specifically, he argues that, because Carver was neither a manager nor an employee of store # 407 at the time of the burglary, she was not qualified to testify and any statement she made would be based on hearsay.
Carver has never been employed at Jr. Food Store # 407. No one who was employed at Jr. Food Store # 407 at the time of the burglary was still in employment on the date of the trial. At the time of the burglary, Carver was the manager of the Jr. Food Store # 111 in Foley, Alabama. On the date of the trial, she was the manager of the Beulah Jr. Food Store in Pensacola, Florida. She was asked by the prosecution whether two VCRs were stolen from the Jr. Food Store # 407. The appellant objected, stating that her testimony would be hearsay, and that she would not be competent to testify. The trial court overruled the objection, and Carver replied, "From what I'm told, yes, sir."
Carver's testimony, while hearsay, was merely cumulative of prior testimony that had been offered without objection. Investigator Michael J. Steele, of the Escambia County, Florida, Sheriff's Department, testified that the VCRs had been stolen from the Jr. Food Store # 407. Not unlike Carver's testimony, Investigator Steele related facts given to him by the representatives of the Jr. Food Store # 407. No hearsay objection was made during his testimony.
As Judge Bowen, speaking for this court in Thomas v. State, 520 So.2d 223 (Ala.Cr.App.1987), stated:
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