Rudolph v. State, 3 Div. 291

• Decision Date: 17 March 1981
• Docket Number: 3 Div. 291
• Citation: 398 So.2d 386
• Parties: Brazil RUDOLPH v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 386

398 So.2d 386

Brazil RUDOLPH v. STATE.

3 Div. 291.

Court of Criminal Appeals of Alabama.

March 17, 1981.

Rehearing Denied April 21, 1981.

Benjamin E. Pool, Montgomery, for appellant.

Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellee.

LEIGH M. CLARK, Retired Circuit Judge.

Defendant (appellant) was charged in an indictment with robbery upon Victoria Dawson, while the defendant "was armed with a deadly weapon or dangerous instrument, to-wit, a pistol, in violation of Section 13A-8-41 of the Code of Alabama." According to the Alabama Criminal Code, effective January 1, 1980, now codified as Title 13A of the Code of Alabama 1975, § 13A-8-41(a)(1), (c) the conduct alleged is one method of committing the crime of robbery in the first degree and is a "Class A felony." A Class A felony is punishable by imprisonment "for life or not more than 99 years or less than 10 years." § 13A-5-6. A jury found defendant guilty as charged, and the court sentenced him to imprisonment for twenty years.

The victim, twenty years of age, and Jeff Bonham, sixteen years of age, testified that a short time after midnight February 2-3, 1980, while they were watching T.V. in the office of the Highway Host Motel on the Mobile Highway in Montgomery, defendant committed the alleged robbery.

Miss Lawson testified that she went on duty about 11:00 P.M. that night and was apparently in charge of the office and lobby. She said that she had put about one hundred and fifty dollars in the cash register, that while she was getting a bag for the defendant for him to get some ice, "he pulled out a gun and told me to hit the floor." She said that as she was complying "he shot me." According to her further testimony, the shot entered her shoulder and came out her back; the defendant told Jeff to open the cash register and then she heard Jeff open the cash register and the defendant tell him to hit the floor, and she saw Jeff go down on the floor. Defendant obtained the money from the cash register and left.

According to the testimony of Jeff Bonham, he and his family were guests at the hotel at the time. He saw the defendant when he entered; he heard the shot that was fired, and he then turned around and saw Miss Lawson lying on the floor. The defendant then grabbed Jeff by the arm, told him to open the cash register, which he did, and then told Jeff to lie down on the floor, which he also did.

There seems to be no controversy as to whether a robbery was committed. The controverted issue was as to the identity of defendant.

Defendant testified that he was not present at the time and place of the robbery, that he had never been to the particular motel, that he had never been in any motel, that he had never owned a .38 pistol, which according to the undisputed evidence was the caliber of the pistol from which the bullet came that passed through the body of Miss Dawson.

No contention is made on appeal that the evidence was not sufficient to support the verdict, and we find no reasonable basis for such a contention.

Appellant's first insistence on reversible error is based on the ruling of the court overruling defendant's objection to the admission in evidence of a jacket which was taken from defendant on the day of his arrest, which was the second day after the robbery. According to the evidence for the State, it was the jacket that the robber had on at the time of the robbery. Appellant argues that the seizure of the jacket and its admission in evidence against defendant's objection was in violation of the principle "that an accused shall not be compelled to give evidence against himself" contained in Article 1, Section 6, Constitution of Alabama of 1901. Appellant relies exclusively upon Anthony v. State, 30 Ala.App. 425, 7 So.2d 513 (1942). In Anthony, the court was reversed for its admission in evidence, over the objection of defendant, of the testimony of an officer that when Anthony was arrested and taken to prison his shoes were "taken off of him" and taken to the scene of the alleged crime for the purpose of a comparison with tracks there. In considering what was held in Anthony, the record therein was examined by the court in Crump v. State, 43 Ala.App. 136, 181 So.2d 620, 622 (1965), in which it is stated:

" ... The record in that case (Anthony v. State) also shows that the same witness testified that the defendant's shoes were compared with the tracks, and that the shoes and the tracks 'matched up.' Error in the Anthony case was predicated on the fact that illegal evidence was used to secure a conviction, and not solely on the fact that a law enforcement officer committed an unlawful act by taking the accused's shoes for evidentiary purposes. The facts of this case are clearly distinguishable from those in the Anthony case. Here, neither the appellant's shoes nor any evidence obtained as a result of taking the shoes from him was used to secure the conviction. No error can be predicated on the violation of Article 1, Section 6, of the Constitution of Alabama of 1901, under the facts of this case."

Neither Anthony nor the distinction made in Crump between Anthony and Crump is applicable here. The case here is governed by principles that distinguish it from both Anthony and what was said in Crump to distinguish it from Anthony, that are found with a collation of authorities in the opinion on second rehearing in Hubbard v. State, 283 Ala. 183, 194, 215 So.2d 261 (1968), in which it is stated:

"The opinion on original deliverance suggests the proposition that if the clothes of the instant defendant had been manually and forcibly removed from his body by police officers, then the clothing would have been admissible in evidence, but that, because defendant was compelled to remove his clothes himself with his own hands, then he was compelled to give evidence against himself and the evidence thus given, i. e., the clothing and hairs, is not admissible because it was compelled in violation of the constitutional privilege. We do not think that this proposition is sound. The privilege is against being compelled to be a witness or give evidence against self. If the clothes of defendant are taken from him forcibly and manually by police officers, he is compelled to surrender the clothes and thus give evidence against himself just as much as if, as in the instant case, he is compelled by the show of overwhelming force to take off the clothes and surrender them himself. Where the police officers manually removed the clothes, the force is actually exercised. Where defendant removes the clothes himself, the force is merely threatened to be exercised. In either case, defendant is compelled, and the evidence is equally admissible or inadmissible. The defendant is not compelled in either case to be a witness against himself. He is not the witness, the clothing is.

"In the instant case, we are of the opinion that defendant's clothing and the hairs from his body were real or physical evidence and were not evidence of a testimonial or communicative nature. Accordingly, we hold that admission of the clothing and hairs into evidence did not violate defendant's privilege under the constitution which guarantees that, in a criminal prosecution he shall not be compelled to give evidence against himself."

Hubbard v. State is dispositive of appellant's contention.

Appellant's next insistence on reversible error is directed at the refusal of the trial court to grant defendant's motion for a mistrial that occurred during cross-examination of the defendant as a witness for himself. Counsel for the State was interrogating the witness with reference to his conviction in a previous case, in which the conviction was based upon his plea of guilty, in which apparently there had been a previous mistrial by reason of the jury's inability to agree on a verdict. The transcript shows:

"Q. Oh, some of it was yours.

"A. Yeah.

"Q. A trash can

"A. The trash can was mine.

"MR. POOL: Your Honor, at this time, we would offer to introduce the whole transcript of that trial during which the jury did not convict the defendant.

"MR. BELL: I believe it was ten to two for conviction, Mr. Pool.

"MR. POOL: Your Honor, we move for a mistrial.

"MR. POOL: It was a mistrial.

"MR. POOL: We move for a mistrial on Mr. Bell's statement.

"THE COURT: The jury step inside."

Thereupon an in camera hearing was conducted, in which the court said to the attorneys in part:

"All right. I am going to instruct the Jury to I'm not going to grant a mistrial. I am going to deny that, and the reason I am not is both of you all proceeded and got into the area, improper as to both of you, and I would view Mr. Bell as having to make some response as a result of that. You both got into it and got to carrying it too far, so I am going to have to instruct the Jury to disregard the testimony of both of you at this point."

Soon thereafter the trial was resumed in the presence of the jury, and the court instructed the jury at length on the subject. Included was the following "And I'm instructing you that that's the only purpose in getting into details of something that is not proper and somehow both sides got into those details, and I am going to state to you to just completely disregard that line of testimony."

Notwithstanding the impropriety of the remarks made by counsel for the State that the jury had "ten to two for conviction," it was obviously provoked to some extent by the immediately preceding statement of counsel for defendant that "the Jury did not convict the defendant." The trial court correctly appraised the situation. We agree with it that defendant's motion for a mistrial should have been denied, as it was.

During the testimony of Berry Miles, a witness for defendant, who lived next door to defendant and who testified that he was at defendant's house the night of the alleged robbery, the following occurred on cross-examination:

"Q. You never have. ...