Scott v. State

• Decision Date: 17 January 1992
• Docket Number: CR-90-990
• Citation: 599 So.2d 1222
• Parties: Randall SCOTT v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1222

599 So.2d 1222

Randall SCOTT v. STATE.

CR-90-990.

Court of Criminal Appeals of Alabama.

Jan. 17, 1992.

Rehearing Denied Feb. 28, 1992.

Jeffrey C. Duffey, Montgomery, for appellant.

James H. Evans, Atty. Gen., and David B. Karn, Asst. Atty. Gen., for appellee.

TAYLOR, Judge.

The appellant, Randall Scott, was convicted of robbery in the first degree, a violation of § 13A-8-41, Code of Alabama 1975. He was sentenced to life imprisonment pursuant to the Habitual Felony Offender Act.

The state's evidence tended to show as follows: On August 30, 1988, a robbery occurred at the Citgo Food Mart on the Selma Highway in Montgomery County. The clerk, Sonji Woodard, gave a description of the assailant and identified Randall Scott, the appellant, as the robber after looking at pictures in two different books of photographs of known offenders. She stated that he was wearing a sky blue or light blue tee shirt. The amount of money stolen was estimated by her to be $248.00.

After the appellant was positively identified by Woodard, a warrant for his arrest was issued, and his parole officer, Keith Armagost, was contacted by Corporal Shawn Smith of the Montgomery Police Department. From Armagost, Smith acquired the appellant's work address and what, at the time, was thought to be the appellant's home address. Smith and other officers met Armagost at the appellant's place of work. They discovered from the appellant's employer that, in violation of his parole, he was not living at the address he had given Armagost. The employer gave Armagost the appellant's current address. Armagost, upon phone approval from his district supervisor, issued a parole officer's authorization of arrest.

After receiving a description of the appellant's automobile from the employer, Armagost proceeded alone to the appellant's former residence, and then went to his new address. Upon discovering the appellant's car, a red hatchback, he called for backup and was once again joined by Smith and other officers. They conferred with the landlord of the apartments, discovered that the appellant had indeed signed a lease, and then went to the appellant's apartment. They discovered that the appellant was not at home; however, they did encounter the appellant's girlfriend, who had also signed the lease and who gave them consent to enter and search the apartment. Nothing was seized from the appellant's apartment.

After completing their search of the apartment, Armagost and Smith went to the appellant's car. Through the car window, a blue tee shirt that matched the description of the one that had been worn by the robber of the convenience store was visible. Upon searching the car, the officers found a bag of coins taken in the robbery and a pellet gun. At trial, Smith could not recall whether the gun and the bag of coins were visible through the hatchback.

The items were confiscated, shown to the victim, and positively identified. Ultimately, the appellant was taken into custody on the arrest warrant. The appellant presents three issues on appeal.

I

The appellant first contends that the items seized from the automobile and received into evidence at trial (i.e., the gun, the shirt, and the bag of coins) were acquired through an illegal search and seizure. More specifically, he alleges that the requirements for a warrantless search on plain view grounds were not met. The appellant also alleges that the parole board's guidelines allowing a parole officer to conduct a warrantless search of a parolee's property do not apply here.

However, these issues were not correctly presented to the trial court. Before trial, the appellant moved to suppress the items that were discovered in the car, but his motion was denied after a hearing. The appellant did not make an objection at the time that two of the items were offered and received into evidence at trial and his objection to the third item was insufficient. A timely and sufficient objection is a prerequisite for appellate consideration.

In Phillips v. State, 527 So.2d 154 (Ala.1988), our Supreme Court stated:

"It is the law 'that an appellant who suffers an adverse ruling on a motion to exclude evidence (or other matters, e.g., argument of counsel), made in limine, preserves this adverse ruling for post-judgment and appellate review only if he objects to the introduction of the proffered evidence or other matters and assigns specific grounds therefor at the time of trial, unless he has obtained express acquiescence of the trial judge that such subsequent objection to evidence proffered at trial and assignment of grounds therefor are not necessary.' "

527 So.2d at 156 (citations omitted). See also Hagood v. State, 588 So.2d 526 (Ala.Cr.App.1991). There is no evidence in the record that the appellant "obtained express acquiescence" from the trial judge that would allow an untimely objection to be preserved for review. "It is the appellant's duty, not the duty of this court or the trial court, to make a correct and complete record on appeal. See Cardwell v. State, 544 So.2d 987 (Ala.Cr.App.1989)." Holder v. State, 584 So.2d 872 (Ala.Cr.App.1991).

When the state moved to have the tee shirt received into evidence, the appellant made no objection. Further, when the bag of coins was offered, the appellant stated "No objection." The appellant's failure to object bars him from questioning the receipt of these items into evidence because "[s]uch an objection is a condition precedent to the party's effectual complaint on appeal." C. Gamble, McElroy's Alabama Evidence § 426.01(1) (4th ed. 1991).

In contrast, when the pellet gun was offered, the appellant made an objection, but never expressed his grounds, stating only, "Object until I get an opportunity to cross-examine [the victim] about [her identification of the gun]." (R. 38.) This general objection was not followed up on cross-examination of the store clerk. "An objection to the evidence must be made and grounds stated therefor, or the objection and any error are deemed to have been waived." Phillips, 527 So.2d at 156.

After the state had rested its case, the appellant renewed the objections made in the suppression hearing as to the tee shirt, the bag of coins, and the pellet gun. As this court wrote in Snider v. State, 406 So.2d 1008 (Ala.Cr.App.), cert. denied, 406 So.2d 1015 (Ala.1988), "A motion to exclude [made after the state rested] will not preserve error in the admission of evidence where no timely objection has been made at the time of its admission." 406 So.2d at 1014. See also Hagood, 588 So.2d at 532.

Even had the appellant's objection been timely and sufficient to preserve the error for appellate review, the appellant's request that those items be suppressed is also due to be denied on the merits. There was probable cause to believe that the appellant had committed the robbery. At the time of the search, a valid arrest warrant had already been issued for the appellant's arrest.

The warrantless search was justified on "plain view" grounds. A warrantless search based on plain view grounds is lawful if (1) the officer who conducts the search is legitimately on the premises where he is afforded a plain view, (2) the officer comes upon the evidence inadvertently, ¹ and (3) it is "immediately apparent" that the object viewed is evidence of some criminal wrongdoing. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). See also Williams v. State, 527 So.2d 764 (Ala.Cr.App.1987). See 3 W. LaFave, Search & Seizure: A Treatise on the Fourth Amendment § 7.5(d) (2d ed. Supp.1991) (discussing the potential inapplicability of Horton to the different states as urged by the dissent).

First, "the police officer's initial intrusion must be lawful or he must properly be in a position from which he can view a particular area." McCammon v. State, 499 So.2d 811, 813 (Ala.Cr.App.1986). Here, the parole officer and the Montgomery police officers were legitimately on the premises of the apartment complex in which the appellant resided because they were attempting to execute two warrants to arrest the appellant (that of the parole officer and that of the police).

Further, to justify a seizure upon grounds of "plain view," "it must be immediately apparent to the police that the items observed may be evidence of a crime, or otherwise subject to seizure." McCammon, 499 So.2d at 814. The term " 'immediately apparent' does not 'imply that an unduly high degree of certainty as to the incriminatory character of evidence is necessary ...' [nor does it] mean that an officer must 'be possessed of near certainty as to the seizable nature of the items.' " Williams, 527 So.2d at 770 (quoting Texas v. Brown, 460 U.S. 730, 741, 103 S.Ct. 1535, 1543, 75 L.Ed.2d 502 (1983)). In deciding whether an object in plain view could be evidence of a crime, the officer's "judgment must be grounded on probable cause; however, the officer need not be convinced beyond a reasonable doubt as to the incriminating nature of the evidence discovered. It is sufficient if the evidence raises the probability that criminal activity is afoot." McCammon, 499 So.2d at 814.

In Brown, the United States Supreme Court stated that great weight should be placed on the common sense observance of the officer on the scene, noting that a " 'practical, nontechnical' probability that incriminating evidence is involved is all that is required." 460 U.S. at 742, 103 S.Ct. at 1543. "[T]he plain view exception would be worthless if officers had to be 'absolutely certain' that what they saw was seizable." 2 W. LaFave, Search & Seizure, supra, § 6.7(a). See also Williams, 527 So.2d at 770. "[T]he reasonableness of the officer's act must be gauged at the time when he first viewed the items." Williams, 527 So.2d at 771.

We have considered the remaining contentions of the appellant concerning the admission of the items seized from the appellant's automobile, but decide them against him...