Smith v. State
Decision Date | 20 January 1981 |
Docket Number | 7 Div. 768 |
Parties | Collis Cordell SMITH v. STATE. |
Court | Alabama Court of Criminal Appeals |
Mary Lil Owens of Wilson, Bolt, Isom, Jackson, Bailey & Owens, Anniston, for appellant.
Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellee.
The defendant was indicted and convicted for the possession of a pistol after having been convicted of a crime of violence (burglary and grand larceny). Alabama Code 1975, Section 13-6-152(a). Sentence was three years' imprisonment. Four issues are presented on appeal.
Prior to trial, defense counsel made both oral and written motions to limit and exclude any evidence of the burglary of the Imperial Reading building by the defendant's brother, Odell Dennis Smith, which occurred at approximately the same time and almost directly across the highway from the Racetrac service station where the defendant was arrested.
Investigating a burglary in progress, Oxford police officers went to the Imperial Reading building on Highway 21 in Oxford around 3:00 on the morning of November 30, 1979. They captured the defendant's brother who had broken into the building and took him to the police station. At the station the police tried to find out where Odell Smith's vehicle was or "how he got down there."
While at Imperial Reading the officers noticed a car parked in the Racetrac service station across the highway from the building. Although the service station was open for business an officer stopped to investigate this automobile.
Oxford Police Officer Howard Pettus arrived at the service station and saw Officer Tim Caulder talking with the defendant behind the "suspect vehicle." Officer Pettus asked the defendant for his full name and some "I.D.". After receiving a social security card, Officer Pettus "asked him if he had any kind of weapons or anything on him." The defendant voluntarily removed three .22 caliber short bullets from his pocket. Officer Pettus testified that he then asked the defendant if he had a gun and the defendant replied, "Yes Sir". Pettus stated: * * * "I asked him if I could see the gun." * * * "He said, 'You can get it out of the dash.' " Pettus then removed a .22 caliber pistol from the dashboard of the vehicle. After learning that the defendant did not have a permit to possess the pistol, Officer Pettus placed him under arrest.
The automobile belonged to the defendant's brother. Two young children were in the car. These were the defendant's brother's children. Besides the defendant, there was no other adult around or in the car.
The trial judge granted the defendant's motions to exclude any evidence of the burglary to a limited extent. The court ruled:
The trial judge wisely and properly excluded any evidence identifying the defendant's brother as the burglar arrested at Imperial Reading. While antecedent circumstances tending to shed light on the criminal transaction or elucidate the facts connected therewith are admissible in evidence against the accused, Pope v. State, 365 So.2d 369 (Ala.Cr.App.1978), "(a)ntecedent acts of third persons which apparently have no connection with the commission of the crime by the accused are not admissible, unless their connection and relevancy are made apparent by other facts introduced or offered to be introduced in evidence." 22A C.J.S. Criminal Law, Section 606 (1961). Even though the burglary and the crime charged against the defendant were closely related in time and place, the burglary committed by the defendant's brother had no connection to the crime charged against the defendant. Dean v. State, 98 Ala. 71, 13 So. 318 (1892) ( ) In Hainey v. State, 147 Ala. 146, 41 So. 968 (1906), it was held error to admit evidence that the defendant was drunk at the time it was alleged he carried a concealed weapon. It was also held inadmissible to show that the accused was a brother of a person whom the officers were seeking to arrest for drunkenness at the time the accused is alleged to have carried the concealed weapon.
While defendant's appellate counsel argues that "the jury would have had to been asleep not to figure out that Dennis (the defendant's brother) was the one arrested for the burglary" we do not find the evidence implying that conclusion either that strong or that clear. For this reason we do not think that the trial judge erred in failing to exclude all the testimony of the burglary and in limiting the evidence of the burglary to exclude the identification of the defendant's brother.
Just as fully as we uphold the trial court's decision on this issue, we condemn the action of the prosecutor in attempting to breach that order. Either knowing or unwitting attempts by the prosecutor to do indirectly what the trial judge has explicitly prohibited him from doing have no place in a criminal trial.
While the State did not directly attempt to connect the defendant to the burglary, the prosecutor asked several questions which sought to establish the fact or plant the inference of the fact that it was the defendant's brother who burglarized Imperial Reading. This case is saved from a reversal only by the action of the trial judge in sustaining each and every objection of defense counsel to these questions. Defense counsel did not move to strike the objectionable questions nor request that the jury be instructed to disregard any implication present in those questions. There was no motion for a mistrial. While this issue now before us was presented to the trial judge in a motion for new trial, the denial of that motion was properly within the exercise of his discretion of which we find no clear abuse. In reviewing the denial of a motion for new trial, this Court will indulge every presumption in favor of the correctness of the ruling of the trial judge. Williams v. State, 348 So.2d 1113 (Ala.Cr.App.), cert. denied, 348 So.2d 1116 (Ala.1977). The...
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