Steeley v. City of Gadsden

Decision Date14 June 1988
Docket Number7 Div. 849
Citation533 So.2d 671
PartiesJames W. STEELEY, Jr. v. CITY OF GADSDEN.
CourtAlabama Court of Criminal Appeals

James W. Steeley, pro se.

Alice B. Pruett, Gadsden, for appellee.

TYSON, Judge.

James W. Steeley, Jr., was charged with issuing a worthless instrument, in violation of § 13A-9-13.1, Code of Alabama 1975. The case was originally tried in the Gadsden Municipal Court and, there, the appellant was found "guilty as charged." The appellant was fined $100 plus costs and ordered to make restitution in the amount of $290.73. The appellant then appealed the case to the Circuit Court of Etowah County, where he was found "guilty as charged" by a jury. The trial judge imposed the same sentence that had been imposed by the Municipal Court judge. The appellant was represented by counsel at trial but appears pro se on this appeal.

Terry Lane testified that he is the security manager for South Central Bell in Gadsden, Alabama. In late 1983, South Central Bell had an account in the name of Vincent Joseph (the appellant's cousin), doing business as Classic Automobiles in Ohatchee.

Lane testified to the following sequence of events:

December 19, 1983--An order to discontinue service to Joseph's account was issued. Joseph's telephone was scheduled to be disconnected unless payment was made in the amount of $280.73 for his November 1983 telephone bill.

December 28, 1983--The appellant delivered a check dated December 27, 1983 to South Central Bell for $280.73 as payment for Joseph's telephone bill. Joseph's phone service was not interrupted.

January 19, 1984--The appellant's check was returned for insufficient funds.

January 24, 1984--Service was suspended to Joseph's account. Additional charges had accrued on Joseph's account from the November bill until his phone service was disconnected.

February 1, 1984--Statutory notice of dishonor sent to the appellant from South Central Bell.

February 6, 1984--Notice received and signed for by the appellant.

February 21, 1984--Case turned over to Lane in Security Department.

March 23, 1984--Lane and a fellow employee went to the appellant's place of business to discuss the returned check with him. The appellant assured Lane that he would take care of the check within seven days.

April 9, 1984--Lane contacted the appellant again when payment on the returned check was not made. The appellant told Lane he would pay the check the next week.

April 18, 1984--Lane again contacted the appellant on this check. The appellant said he would pay the check the next day.

June 21, 1984--Warrant was issued for the appellant's arrest in connection with this check. No payment had been made on the check prior to this point.

August 10, 1985--The appellant was arrested on this charge.

Lane testified that, once an account is turned over to the security department, no one else can accept payment on that account. If someone attempts to make payment, that person is referred to the security department. If payment is received by mail, security is notified. Lane stated that the appellant never paid or offered to pay the check until the day of his trial. At that time, defense counsel tendered $280.73 plus $10 in service charges. Lane refused the tender.

Michael McGowan testified that he is employed by Etowah Steelworkers Federal Credit Union. He stated that the check in question was drawn on the account of Jim Steeley and James C. Dean. On December 27, 1983, when the appellant wrote the check to South Central Bell, his account was overdrawn approximately $2500.00. McGowan testified that an account should never go into negative figures. However, the bank did provide overdraft protection to an account up to $500.00 in increments of $50.00.

McGowan stated that the appellant had a negative balance in his account from mid-October 1983, until December 30, 1983, when the account was closed. During this period, the appellant had numerous checks returned and he was charged a service charge on each check.

Although the appellant's overdraft loan account should have been closed when his checking account was closed, it remained open until January 9, 1984. When the appellant's check was presented for payment on January 3, 1984, there were insufficient funds in his overdraft loan account to cover the check. The appellant was notified of this fact.

The appellant testified that he gave the check in question to South Central Bell as payment for his cousin's phone bill. The appellant told the teller that he thought he had enough money in his overdraft loan account to cover the check but, if the check "bounced," she should run it through again. He stated he had $2500 worth of overdraft protection. The appellant thought his cousin's phone was to be disconnected when he paid the bill.

On February 6, 1984, the appellant received notice from South Central Bell that his check had bounced. The appellant stated he then went to the South Central Bell office and gave the money for the check to a teller. The teller told the appellant that she couldn't accept his money because the matter had been referred to security. The appellant then left.

In March, Lane came to see the appellant at his office. Lane told him that he had the returned check. The appellant then attempted to give Lane $280.73 plus the $10.00 service charge but Lane would not accept it. Lane told the appellant that he could not just pay the check off, but he had to pay the entire balance of his cousin's phone bill which was approximately $600.

On rebuttal, Paul McAlister testified that he went with Terry Lane to the appellant's place of business in March, 1984. He stated that the appellant never offered any money to Lane to pay the check.

Lane stated that he never told the appellant he had to pay the entire balance of his cousin's phone bill.

I

The appellant contends he is entitled to a new trial because he was never arraigned in circuit court. The appellant proceeded to trial in circuit court on this charge and never objected to his lack of arraignment in circuit court. Thus, he waived arraignment by his silence in this regard. See Steeley v. State, 533 So.2d 665 (Ala.Crim.App.1988); Marsden v. State, 475 So.2d 588 (Ala.1984); Bush v. City of Troy, 474 So.2d 164 (Ala.Crim.App.1984); aff'd, 474 So.2d 168 (Ala.1985); Harper v. City of Troy, 467 So.2d 269 (Ala.Crim.App.1985).

II

The jury venire list in this case contained an odd number of jurors. Since the City had the first strike, it had one more strike than did this appellant. The appellant contends he was denied due process of law because he had one less strike than did the City.

In Brooks v. State, 471 So.2d 507 (Ala.Crim.App.1984), cert. quashed, 471 So.2d 507 (Ala.1985), this court held that there is no requirement that each side have an equal number of strikes. A defendant is not prejudiced by the fact that the prosecutor has an additional strike due to an odd number of jurors on the venire list. Brooks, supra.

Furthermore, there is no evidence in the record that the appellant ever objected to the jury panel prior to trial. Thus, this issue is also not before this court on appeal.

III

During the cross-examination of the appellant, the prosecutor questioned this appellant about several statements which he made during his testimony in municipal court which were inconsistent with his testimony at this trial in circuit court. The appellant argues this denied him the right to a trial de novo. We disagree.

"The testimony of a witness may be impeached by presenting proof showing that he has made statements inconsistent with or contradictory of his testimony." Allen v. State, 390 So.2d 676 (Ala.Crim.App.1980) (citation omitted). See also Ledbetter v. State, 27 Ala.App. 395, 173 So. 647, cert. denied, 234 Ala. 74, 173 So. 648 (1937) (court held that it was permissible to impeach a witness by showing his testimony in circuit court was inconsistent with his testimony in county court). We therefore find no error here.

IV

The appellant argues the City of Gadsden failed to present a prima facie case because it did not plead and prove the City ordinance under which the appellant was prosecuted. The record does not substantiate or support this argument.

The affidavit and warrant of arrest in this case cite Section 17-1 of the Code of Ordinances of the City of Gadsden, Alabama. The complaint to circuit court in this case also cites this ordinance. Section 17-1 of the Code of Ordinances of the City of Gadsden was admitted into evidence without objection (R. 66) as City's Exhibit # 6 (R. 364). This issue is therefore without merit. See Hosmer v. City of Mountain Brook, 507 So.2d 1038 (Ala.Crim.App.), cert. denied, 507 So.2d 1038 (Ala.1987).

V

The appellant contends the trial court should have imposed sanctions on the prosecutor because he obtained and withheld exculpatory evidence. The evidence to which the appellant refers consists of documents which had been introduced by this appellant in municipal court. When the appeal was taken to circuit court, the appellant did not pick up these documents and the City court clerk sent them to the City prosecutor "to get them out of her way." (R. 257). Both the appellant and the prosecutor had copies of these documents. The prosecutor gave these documents back to defense counsel when he requested them at trial. We, therefore, find no evidence of prosecutorial misconduct from these facts. No error is shown.

VI

The appellant contends the trial judge erred by excluding defense exhibits # 5 and # 6 from evidence. No exception was taken to the trial court's exclusion of these exhibits. Furthermore, defense counsel failed to make an offer of proof as to why these exhibits should have been admitted into evidence. Thus, this issue was not preserved for our review. See Freeman v. State, 453 So.2d 776 (Ala.Crim.App.1984) ; Gwin v. State, 425 So.2d 500 ...

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