Swann v. City of Huntsville, 8 Div. 902

• Decision Date: 10 April 1984
• Docket Number: 8 Div. 902
• Parties: Lawrence SWANN v. CITY OF HUNTSVILLE.
• Court: Alabama Court of Criminal Appeals

Page 944

455 So.2d 944

Lawrence SWANN v. CITY OF HUNTSVILLE.

8 Div. 902.

Court of Criminal Appeals of Alabama.

April 10, 1984.

Rehearing Denied May 8, 1984.

Certiorari Denied July 20, 1984

Alabama Supreme Court 83-928.

Carolyn L. Williams, Birmingham, for appellant.

Walter A. Record, III, City Atty., Huntsville, for appellee.

BOWEN, Presiding Judge.

Following convictions for driving under the influence and disorderly conduct in the Huntsville Municipal Court, Lawrence Swann appealed to the Madison Circuit Court. After a jury trial, he was convicted of both charges and sentenced: for DUI, to six months' imprisonment with three months suspended, and ordered to make restitution to the victim in the amount of $719; and for disorderly conduct to five days' imprisonment.

Evidence for the City showed that on the afternoon of May 1, 1982, Swann was driving a pickup truck in Huntsville when he was observed weaving in and out of traffic and veering off the road. Mr. Richard Lindsey testified that he saw Swann's truck strike a Volkswagen stopped in a turn lane. Ms. Alice Terry, the driver of the Volkswagen, testified that after the collision she and Swann got out of their vehicles and were exchanging information when Swann stated, "Since there are no injuries I'm going on; I've already given my driver's license, my name and address."

Mr. Lindsey, who had also stopped at the scene, blocked Swann's truck to prevent him from leaving until the police arrived. He noticed some slurring of Swann's speech and stated that, in his opinion, Swann was intoxicated. Ms. Terry also gave her opinion that the defendant was intoxicated. Both Mr. Lindsey and Ms. Terry testified that, once the Huntsville police officer arrived on the scene and began questioning witnesses, the defendant became loud and belligerent, continually interrupting the investigating officer.

Officer Thomas Green of the Huntsville Police Department, who investigated the accident, testified that he noticed the odor of "something" on Swann's breath but was not sure it was alcohol. When he asked Swann if he had been drinking, Swann "started to get loud" and began "ranting and raving up and down in front of me." According to Green, Swann became very agitated and uncooperative, interrupting the officer and shouting, "This is some shit.... Damn you; you're just doing this because I'm black. You're bringing us back a hundred years." Green testified that he found a plastic bottle containing a strong-smelling yellowish liquid in Swann's truck but was not sure whether it was alcohol.

Officer Tommy McCulley testified that he was qualified to operate the Breathalyzer 1000 machine and that he did so in accordance with the rules and regulations promulgated by the Board of Health. He stated that he administered a breath test to Swann at 4:00 P.M. on May 1, 1982, and received a reading of .09 percent alcohol.

Swann testified in his own behalf and maintained that he had not been drinking while or before driving. He stated that he had a drink after the collision and before the police arrived on the scene. He maintained that the veering of his truck was due to an engine problem, and he called a mechanic, who had ridden in the vehicle the day before the collision, to testify that the truck was not operating properly. He also put on the testimony of a witness who said he saw Swann take a drink at the scene after the accident.

Swann claimed that he was not belligerent or disorderly to the investigating officer, but was reacting to the officer's having addressed him, a black man, as "boy".

I

Swann argues that the court improperly refused to accept his guilty plea and then penalized him for exercising his right to trial by jury. The facts pertinent to this issue indicate that prior to trial, Swann, his attorney, and the City Attorney had discussed settling the case on a guilty plea and recommended sentence. The plea negotiations never resulted in an agreement. Nevertheless, Swann's attorney, relying on his expectation of a settlement, did not subpoena witnesses or prepare the case to be tried. When the case was called for trial on December 7, 1982, defense counsel informed the court that he was not ready. Swann, who had earlier requested to act as his own co-counsel, then moved for a continuance, which the trial court denied. At that point, Swann told the court he felt he was having a heart attack and needed to see a doctor.

After ascertaining that Swann had no prior history of heart trouble and appeared to be healthy, the judge told Swann that he believed him to be feigning a heart attack and if a physical examination revealed no illness Swann would be held in contempt. Swann then conceded that he felt "just ... real sick and nervous." Following a brief recess during which defense counsel informed the court that his client wished to plead guilty, the court began to question Swann regarding his plea:

"THE COURT: All right. Mr. Swann your attorney has indicated to me that you wish to enter a plea of guilty to the charge of driving under the influence of alcohol; is that correct or incorrect?

"THE WITNESS: I say, but with reluctance, sir, yes, sir."

....

"THE COURT: What I want you to understand, Mr. Swann, is that this Court is as much to vindicate as it is to condemn; that it is for the purpose of giving you a trial, which you have demanded, or taking your plea, which you have indicated you wish to enter. And I don't have a preference. I really don't. And I want you to understand that whatever you do should be because of your choice and not because of this Court's choice; do you understand that?

"THE WITNESS: I understand that, Your Honor, and I can appreciate it. But if I had been allowed to have some witnesses here, then--you know, I don't stand a chance of doing anything but lose now anyway, so I accept it."

....

"(THE COURT): Do you admit or deny the allegations of that complaint?

"THE WITNESS: I admit it, sir.

"THE COURT: And is that because you are, in fact, guilty, or is there some other reason?

"THE WITNESS: I say the correct thing to say, sir, is because I'm guilty. That's what the correct thing to say is."

....

"THE COURT: Do you understand that you have the right to a trial by jury?

"THE WITNESS: Yes, sir. Your Honor, can I make a statement that's not unbiased?

"THE COURT: Yes, sir.

"THE WITNESS: Would accept it as not being, please, sir?

"THE COURT: Yes, sir.

"THE WITNESS: I understand that I have the right to a trial by jury, but I also thought I had a chance to have witnesses here if I had some, and--

"THE COURT: Who were your witnesses, that you wanted to call?

"THE WITNESS: Oh, I had Sam Patton, and I had the lady that I had the wreck with--several people. I plead guilty, sir, yes, I plead guilty.

"THE COURT: Sir, is that because you were driving under the influence of alcohol, or is there some other reason?

"THE WITNESS: I plead guilty. I drank the whiskey at the scene, and there were some people there that saw me. I plead guilty to it. That's my only way out.

"THE COURT: Have a seat over here, Mr. Swann (indicating). I'll note your plea of not guilty.

"THE WITNESS: I plead guilty, sir.

"THE COURT: Mr. Swann, when you tell me, 'That's my only way out', then--

"THE WITNESS: Sir, I don't have any witnesses here.

"THE COURT: I understand what your position is with regard to your witnesses.

"THE WITNESS: I plead guilty, sir.

"THE COURT: You are indicating to me that you are not pleading guilty because of your guilt but because you don't have your witnesses subpoenaed here.

"THE WITNESS: I plead guilty, sir, without anything being said. I don't know no other way to do it, sir."

....

"THE COURT: Do you understand that you have the right to compel witnesses to attend in your behalf; do you understand that?

"THE WITNESS: I understand that, but I was not allowed that right, sir.

"THE COURT: Did anyone prevent that right?

"THE WITNESS: I didn't know about it, sir.

"THE COURT: Well, we've been through that before.

"THE WITNESS: Yes, sir.

"THE COURT: And you understand the case has been set for trial for a substantial number of days, and that there's nothing that precluded you from compelling witnesses to attend in your behalf; do you understand that?

"THE WITNESS: I understand that, sir. Only I didn't know it."

....

"THE COURT: Do you understand that you should not plead guilty because anyone has threatened you or coerced you or intimidated you or offered you a reward or leniency to plead guilty?

"THE WITNESS: Yes, sir.

"THE COURT: Has any of this occurred?

"THE WITNESS: (No response.)

"THE COURT: Is there a question in your mind that some of this has occurred Mr. Swann? If so, state that for me.

"THE WITNESS: No, sir.

"(At this point, witness begins sobbing uncontrollably.)"

"There is, of course, no absolute right to have a guilty plea accepted." Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971). See James v. State, 380 So.2d 995, 998 (Ala.Cr.App.1979), cert. denied, 380 So.2d 999 (Ala.1980); Pelmer v. State, 389 So.2d 584, 590 (Ala.Cr.App.1980). From the foregoing exchange, it is evident that the trial court was well within its discretion in concluding that Swann was not freely and voluntarily admitting his guilt, and therefore declining to accept his plea.

II

Swann contends that the City did not live up to its plea bargain agreement with him. We note, first, that the record contains absolutely no evidence of an agreement. In fact, it indicates just the contrary, that the parties were unable to reach an understanding. Moreover, even if the parties had arrived at a plea bargain, the trial judge would not have been compelled to accept a guilty plea thereunder. See English v. State, 56 Ala.App. 704, 708, 325 So.2d 211, 215 (1975), cert. denied, 295 Ala. 401, 325 So.2d 216 (1976).

III

Swann complains that the court refused to compel the attendance of three of his witnesses who did not appear on the date set for trial. The...