Swicegood v. State, 6 Div. 63

• Decision Date: 23 February 1990
• Docket Number: 6 Div. 63
• Parties: Paul SWICEGOOD v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1206

565 So.2d 1206

Paul SWICEGOOD v. STATE.

6 Div. 63.

Court of Criminal Appeals of Alabama.

Feb. 23, 1990.

Rehearing Denied March 30, 1990.

Certiorari Denied June 22, 1990

Alabama Supreme Court 89-1048.

Beverly J. Paschal, Cullman, for appellant.

Don Siegelman, Atty. Gen., and James B. Prude, Asst. Atty. Gen., for appellee.

TYSON, Judge.

Paul Swicegood was charged in a two-count indictment with burglary in the third degree, in violation of § 13A-7-7, Code of Alabama 1975, and was also charged in a separate count with receiving stolen property, first degree, in violation of § 13A-8-17, Code of Alabama 1975. The jury found the appellant "guilty as charged in Count I of the indictment" for burglary, third degree. The trial judge sentenced the appellant to fifteen years' imprisonment in the state penitentiary, pursuant to the Habitual Felony Offender Act. The trial judge also order the appellant to pay a $100 fine.

On June 11, 1988, around 9:30 or 10:00 p.m., Charles and Nina Judkins returned to their home located in Valley Grove, Cullman County, Alabama. The Judkinses lived in a double wide trailer, situated fifty yards off the highway. Their closest neighbor lived a mile from them.

When they got out of their truck, they heard a vehicle with a loud muffler running. The vehicle was parked on the "logging road," which is seventy-five yards away from the Judkins residence.

As they entered the door of their home, they heard some one inside their home. Mr. Judkins got a gun from his truck and returned to the house. The person inside the house came to the door; Mr. Judkins told him to "drop it," and fired a shot at the person. This person ran into the house and one minute later, they heard a crash and the person jumped out of the back window.

The Judkinses got in their truck to leave, at which time they heard the vehicle on the logging road start up. The victims then chased a white van which was parked on the logging road.

The Judkinses chased the van for about a mile. The van wrecked as it approached a sharp curve. After the accident, the Judkinses called the police from a nearby residence. The woman driving the van argued with Nina Judkins, stating that she had not done anything wrong. Shortly thereafter, the woman walked off into the woods.

Officer Joe Chappell, Investigator for the Cullman County Sheriff's Department, went to the scene of the accident. Chappell then accompanied the victims to their home, where he investigated a burglary at their residence. He discovered a broken bedroom window and a camouflage cap lying on the ground just beneath the broken window. This cap along with a human hair found inside the hat were tested in the forensic science lab. The test results revealed that the hair sample was inconsistent with a hair sample taken from the appellant.

The victims determined that a video camcorder, bass guitar, and a briefcase were missing from their home. All three items were subsequently recovered from the white van which the victims chased. Other evidence found in the van included a tag receipt from the van in the name of Tina Swicegood, a tag receipt for a Datsun Station Wagon in the appellant's name, an identification card for Johnnie Faye Self, and two ladies' purses.

Mr. Judkins described the assailant as being five feet ten inches, 180 pounds, and having fairly short brown hair and a medium length brown beard. The Judkinses never positively identified the appellant as being the person who was inside their home on June 11, 1988.

On June 11, 1988, Tammy Buchanon worked at Ann's Super Saver Store in Cullman County, Alabama. She recalled that around 8:30 p.m. or 9:00 p.m. that the appellant and a woman came into the store. The appellant was wearing a cap. Buchanan recalls seeing a white van parked outside the store at a time when only the appellant and the woman were in the store.

The appellant stated to the clerk that he was looking for Harris, who was a friend whom he had not seen for twenty years. Jewell Brock, who worked at the Super Saver, overheard the appellant say that Harris was retired from the Navy and "he should have plenty." Brock testified that fifteen minutes after the appellant left the store, she heard about a burglary over a police scanner.

On the day after the burglary, between 9:00 a.m. and 10:00 a.m., the appellant and another man appeared at the home of Vickie Hancock. Hancock's house was located about one mile from the Judkins residence. When she opened the door, the person with the appellant said: "this man is hurt, he needs help." Hancock testified that the appellant had on a cap and had scratches on his arms. His left ankle was swollen and he needed assistance walking. Hancock's husband went outside to talk with the men. The appellant, at one point, stated that his automobile had been taken from him at gun point and that his foot was run over by a vehicle. After this the police were called.

When Chappell arrived at the Hancock residence, he observed the appellant sitting on the steps of the house. He observed that appellant's left ankle was swollen, he had scratches on his arms and face, his clothes were dirty and he was in an unkept condition.

The appellant was taken by ambulance to the Cullman Medical Center. Chappell later went to the medical center and advised the appellant of his Miranda rights. After his release from the medical center, he was transported to the Sheriff's Department where he was placed under arrest for burglary of the Judkins residence. The appellant then requested that some of his personal items be removed from the white van, which the Sheriff's Department had taken into custody.

James Allison, an investigator for the Cullman County Sheriff's Department, was qualified, at...