Thornton v. State, 3 Div. 346
| Decision Date | 30 June 1975 |
| Docket Number | 3 Div. 346 |
| Citation | 316 So.2d 710,55 Ala.App. 462 |
| Parties | Jimmie L. THORNTON v. STATE. |
| Court | Alabama Court of Criminal Appeals |
John W. Davis, III, Montgomery, for appellant.
William J. Baxley, Atty. Gen. and Charles N. Parnell, III, Asst. Atty. Gen., for the State.
Appellant-defendant, pursuant to an indictment for second degree burglary and grand larceny, was convicted by a jury, which returned a general verdict. He was sentenced by the court to three years imprisonment in the penitentiary.
The burglarized building was a building material supply house where concrete blocks were manufactured and sold. According to Albert Green, an employee and foreman at the plant, he visited the premises about 12:20 or 12:25 a.m. on April 12, 1974, at which time he surprised two men in the building who fled the scene. One man went out a broken window through which entry into the building was obtained.
The witness, on direct examination, made an in-court identification of the defendant, but offered no testimony nor was he asked about a line-up identification. Later, on redirect examination, he testified about the lineup.
It appears that a Chevrolet automobile, with engine running, was near the broken window. This car had the switch keys in it. The car was registered in the name of the defendant, who at the trial admitted ownership, but contended the automobile was stolen from the parking area near his apartment and that he did not place the automobile at or near the plant. He denied guilt of the burglary and asserted an alibi by several witnesses including himself.
Appellant aserts error by the court in admitting evidence by Officer L. G. Rutland over his objection for that (a) there was no voir dire examination of this officer outside the presence of the jury, and (b) that defendant was not represented by counsel at the lineup.
In answer to the contention concerning the voir dire examination, the defendant did not seek or request a voir dire examination. He simply objected to the evidence without stating any grounds therefor. There was no ruling denying voir dire and nothing for the Court to review. Watkins v. State, 50 Ala.App. 111, 277 So.2d 385 (1973).
With respect to the contention concerning the defendant not being represented by counsel at the lineup, the lineup occurred before any formal charges were placed against the defendant who came to the police station early in the morning of April 12, 1974, and before any critical stage of accusation had been reached. Defendant came to the police station to report the theft of his automobile (the one at the plant) and was detained during an investigation of the burglary. Under these circumstances, he was not then entitled to counsel. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411.
The State, on redirect examination, asked witness Albert Green why James Vines (a company salesman) kept the money in 'that box,' which was the subject of the larceny. The defendant contends that this question called for a mental operation on the part of Mr. Green. Such evidence is admissible. Low v. Low, 255 Ala. 536, 52 So.2d 218, and other cases of similar import, holding to the contrary, were overruled in Starr v. Starr,293 Ala. 204, 301 So.2d 78.
As we understand the record, it was the contention of the State that there were two or three packets of keys, in each of which was a switch key for the Chevrolet found at the scene of the burglary; that the witness Horace Thornton had one packet in his possession the night of the bruglary; that another packet was in existence.
On direct examination, the witness, Horace Thornton, testified that he had one set in his possession on the night of the burglary; that at an earlier time, he had the red set found in the Chevrolet.
This evidence tended to show that two sets existed--one in possession of the witness and the other in the Chevrolet.
On redirect examination (Tr. p. 141), Detective Rutland was asked by the District Attorney if he asked Horace Thornton how many keys Jimmy Lee Thornton had to the Chevrolet. The witness answered: 'He said he had two sets of keys, he thought.'
On recross examination, the defndant's attorney asked the witness:
We fail to see any injury to the defendant. The witness had already testified without objection as follows:
'A. Huh-uh.'
As we view the record, there was no attempt to prove by hearsay that the defendant on the night of the burglary was in possession of this set of keys found in the Chevrolet.
The last and final contention of error concerns the admission into evidence of certain physical articles; namely, Exhibits 9, 10, 11, 12, 13 and 14.
Exhibit 10 was a red jacket which the State's evidence tended to show defendant was wearing when he was seen fleeing from the scene. Exhibits 11 and 12 were brown envelopes which contained the keys. Exhibits 13 and 14 were the two sets of keys that were introduced.
It appears on Tr. p. 58 that the defendant objected to State's Exhibit 10 (a red jacket) which the State offered in evidence.
The objection read:
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