Tombrello v. State
| Decision Date | 29 June 1982 |
| Docket Number | 2 Div. 309 |
| Citation | 421 So.2d 1319 |
| Parties | Sam TOMBRELLO, Jr. v. STATE. |
| Court | Alabama Court of Criminal Appeals |
William T. Coplin, Demopolis, for appellant.
Charles A. Graddick, Atty. Gen., and Rivard Melson, Asst. Atty. Gen., for appellee.
Sam Tombrello, Jr. was indicted on March 3, 1981, by the Greene County Grand Jury for the November 6, 1980, first-degree burglary of the residence of Thomas Summerville located in Pleasant Ridge, a small community near Eutaw. After a lengthy trial, appellant was found guilty as charged. The trial court sentenced him to life imprisonment. From that conviction he now appeals in forma pauperis.
Appellant raises no issue on appeal challenging the sufficiency of the state's evidence. Thus, only a short narration of the facts is necessary.
Sometime during the first part of 1980, appellant contacted George Gore whom he had met about one and one-half years prior to the date of appellant's trial, in an attempt to solicit his aid in procuring assistance in various robberies and burglaries he was planning. Appellant asked Gore to find some "syndicate" individuals from Chicago who could open safes and deactivate alarm systems. Appellant was expecting Gore to put him in contact with someone in Chicago who could assist him. In late October, 1980, after numerous telephone conversations with appellant, Gore contacted F.B.I. agent Robert Pecoraro in Chicago whom Gore had previously met. Gore informed agent Pecoraro of appellant's requests.
Subsequent thereto, on October 27, 1980, Gore informed agent Pecoraro of an Alabama telephone number at which appellant was expecting Gore to contact him. Agent Pecoraro contacted several other agents and had an informant, Robert Martin, call appellant on October 28, at 2:00 p.m. During this conversation, which appellant thought was from the Chicago "syndicate" contact supplied by Gore, appellant discussed his need for assistance in his planned criminal activities and informed Martin that he would fly to Chicago for further discussions.
On October 29, appellant was met at O'Hare Airport in Chicago by agent Pecoraro who posed as a member of the Mafia. They went to a nearby motel and discussed the burglary of the Summerville residence. The conversation, which lasted about two hours, was recorded. During the meeting appellant made a drawing of the Summerville residence and adjacent store. Before leaving Chicago, appellant gave agent Pecoraro two Birmingham telephone numbers at which he could be contacted. Afterwards appellant returned to Birmingham.
On October 30, telephone calls were made to the Birmingham numbers given agent Pecoraro by appellant and a meeting between appellant, Pecoraro and Martin in Birmingham was planned. The telephone conversations were recorded. On November 5, agent Pecoraro, accompanied by agents John O'Rourke and John Dolan, arrived in Birmingham and met Martin at a local motel. That evening appellant was telephoned and a meeting with him was scheduled for the next day. This conversation was also recorded.
Around 10:00 a.m. the next day appellant and Floyd Watson met agents Pecoraro and Dolan and informant Martin at the motel. A meeting lasting about four hours followed during which appellant drew a rough sketch of the layout of the Summerville house as well as their store where a large safe was located. Around 3:00 p.m. the agents left the motel and met appellant, Watson, and an individual identified by appellant as Jim Wright at a local restaurant. A meeting lasting about forty-five minutes to one hour occurred. Afterwards, the agents, appellant, and his confederates travelled to the Summerville residence and observed the layout of the home and store. It was not completely dark at the time they viewed the Summerville residence.
Subsequent thereto, the agents and appellant went to O'Jim's Restaurant and had dinner. There appellant discussed the manner in which the crime should be committed. About thirty to forty minutes later, they returned to the Summerville residence. A short time later appellant, armed with a .25 caliber Bauer automatic pistol, was arrested in the house by agents who had hidden therein.
There was no motion to exclude the evidence made at the close of the State's case.
Appellant contends that the trial court erred in denying his motion for a continuance due to the unavailability of a witness. Appellant made an offer of proof as to the substance of the testimony expected from the witness. The state produced evidence that the witness had little connection with the investigation of the case and took an active role only on the day of the crime. Furthermore, the record reflects that the first witness called by appellant on his behalf was the same one over which appellant had attempted to continue his case.
From this state of the record, it is clear that appellant suffered no prejudice by the trial court's denial of his motion in light of the fact that his witness was present and called by him at trial. Although the witness did not testify as appellant had indicated in his offer of proof, he nonetheless had the opportunity to question him. Based upon the foregoing, we find no error in the trial court's ruling. Jackson v. State, 414 So.2d 1014 (Ala.Cr.App.1982); Godfrey v. State, 383 So.2d 575 (Ala.Cr.App.), cert. denied, 383 So.2d 579 (Ala.1980); Potts v. State, (Ms. March 2, 1982), (Ala.Cr.App.1982).
Appellant asserts that the trial court committed reversible error in failing to order a presentence report on appellant prior to sentencing.
After the jury had returned its verdict the following transpired:
Under A.R.Crim.P. 3(a)(2), on motion of the trial court or written motion of either party, the trial court shall have prepared a written report of a presentence investigation of a defendant convicted of a felony and the defendant shall not be sentenced until the report is presented to and considered by the trial court. A.R.Crim.P. 6(b)(1) allows for the parties to waive, with the consent of the trial court, the sentence hearing at which the presentence report is considered.
In the instant case, no written motion for a presentence report was filed by appellant. Nevertheless, the trial court would have allowed an oral motion to substitute therefor. However, after consulting with his trial counsel, appellant waived the preparation of a presentence report as well as the sentence hearing.
In addition, appellant's argument that the judgment and sentence was not reduced to writing is wholly without merit, as the record contains a written minute entry styled "Judgment of Conviction" in full compliance with A.R.Crim.P. 8.
Thus, appellant's contentions are without merit.
Contrary to appellant's contention the sentence of life imprisonment imposed by the trial court, and which is authorized for the instant offense, Ala.Code §§ 13A-5-6(a)(1), -7-5(a)(1) (Supp.1981), does not constitute cruel and unusual punishment under either Art. I § 15 of the 1901 Alabama Constitution or the eighth amendment to the United States Constitution. As stated in Messelt v. State, 351 So.2d 636, 639 (Ala.Cr.App.), cert. denied, 351 So.2d 639 (Ala.1977) "... Where the punishment prescribed by the Legislature is severe merely by reason of its extent, as distinguished from its nature, there is no collision with the Eighth Amendment."
(Citations omitted).
See also Holley v. State, 397 So.2d 211 (Ala.Cr.App.), cert. denied, 397 So.2d 217 (Ala.1981); Burch v. State, 375 So.2d 546 (Ala.Cr.App.1979); Serritt v. State, 401 So.2d 248 (Ala.Cr.App.), cert. denied, 401 So.2d 251 (Ala.1981).
Appellant argues that the trial court committed reversible error by commenting upon certain aspects of the case, calling to our attention four instances where such occurred.
The first three instances occurred during appellant's cross-examination of FBI agent John O'Rourke. Appellant's cross-examination focused primarily on refuting the accuracy of transcripts of several recorded telephone conversations between appellant and Martin. After a lengthy inquiry into such, which consisted of several pages in the transcript, the state objected, stating that the jury had previously heard the tapes of the conversations and appellant's questions were quoting portions of one transcript out of context. At that point the trial court overruled the objection stating, "I guess he is entitled to cross-examination." (R. 129).
Appellant continued to cross-examine agent O'Rourke as to the accuracy of the transcripts, reading portions thereof at length. The state, without objecting, noted that the accuracy of the transcripts had previously been established. In fact, appellant had suggested to the court and state that they be admitted. The trial court acknowledged such, stating, "... that is why we introduced it into evidence" and directed appellant to ask the witness "detailed questions." (R. 136-137).
Having carefully reviewed the above three instances, we find nothing to suggest that the trial court did anything other than...
To continue reading
Request your trial
-
Grayson v. State
...255 Ala. 495, 498, 52 So.2d 186, 189 (1951)." Houston v. State, 565 So.2d 277, 279 (Ala. Cr.App.1990). See also Tombrello v. State, 421 So.2d 1319, 1322 (Ala.Cr.App.1982); Carson v. State, 49 Ala.App. 413, 272 So.2d 619, 622 "It has often been stated by this court that: "`The trial judge, a......
-
Thompson v. State, 6 Div. 799
...annoying, or humiliating." Atwell v. State, 354 So.2d 30, 39 (Ala.Crim.App.1977), cert. denied, 354 So.2d 39 (Ala.1978); Tombrello v. State, 421 So.2d 1319 (Ala. "The trial judge is vested with discretion in the conduct of a trial, and the appellate courts will not interfere unless there ha......
-
Smith v. State
...255 Ala. 495, 498, 52 So.2d 186, 189 (1951).' Houston v. State, 565 So.2d 277, 279 (Ala.Cr.App.1990). See also Tombrello v. State, 421 So.2d 1319, 1322 (Ala.Cr.App.1982); Carson v. State, 49 Ala.App. 413, 272 So.2d 619, 622 "`It has often been stated by this court that: "`"The trial judge, ......
-
State v. Noriega
...State v. Duffel, 665 S.W.2d 402 (Tenn.Cr.App.1983); State v. Cole, 665 S.W.2d 407 (Tenn.Cr.App.1983). See also Tombrello v. State, 421 So.2d 1319 (Ala.Cr.App.1982). Finally, in State v. McNair, supra, this court held that it was not cruel or unusual to impose a life sentence pursuant to A.R......