Tombrello v. State, 6 Div. 757
| Citation | 431 So.2d 1355 |
| Decision Date | 29 March 1983 |
| Docket Number | 6 Div. 757 |
| Parties | Sam TOMBRELLO, Jr. v. STATE. |
| Court | Alabama Court of Criminal Appeals |
G. Thomas Sullivan, Birmingham, for appellant.
Charles A. Graddick, Atty. Gen., and Rivard Melson, Asst. Atty. Gen., for appellee.
Appellant was indicted by the Jefferson County Grand Jury for receiving six stolen Sonar transceivers (walkie-talkies) of the aggregate value of $3,000.00, in violation of § 13A-8-17, Code of Alabama 1975. Appellant was arraigned on October 6, 1980, when he entered a plea of not guilty. Appellant was tried before a jury and found guilty on October 23, 1981. The trial court sentenced appellant to a term of twenty years in the state penitentiary. On October 27, 1981, appellant filed a motion for a new trial which was denied on October 30, 1981.
The facts introduced at the trial below disclose that, some time between Friday, April 14, 1980, and Monday, April 17, 1980, a mobile trailer office belonging to Blount Brothers Corporation at a construction site in Jefferson County was burglarized and ten Sonar brand walkie-talkies and one Sonar brand battery charger, which was used for recharging the walkie-talkies, were stolen. The facts show that, on the evening of April 15, 1980, appellant was arrested at the home of Mr. Charles Hollis. At the time of his arrest, appellant was discovered sitting at a table in the basement of the Hollis home. Located on the table were six Sonar brand walkie-talkies and two Bearcat police scanners. The walkie-talkies found on the table originally had manufacturers serial number plates, but they had been removed. However, before the walkie-talkies had been taken from Blount, the backs of the walkie-talkies had been removed and their respective serial numbers had been written inside each radio. By matching serial numbers kept in records of Blount Brothers Corporation and the serial numbers found on the walkie-talkies, the six walkie-talkies were identified as being six of the ten radios that had been taken from the Blount Brothers construction site.
After appellant's arrest, he was taken to the Fairfield sheriff's Office for interrogation. While appellant was in custody, police officers determined that a search of appellant's residence was needed. After appellant signed a form consenting to the search, officers went to appellant's residence to carry out their search. Found in a washroom closet at appellant's house were four walkie-talkies, two holsters for walkie-talkies and three walkie-talkie battery chargers, one of which was of the Sonar brand. No serial numbers or identifying marks were found on the Sonar brand battery charger, but it was identified as being the same model that had been taken in the burglary.
No evidence was offered on behalf of appellant at trial.
Before the trial of this cause, a hearing was held on appellant's motion to suppress the evidence that was obtained at appellant's residence. Testimony was elicited as to whether appellant voluntarily consented to the search of his residence without any duress or coercion applied by the officers. Appellant testified that, after his arrest on April 15, 1980, he was taken into custody and was either interrogated, was waiting to be interrogated, or was in a police lineup until approximately 7:00 a.m. the next morning on April 16, 1980. Appellant stated that he signed the consent form at 5:41 a.m. on April 16, 1980, after the Sheriff's officers told him that, if he did not sign, a search warrant would be obtained. He also stated that he signed the consent form after the officers had agreed to wait until 9:00 a.m. to let his wife, who was under psychiatric care, "get up and situated." Appellant testified that he had been in continuous custody of Sheriff's officers throughout the night.
Sergeant Lynn Moore testified that he was the sheriff's officer who asked appellant for permission to search his residence. Before appellant signed the consent form to allow the search of his residence, Sergeant Moore stated, the appellant was advised of his constitutional rights. He also stated that he never told appellant that, if he did not give his consent to the search, he would obtain a search warrant and search his residence anyway. At the close of the evidence, the trial court overruled appellant's motion to suppress and the trial followed.
Appellant first contends that the trial court erred in overruling his motion to suppress the evidence recovered from his residence since his consent to the search was not freely given. If the search of appellant's residence was illegal, the Sonar battery charger, the walkie-talkies and the walkie-talkie holsters all found at appellant's residence would have been inadmissible at the trial below. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). In Matthews v. State, 42 Ala.App. 406, 166 So.2d 883 (1964), a case in which the trial judge determined that a defendant freely, without coercion or duress, consented to a search of a rooming house, this court held that such a determination would not be overturned on appeal where the trial judge had a better opportunity to determine the circumstances surrounding the search and had the opportunity to hear the testimony and observe the demeanor of the witnesses.
Appellant further contends the trial court erred in denying his motion for a new trial since there was insufficient evidence to support his conviction. After viewing the evidence in a light most favorable to the State, we find that there was sufficient evidence to support his conviction of receiving stolen property in the first degree.
To establish the offense of buying, receiving, or concealing stolen property, the State must prove the following:
(1) The property must have been stolen;
(2) The accused must have bought, received, concealed or aided in concealing the property with the knowledge that it was stolen; and
(3) The accused must have had no intention of returning the property to the owner. Ala.Code § 13A-8-16 (1975); Franklin v. State, 378 So.2d 267 (Ala.Cr.App.1979).
Clearly, the first element was established when it was shown that the serial...
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