Wade v. State

• Decision Date: 16 August 1977
• Docket Number: 8 Div. 949
• Parties: John Henry WADE v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 141

349 So.2d 141

John Henry WADE v. STATE.

8 Div. 949.

Court of Criminal Appeals of Alabama.

Aug. 16, 1977.

Joe B. Powell, Decatur, for appellant.

John Henry Wade, pro se.

William J. Baxley, Atty. Gen. and Winston D. Durant, Asst. Atty. Gen., for the State.

LEIGH M. CLARK, Supernumerary Circuit Judge.

A jury found appellant-defendant guilty of robbery and fixed his punishment at imprisonment in the penitentiary for twenty-six years. He was duly sentenced accordingly.

There is no disagreement on appeal as to the facts, which are summarized in appellant's brief.

Beulah Boggus, the victim of the alleged robbery, testified that on April 2, 1974, about 3:00 P.M. three white men came to her store in the Red Bank community of rural Lawrence County, left for a while and returned about 5:00 P.M., when they displayed pistols and proceeded to rob her of her money, rings and pistols. She identified the three as the defendant John Henry Wade, his son Johnny Wayne Wade, and one Allen Moye. She was living at the time with her adopted daughter in a dwelling contiguous to the store. She said the younger Wade told her: "We are robbers. We came after your diamonds and money, and you have plenty of it." According to Mrs. Boggus, when she refused to cooperate with the robbers in revealing the whereabouts of her money, she was hit in the head with a pistol, tied, gagged, choked and tortured with a hot smoothing iron.

Wanda Boggus, the adopted daughter of Mrs. Boggus, corroborated her mother's testimony relative to the facts of the robbery other than in two respects. She could not identify defendant John Henry Wade as being one of the three robbers and she saw only one pistol.

Allen Moye testified for the State and admitted his active participation in the robbery. However, he said that defendant did not enter the victim's house during the robbery; that defendant dropped Johnny Wayne Wade, Moye and one Thomas O'Such off at the victim's house and that the trio proceeded to rob Mrs. Boggus substantially in the manner testified to by her and her daughter. His testimony contained repeated statements to the effect that defendant was the "pick-up-man."

Defendant did not testify, but two witnesses testified in his behalf to the effect that they were employed by defendant at his service station in Oakman; that defendant worked regularly at the station from about 7:30 A.M. to 6:30 P.M. each day and that he did not take off from his work at the service station during the month of April 1974. Two deputy sheriffs of Walker also testified on call of the defendant that they were acquainted with defendant during and before April 1974 and that they regularly saw him working at the service station. No contention to the contrary is made on appeal.

The jailor and radio dispatcher for the Lawrence County Sheriff's Department testified as a witness for the State that he was present during the preliminary trial of defendant; that he listened to the testimony of Mrs. Boggus on the preliminary trial; that defendant was present during the preliminary trial. He said that he escorted defendant from the courtroom to the county jail and while doing so, without being questioned by anyone, defendant said, "Everything the lady said over there was true except one thing.," that defendant then said, "I was not in the house." Appellant now urges that such testimony was inadmissible, that it is "hearsay in default of any applicable exception thereto." Appellant also argues that by calling for such testimony, the State was endeavoring to bolster the testimony of Mrs. Boggus. Defendant did object to questions calling for the testimony, but the grounds thereof on the trial did not include any of the grounds asserted on appeal. The grounds asserted on the trial were that the statement was "not voluntary, and that he was coerced and it violated the Constitution of Alabama and the Constitution of the United States." and that "No warnings were given and no attempts were made by this Officer to advise this man of his rights, and they were not voluntarily made." After a requested cross-examination of the witness out of the presence of the jury by defendant's counsel, the court ruled:

"All right. The Court rules that this was a volunteered statement, or a spontaneous utterance and, therefore, I am going to let the State offer it into evidence."

We find no error in the court's action in the respect noted. Upon being asked on voir dire on cross-examination whether defendant was advised of his rights, the witness said that he didn't have time. He further said defendant was not upset at the time. Upon being asked whether he stopped defendant before he completed his statement, he again said he didn't have time. The record convinces us that the statement of defendant is to be classed as a volunteered statement, in no way influenced by the witness or anyone else. Miranda holds:

"In dealing with statements obtained through interrogation, we do not purport to find all confessions inadmissible. Confessions remain a proper element in law enforcement. Any statement given freely and voluntarily without any compelling influence is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated. There is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime, or a person who calls the police to offer a confession or any other statement he desires to make. Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today." Miranda v. Arizona, 384 U.S. 436, 478, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694, 726.

The grounds of objection now made to the questions calling for the particular evidence under consideration are at variance with the objections made on the trial of the case. Such grounds of objection are not available on appeal. Fuller v. State, Ala.Cr.App., 338 So.2d 492 (1976); Crowe v. State, Ala.Cr.App., 333 So.2d 902, cert. denied, 333 So.2d 906; Burrow v. State, 55 Ala.App. 24, 312 So.2d 596; Reese v. State, 49 Ala.App. 167, 269 So.2d 622, cert. denied, 289 Ala. 750, 269 So.2d 625.

Counsel for defendant was allowed to ask State's witness Sergeant Robert E. Hancock as to what Beulah Boggus, the alleged victim of the robbery, told him relative to the robbery, particularly defendant's connection therewith. Counsel was also allowed to ask him as to Mrs. Boggus' testimony on the trial. The following occurred:

"And there is a conflict there as to what she told you then and what she told the jury, is there not?

"MR. PETTUS: We object to that.

"THE COURT: Well, sustained."

Both before and after, the witness made it clear that Mrs. Boggus had told Sergeant Hancock that defendant came in the house on the first trip to the store that afternoon, but that he did not enter the house at the time the robbery was committed, on the second trip. Unquestionably, the conflict between what the witness told Sergeant Hancock and what she testified on the trial is important, and certainly tends to some extent to weaken her testimony, but defendant had the full benefit thereof, by the clear and definite testimony of the witness which factually showed the conflict. No harm was caused defendant by the ruling.

During redirect examination of Allen Moye, after he had been intensively interrogated and cross-examined as to the arrangement or agreement that was made among the conspirators themselves, Johnny Wayne Wade, John Henry Wade, a person by the name of Neil Nicholson, and Tom O'Such, as to how the robbery of Mrs. Boggus was to be consummated, including the arrangement they had among themselves that defendant would drive his car, the following occurred:

"Q Is there any particular significance to the fact that Mr. Wade drove his car down to Beulah Boggus' house the night that she was robbed?

"A Did he drive his car?

"Q Is there any particular significance to that?

"MR. POWELL, Well, we object to that. I don't know what he's asking him. I don't understand that question myself.

"A Why?

"Q Why did he drive his car?

"MR. POWELL: Now, we object to any why, because it's a mental operation.

"THE COURT: Overruled.

"Q Why did he drive his car?

"A Mr. Wade drove his car because he was going to be the pick-up-man. Therefore, that is the reason he drove his car, because if he was to get stopped running up and down the road waiting to pick us up, he would be in his car."

If, as contended by appellant, the question objected to calls for the intent, motive or other uncommunicated mental operation of one other than the witness and if the objection had been based on that ground, we would agree with appellant that defendant's objection to the question should have been sustained. To hold otherwise would not be within the logic or the beneficence of Starr v. Starr, 293 Ala. 204, 301 So.2d 78 (1974), wherein the Supreme Court wisely opened the door to testimony of a witness as to his own uncommunicated intent or the like.

It is to be noted that in defendant's objection to the question he grounded it on the assertion that "It's a mental operation." He did not say whose mental operation it was. According to Starr, if it was that of the witness, the objection was not well taken. If it was that of defendant, and the ground had been so stated, it would have been a valid objection. It is clear that appellant takes that position now, but it is far from clear that he took that position on the trial. He did not so state, although such may have been his intention. We have to admit that we are at a loss to determine what counsel for defendant intended by the objection and what counsel for the State intended by the question. We are unable to reverse the trial judge for any failure to correctly assay the ...