Walker v. State

• Decision Date: 16 August 2019
• Docket Number: CR-17-1123
• Citation: 294 So.3d 825
• Parties: Antwon WALKER v. STATE of Alabama
• Court: Alabama Court of Criminal Appeals

294 So.3d 825

Antwon WALKER

v.STATE of Alabama

CR-17-1123

Court of Criminal Appeals of Alabama.

August 16, 2019

James H. Tarbox of Marsh & Cotter, LLP, Enterprise, for appellant.

Steve Marshall, atty. gen., and John J. Davis, asst. atty. gen., for appellee.

COLE, Judge.

Antwon Walker appeals the circuit court's judgment revoking his probation.

Facts and Procedural History

On September 21, 2016, Walker pleaded guilty to four counts of fraudulent use of a credit card, violations of § 13A-9-14, Ala. Code 1975, and was sentenced to 44 months in prison; that sentence was split and he was ordered to serve 12 months in the Coffee County jail, followed by 24 months of probation for each conviction. (C. 14.) On January 3, 2017, Walker pleaded guilty to two counts of breaking and entering a motor vehicle, violations of § 13A-8-11, Ala. Code 1975, and was sentenced to 66 months in prison; that sentence was split and he was ordered to serve 14 months in the Coffee County jail, followed by 24 months of probation for each conviction. (C. 13.) On April 17, 2017, Walker pleaded guilty to one count of third-degree assault, a violation of § 13A-6-22, Ala. Code 1975, and was sentenced to 12 months in the Coffee County jail; that sentence was split and he was ordered to serve 70 days in jail, followed by 24 months of probation. (C. 12.)¹

On June 12, 2018, Walker's probation officer filed a delinquency report, alleging that Walker had violated his probation by committing the new offenses of second-degree burglary and first-degree theft of property. (C. 16-20.)

On July 25, 2018, the circuit court held a probation-revocation hearing. Walker was represented by counsel at the hearing. The State presented evidence from only two witnesses to support its claims that Walker had committed both a first-degree theft of property and a second-degree burglary. Both witnesses, Gerard Dube and Evan Sweeney, are detectives with the Enterprise Police Department, who investigated Walker's involvement in the alleged new offenses. The victims of the alleged new offenses did not testify.

Starting with the first-degree-theft offense, the State presented evidence indicating that, on February 12, 2018, Det. Dube received a report from Michael and Monica Miller that wood and tools had been taken from their property. (R. 12.) Det. Dube explained that the Millers owned a fence-building company and that they used the wood and tools in their business. According to Det. Dube, the Millers suspected that Walker, a former employee, was the person responsible for taking the property. The Millers told Det. Dube that they had "made a mistake and told [Walker] that they were out of town." (R. 13.)

Det. Dube knew Walker and knew that he was living with his girlfriend. (R. 12.) Det. Dube then went and spoke with the girlfriend's mother, who confirmed that Walker was living at a house on Grimes Street with her and her daughter, and she told Det. Dube that Walker was working on remodeling their house. (R. 15.) At that point, Det. Dube went to the house on Grimes Street and, while there, got permission to search it. (R. 16.) Det. Dube testified that he saw "a large amount of wood, like four-by-four wood posts, two-by-four wood posts, a lot of wood on the side and on the front porch of the house, and then a large amount of tools, air compressors, just--you know, general toolage [sic] inside the residence." (R. 16.)

After advising Walker of his Miranda ² rights, Det. Dube asked Walker about the tools and the wood in his house. (R. 16-17.) According to Det. Dube, Walker admitted to going to the Millers' property and "removing the wood," but he claimed that he had their permission to take it. (R. 17.) Walker did not admit to anything about the tools. Later, the Millers identified the wood, an air compressor, and a toolbox found at Walker's house as items taken from their property. (R. 18.) According to Det. Dube, the Millers placed the value of the items taken "into the thousands of dollars." (R. 19.) Det. Dube further testified that, after the Millers identified the tools as belonging to them, Walker said "that he didn't know how they got there." (R. 19.)

As to the second-degree-burglary offense, the State presented evidence indicating that, on February 11, 2018, Det. Sweeney began investigating a burglary that occurred at a house belonging to Charles Walker--a relative of Walker's. (R. 29-30.) According to Det. Sweeney, Charles said that, on the morning of February 11, 2018, "he was awoken by family members stating that [Walker] ... was in the residence" and that Walker was "rummaging around in the house." (R. 30.) Det. Sweeney explained that Charles said that he had barred Walker from being at his house because of Walker's drug habit and that Walker entered the house that morning without Charles's permission. (R. 30, 35.) Because Charles did not want there to be an altercation, Charles told Det. Sweeney that "he kind of talked with Walker for a little bit" and Walker told Charles that his car had broken down and that he needed to get back to his car. Charles helped Walker by taking him back to his car and giving "him a jump." Charles told Det. Sweeney that, when he got back to his house, two cellular telephones and a prepaid telephone card were missing. (R. 30-31.)

Det. Sweeney then went to speak with Walker at the Grimes Street house. (R. 31.) When he arrived, Det. Dube was also at the house. Det. Sweeney said that, while at the house, he saw the wood and the tools and said that he was also present when the Millers identified those items as belonging to them and when they said that Walker did not have permission to take the items. (R. 32.) Det. Sweeney said that, upon arriving at the Grimes Street house, he first spoke with the girlfriend and explained to her why he was there. According to Det. Sweeney, Walker's girlfriend told him that Walker had two cellular telephones in his possession "when he came back from the house that morning," and she retrieved those phones for Det. Sweeney. The phones were later identified as the phones that were missing after Walker left Charles's house that morning. (R. 35.)

At some point that day, Det. Sweeney spoke with Walker. After Det. Sweeney read Walker his Miranda rights, Walker admitted to going into Charles's house but claimed that "he did not force his way in, that the door just became ajar and so he went inside." (R. 35.) Walker did not admit to taking the cellular telephones. (R. 36.) Finally, Det. Sweeney said that, in a written statement, Charles explained that "the door was locked, however, it's an older door. It can be opened if enough force is applied to it." (R. 42.) Thereafter, the State rested.

Walker then presented testimony from two witnesses--Kenneth Powell and himself. Powell testified that he had also worked for the Millers and that he was living at the Grimes Street house (R. 49); that he did not know who brought the wood and the tools to the house (R. 52); and that he did not take those items from the Millers' house (R. 53). Walker testified that he did not believe that his probation-revocation hearing was being conducted in a procedurally fair way (R. 58-59) and denied committing the alleged new offenses.

At the close of the hearing, Walker's counsel argued that the State had not satisfied its burden of proof as to the theft-of-property offense because Walker said that he had the Millers' permission to take the wood, because "[t]here hasn't been any kind of matchup of serial numbers to show that this generic air compressor and generic toolbox were actually stolen from the Millers," and because "[t]here has been nothing detailing over $2,500 being taken." (R. 71.) Walker's counsel also argued that the State had not satisfied its burden of proof as to the second-degree-burglary offense because "the only evidence put forth before this Court is hearsay that Mr. Walker went into a residence without permission to commit a felony." (R. 71.)

The circuit court disagreed, and found as follows:

"[A]s to the burglary charge, based upon the evidence that's presented by Detective Sweeney, which also included a statement that these telephones were identified as cellphones being taken from the residen[ce] of Charles Walker, Detective Sweeney testified that Charles Walker did not give you permission to be there. In fact, had told you not to be at that house in that residence. Based on all of that, and the identifying of those cellphones that ended up being at the residence where you were, where somebody--Ms. [K.B.] said those cellphones were brought to that residence by you, based upon the totality of that, which also includes hearsay which is admissible--it's not based solely upon hearsay--the Court is reasonably satisfied that you violated the terms and condition[s] of probation by committing a new offense of burglary in the second degree.

"As to the theft first, the Court is reasonably satisfied, based upon the totality of the evidence. There was testimony that the victims identified this wood, air compressor, toolbox, and that based upon the victims indicating to them that these were the reason--or the officer saying this was a theft first was based upon the thousands of dollars in value of these items that had been taken with the--including the tools from the Millers, the Court is reasonably satisfied that you violated terms and conditions of probation by committing this new offense of theft of property in the first degree."

(R. 71-73.)

After the hearing, the circuit court issued a written order revoking Walker's probation, finding, among other things, that it was reasonably satisfied that Walker had committed both first-degree theft of property and second-degree burglary. The circuit court also detailed the evidence it relied on to find that Walker had committed those new offenses and noted that confinement was necessary "to prevent further criminal activity" and "to avoid depreciating the seriousness of the violation." (C. 23, 27-28)....