Waters v. State, 4 Div. 578

• Decision Date: 02 May 1978
• Docket Number: 4 Div. 578
• Citation: 360 So.2d 358
• Parties: William R. WATERS, Jr., alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 358

360 So.2d 358

William R. WATERS, Jr., alias v. STATE.

4 Div. 578.

Court of Criminal Appeals of Alabama.

May 2, 1978.

As Corrected On Denial of Rehearing May 30, 1978.

William H. Mills, of Rogers, Howard, Redden & Mills, Birmingham, for appellant.

William J. Baxley, Atty. Gen., and J. Anthony McLain, Asst. Atty. Gen., Montgomery, for the State, appellee.

BOOKOUT, Judge.

Buying, receiving, or concealing stolen property; sentence: five years imprisonment.

During the night of April 24, 1975, several items were stolen from Herbert M. Luckfield d/b/a Coach and Carriage Antique Gallery in Ozark, Alabama. Among the items stolen were two antique Edison phonographs, one of which is the stolen property involved in this case. Several of the stolen items, including one of the Edison phonographs, were discovered in an apartment and a warehouse rented directly or indirectly by appellant. These items were stored in the Dothan Civic Center warehouse where they were later viewed and identified by Mr. Luckfield as being articles stolen during the burglary of his store on April 25.

Michael Crane, a prosecution witness, testified he purchased an antique Edison phonograph from appellant at appellant's residence in Colony Square Apartments sometime in August 1976. After learning of appellant's arrest in relation to stolen property, Crane became concerned that the phonograph he purchased from appellant may have been stolen. As a result, Crane turned the phonograph over to Detective Locke of the Dothan Police Department on October 25, 1976. Crane testified the phonograph was in good condition and had a small plate inscribed with numbers attached to it.

The phonograph which the Dothan police received from Crane was tagged and stored in the evidence room at the Dothan police station. Officer Grady Mixon of the Ozark Police Department was contacted by the Dothan police and requested to deliver this phonograph to Mr. Luckfield, which both Mixon and Luckfield testified Officer Mixon in fact did deliver. Luckfield testified this was "the other phonograph that was missing." He stated when he received it from Officer Mixon, the phonograph did not have a serial number plate; the plate had been pried off, damaging the machine in the process to the extent of rendering it inoperable. The police had previously returned to Mr. Luckfield the other antique phonograph which he had identified at the Dothan Civic Center warehouse.

Neither phonograph was produced at trial. Luckfield testified that the Crane phonograph was then in California being repaired.

Appellant contends there is some confusion as to whether the phonographs referred to above were in fact one and the same. Appellant suggests that even as many as four different phonographs were involved in the same burglary. Much of appellant's argument is grounded on this contention.

I.

Appellant's first point of error alleges the State failed to present evidence sufficient to establish the corpus delicti. The elements the State is required to prove in a case of buying, receiving, or concealing stolen goods are that the goods in question have been feloniously taken away by someone, that the defendant bought, received, concealed, or aided in concealing the goods, knowing that they were stolen, and without an intent to restore them to the owner. Scott v. State, 55 Ala.App. 318, 314 So.2d 921 (1975); Title 14, § 338, Code of Ala. 1940.

A.

The first element listed above was clearly proven at trial. Mr. Luckfield testified that on the morning of April 25, 1975, he discovered a door and a portion of the roof of his business had been torn open after the building had been locked on the night of April 24, 1975. The walls in the front of the store were bare and many large items were missing. Included in his inventory of the missing items were "one Edison phonograph" and one "black top Edison phonograph," also described as "(t)he other phonograph that was missing." Both phonographs were taken at the same time. He testified additionally he had not given anyone permission to take the property described above. Under the indictment, proof of the corpus delicti did not depend upon who stole these unique antiques. Proof that they were stolen by someone was all that was required, and there was ample evidence for that purpose. Wood v. State, 18 Ala.App. 654, 94 So. 256 (1922); Scott, supra.

B.

The State sought to prove the second element listed above by a showing of several factors. Scienter, a necessary element for sustaining a conviction of receiving stolen property, may be inferred by the jury from the facts and circumstances surrounding the whole transaction. Vines v. State, 57 Ala.App. 117, 326 So.2d 307 (1975). The State relied partially on a showing of possession of the recently stolen property by appellant to infer scienter. The requisite scienter for this crime may be inferred from possession of recently stolen goods. Rhone v. State, 53 Ala.App. 338, 299 So.2d 781 (1974). While the possession of recently stolen property does not raise a presumption as a matter of law as to the possessor's guilt, it does raise a presumption as a matter of fact to be passed upon by the jury. Milligan v. State, 45 Ala.App. 112, 226 So.2d 172 (1969).

The term "recently stolen," by its very nature, is relative in concept both as to the passage of time and the type of property involved. It is determined upon the facts of each case and, depending upon the particular circumstances, may vary from a few days to many months. Haynes v. State, Ala.Cr.App., 335 So.2d 203 (1976). The remoteness has regard additionally to the particular factors and considerations surrounding each case. Hence, it is not feasible to state a fixed rule with reference to the element of time lapse. Smitherman v. State, 33 Ala.App. 316, 33 So.2d 396 (1948). Remoteness of time affects weight rather than admissibility. Yet, as Smitherman points out, evidence must not be so remote in point of time as to be totally without causal connection or logical relation to the criminal act involved.

The time lapse of some sixteen months involved in the immediate case, if standing alone, might well fall within the excessive time cautioned against in Smitherman. However, Crane's evidence of appellant's actual possession of the stolen phonograph sixteen months after the fact must be considered in light of other relevant evidence. Thus, when considered first with the evidence introduced as to appellant's actual or constructive possession of other stolen items which were identified by Luckfield as being stolen in the same burglary (some of which were found in an apartment where Waters and his girl friend Lethia Speigner lived) and secondly with his own confession that police "had him cold," the possession clearly bares a causal connection and logical relation to the Luckfield burglary from which the jury could well infer scienter.

C.

In this same vein, appellant argues that the chain of possession which the State used to prove both his recent possession and the value of the phonograph was fatally incomplete. We do not agree. Crane testified he bought the phonograph from appellant at appellant's apartment. He further stated he turned that same phonograph over to Officer Locke. Locke testified he received the phonograph from Crane, tagged it, placed it in the evidence room, and called Officer Mixon in Ozark to pick it up. Mixon testified he personally received the phonograph from Officer Locke and then took it to Ozark where he immediately turned it over to Luckfield. Luckfield testified he received the phonograph from Mixon and that the phonograph had a market value of $350. Each one testified the phonograph was in the same condition when he relinquished custody as when he received custody.

The alleged fatal break in the chain of custody consists of Locke's failure to testify on the stand that he turned the phonograph over to Mixon. He testified of his intent to do so and of his call to Mixon. Mixon did in fact testify Locke turned the phonograph over to him. Chain of custody evidence must show a reasonable probability that the property involved is one in the same and in the same condition. While the better practice would have been to offer Officer Locke's testimony in this regard, there was sufficient evidence to establish with a reasonable probability that the phonograph Luckfield received from Mixon was the phonograph Crane bought from appellant. Bell v. State, Ala.Cr.App., 339 So.2d 96 (1976). While there may have been a minor discrepancy in Crane's and Luckfield's description of the phonograph as to serial numbers (and it is not clear there was one see facts set out above), it was for the jury to resolve as a matter of evidentiary fact. McConnell v. State, 48 Ala.App. 523, 266 So.2d 328 (1972).

Appellant argues additionally that evidence of Luckfield's other identified stolen goods found in appellant's apartment and in the warehouse rented by Lethia Speigner should not have been allowed. Aside from the fact that appellant's counsel himself introduced evidence concerning these goods, the goods were all involved in one continuing offense; the evidence tending to identify the goods as having been stolen with the phonograph. It was, therefore, relevant to show what goods were found where, as there was evidence connecting the appellant with actual or constructive possession of the stolen goods at those places. Broadfoot v. State, 26 Ala.App. 369, 160 So. 269 (1935); Leverett v. State, 18 Ala.App. 478, 93 So. 347 (1922).

D.

Appellant's final contention in this area is that his oral confession was erroneously admitted, primarily because the prosecutor failed to lay a proper predicate before the jury. The prosecutor laid a proper predicate outside the presence of the jury before the judge, but left out the Miranda warning element referring to free counsel in laying the predicate before the jury. Defense counsel, however, failed to object to this...