Weaver v. State, 8 Div. 470

• Citation: 401 So.2d 344
• Decision Date: 30 June 1981
• Docket Number: 8 Div. 470
• Parties: Mark Anthony WEAVER v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 344

401 So.2d 344

Mark Anthony WEAVER v. STATE.

8 Div. 470.

Court of Criminal Appeals of Alabama.

June 30, 1981.

Maria Jane C. Wells of Carnes & Carnes, Albertville, for appellant.

Charles A. Graddick, Atty. Gen., and Joseph G. L. Marston, Asst. Atty. Gen., for appellee.

BOOKOUT, Judge.

The appellant was indicted and convicted for burglary in the third degree. Ala.Code § 13A-7-7 (Supp.1979). Upon determination that appellant was a habitual offender pursuant to Code § 13A-5-9(b)(1) (Supp.1979), the trial court fixed his punishment at ten years and one day. This appeal primarily concerns procedural questions; therefore, a lengthy recital of the facts is unnecessary.

The State's evidence was sufficient beyond any reasonable doubt to prove that appellant instigated and participated in the February 28, 1980, burglary as charged. Appellant was accompanied by two juveniles. The trio had been drinking and "riding around" for several hours prior to appellant's encouraging the juveniles to commit the breakin. Appellant assisted and supported the juveniles by words and acts as was necessary in accomplishing the crime. In the words of one of the juveniles, "He put us up to it."

Appellant first let one of the juveniles out of his car with a tire tool which was used to break out a window, and he then rode around for a while with the other juvenile. Later, appellant let both juveniles out at the same residence to "get some more stuff" and then transported some of the stolen items to his house.

The next day the two juveniles made statements incriminating themselves and implicating appellant. Later that day appellant surrendered to authorities and signed a voluntary statement consistent with the juveniles' story, but denying his complicity in the actual burglary.

Suffice it to say, the jury verdict was well supported by the evidence. What follows is a discussion of the facts relevant to the procedural questions which are raised on this appeal.

Appellant was arraigned on September 23, 1980, and pled not guilty in the presence of counsel. At that time the trial court informed appellant his trial was set for October 27, 1980, stating, "Please be ready for trial at that time. It's your duty to be ready for trial." On October 29, 1980, appellant's case was called for trial, and defense counsel stated that he was ready to proceed. The jury was struck, empaneled, sworn, and sequestered. After the lunch recess, but before any witnesses were called, the following exchange occurred:

"MR. WALKER: I'd like to I don't think the record has indicated so far that I requested a continuance in this case

"THE COURT: No, sir, it doesn't.

"MR. WALKER: Because of unavailability of one of the defense witnesses, Mike Horton, and I think this witness is possibly a very important witness to the case. I've just this week learned he's in custody of the State of Alabama. I have numerous times this week requested that this case be continued or that Horton be produced, and I also I'd like to make an offer that if he were here his testimony would show that he and Neal Gamble and the defendant were riding around on the evening of February 28, 1980, and that Mike Horton asked the defendant to stop his car in Sims Community, and that he and that Mike Horton and Neal Gamble got out of the car and the defendant drove on and came back later and Horton and Gamble had a number of items of personal property laying (sic) in the ditch. The defendant refused to let them bring that personal property into his vehicle, but that Horton did bring in with him a small portable TV set and a clock radio. That a few minutes later, after the three had driven off, that the defendant stopped the vehicle and insisted that Horton remove the two items from the vehicle. That Horton did so. That Horton later tried to get the defendant to return to Sims Community to pick up the property left in the ditch there and that the defendant refused. That the defendant did not break into or enter the home there in the Sims Community that's the subject of this case, and neither did he encourage or seek to have Gamble or Horton to do so.

"MR. THOMPSON: Judge, we could not agree for that showing to be admitted as such.

"THE COURT: I think the showing comes too late. It should've been made to Judge Jetton when the docket was being called. We think the showing comes too late. We've already selected a jury and nothing was said about a continued (sic) except as far as the Court knows, except in at any time when the Court could officially consider it. Of course, I didn't manage the docket. Judge Jetton managed the docket. It doesn't appear here that anything was put in the record about it. All right, bring the jury in."

This is the only indication in the record before Judge Clark E. Johnson, the presiding judge at appellant's trial, that appellant sought a continuance in an attempt to procure Mike Horton as a defense witness.

Appellant was sentenced on December 19, 1980. That same day appellant's motion for new trial, which alleged among other things that he should have been given a continuance to procure the witness, was denied. Appellant then gave notice of appeal and was provided with a free transcript and counsel was appointed. The trial transcript was filed in this court on February 10, 1981.

On March 3, 1981, appellant's counsel filed the following motion under Rule 10(f), Alabama Rules of Appellate Procedure:

"Between the time this cause was called on the call of the docket on Monday, October 27, 1980, and the commencement of trial on October 29, 1980, certain things were done, motions made and rulings by the Court regarding the absence of a witness subpoenaed by the Defendant, and the record fails to reflect these matters.

"WHEREFORE Defendant moves the Court that the record be amended so as to reflect said matters."

By order of the trial court, a hearing was set on this motion for March 23, 1981; the court reporter was directed to transcribe testimony at the hearing and to "correct the record herein to be added to the reporter's transcript for submission to the Appellate Court."

At the March 23 hearing Judge William D. Jetton made it clear at the outset that most of the communication to the court concerning the absent witness "occurred outside of the courtroom, in conversation":

"The Court totally is without recollection of most of the matters except what happened that was told to you, Ms. Wells, that the Court does remembering (sic) happening.

"Of course, we will allow you to put in any testimony that you might have. However, I am a little concerned and afraid that the matter of making a record is the responsibility of the attorney, and none of this none of the matters concerning the witness was placed on the record at the time of trial."

James Dee Walker, appellant's trial counsel, was called as appellant's first witness. Mr. Walker testified that he answered docket call on Monday, October 27, 1980, and that he told the trial court at that time that he was not ready to try appellant's case without witness Mike Horton, that Horton had been subpoenaed but was not present. "I believe the Court at some point that day issued a bench warrant or writ of attachment for that witness to a residence in Guntersville." Mr. Walker stated that later that day he found out that Horton was in custody at the youth facility at Mt. Meigs. Mr. Walker was emphatic that "on a number of occasions that day and the next morning, there were conversations at the bench, and I made known to the District Attorney and to the Court that I was not prepared to proceed without the witness." Mr. Walker admitted that a court reporter was not present on any of those occasions. Mr. Walker stated that on Monday the trial court "did not feel" that Horton's absence was ground for a continuance.

On cross-examination Mr. Walker testified that if he announced "ready" to the Monday docket call he later told the trial court he was not ready to proceed without Horton. Judge Jetton then interjected the following:

"Let it be in the record that I think we should certainly be fair to the situation. The Court remembers Mr. Walker making those statements during the course of the day. The Court does not remember whether they were made in at the bench, in chambers, in the hall, wherever, but I do remember him indicating that he was not ready without this witness but after the docket call as I remember."

Mr. Walker testified that he had not talked to Horton at the time he made his requests to the trial judge for a continuance.

Deputy Sheriff Lacy Galloway of Marshall County testified that a writ of attachment was issued for Horton, but that he reported to the Judge "we could not find the boy."

District Attorney John W. Starnes of Marshall County testified that Sheriff Rex Smalley called him late Tuesday afternoon, October 28, 1980, and told him Horton had been "at the juvenile detention facility somewhere south of Montgomery, and there was no possible way he knew of at that point in time to go down to Montgomery unless he kept somebody up all night to go down there." Mr. Starnes stated that Mr. Walker had "announced ready on Monday morning without any reservation."

Judge Jetton entered the March 23 testimony as part of the record. The district attorney then objected:

"(T)he record speaks for itself.

"(I)t is again doubly dangerous to try to amend something that does not transpire here officially before the Court when the Court is on the bench.... (A)nything that is of judicial importance, by necessity, has to be brought before the Court while the Court is in its official capacity to hear things."

Judge Jetton sustained the objection stating that "it is the burden of the attorney to make sure that it gets on the record." However, the court ultimately made the March 23 testimony part of the record for purposes of appeal.

In summary, we again point out that Judge Clark E. Johnson, Jr., presided over appellant's ...