Williams v. State

• Citation: 440 So.2d 1139
• Decision Date: 05 July 1983
• Docket Number: 4 Div. 40
• Parties: Jerry Lee WILLIAMS, Jr., alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1139

440 So.2d 1139

Jerry Lee WILLIAMS, Jr., alias v. STATE.

4 Div. 40.

Court of Criminal Appeals of Alabama.

July 5, 1983.

Rehearing Denied Aug. 30, 1983.

Certiorari Denied Nov. 4, 1983

Alabama Supreme Court 82-1242.

Steven K. Brackin of Lewis & Brackin, Dothan, for appellant.

Charles A. Graddick, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for appellee.

HARRIS, Judge.

Appellant was indicted for the November 26, 1981, first degree robbery of taxi cab driver Robert Woods at Billy's Trailer Park in Dothan. After a three-day trial, he was found guilty as charged. Ala.Code § 13A-8-41 (1975). Appellant waived preparation of a presentence investigation and was sentenced, as an habitual offender, to life imprisonment. From that conviction he now appeals in forma pauperis.

Appellant raises several issues on appeal. However, his major contention centers upon the legality of the search of his residence and seizure of property therein. Appellant filed a motion to suppress the seized evidence and a pretrial hearing was held upon such. Appellant offered the affidavit ¹ and search warrant as evidence as well as called the affiant and victim as witnesses on his behalf.

In order to better harmonize appellant's arguments against the various portions of the affidavit with the evidence presented, we will summarize the evidence presented at the hearing as well as at trial pertinent to each of the five paragraphs separately.

Nothing was presented by appellant or the state to contradict or verify the first paragraph of the affidavit. It forms no basis for a finding of probable cause and thus is of little importance in a determination thereof.

The second paragraph is a summary of the incident as told by the victim to the affiant, Dothan Police Investigator Jackie Mendheim. The first one-half of it is a brief narration of the facts surrounding the robbery. It does not provide any basis for a finding of probable cause. The following two sentences recite the description given by the victim to Mendheim at the hospital on November 28. Woods's testimony at the hearing confirmed the accuracy of the description contained in the affidavit and the fact that the robber had a pistol. Woods did not testify to the pistol's caliber or color or as to the height or build of the robber. He could not recall giving Mendheim a description of the robber's clothing and did not verify the description thereof in the affidavit. Woods did not know if the robber had come out of trailer 119, as he had approached his taxi from the rear. Consequently, he would only testify as to the general area from which the robber came.

Mendheim testified that he received descriptions of appellant from other unnamed individuals which indicated that appellant was tall and slender. His skin tone was described by these individuals only as "black." He stated that through his investigation he learned that appellant resided in trailer 119, although such was not recited in the affidavit. The statements concerning appellant's injuries were Mendheim's conclusions based upon his observations of Woods. They do not provide any foundation for a finding of probable cause.

Trace Hamlin ² testified that he accompanied the police to the scene of the robbery and was present when Woods was asked to describe his assailant. Hamlin testified that Woods described the robber as a white male wearing a cowboy hat. Hamlin thought Woods stated that he had been beaten with a tire tool, as he assisted the police in searching for one.

A comprehensive review of the second paragraph reveals that the only information contained therein which would assist the issuing judge in determining whether probable cause existed to issue the search warrant was the general description of the robber. With Woods being unable to identify his assailant, his description acquired more importance. Mendheim verified Woods's description, but the confirmation was more The third paragraph consists of two sentences, the latter being concerned with the verification of Woods's description of the robber and identification of such as appellant, heretofore discussed. The first sentence contains multiple hearsay statements originating from a tenant at the trailer park, later identified as Wayne Kelly. Kelly informed the trailer park owner, Billy Parrish, that appellant had come to his trailer, number 114, apparently to call a taxi. However, no time frame for appellant's action was stated and none can be found in the record. Parrish then passed this information on to Lieutenant Locke, who in turn relayed it to Mendheim.

vague and general than that stated by Woods. Further, the source of such was not revealed.

Mendheim testified that prior to the issuance of the search warrant, he talked with Kelly in an attempt to verify the information he had received. Kelly refused to verify it and was uncooperative. He stated that he did not want to get involved. Neither Kelly, Parrish, nor Locke testified at the hearing or trial to confirm the accuracy of the information contained in the third paragraph. Furthermore, at trial, the state stipulated that if Kelly was called to testify he would deny making the statement attributed to him.

Paragraph four also contains multiple hearsay statements. An individual later identified as Florida Corrections employee Freddie Jones called Locke and told him of appellant's whereabouts. He also relayed information he had received from a girl named Beverly, but later identified as Shirley Harris. Harris told Jones that appellant had told her that he had beaten a man in Dothan and thought that he had died.

Mendheim admitted not corroborating any of the above information until after issuance of the search warrant. In doing such, he only interviewed Jones. At trial Jones verified calling the Dothan Police Department at appellant's request. However, he did not confirm the substance of his conversation with Locke as recited in Mendheim's affidavit. Jones did testify that appellant came to his house during the early morning hours of November 26. He noticed blood on appellant's coat sleeves and blood and scratches on one of his hands. Appellant explained that such was a result of "some in-law trouble, a guy was after him." Jones gave appellant a shirt to change into. Appellant spent the night at Jones's house and left the next morning. He returned a couple of days later. At that time appellant asked him to call the Dothan Police to inquire if anyone had been mugged at Billy's Trailer Park. After calling, Jones told appellant that such had occurred and that appellant was suspected of doing it. Appellant replied that "that's what he was accused of." Afterwards, appellant left Jones's house only to return around December 1. He stayed only for a short time before leaving. Jones was not called as a witness at the suppression hearing.

Harris, who testified only at trial, stated that on November 28 appellant told her "that he had been in a fight with his relatives." He also told her "that he thought he had been accused" of beating a man in Dothan "but, he didn't know for sure." Harris stated that she carried some clothes for appellant to Malone, Florida, apparently to Jones's residence. Consequently, Harris, to some extent, contradicted the statement attributed to her in the affidavit.

Mendheim initially testified at the suppression hearing that he had no knowledge of the information contained in the last paragraph of his affidavit. At trial, however, Mendheim stated that he had made a mistake at the hearing, and had personally contacted Riley. A close reading of this paragraph reveals that it adds nothing to support a finding of probable cause. Whether Riley had seen appellant "since before Thanksgiving Day" does not support the conclusion that he robbed Woods, nor does it suggest any consciousness of guilt.

No oral testimony was made before the issuing judge in addition to the information in the affidavit. Thus, the trial court had before it only Mendheim's affidavit to determine Consequently, a review of the affidavit reveals that paragraphs one and five were of no assistance to the issuing judge in determining whether probable cause for issuance of the search warrant existed. Further, except for a few sentences of paragraph two, it likewise provided no foundation for a finding of probable cause. Thus, we are left with the information contained in paragraphs three and four, as well as a portion of the second paragraph to review.

whether probable cause existed for issuance of the search warrant.

In both the third and fourth paragraphs, Locke relayed information which he had received through telephone conversations with private citizens. These individuals had acquired all or part of their information from yet another named citizen. Consequently, the confidential police informant situation addressed by Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and explicated by Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), was not present. Generally, in conjunction with a consideration of the Aguilar-Spinelli "two-prong test", law enforcement officers as well as named private citizens are not required, when assessing the information derived therefrom in light of the probable cause standard, to satisfy the "veracity prong" of Aguilar-Spinelli. Jaben v. United States, 381 U.S. 214, 85 S.Ct. 1365, 14 L.Ed.2d 345 (1965); United States v. Ventresea, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); Miller v. State, 440 So.2d 1127 (Ala.Cr.App.1983); Mauldin v. State, 402 So.2d 1106 (Ala.Cr.App.1981); Hadley v. State, 391 So.2d 158 (Ala.Cr.App.), cert. denied, 391 So.2d 162 (Ala.1980); Richardson v. State, 376 So.2d 205 (Ala.Cr.App.1978), aff'd, 376 So.2d 228 (Ala.1979) ³; Davis v. State, 333 So.2d 168 (Ala.Cr.App.1976); W. La Fave, 1 Search and Seizure, § 3.4(a) (1978); Moylan, The Right of the People to be Secure, 252-56 (1976); Moylan, Hearsay And...