Larry Edward Jackson was convicted of murder and sentenced to life without parole, pursuant to the Alabama Habitual Felony Offender Act.
Elizabeth Taylor, daughter-in-law of the victim, James Taylor, testified she saw her father-in-law at his home two days before he was murdered. Shirley Speights, James Taylor's daughter, indicated that on the day in question, she went to her father's home. She noticed that the glass in the top part of the door was broken out. The next afternoon, she returned to her father's home and, after calling him and finding no one around the house, she went to the home of one of his neighbors. The neighbors indicated that they had not seen him
Jackson Police Chief Bill Taylor testified that on the same day he was called to James Taylor's home on a missing person report. He conducted an investigation around the victim's home and found evidence of a struggle in the front part of the house. Thereafter, the victim's body was found during the course of a search of a wooded area. Chief Taylor testified that the victim's forehead was severely lacerated and that two shirts were found over the body. The morning after the body was discovered, while further investigation of the area continued, Chief Taylor and Sheriff Sheffield saw the appellant running in the woods. Chief Taylor yelled for appellant to halt and both of them unsuccessfully pursued him. A blanket and a bedspread found in the area were taken to appellant's home, where his mother identified them as belonging to her and her husband. Various hair samples, bloodstains, and a handkerchief were submitted to the forensic lab for analysis. According to Chief Taylor, a stick of stove wood that appeared to have blood stains and hair on it was found a short distance from the victim's home.
During a search the next day, a shovel was found in a creekbed approximately 51 feet north of where the victim's body was found buried. Several days later a pair of pants was found in the vicinity. Walter Taylor, the victim's son, identified the two shirts found at the scene, as well as the pair of pants and shovel, as belonging to his father. Walter Taylor testified that, before the victim's body was found, the appellant's father described to him the condition of the body and stated that his son had committed the offense. Walter Taylor also testified that on one occasion appellant had tried to rob James Taylor.
James Small, a criminalist with the Department of Forensic Sciences, testified that hair samples taken from the right side of the front door, the right front of the house, the shovel, and a piece of wood, all matched the hair of the deceased, James Taylor. Dr. LeRoy Riddick, a pathologist with the Department of Forensic Sciences, testified that he performed an autopsy on the body and that, in his opinion, James Taylor died from a combination of the injuries to his head and strangulation. These injuries were consistent with being hit in the head with the piece of stove wood. Elaine Scott, a forensic serologist with the Department of Forensic Sciences, testified that she typed the deceased's blood as Blood Group O. According to Ms. Scott, Blood Group O was found on the paint samples taken from the door and on the piece of stove wood. Blood stains were also found on the pants and the handkerchief.
Billy Ray Fields testified that he was arrested on a charge pending against him from the State of Arizona and that he was placed in the Jackson City Jail. He testified that he spent part of his incarceration in a cell next to the appellant. The jury was excused and Fields testified that he had two conversations with the appellant. Fields testified that no one had asked him to talk to the appellant about the crime and that he was not aware of James Taylor's death. According to Chief Taylor, no one, to his knowledge, from the Sheriff's Department or the District Attorney's Office, contacted Arizona officials about the pending charges against Fields and asked them to dismiss the charges. No one offered Fields any reward or money, or told him it would be better or worse for him if he discussed the case. Appellant told Fields that he had been to a party where there was drinking and gambling and that he had gone to this man's house to borrow some money; however, the man had refused.
Appellant argues that the evidence presented by the State was insufficient to sustain his conviction. This court is required to consider the evidence in a light which is most favorable to the State. Cumbo v. State, 368 So.2d 871 (Ala.Cr.App. 1978), cert. denied, 368 So.2d 877 (Ala. 1979); Barnes v. State, 429 So.2d 1114 (Ala.Cr.App.1982).
In Saffold v. State, 494 So.2d 164, 167 (Ala.Cr.App.1986), this court stated:
Furthermore, in Giles v. State, 440 So.2d 1237, 1239 (Ala.Cr.App.1983), this court held:
This Court has also written:
Stewart v. State, 405 So.2d 402, 403-04 (Ala.Cr.App.1981).
The testimony in the present case raises inferences of fact for the jury that if accepted were sufficient to sustain appellant's conviction. In light of the appellate standard for review of a claim of insufficient evidence, the appellant's argument must fail.
Furthermore, while the evidence presented was circumstantial and each factor standing alone is insufficient, when taken as a whole, the evidence sufficiently raises questions of fact for the jury. Under § 13A-6-2, "[a] person commits the crime of murder if: (1) With intent to cause the death of another person, he causes the death of that person...." In this case, the State presented the following evidence: that the appellant had the opportunity, as he left the party for some time; that the appellant had a possible motive of robbery, as he needed money; that no money was found on the victim's person although it was his custom to carry large amounts of money; that the appellant displayed a guilty conscience by running from the police when he was observed where the body was found; and that the appellant made incriminating admissions to Billy Ray Fields while in the Jackson City Jail.
The appellant argues that the statement which he allegedly made to Billy Ray Fields should have been excluded from evidence because it was made while he was being illegally detained and because the statement constituted hearsay.
The appellant argues that his statement was involuntary in that he was being illegally detained when the statement was allegedly made. The appellant was arrested on an alias warrant for failure to appear in city court and pay fines for misdemeanors, trespassing, and public intoxication, for which he had previously been convicted and fined $25 on each case plus court costs. During the suppression hearing, Chief Taylor testified that the appellant had informed him that he did not want to make any statements until he talked to his lawyer; the appellant was never questioned further by the officials, nor did he ever request an attorney.
Regardless of any possible illegality in the appellant's imprisonment, his statement was not made to an official; rather it was made during a conversation with a fellow inmate. Thus, it is not the fruit of an illegal arrest in that it does not flow from the arrest.
Primm v. State, 473 So.2d 547, 553 (Ala. Cr.App.1984). See also Warrick v. State, 460 So.2d 320, 323 (Ala.Cr.App.1984); Hinshaw v. State, 398 So.2d 762, 764 (Ala.Cr. App.), cert. denied, 398 So.2d 766 (Ala. 1981). In the present case, the record
Furthermore, because the appellant never made a statement to the police, and all questioning was ceased when the appellant stated that he wanted an attorney, the appellant's right to counsel under the Sixth Amendment was not violated. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979).
As to the appellant's claim that his statement made to the inmate constituted inadmissible hearsay, this claim is meritless, as the statement made constituted an admission.
Wigmore, Evidence, § 1048(2) (1972).
Appellant argues that the trial court abused its discretion by allowing two of the State's chief witnesses, Sheriff Sheffield and Police Chief Taylor, to sit at counsel table with the victim's son after the rule for exclusion had been invoked. Appellant contends that because Sheriff Sheffield and Police Chief Taylor were excused from the exclusionary rule and because they were "repeatedly called to the witness stand," the appellant was deprived of a fair and impartial trial.
Excusing a witness from the rule calling for the exclusion of a witness from the courtroom is a matter that rests within the discretion of the trial court.
The exclusion of a witness is a matter that rests within the trial court's discretion, particularly where the witness excused
Excusing the sheriff and the police chief from the rule was a matter within the sound discretion of the trial court. Therefore, the appellant's argument must fail.
Appellant argues that the State failed to prove that he had been previously convicted of three felonies for the purpose of sentence enhancement under the Habitual Felony Offender Act. Appellant objected at sentencing to the introduction of the prior convictions. He specified the grounds of his objection as being the failure to lay a proper predicate, failure to lay a proper foundation, hearsay, and lack of notice. However, in brief, the appellant argues that one of the prior convictions, a New York conviction, was not proved by a properly certified judgment entry, but rather by an extract from the minutes, and that there was no affirmative showing of representation by counsel. He also argues that the State failed to show that the New York conviction was a felony and that there was no proof that the appellant was the same person as that person named in the New York documents.
In McBride, as in Thomas, the State introduced certified copies of judgment entries from the "sister states," but failed to produce certificates "from a `judge, chief justice or presiding magistrate' verifying that the attestations were in due form," McBride, supra, at 620, and a proper objection to the introduction of this evidence was raised by the appellants. The record in the present case contains a certified copy of the judgment entry, as well as a verification.
As to the appellant's claim that the State has failed to show that he was represented by counsel upon conviction of this prior offense, it is clear that an uncounseled prior conviction cannot be used to enhance punishment. Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967). Thus, it must be shown that the accused was represented by counsel, or waived his right to counsel, at the time of his prior conviction, or the conviction is not available for consideration under the Habitual Felony Offender Act. Watson v. State, 392 So.2d 1274, 1279 (Ala.Cr.App.1980), cert. denied, 392 So.2d 1280 (Ala.1981). However, this court has distinguished the situation in Burgett, stating that the Supreme Court held that because of a discrepancy in the record, there was a "presumption that petitioner was denied his right to counsel," 389 U.S. at 114, 88 S.Ct. at 261-62, in that one version of the prior conviction stated that the petitioner had been "without counsel," while another version implied that the petitioner may have had an attorney. Ladd v. State, 431 So.2d 579, 580 (Ala.Cr.App.1983). "Although the Burgett court cautioned against `[p]resuming waiver of counsel from a silent record,' 389 U.S. at 114-115, 88 S.Ct. at 261-262, the record in the instant case is not silent. It shows that Honorable J. Louis Wilkinson appeared as counsel for appellant prior to trial." Id. This court wrote that if the appellant contended that he was not represented at trial, conviction, and sentencing, "we think he had both the burden and the opportunity of proving that fact. As the Court of Appeals for the Fifth Circuit stated in a case with similar circumstances, `[i]n view of the fact that the record is not "silent" as to [petitioner's] representation by counsel, he would have the burden of proving otherwise.' Wesley v. Alabama, 488 F.2d 30 (5th Cir.1974)." Ladd v. State, supra, at 581. In the present case, the documents pertaining to this prior conviction contained in the record clearly show that the appellant was represented by counsel during arraignment and at the entry of his plea. Therefore, there is a presumption that he was represented by counsel during the entire proceedings, and it is his burden to prove otherwise.
Appellant argues that his New York conviction was not proven to be a felony under Alabama law. The State introduced the judgment entry showing appellant's New York conviction, coupled with the documents underlying the conviction. It is apparent from reviewing the documents which are included in the New York indictment returned against the appellant that the New York conviction would be a felony under Alabama law.
Appellant admitted his two Clarke County convictions for burglary and receiving stolen property. Prior convictions may be proven by the testimony of the defendant at sentencing. Lyner v. State, 398 So.2d 420 (Ala.Cr.App.1981). Thus, appellant's convictions were proven and properly considered by the court for purposes of sentence enhancement pursuant to the Alabama Habitual Felony Offender Act.
Furthermore, the trial court will not be placed in error on appeal for grounds not specified during the sentencing hearing. Smith v. State, 409 So.2d 455 (Ala.Cr. App.1981); Slinker v. State, 344 So.2d 1264 (Ala.Cr.App.1977). Counsel for appellant did not properly object to the latter two issues he now raises regarding the admission of the prior felonies.
Appellant contends that his federal and state constitutional rights to an impartial trial and effective assistance of counsel were violated. He also claims he was denied due process of law and that he was not afforded his right against self-incrimination. Appellant argues that a conflict of interest arose because of the relationship between the prosecutor and the municipal judge, who was called as a witness by the prosecutor, in order to prove a legal arrest. The municipal judge who issued the arrest warrant was the brother of the part-time assistant district attorney who actively prosecuted the case. However, the record indicates that the subject matter of this testimony was confined to the events concerning the appellant's convictions on two prior misdemeanors, fines imposed thereon, failure to make payment, and the subsequent issuance of alias warrants pursuant to that failure. This testimony was merely cumulative, as the clerk had previously testified to these events; furthermore, this evidence had no real bearing on this case, as previously discussed. Therefore, any error in the admission of this testimony was harmless. C. Gamble, McElroy's Alabama Evidence, § 430.01; Alabama Rules of Appellate Procedure, Rule 45. Further, appellant's claim has not been properly preserved for review by this court, as no objection to this testimony was raised at trial. Bell v. State, 466 So.2d 167 (Ala.Cr.App. 1985); Moore v. State, 457 So.2d 981 (Ala. Cr.App.1984), cert. denied, 470 U.S. 1053, 105 S.Ct. 1757, 84 L.Ed.2d 820 (1985). Additionally, the testimony of the municipal judge, the brother of the prosecuting attorney, was never before the jury.
The appellant also argues that his previous attorney, Daryl Drinkard, withdrew from representing the appellant because he had accepted a position as an assistant district attorney working with the prosecutor. The appellant cites Zuck v. Alabama, 588 F.2d 436 (5th Cir.1979), rehearing denied, 591 F.2d 102, cert. denied, 444 U.S. 833, 100 S.Ct. 63, 62 L.Ed.2d 42 (1979), in support of his argument that "an actual conflict of interest existed because appellant's former attorney placed himself in a situation that was inherently conducive to divided loyalties." Appellant asks this court "to reconsider its decision in Terry v. State, Ala.Cr.App., 424 So.2d 710 (1982)." He argues that the rationale set forth in Zuck, supra, should be applied in the present case. It will not be necessary for this court to reconsider its decision in Terry, as the fact situation in Terry is not analogous to the circumstances of the present case. In Terry, the prosecuting attorney had formerly been associated with the attorney and the law firm that represented the defendant. In Terry, neither the defendant nor any of the prosecuting attorneys' former law partners had divulged any information about their client's case to the attorney who was later responsible for prosecuting the case against the defendant. In Terry, this court held that no conflict of actual or constitutional violation existed. There are two major distinctions between the facts in Terry and the circumstances that exist in the present case. In the present case, Mr. Drinkard was at one time the attorney who represented the appellant. In Terry, the prosecuting attorney had only been a member of the firm who represented the appellant, but he never represented the defendant nor did he have any direct involvement with the defendant, nor did he gain any information about the defendant's case through his association with the law firm that represented the defendant. Further, in the facts of the present case, Mr. Drinkard did not assist in the prosecution of the appellant's case after accepting the job of an assistant district attorney; thus, he was not directly involved in prosecuting the case, as was the attorney in Terry.
In Terry, the defense counsel's ex-partner was the prosecuting attorney. In the present case, the appellant's former attorney withdrew from representing the appellant and accepted employment with the district attorney who prosecuted the case. However, in the present case, Mr. Drinkard had nothing to do with the prosecution of the case.
The record in the case subjudice reveals that no motion was made by the appellant for the district attorney's office to remove itself from the case. Hannon v. State, 48 Ala.App. 613, 266 So.2d 825 (1972). There has been no showing by appellant that his former attorney gave any confidential information to the prosecution in this case.
Further, matters not objected to at trial cannot be considered on appeal. Moore v. State, 415 So.2d 1210, 1217 (Ala. Cr.App.1982), cert. denied, 459 U.S. 1041, 103 S.Ct. 459, 74 L.Ed.2d 610 (1982); Wood v. State, 416 So.2d 794, 799 (Ala.Cr.App. 1982); Fagan v. State, 412 So.2d 1282 (Ala. Cr.App.1982). However, although the trial court committed no impropriety, because no motion or objection in regard to this issue was made during trial, in the interests of time and efficiency this cause should be remanded to the trial court in order for it to conduct a hearing as to whether an actual conflict existed as to the defense counsel's subsequent employment with the district attorney's office. See Hannon v. State, 48 Ala.App. 613, 266 So.2d 825, 826-34 (Ala.Cr.App.1972), and cases cited therein; Terry v. State, 424 So.2d 710, 711 (Ala.Cr.App.1982).
REMANDED WITH DIRECTIONS.
All the Judges concur.
ON RETURN TO REMAND
Following the order issued by this court, the trial court conducted a hearing to determine whether a conflict of interest existed because of the defendant's previous court-appointed attorney's subsequent employment as a part-time assistant district attorney. The trial court found:
Pursuant to these findings, we affirm the trial court's decision that no actual conflict existed.
The appellant has filed an application for rehearing and a Rule 39(k), A.R.A.P. motion for a statement of additional and/or corrected facts. There are no issues presented for review that have not been thoroughly addressed on appeal, and there are no valid grounds presented in the request for additional facts.
OPINION EXTENDED; AFFIRMED; APPLICATION FOR REHEARING OVERRULED; RULE 39(k) MOTION DENIED.
All the Judges concur.