Powell v. State

Citations: 624 So. 2d 220; 1993 WL 86448Docket: CR-91-1593

Court: Court of Criminal Appeals of Alabama; March 25, 1993; Alabama; State Appellate Court

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Thomas Edward Powell was convicted of first-degree robbery and sentenced to life imprisonment without parole due to his status as a habitual offender. He raised eight issues on appeal, primarily contesting the use of a prior conviction for leaving the scene of an accident to enhance his sentence. Powell argued this conviction should not have been considered under the habitual offender statute, as it did not occur under Title 13A of the Alabama Code. The court rejected this argument, affirming that the Habitual Felony Offender Act's enhancement provisions apply to any felony conviction, regardless of its origin. The court referenced prior case law establishing that all felonies fall within the habitual offender statute's scope and upheld the trial court's decision.

Section 13A-1-2(4) defines a felony as an offense punishable by imprisonment exceeding one year. In *Gibson v. State*, the court ruled that an appellant could be sentenced as a habitual offender even if one prior conviction was outside the criminal code, allowing for enhancement of sentences for felonies defined in Title 13A using prior felony drug offenses. The appellant's argument challenging his habitual offender status due to prior convictions being used again is dismissed, as it does not violate double jeopardy principles, supported by *Johnson v. State*. The claim that the sentence was disproportionate because the appellant was intoxicated and no property was taken is also rejected, affirming that a life sentence without parole for a Class A felony, after three prior felonies, is not considered unduly harsh. The trial court correctly ruled that the appellant failed to establish a prima facie case of discrimination under *Batson v. Kentucky* regarding the state's use of peremptory challenges against black veniremembers. The trial court's decision was based on the composition of the jury and the handling of peremptory challenges, which aligns with the precedent set in *Huntley v. State*, where the focus was on the race neutrality of the strikes rather than solely on the establishment of a prima facie case.

The trial court determined that the appellant failed to establish a prima facie case of discrimination regarding the striking of two black veniremembers, and thus did not require the state to provide reasons for its strikes. Citing Alabama Supreme Court precedent (Harrell v. State), the court noted that merely showing that blacks were struck from the jury does not suffice to prove discrimination; additional evidence must indicate an inference of discrimination. The appellant's argument was weakened by the fact that a higher percentage of blacks served on the jury (33%) compared to the venire (25%), failing to support a claim of discriminatory intent.

Additionally, the appellant contended that the state violated the Brady v. Maryland principle by not disclosing evidence of his intoxication prior to trial. Although the appellant learned of his intoxication during Officer Kyser's testimony, he argued that the state should have provided this information earlier. To prove a Brady violation, the appellant needed to show suppression of evidence, that it was favorable or exculpatory, and that it was material. The court acknowledged that the intoxication evidence was favorable but concluded it was not material since the appellant had ample opportunity to present a defense based on intoxication. There was no reasonable probability that the trial's outcome would have changed had he received the intoxication information beforehand, especially since the evidence was eventually presented through Kyser's testimony.

Witness testimony established the appellant's intoxicated state before the incident, and the trial court instructed the jury on intoxication as a defense. The appellant effectively developed this defense, rendering any potential error from the late disclosure of an opinion in the police report harmless. The appellant claimed the trial court erred by not granting his request for jury instructions on reckless assault, arguing that his intoxication negated the specific intent required for robbery. He was indicted for first-degree robbery, which required proof of using force, not physical injury, distinguishing it from the definitions of reckless assault under Alabama law. The trial court found that neither second-degree nor third-degree reckless assault were lesser included offenses of the robbery charge, as both required proof of physical injury, while robbery required only proof of force. The court determined that the appellant's requested jury instructions were properly denied.

Additionally, the appellant contested the admissibility of a photographic array used for identification, claiming it was suggestive and lacked independent verification of in-court identification. However, the victim identified the appellant during her hospital treatment and later in court without objection. Philip Gingras also identified the appellant in court, but the record does not confirm whether he recognized the appellant from the photographic array. Thus, the appellant's arguments regarding the photographic array were found to lack merit.

Larry Horne did not identify the appellant in court but described his attacker. Although Horne was shown a photographic array, the record does not confirm whether he identified the appellant from it. Debra Horne did identify the appellant based on her observations during the attack, asserting her choice was independent of police influence. Sissy Holifield also did not identify the appellant at trial but described the assailant. The appellant highlights discrepancies in the clothing and facial features of the men in the array compared to his description. The photographic array was presented to Horne on the night of the offense, but the timing of the appellant's photograph is unclear. 

To assess the constitutional validity of eyewitness identification, a two-step analysis is required: first, determine if the identification procedures were unduly suggestive, and second, balance this with the reliability of any resulting in-court identification. The court found the array not unduly suggestive, as the subjects shared general physical characteristics despite minor differences. Horne was not influenced by police comments before making her identification. Even if suggestive, Debra Horne's identification was supported by her observations at the scene, making it admissible in court. She noted specific characteristics of the appellant, consistent with other witness descriptions.

The appellant also argued that the trial court erred in refusing to suppress three statements made to police, claiming they were obtained in violation of Miranda v. Arizona. He stated that his statement at the Opelika Police Department was involuntary because he was held without access to a phone or a lawyer and was threatened with severe prosecution. He contended that subsequent statements made during transport and at the courthouse were also involuntary, asserting that his age of 27 and eighth-grade education indicated his statements were coerced.

A suppression hearing was conducted to assess the voluntariness of the appellant's statements. Captain Thomas P. Barnes of the Opelika Police Department testified that he and Lieutenant Cooper sought a statement from the appellant at the police station. The appellant confirmed his ability to read and write, and he read a waiver of rights form aloud before it was read to him by the officers. There was conflicting testimony regarding whether the appellant was allowed to make a phone call. Barnes stated that the appellant did not request an attorney during the questioning and that he was neither threatened nor coerced. The appellant recounted his whereabouts and actions after leaving the Red Eagle Honor Farm, including a visit to an apartment where he eventually asked a woman for a ride, leading to her panicked reaction. After providing his statement, the appellant requested an attorney, prompting the termination of the interview. The court ordered the removal of specific references from the prosecution, including the mention of the Red Eagle Honor Farm and the appellant's request for an attorney.

Detective James Murphy also testified, detailing the appellant's inquiries during transport to a probable cause hearing. Murphy confirmed that the appellant was aware of the charges against him—first-degree robbery and kidnapping—and questioned the basis for those charges, asserting he had only attempted to commit the offenses. Murphy stated that neither he nor Cooper engaged the appellant in conversation during transport. The appellant mentioned his glasses during a courtroom interaction, describing them in detail. For the suppression hearing, the appellant testified that he initially refused to provide a statement and was returned to jail. He claimed he did not recall making a statement or signing the waiver of rights form, although he acknowledged the signature was his. The appellant admitted to asking questions of officers during transport and at the Justice Center regarding his glasses.

On the night of his arrest, the appellant was informed by the Opelika police that he faced a potential life sentence without parole. During cross-examination, he acknowledged having three prior felony convictions and an awareness of his rights, but he could not recall if his Miranda rights were read to him. He did confirm that officers stopped questioning him when he requested an attorney. The testimony at the suppression hearing was largely inconsistent, with contradictions between the appellant's statements and those of officers Barnes and Murphy. The trial court's ruling was based on credibility assessments of the witnesses, and it is established that such credibility determinations are binding unless clear error is shown. The court found that the appellant's statement to police was voluntary, concluding that he had the opportunity to contact an attorney and that his request for counsel halted questioning. The appellant argued that his statements made after two days in jail were involuntary and a continuation of earlier statements made under duress. However, these later statements were deemed volunteered, not the result of interrogation. The court cited the U.S. Supreme Court's ruling in Edwards v. Arizona, which emphasizes that once an accused has requested counsel, further interrogation is prohibited unless initiated by the accused. Thus, the appellant's inquiries and statements were admissible as they did not stem from police interrogation.

The trial court properly admitted the appellant's volunteered statements made during transit to the Justice Center, as they did not constitute interrogation under Miranda. The appellant's question to Murphy about glasses was spontaneous, and Murphy's response did not trigger Miranda protections. The appellant's description of his glasses, which were later found in the victim's car, was also admissible since he initiated the conversation. The trial court ruled that these statements were voluntary, negating the appellant's claims of coercion.

Furthermore, the appellant argued that the trial court erred in denying his motion for a mistrial during the prosecutor's closing argument, which referenced a break-in at the Colvins' apartment. The evidence of the break-in had been presented without objection during the trial, making the prosecutor's comments permissible as they were based on established facts. The court found that the prosecution's inferences from the evidence were logical and within the bounds of acceptable argument, leading to the conclusion that the appellant's claims regarding both the statements and the closing argument lacked merit.

The appellant acknowledges that 'a taking' is not a required element of first-degree robbery but argues for its reinstatement based on the common-law definition and the establishment of attempted robbery. Historically, prior to the enactment of Alabama's robbery statutes, there was no statutory offense for robbery. Current statutes encompass broader acts than common law, including what would have previously constituted attempted robbery or assault with intent to rob. The legislature's omission of the 'taking' element indicates an intention to treat robbery as a crime against both person and property. Consequently, the circuit court's judgment is affirmed, with all judges concurring. Additionally, the excerpt notes the appellant's prior conviction occurred before the current punishment provisions took effect, outlining variances between former and current sentencing classifications for related offenses. It further mentions issues related to witness testimony and a prosecutorial error in referencing names during proceedings.