Cross of Malta Awarded to Thurgood Marshall, Philadelphia Cotillion Society, ca. 1955 - 15 of 17

    JOHNSON v. STATE
Clte .c, Alr.Ca^pp..30S So2d r03

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Jimmy Rav JOHNSON

v.

STATE.

8 Div. 391.

Court of Criminal Appeals of Alabama.

2. Criminal Law e79511;
Trial court did r

:f:c;i- ""*"",' #,"i:.;;', ll,,i"T. JrlIense, in absence of an].evidence til;;_
:d to 

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prcve commission of sueh claimedlesser included offense.

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March 1?, l9gl. 3. Criminal Iaw e.g1411;
Rehearing Denied April 21, l9gl. Failure of req

h)'d;;$* ; ffi :;'f.' r1;::::" :i*:,:
Defendant ** pr:i"E in the circuir il:',"ffi;iitsetr iuJfie;;#r*l;'ii:

Court, Colbert Couaty, N. pride i;;;;.,
J., of receiving sroten p."rftt i;;il.:?i;; d. criminat Law e_627.515;

8ffii[rfftffi', m-:UXl u,au. 
"i..,,sLances,-incruding indica-

Rerired Judge, iia 
.tt-u,., i, t,,",,,,",,110, lll; :"fi x;,Hi: jji:tTil:*T."m

Hi{i,ff}i1;'"1'Ji,.',:tl;;l*,:.".* ii, ai.*"l"il"#*,,", in po,.u.,ioi Jr

trllqrrtiiffi l*fi *.:*llii:rl!fr:'::-l'::ff ,ili:'::llilili;.i:
automobile o'". ,J.irriuh ;;;;;;;:: police notations, photosxapi,.,'*irn"r, iru,.I-
teriar bearins on questio, or i;;;;;il- 

ff..t#i i1r,yTfi::frtrT;* **fendant in drivino ,rr" ^r*r"ul,. "d,li he had tr,il"a*ro,refresh his recollection

*ti-,,r1*lrli:::,ll,1 ffJ:i*,J:T# was unreasonabre and properrl overrured
inadmissible as constitutid;A;ffi;ff E. r{.itneeses c>2s6

fffi:Tr;r::Hi1,r,.n"*n i, ,i"'irai.i_ Righ.e of rtefendant ro sec an<t examine
ti*"s bi, *,,* *,,"'fi,,Tlr::'i;: *:: fil::rir::.:l*l::,,: uhi,c <,n;;';;

|L:lll:if",xil*::,'lxlr;,ll$j} "o,i'i,,'',J',';u::.'Ji"i"*";ffiil"Hlli::
previr.rusly convicted of felonl,: ilir;"_fendant was not deprived 

"i"rJ, ,),1"1i 6. Criminat Lan. e394.615;
3ii.,.f":'iXflf:ff' "a*,fr" Hi,,,i,ii 

. r\rere racr thar court at one time rurcd
, ri a, d ele nd ;, ; 

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i,i li "r: :, 

l*t il 
:: I l: _: ri.t"l*:i i r;' ; :i:",,,*i, ili'!proof of his previous eonvictions, arrr. i""-." ,at;a gound ;;";;;;;* rriar c'urt in e*ortrcd copies of pre'ious convictions *"* ir- rr. ,r,l."rir.;;l#;;,i;r* defendanr,s objec_

:lT $lJi[, 
"r:fft;,#**.'"".:l tion to ;irn,',;'il ]iatement in evidencc

and 
.actual fact that defen..lant 

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7. lvitnesses cB90

iTi.'Iflj;";l:rffi ;:ff ',"i"iiyi:,.",*:.$;,;r,ffi'.i:r;:,iil;.;,:,:::,$::
legal requirements or i. .no,,ln-tr.#'i;::Affirmed. rri, .o"'..rr='".'r,rlirnr*r1. infruence.

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8. Criminal l,aw e.359.216;

. 
In prosc.cution based on theft of auto_

lonite, lotice officer's testimony ii* rjCof glass he found at scene of a collisioncame from the stolen automobile was arl_

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I. Indictment and Information c=Ig9(g)
,.,.._ 

Llyarlthorized use of vehicle is not ajII.j::lra"d offense or ta..en1. oi r",,,.1"
'.,ooe 1975, s l3A-8_Ir.



394 AIa. 398 SOUTHERN REPORTER, 2d SERTES

missible as having a matcrial bearing on
question of intent of defendant in driving
the automobile about half an hour before
the collision occurred, despite contention of
defense that the evidence was inadmissible
as constituting a distinct and separate of-
fense not charged in the indictment. Code
r9?5, SS 13A-8-16, l3A_8_17.

9. Constitutional [,aw 6270(1)
Defendant was not denied due process

by being sentenced under the Habitual Of-
fenders Act, though he was not charged in
indictment with having been previously
convicted of felony. Code 1975, g IBA-S-g;
U.S.C.4,.Const. Amend. 14.

10. Conetitutional Law €=197
Sentencing defendant as habitual of-

fender did not constitute ex post facto
treatmen'", even if prior conviction occuned
before effcctive darc of the Habitual Of-
fenders Act. Code 1975, S 1BA- b-9.

11. Criminal Law e,126r5(2),lzls
Habitual Offenders Act does not consti-

tute cruel and unusual punishment in dis-
proportion to the crime by its failure to
provide that one adjudged to be habitual
offender be previously confined to peniten-
tiary'. U.S.C.A.Const. Amend. 8; C<rde
19?5, S 13A- 5-9.

12. Criminal Law e'153
Habitual Offenders Act does not cause

double jeopardy. Code l9?S, S 1BA-S-9.

13. Jury c,3l(ll)
Defendant was not deprived of right to

trial by jury when sentenced under the
Habitual Offenders Act, where, while testi-
fying on trial, defendant affirmatively af-
forded proof of his previous convictions,
duly certified copies of previous convictions
were introduced into evidence, clerk of cir-
cuit court and assistant clerk testified as t<_r

records, and actual fact that defendant had
been previousl.v convicted, as charged b1.

State well before and at sentencing hear-
ing, was never challenged. Code lg75.
s 13A-5-9.

William R. Hovater and Carl
worth, Tuscumbia, for appellant.

Charles A. Graddick, Atty. C,en, r

Thomas R. Allison, Asst. Atty. 6€r.,:
appellee.

LEIGH M. CLARK, Rerired
Judge.

e.* showl
"rrualing'

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Aplx lian
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Ala.App.
n convict
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not errt

A jury found defendanr (appellant) gi
on a trial under an indictment charging
with receiving stolen property in tlrg
degree, as proscribed by the Alabama
inal Code (Code of Ala.l9?5, Title
134-8-16, effective January 1, 1980,
by $ 13A-8-17 is classified as a
felony.

According to the testimony of the
of the automobile allegedly stolen,
parked it about noon January 16, 1gg0,061
downtoun street in Sheffield and left tlr
ke1's in the automobile. At approximatrh
1:15 P.lrI. he rerurned to wherc h. lud
parked his automobile and discovered it rrr
missing. He immediatel.r' reported the ind- :,

dent to the police. That same night, h
identified the automobile at the Colben 

",..:Count.r' Jail; it had been wrecked and s*if-
tained damage to the front end. '. E

The State's evidence consisted largely {'*
thc iestimonl' of four witnesses, \[illodean
Pat.rick, who restified she sau. appell.rnt
driving tlrr, i,s51.1. arountl 4:00 P.M. r.br

da1, it ua^. rep'c,rred missing; Altie Turbcr,
ville, who saici she saw appellant aud tno :

others walking a\\'a)' from the automobile; ;
William [,ee Cro.r', who said he saw amd, f
lant driving the automobile around Ifl :il;

P.M. the day it was taken; and Virgb lt,
Vickers, who testified she saw appellant 1l

driving the vehicle about "dusky dark" ttrQ ,_.

same day. All of this was beforc the gut} t
mobile was located by the officers ed ;
brought to the Colbert County Jail. ,, 'nji

After the State rested its case, defendrrt ,l:

presented evidence b1, three witnesses tme i'::
ing to support an alibi. Thereafter, sppel ._:
lant took the stand and positively denid [.
ever stealing or riding in the automoe ,...1:

The evidence showed that the other tuO'f*,
people whom a witness for the Statc tedi' r,l.

fied were in the automobile with defendurl .n:,
,d,

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Stols-



JOHNSON v. STATE
Clt€ !r, ALLCt.App.,306 So.zd 303

A!a. 395

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a^s shown above had pleaded guilty to 342 So.Zt 1369 (1977). Furthermore, nei-

{*"ilng', the automobile. ther c\arye hypthesized a belief or finding

tl-3] Appellant complains of the refusal "finom the evidence"' which of itself justi-

r,rtr,Jt."ilurt of.two charges requested fied the refusal thereof' Thompson v'

in writing by delendant. They are: State' Na'Cr'App'' 369 So'2d 50 (1979)'

..1. Tiat if the jury finds that the de- [4, 5] While Investigator Ronnie May, of

fendant without tire consent of the owner the Colbert County Sheriff's Office, was

of 1f," ,"f,i"le in question took said vehi- testifying as a u'itness for the State, there

"L 
,ra used it without intending to de- were indications that he was using some

;;t; ah" ownen of it perman"r,tly yo, notes in a file to refresh his recollection.

il"V fina the defendant guitty of the At the end of the testimony of the u'itness,

unauthorized use of the vehicle. defense counsel moved as follows:

uZ. That if the jury finds that the de- "l would make a motion at this time that

fendant was in possession of a stolen the defense be allowed access and the

outomobile and did not intend to perma- right to copy all reports, police notations,

nr:ntly deprive the owner thereof of irs photograph-s, $'itness slak:ment^s, and all

,.n y,i-,, may find the defendant guiltl of d.cuments crrntaincd in the filc oi tr{r'

the.ffense of unauthorize<I use of a velii- p.r,t,nie IIa1' fronr u'hich hc jur;1 tcstifitld

cle.,, from to refre-*h his rec'-.rllection l sould

Aplrcllant says that the misdemeanor of move that the Stale let mc have rhe right

un;ruthoriz.ed use of a vehicle proscribecl t'r to examine this file' that there migh'' bc

Alatrarna criminal code, S 13A-8 11 is a evidence beneficial to the defendant u'ith

Itsser included offense of larceny of a mo- u'hich he could defend himsclf "

tor vehicle or receiving a stolen motor vehi- The transcript does not show or even indi-

clc. He relies upon Moorc v. State, 52 cate that the witness in testifying !*'as re-

Ala.App. 394, 293 So.2d 309 (1974), in which ferring t0 "reporls, poliee notations, photo-

:r rrrnviction for the misdemeanor of taking graphs, witness statemenls"' in his filc'
()r using temporarily any animal or vehiclc l-nrltrr thc circumst:rnce". including an indi-

uf another without authorit5' a.s proscrilrcl calion itt the tr:rnscrii;t <ltrfendant hlld been

tr.r' (lode of Alabama 1940, Tit. 14, S 339 was given an adequate opportunitl' for a dis-

ul,held in a trial on an indictment charging co\erY of all discoveralrle material in the

granri lar.ceny of a motor vehicle. Appel- possession of the prosecution, the particular

lant overlook s McMurphy 1,. Slate, Ala.Cr. motion of defendant wa^s unrca^sonable and

r\1r1r., Bbg So.Zl 1065 (iSiS), and aur,horities prolrcrly overruled. The right of defendant

thr,re cited, in which it is held that the to see and examine material used b1' a

rrrrlruthorized use of a vehicle as proscribed witness q'hile on the stand to refresh his

l,.v \ 13A-8-11 is not a lesser included of- rt'collection is not an unbridled right but is

f"n*t of l"r"eny of the vehicle. McMuryh1, subject to reasonable limitations. Eu-sse// r'
controls, and follo*,ing it we find that the State, Ala'Cr'App" 365 So'2(l 343' 348

court wa-s not in error in refusing either of (1978); Cooks v' Statc' 50 Ala ApP' 49'2i6
thc charges requested. We are oi the opin- So.2d 6iJ'l' cert' denied, 290 Ala' SCiJ' 276

r('n that the court was not in error in re- So.Zi 6{0 (1973). It appears that the target
fusing either of said written charges for the of defendant's motion was much larger
rrdttitional reason that there was no evi- than a combination of the text and context
rl|ncc whatever in the case that tended to of anf information used by the '*-itness
lrr()r'e the commission of the offense that is while on the stand to refresh his recollec-
clrrime<l to be ; lesser inclu<ted offense. In tion. The motion was propcrly olerruled'
t;':tt circuhstance, it has been repeatedl.r' The transcript indicates some connection
n'ld that the failure of the court to instruct between the issue we have just distussed
llrt' jurl' as to a lesser included offense is and the issue nou to be discussed, but as
nrrt tnor. Harvest v. State, Ala.Cr.App., the parties on aplral have treat.etl tht:fil ?s

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