Florida v. Sutton Court Opinion

    Y

, hefore going to
,;rte the company
:rtil 5:00 p. m., he
rrrr,:tes. He then
vhcre he waited
lr,rck for himself
rng the check, he

) pay some of his

lcstified that ap-
h,rme from work

,0 p. m., left again
hc pay check, and
.rfter 4:00 p. m.

forty minutes la-
t.rr drove out !o a
hrew some items

by the grlice, ap-
,'rlge of the shoot-

' hree men had left
r. Later, he gave
'ling the shooting,
,rte<l with his trial
irrlmitted in his

. he items thrown
,rnal items belong-

rxrints on this ap-
' merit and will be

lral it was reversi-
,rsecutor to amend
t he trial. He is

'ry has the authori-
Ilu.s.sel/ v. State,

'A 1977); Pickeron
l:l So. ?07 (192?).

rnt contenrls that
r allowing Deput-v
loel Gutierrez told
shot Joel and his

,rony was not only
.nt with Joel's trial
'r prior consistent
usrrl to bolster his
r'. Slate, 35? So.zd

Iloti v. State, 334
t76). The rationale

prohibiting thc usc of pri<lr consistent state-
ments is to prevent "putting a cloak of
cre<libility" on the wiLness's testimony.
Brown v. State,344 So.2d 641 (Fla.Zt DCA
1977). When a police officer, who is gencr-
ally rcgarded by the jury as rlisinterestcrl
and objective and therefore highly credible,
is the corroborating witness, the danger of
improperly influencing the jury becomes
particularly grave. Undcr the circumstanc-
es, the error in admitting this hearsay testi-
mony cannot be considererl harmless.

t4-71 Finally, appellant argucs that thc
trial court should have given his requcstc<l
instruction oi, circumstantial evidencc.
P.rggl of a premeditated rlesign to effcct thc
death of a human bcing is requirerl for a
eonviction of first<legree nturdcr. S ZtJ2.-
0a(lXa), Fla.Stat. (19?7); Drigg.ers v. Srare,
164 So.2d 200 (Fla. 1964). Alrhough there
was direct evidence, i. e., cyewitness testi-
mony, as to appellant's conduct, the clement
of lrremeditation could onlv hauililG-
ferred from anpellant's actions anrl othcr
ninnr,'nstsnesE. While there is no question
but that premeditation may bc cstablishc<l
by circumstantial evidence, Spinkellink t..
Stare, 313 So.2d 666 (Fla. l9?5); McCutchen

.v. Stale,96 So.2d lS2 (Fla. lg5?), an in-
( struction on circumstantial cvirlencc is re-

I Cuired where the prosccution re lies solely or
/ substantially on circumstantial evidence t<r

( p.nr" an essential elemcnt of the offense

I chargc<I. Leavine v. Stata, 109 pla. M1 ,l4Z
I So.897 (1933); Newsome v. Statc, Bb5 So.2d

I las 1r'ra.zr DCA le?8).

We have considered the remaining two

%y&x^l,1 %
STATE v. SUTTON

Cite as, Fla.App., 37 t So.Zd 7 t7

STATE of Florida, Appellan!
'v.

Dale SUTTON, Appellee.

No. 78-2095.

District Court of Appeal of
Sccon<l District.

June 8, 1979.

Florida,

Statc allllcalc<l front an order of the
Circuit Court, Sarasota County, Vincent T.
I-lall, J., granting a motion to rcrluce sen-
tence. Thc Disl.rict Court of Ap1rcal held
that after l)assage of 60 <lays from imposi-
tion of sentencc, trial court has no jurisdic-
tion to morlify sentcnce.

Rcversed anrl remanded with instruc-
tion.

Criminal l,aw c-99612;

Al'ter p:rssirge of 60 rlays from imposi-
tiorr ol' scnte nce, trial court has no jurisdic-
tion to nrorlify sentcnce. 34 West's F.S.A.
Rulcs ol' Criminal Proccrlure, rule 3.800(b).

8^f&.

Fla. 717

points raised by appellant anrl find no error.
For the reasons set forth allove, the judg-

ments and sentences against appellant are
reversed and the cause reman<led for fur-
ther proceedings consistent with this opin-
ion.

RE@
HOBSON, Acting C. J., anrl I)ANAHY,

J., concur.

Jim Smith, Att1,. Gcn., Tallahassee, and
Eula 'l'uttlc Mason, Asst. Atty. Gcn., Tam-
pa, for;11r1rcllant.

Jlck (). Johnson, Public Defender, and P.
Douglas Brinkmeyer, Asst. Public Defend-
cr, Bartow, for appellee.

PER CURIAM.

Thc statt, irplrcals from the grant of a
motion to rcrluce a1r1rcllee's sentencc.

Alrlrcllee was sentcnce<l on June Xl, lg71,
to eleven and one-half months in county
.jail, lrcginning Septemlrcr 15, 1g?8. No ap-
1rcal w:rs filerl. On Novcmbcr 3, 1g78, thc
court granterl a motion to reduce appellee's
scntence to two years probation because
tplrcllcc needed treatment not available in
the county jail. Appellee made no allega-



:ruse it
Vama's
I's Zip
It room
started
;nade a
net the
: light,
place,

:n into
. rtlking
ked at
,t in it
'. what
he did
rr DOt.

,'s evi-
lid not
,llant's

when
,rharge

f Ala-
Stab,
etg v,

plains
rsible

,e fol-
('olln-
,tt the

We
llrl an
going
n the
,first
,,w on
,r,hich

Har-
1.t63,

t hat
o the
'jury
roper
rarge
clcct
.jury,
,'ourt
gto
t his

Court, thc mattcr and ruling complained of. this Court under the provisions of g 6.10 of
We quotc from the record the otrjection the Judicial Article (Constitutional Amend-
made by the appellant before the trial ment No. g2g, Act No. l05l (1g?B); his
court. opinion is hereby adopted as that of the

"MR. KENNETH SHINBAUM: Your Court.

Ala. 1289

AFFIRMED.

All the Judges concur.

Eddie ROY

v.

STATE.

No. 3 Div. 120.

C,ourt of Criminal Appeals of Alabama.

Oct. 16, 1979.

_ Defendant was convicte{in the Circuit
Court, Montgomery County, Pbrry O. Hoop
er, J., of seconddegree burglary audgrand
IarpenI,a@f
Criminal Appeals, Bowen, J., held that: (1)
where evidence relied on for conviction was
circumstantial. chain of circumstances had
to-Egplglg' and of such characLer as to
convincejury@nd,
if circumstances as proven failed to so-con-
vince jury beyond reasonable doubt that
defendant was guilty, they should have re-
turned verdict of not guilty; (2) fg:_crreum:_
stantial erridence to have been sufficient to
justify jury in convicting upon it, circum-
stances proved had not only to have been
consistent with hypothesis that accused was

were not misleading, which correctly sLated
law of case, and which were supported by
some evidence.

Reversed and remanded.

)^ y*r<t rlZrr-.

Honor, we're going to object to the
portion where you instructed them on
constructive possession and you men-
tioned about your coat in the-back in
your room. That involved the exLernal
manifestation, because you claimed it."

We hold that the foregoing objection is
not sufficicnt to present to this Court the
mattcr complained of. Slre,Ids v. State,52
Ala.Ap1r. 690, 296 So.2rl ?86; McClary v.
SLate, T)l Ala. 481, 292 So.2rl Bg4, on ra-
mand, 5l Ala.App. 704, %2 So.2d 38?; AIa-
bama Power Company v. Smith, Z7B Ala.
509, 142 So.2l 21.

The appellant further contends in his
brief that the trial court erred by refusing
trl glve appellant's requested written
charges nos. 12, 11, and 8.

[10] We have reviewed the trial court's
oral charge to the jury, and all given and
rcfused written charges requested by appel-
lant and are of the opinion that appellant's
rcfused written charges nos. 12, 11, and 8
wcrc propcrly rcfused under the evidence
as thcy were sullstantially anrl fairly cover-
crl in the trial rxrurt's oral charge to the
jury, or were incorrect statemcnts of appli-
callle law, or were substantially covered in
other written charges given at the request
of the appellant. Section 12-16-13, Code of
Alabarna 1975; Barns v. State, Ala.Cr.App.,
361 So.2d 390; cert. den., Ala., 361 So.2d
396; Adair v. StaLe,51 Ala.App. 6b1, 288
So.2d 187.

No other rulings of the trial court are
argued in appellant's brief.

As provitle<l by Code of Alabama lg?5,
5 l2-22-'A0, wc have searched the record
for any othcr emors prejudicial to the ap-
pellant and have found none.

Thc jurlgment of the trial court should be
affirmcrl.

The foregoing opinion was prepared by
the Honorable JOSEPH J. MULLINS, a
retired Circuit Judge, serving as a Judge of

aLT.0*,cum.fur----\ .

ROY v. STATE
Clte !s, Alr-Cr.App., 3?5 Sold f 280

t with
he

iis guilt; and (3) accused was entitled to+
have written requested charges given which



..!-

1290 Ala. 375 SOUTHERN REPORTE& 2d SERIES

l. Criminal L&w ca1038.3, 1056.1(2)

In criminal prosecution, defendant
properly-preserved error by requesting
*",
cd-urt to charge on matter was not neces-
sary, and fact that defensffiTiGl-an-
nifficed "satisfied" with what trial court
did say in its oral charge was not waiver of
judgels refusal to giv; ."qr".t"ikn
instructions.

2. Criminal Law e73411), 1f73.2(10)
In prosecution for second-degree bur-

glary and grand larceny, it was reversible
errror to fail to give instruction as to quality
of circumstantial evidence necessary to
warrant conviction where orosecution de-
penderl wholly on .i."ffi.
. Criminal Law c=552(3)

For circumstantial evidence to have
been sufficient to justify jury in convicting
upon it, clrcumstances prove
to- have been consiste eslE

that accused was suiitv. but-inconsisrei-r
Jsilh hypothesis that he was innocent, ?nd
inconsistent with every other rational hy-
pothesis except that of his guilt.

4. Criminal [,aw e769
Accused was entitled to have written

requested charges given which were not
misleading, which correctly stated law of
case, and which were supported by some
evidence.

Marlin M. Mooneyham, Montgomery, for
appellant.

Charles A. Graddick, Atty. Gen. and
Thomas R. Allison, Asst. Atty. Gen. for the
State, appellee.

BOWEN, Judge.

The defendant was indicted and convicted
for second degree l'urglary and grand larce-
ny. Sentence was fixed at six years' im-
prisonmcnt. The only qucstions are the
failure of the trial jurlge to givc two of the
defendant's writLen requested charges re-
garding the character and sufficiency of
circumstantial evidence.

AU the evidenec in t m-
stanllaL A glass door was broken at the
burglarized residence. Blood on the glass
was of the same tynp as the defendant's.
Near the door and the broken glass was a
receipt fmm Trucker Pecan Company bear-
ing the defendant's name. This receipt was
dated the same day as the burglary and was
found miles from where the defendant
claimed to have visited or traveled that day.
The defendant was arrested shortly after
the burglary was discovered. He had a
small but fresh cut on a finger of his left
hand.

The defense was alibi and the defendant
denied being anywhene near the scene of
the crime.

The only portion of the trial judge's oral
instructions dealing with circumstantial evi-
dence is as follows:

"After giving due consideration of all the
material evidence you may find a defend-
ant guilty by the circumstances in the
case, by circumstantial evidence. A de-
fendant does not have to be caught red-
handed. You may consider all of the
indirect evidence to determine whether or
not there has been an act or a crime
committed of burglary."

All seventeen of the defendant's requested
charges were refused.

tll The defendant properly preserved
the error by requesting the written charge.

53 Ala.
157 (

necessary where a requested written charge
is refused.. An exception reaches only what
thecourtdi@?
Alil[?i-$ffi!Y711e0u,. The facr thar
defense counsel announced "satisfied" with
what the trial court did say in its oral
charge cannot be construed as a waiver of
the judge's refusal to give a requested writ-
ten instruction.

I2l The trial court refused defendant's
requested charge 15:

"I charge you that when the evidence
relied on for a conviction is circumstan-
tial, the chain of circumstances must be

"u 

nu

li

657



rrcum-
at the
I glass
riant's.
was a
'bear-
,)t Wasl

rd was
'ndant
:t day.
after

had a
is left

ndant
ne of

's oral
rl evi-

tll the
'fend-
n the
{ de-
. red-
i the
ier or
crime

ested

rrved
arge.
, 303
fail-
i not
rarge
rvhat

. 147

that
with
oral
'r of
'vrit-

tn t's

'ilcc
tan-
Lbe

complete and of such character as to con_
vince you beyond a reasonable doubt, and,
if the circumstances as proven fail to so
convince you beyond a reasonable doubt
that Eddie Roy is guilty, then you should
return a verdict of not guilty.,'

This charge is identical to charge number 4
in James v. State, ?2 Lla.App. lg3, 1lB So.
U8 (1927). In James, the court held that it
was reversible error for the trial court to
refuse to give that instruction and another
substantially identical instruction as to the
quality of circumstantial evidence necessary
to warrant a conviction where the prosecu-
tion depended wholly on circumstantial evi_
dence. The requested charge should have
been given and its refusal was error.

t3l Requested charge 16 was also refus-
ed:

"I charge you that for circumstantial evi-
dence to be sufficient to justify a jury in
convicting upon it, the circumstances
proved must not only be consistent with
the hypothesis that the accused is guilty,
but inconsistent with the hypothesis that
he is innocent, and inconsistent with ev-
ery other rational hypothesis except that
of his guilt."

CREWS v. STATE
Clte as, Na.Cr.App.,3Z6 So.2d l2gl

Ara. l29l

, Willie Frank CREWS

v.

STATE.

4 Div. Z3B.

Court of Criminal Appeals of Alabama.

Oct. 16, 1929.

Defendant was convicted in the Circuit
Court, Houston County, Fonest L. Adams,
J., of robbery, and he appealed. The Court
of Criminal Appeals, Harris, p. J., held
that: (1) facts and circumstances surround-
ing seizure from defendant's van of a tele-
vision programming magazine identical to
one purchased by robber allowed for precise
application of plain view doctrine, and (2)
testimony of officer that he received over
police radio a description of clothing worn
by robber that matched clothing worn by
defendant at time he was stopped was ad-
missible in establishing that officer had
probable cause to arrest defendant and was
not hearsay since it was not offered to
prove truth of matter asserted.

Affirmed.

l. Searches and Seizures 63.8(4)
Facts and circumstances surrounding

seizure of television programming magazini
from defendant's van on night in question
allowed for precise application of plain view
doctrine in that officer's prior justification
for an intrusion into van was his statutory
authority to arrest defendant without a
warrant and, while he was taking defend-
ant into custody, officer inadvertently saw
television programming magazine which,
when victim subsequently identified de-
fendant as robber who had purchased an
identical magazine, was then seized by offi-
cer as incriminating evidence. Code of Ala.
1975, S 15 10-3.

2. Criminal Law e,419(3)
Testimony of officer that he received

over police radio a description of clothing

This is a correct statement of law. Wlker
v.-ELate, 134 Ala. 96, 32 So. ?03 (1g0rlB@z ei".app.469, ?o so.2.d<l=-----::2;' ^^''
429 (1950; Whatie_y v. f Ala.App.
706,75 So.2d-182 (19b4). Its refusal was
error.

t4I Every accused is entitled to have
written requested charges given which
would not be misleading, which correctly
state the law of the case, and which are
supported by any evidence. Ashtock v.
State,367 So.2d 560 (Ala.Cr.App.19?g), cert.
denied, 367 So.2d 562 (AIa.19?9).

This judgment of conviction is reversed
and remanded because of the failure of the
trial judge to give two of the defendant,s
requestcd chargr:s.

REVERSED AND REMANDED.

All Judges concur.