Appendix — HERBERT L. RICHARDSON v. ALABAMA (No. 82-5987)

ss Hi A i g Eee, 7 bs aaa 3 inte Se as

‘ 34 : Te RO me ke Re RE REE 2 te ee NEU Oo ie Vee ae

for murder and a sentence of death. His original conviction was

appealed from the Houston County Cirevit Court to this Court, and

on October 3, 1978 the case was remanded to the trial court with

instructions. On November 21, 1978, following remand, it was

affirmed by this Court, and on December 19, 1978 cihsanlag wes

denied, Richardson vy. State, Als. Cr. App. 376 So. 2d 205. The

Supreme Court of the State of Alabama granted certiorari to review

appellant's conviction on the ground that it ‘ia a sail case.

Rule 39 (c) ARAP, and on Septeaber 28, 1979 affirmed the judgrent

of the Court of Criminal Appeals. On Hoveaber 6, 1379 petition Por |

rehearing in the Supreme Court was denied. The Supreme Court in

affirming the holding of the Court of Criminal Appeals stated that

“petitioner’s allegations ef error: (1) That the initial warrantless

search of petitioner’s automobile was itiegal; (2) That the search

of appellant’s home was conducted pursuant to an improperly issued

search warrant. We find no merit in either contention made by the

petitioner.” The Supreme Court carefully reviewed the record and

found that petitioner’s conviction is adpquately supported by the

pang, Ala. 376 So.

evidence,

ad 228.

We shall not recite the Facts of the crime in this record

because they are fully set out in the opinion of this Court in the

-ichar >tate,. Ala. Cr. App. 376 Se, 2d 205.

On = 10, 1981 the petitioner, Herbert Lee Richardson,

filed a petition for a writ of error coras nobis in the Circuit

Court: of Houston County, Alabama. On April 16, 1981 the dis <rict

attorney of the 20th. Judicial circuit of Alsons filed a motion

to dismiss the petition for writ of error coram nobis filed in this

cause. On July 2, 1981 the petitioner filed a supp! saentary

amendment to the petition for a writ of errer coram nobis, On July

16, 1981 the trial court entered an order appointing a competent

attorney to represent the petitioner, setting the time and place

for a hearing on the petition, and the motion to dicaiee the petition,

and directing the Warden at Holman Prison to have the petitioner

present so that he and his attorney may present such evidence as may

be proper in said cause, On the 18th, of September, 1981, with the

petitioner, and his counsel, and the state, and ite counsel, present

in open court, a hearing on the petition was had.

Petitioner’s evidence consisted of five witnesses and ‘wo

exhibits. Petitioner’s first witness, Thomas W. Sorrelis, district

attorney for the 20th, Judicial Circuit, State of Alabama, testified,

in substance, as follows: That he participated in the investigation

that led to the arrest, trial, and conviction of the petitioner;

that_he accompanied the police to

and to look around the site wh site where the ee had been working;

gee ae ati

that he did partici in i, ae ; fale of a search warra

the petitioner’ s | house in Hartford, Alabama; that he related she

informat ion ERs him by Sergeant Lock to Judge Block; that at that

time the petitioner ws in custody in Dothan) that he was present

ip the area, but did not participate in a actual search of

peritioner’s house; that he was not present when petitioner's vehicle

was searched _eerched-

The petitioner cect ified, in ‘abi, that the pipe on

his job site was all two and a half inch pipe; that two and a half

inch pipe would be the inside size of the pipe, and that three

inches would be the outside diameter of the pipe; that all pipe at

the jo site was galvanized; that the only pipe he recalls being at

his house was three-quarter inch pipe, and it was not galvanized.

On cross-examination petitioner adnitted that he was not present

when the officer Found pipe at his home, and that the pipe described

by the police was approximately two inch pipe; that these facts

about the size of the pipe came out at his trial.

Doris Weems, petitioner’s next witness, testified, in

substance, that she went to the scene of the boubing on the I6th.

day of August, 1977; that she apoke with some officers whose names

she did not know, and told them that she had seen a pipe in the

petitioner's car; that she did not recall whether she had teld the

police about any statements petitioner had made to her since the

boubing occurred several years ago,

Petitioner’s next witness, Harold Lock, a Dothan police

officer, testified, in substance, that he was involved in the

investigation which led to the conviction of the petitioner; that

the pipe found at the job site where petitioner worked, and the

pipe found at petitioner’s home were similar to the pipe found at

the boub scene; that the pipe used in the boub and the pipe found

in petitioner's yerd both had threads on one end; that Randy Collins

had seen a benb on the front porch immediately after petitioner left

the scene of the boubing; that the pipe in the debris of the bomb

was broken and twisted, and that he estimated the size of the pipe

used in the bom to be two to two and a half inches, galvanized,

ES ee eee

ine ana. Pete nrc pT!

and the same type of pipe found at appellant’s job site and home,

Petitioner’s next witness, L. E. Stokes, a Dothan police

officer, testified, in substance, that he obtained « search warrant

for petitioner’s car; that Randy Collins told Stokes that he saw

something on the steps of the house after the petitioner left the

scene, but could not recali Collins’ description of it.

Petitioner’s exhibit one is a drawing of a two-inch

galvanized pipe, Petitioner’s exhibit two is a drawing of a carbon

stee! pipe, and a galvanized pize with nipples on them,

On September 18, 1981 a the conclusion of the evidence

offered by the petitioner on his petition for writ of error coram

nobis, the trial court being of the opinion that the evidence did

not establish that petitioner was entitled to a writ of error coram

nobis, therefore, the petition was dismisved. Appellant gave notice

of appeal to this Court on September 22, 1981, and requested

permission to proceed in forma pauperis, and pro se,

The petitioner contends is Ste brief that he is entitled

to a new trial because: First, thet the search warrants issued 20.

search his vehicle and to search his howe wore issued under false

affidavits. Second, that he has been denied his right to an attorney

during the preliminary stage of the proceeding when the district

atberecy. ae actively involved in the prosneupion of the case on the

day of the occurrence. Third, that he is entitled to a now trial

under the decision rendered in the Beck case, Beck vs State Of

Alabama, 447 US 625, 65 L ed 2d 392, 190 S Ct 2382,

| The appellant's first contention in his brief is that he

shesté be granted a new triet because: (1) The affidavits used to

cbtain the search warrant for his automcbile; and (2) The affidavite

esed to cbtain the search varrant for his home wore false. This

issue was fully submitted by the appellant to the trial court, and

there adjudicated, and upon appeal to this Count from his conviction,

was affirmed by this Court, See Richardson vy. State, Ala. Cr. App.

376 Se. 2d 205, end ‘eaten confirmed by the Supreme Court of Alabama,

Ala. 376 Seo, td 228. This Court will not

adjudicate again the same issues that have already been adjudicated

between the same parties, over and over again on an application for

e writ of error coran nobis. Richardson vy. State, sunca; Ex Parte

Richardson, supra; Summers v. State, Ala. Cr. App. 366 Se, 2d 336;

276 Ala. 392, 162 So. 2d 486; Cort, Den,, 377 US

919, 84S Ct 1185, 12 L ed 188; Impson ve State, Ala. Cre App. 339

So, 2d 1098, We hold that the matters of the validity of the search

warrants have been fully adjudicated, and the appellant may not

again adjudicate them by this petition for a writ of error coram

nabis,

The appellant’s second contention is that he has been

denied his right to an attorney during the preliminary stages of

the proceedings when the district attorney was actively lavolved

in the prosecution of the case on the day of the ocourrence.

te have diligently searched the original petition for a

writ of error corem nobis filed in this cause on April 10, 1981,

‘and the amended petition filed July 2, 1981, and do not find a fact

stated in the petition, or amended petition, that the appellant

wes at any tine denied the right of counsel, nor do we find any

evidence in the transcript of the hearing on the petition from

which a conclusion could be drawn that the appellant was denied

right to counsel, We only find the statement in the transcript of

the hearing, sade by appellant's counsel! to the court, that appe! lant

contends that: “Under the Lomax case, which is cited In his

petition, that he has been donied his fourth amendment rights, and

his rights to an attorney, during the preliminary stages of the

proceedings when the district attorney was actively involved in the

“prosecution of the case on the day that the occurrence happened that

gave rise to the indictment.” The appellant was represented by

counsel! at his original trial, and on appeal frow his original trial,

to this Court, and in the Supreme Court of Alsbema, Appellant was

represented by counsel at the hearing in the trial sourt in this

case and, on request of the appellant, is represented pro se on

this appeal.

We hold that in the ebaence of an averment in the petition

for the writ of error coram nobis, that the appellant was denied

assistance of an attorney at his original trial, and in the absence

of any evidence showing a denial of the appellant’s right of counsel

at his original trial, the trie! court did sot err to the prejudice

of the appellant when it did not grant him a new trie! ‘on the ground —

that he was denied counsel. Petitioner must aver facts, in his

“petition for a writ of error coran nobis which, if proven, would

entitle ate te the writ, and on the “ee he aust — such tacts.

that he is entitled to a new trial because of the opinion of ths

United States Swpreue-Court rendered iin he cece of Seah vy. Alshens,

447 US 625, 65 L ed 2d 392, 100 s Ct 2382, decided June 20, 1980.

Appellant avers in his petition that the United States

Supreme Court ruled in Seck vy. State thet: “The decth sentence

may not be constitutional ly imposed after a jury verdict of guilt

of a capital offense when the jury was not permitted to consider a

verdict of a lesser included offense of a non-capita!l natere.”

The appellant was convicted under Code Of Alabama, 1975,

Section 13-l1-1, - Section 13-11-9, Section 13-11-2. (a) (9)

provides for the death or life imprisonment without parole for the:

“willful setting of f or exploding dynamite or other explosive

under circumstances now punishable by Section 13-2-60 or 13-2-61,

when a person is intentionally killed by the defendant because of

said explosion;”

quote from Bock, emphasis supplied.

“We granted certiorari to decide the following

_ question:

‘May a sentence of death constitutionally be

imposed after a jury verdict of guilt of a

capital offense, when the jury was not per-

mitted to consider a verdict of guilt of a

lesser included non-cap ital offense, rd

sc eanatt held that @ death

imposed after a jury verdict of

guilty of a capital offense, when the jury was not permitted to

consider a verdict of guilt of a lesser incl sded x0n-capital

offense, and when the evidence would have supported such @ verdict.

In the case of Joseph S. Hopper, Commissioner, Alabama Department

Of Corrections and James 0. white, Warden, Petitioners, v. John

Louts Evans, 111, Number 80-1714, released by the Supreme Court Of

The United States, May 24, 1382, Chief Justice Surger said:

ire h ¢

12, he 4 my 8 discretion | thus ie cent tod

so that it may convict a defendant of any

crime fairly supported by the evidence, ‘nde-

Alabema taw, the rule in non-capital cases is

that a lesser included offense dpcabaesoe

oewid be given ie "ther |

e | Futo vue ve :

75, 277 So, 2d 886, 890 (1973). The federai_

rule ia that e lesser included ortonse ine

stréction should be given we

"Eeabte vo

coy . } r aps : 7 o 4 ited

: tates, 412 u. S$. 205, 8 (1973). The Ajs>an

a goes nor Tena “agar. SOnsa tt cu:

Chief Justice Burger further stated 'n Hopper v, Evans,

sypra: “The evidence not only supported the cisia that respondent

intended to kill the victia, but affirmatively negated any clain

thet he did not intend to kill the victim, An instruction of the

offense of unintentional killing during this raneey was sheretiin

not warranted.” | . oe |

The appellant's petition for a writ of error cores niche

in this case does not aver that the petitioner was entitled to an

instruction of a lesser included offense, There is no evidence

before this Court that the petitioner was entitled to have the jury

instructed on a lesser included offense. (There is no evidence before

this Court thet the evidence presented to the jury at the original

‘trial of the petitioner would have supported a conviction of a

lesser included offense. | The evidence fully supports the jury

verdict that the petitioner iatended to kill the victim. We hold

that the preclusion clause did not prejudice the petitioner in any

way, and that the trial judge did not err when he denied

petitioner’s petition for a writ of error cores nobis, Hopper v,

Als. Cr,

Bock v, Alsbame, 444 US 897, 62 L Ed 2d 132, 100 S Ct 204;

Summers vy. State, supra.

The judgaent of the trial court is due to be and is hereby

affirmed,

The foregoing opinion was prepared by Honorable Joseph J.

Mullins, a retired Circuit Judge, serving as a Judge of this Court;

his opinion is hereby adopted as that of the Court,

The judgment below is hereby affirmed,

AFFIRMED, =

All the Judges concur.

Saal

kn |. >) Asana

Ex Parte: Herbert Lee Richardson

PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL A

(lai__Marbert Lee Richardeoe 1 eee

You are hereby notified that the following indicated action was taken in the shove cause by the Supreme Court

*

Court Reporter granted additional time to file reporter's transeript to and including

swe Clork/Register granted additional time te file clork’s recerd/reserd on appeal to and incloding

eves APP oneme ranted 7 additional days to file briefs to and including

____. Appellants) granted 7 additional days te file reply briels to ond inchadiog

uae Record on Appeal filed

~~ Appendix Filed

vv Submitted on Briefs

a. nn ee eee TORBERT, C.J., MADDOX, FAULKNER,

SHORES, EMBRY, BEATTY AND :

__- Application for rehearing overruled. No opinion written on rehearing. :

BE OBRG cs

+.

sects MORN SAL Di J ih a oh ea da aE

RICHARDSON +. STATE

OR aa Aint» Agp., PS tend des

‘ mupain, He fixed the date of full discovery

an the day thereafter. He stated more than

“* que that it was April but he did pot know

the date. There was no conflict in the

evidenor a2 to the time or date of discovery.

There was no evidence from which the jury

qoald fix that date as being subsequent to

Agr’ 9, 1973, one year prior to filing of the

. 277 Ala. 388, 168 So.dd 220 (1964);

Birmingham Electric Co, 250 Als.

#8, 38 Go.dd 355 (1048) For failure of

The remainder of the stated igeues are

REVERSED AND REMANDED WITH

BRADLEY and HOLMES, JJ. concur.

BLOODWORTH, Justice.

WRIT DENIED.

TORBERT, C. J.. and FAULKNER, AL.

MON and EMBRY, J).. concur.

STATE.

4 Div.

Court of Criminal Appeals of Alabama.

Oct. 3, 1978.

Opiaion Poliowing Remand Nov. 21, 1976.

Rehearing Denied Dec. 19, 1978.

Defendant was convicted before the

Cireait Court, Howsten County, Jerry M.

White, J. of murder, and he appealed. The

Court of Criminal Appeals, Harria, P. J.,

held that (1) warrantions search of defend.

ant's avtomotile, which was conducted on

torning on whack fatal explosion took place

by military explosive ordnance detail upon

request of pelle, was proper in view of

mobility of automobile and knowledge

obtaixed by police officer at explosion

scene. (2) affidavit for warrant for search

of defendant's house was not faulty on the-

ory that it war “false” because police depe-

ty #wore that sergeant had informed him of

ali information im affidavit when, in fact,

distrect attorney had relayed information

for sergeant, (3) evidence, although entire-

ly circumstantial, was sufficient to support

aferemce that defendant placed bomb on

front porch or steps of victim's home, and

(4) where judge, at sentencing hearing at

enter complete written findings as te ag-

ee

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206 Ale 376 SOUTHERN REPORTER, 24 SERIES

gravating and mitigating circumstances, as showing probable cause, but not where mie.”

required by statute, case would be remand- take is innocent, even if material to probe ,

ert

cctinieie oT ne

i iene

Me oo Me A = ti ‘

vs

EEC Ne ia. Bigs i

ed for entry of such findings.

Remanded to trial court; affirmed

‘er trial courts’ return after remandment.

on EM Affirmed, Ale, 376 S021

3. Arrest = 63.3, 63.4(1), 71.10)

Searches and Seiauces @= 3.3(1, 4), 2(27)

Six exceptions to requirement that

warrant be obtained before search i exe-

tuted are. plain view, consent, iscident to

lawful arrest, hot pursuit er emergency sit-

vations, exigent circumstances coupled with

tems, US.CAConst. Amend 4

3. Searches and Seizures @= 3.2/6)

Warranties search, on morning on

which fatal explosion took place, of <utomo-

bile owned by defendant, who

police officer at seene of explosion USC.

ACotat. Amend. «

ble cause

5. Searches and Selewres @ 3.6(1)

Affidavit for wacrant for search of de-

fendant's house was not faulty on theory

that it was “false” in that police depety

him of eff information in affidavit whee in

fact district attorney had relayed informa

sergeant and cistrict attorney in presence

of judge who issued warrant, and where

Uonally or negligently misrepresented

facta underlying search warrant in ques

tion. U.S.C.A.Const. Amend. 4

6 Searches and Seizures = 3.6(3)

Law enforcement officers participating

mM cormmon investigation are reliable infer.

mants under Agwilar tet. USCA Const

Amend 4

7. Searches and Seizeres a= 3.6(3)

Affidavit for warrant for march of de

fendant's house was not faulty on theory

thet i wae “false” in that peiiee deputy

swore that polwe sespeant had informed

him ef ali information in affidavit when is

tion for sergeant and thet this constituted

“hearsay piled on top of hearsay,” and ren-

dered affidavit faulty in abecnce of evi-

wien that hearsay wae reliable USCA.

Const. Amend, 4.

& Criminal Law @» §62(4)

Circomstantial evidence is entitied we

same weight as direct evidence, prowxied it

pointa toward guilt of defendant.

i

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RICHARDSON v. STATE Als 207

Che an, Alan Ce Age. FG Bold 306

thewb on front porch or steps of victim's Appellant was tried on count one of the

Beare indictment which, omitting the formal

» Eh Homicide = 354 parts, reads as follows:

Unless and entil trial judge, at sentenc- “The Grand Jury of said County charge

jing bearing, reviews trial evidence to deter- that, before the finding of this Indict-

ment Herbert Lee Richardson, whose

+ mine all aggravating circumstances leading :

-y . ap to and culminating in death of victim name is to the Grand Jury otherwise un-

a and then considers all mitigating circum- | known, did unlawfully and with malice

= stances in determining if any outweigh ag- —aforethought, willfully set off or explode

-_ * grevating circumstances found in trial dynamite or other explosives in, under, or

te qwurt'’s findings of fact, trial judge cannot dangerously near an inhabited dwelling

“oe falrly weigh aggravating and mitigating house in which a human being wae

“a’* Greumstances, and appellate court cannot — lodged, to-wit: Rena Mae Callins, and «

~*s ty review bis sentencing decision _—person, Rene Mae Callins was intentional-

any _ Gade of Ala. 1975, § 13-11-4. ly killed by Herbert Lee Richardson be-

> Th Homicide @= 345 cause of said explosion, against the peace

Where judge, at sre“enring hearing at and dignity of the State of Alabania.

_. which death sentence was imposed, did cot The State filed a motion to diamiss counts

ong *. quter complete written finding: ss to ag- two and three of the indictment and this

‘om *

ast.

i>

oaty

ed

nis

a. death of girl killed by explosion of

ated bomb left on front porch or steps of girl's ‘In connection with the motion to suppres

rem bame supported written findings made by the photographs appellant filed the follow-

ow judge in imposing death sentence upon de ing stipulation:

pape fondant. Code of Ala.1975, §§ 13-11-26t “Comes now the defendant in the above

Cs. omy. 18-11-32, 13-11-64, 15-11-7. styled cause and does hereby stipulate

Daniel E. Robison, Dothan, for appellant. © the 16th day of August, 1971, as the

William J. Baxley, Atty. Geo. and Same-

ee a i tt

Pn sonata

208 Ala

said Rena Mae Callins’ body, and hereby

moves to suppress the introduction of cer-

tain photographs in the possession of the

Honorable Tom Sorrelis, District Attor-

ney of Houston County, Alabama, said

depicting the body of Rena

Mee ins after the explosion of said

explosive device and as grounds therefor

says as follows:

“1. The said photographs are irrelevant

and immaterial te the issues in the trial

of this cause.

“2 That the introduction of said phote-

graphs would inflame the minds of the

jurors against the defendant

if! i

ft

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fit

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:

{1] Mt is settled law in this State that

376 SOUTHERN REPORTER, 2d SERIES

In Lewis v, State, supra, this Court belt /

in an opinion by Judge Bookout:

“In Alabama, where the jury sets the ' ‘)

punishment in homickle cases, we Save

been extremely hheral in allowing photo

graphs portraying the mutilated bodies of

victims This for the purpose inter alls

of shedding light upon the viciounnens af

the crime, the depravity of the killer, the

ferocity of the attack and like circum

stances which the jury may take inte

consideration in fixing punishment. We

have not allowed a depraved and vicious

killer to mitigate his horrible or animalie-

tie acta by merely stipulating that the

victim is dead and the cause of death,

On January 11, 1978, appellant filed the

follewing motion:

. Comes now the defendant ia

the shove styled cause and moves to fup-

press as evidence to be used in the trial in

the abowe styled couse on January GB,

197R, all items semed under the authority

of certain searches of the defendant's ve

hicle and home eas searches having oe-

curred on August 14, 1977, « copy of said

search warrants and returms being at-

tached herete and marked Exhibit ‘A’

and ‘B respectively, and os grownd

therefor the defendant says aa follows.

1

“Sard search warrants were issued im vie

lation of Tithe 15, Chapter 5, Section [See-

tions) 2 and 3 of the Code of Alabama,

1975.

2

“Sard search warrants were insued in vio

lation ef Section 5, Constitution of Ale-

bamea of 1901 and Amendment IV, Coo-

stitution of the United States.

a

“For the said search warrants were

sued without probable cause

fi

iy

BAZSCELERE RAF eas resezrsszeerecitis FEPZILF- tis eese

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“For the affidavit in support of said

search warrants is legally insufficient to

justify the issuance of the eu'ject search

warrants.”

This motion was heard by the trial court

eo January 20, 1978. The evidence adduced

ot that time is fully set out below.

Jimmy Hand testified that be was em-

ployed by the Sheriff's Department in Ge-

seve, Alabama. On August 16, 1977, Hand

appeared before Judge Black. the Geneva

County District Judge, for the purpose of

obtaining @ search warrant in the case af

bar

The following are the affidavits, filed by

Hand, and the warrant, issued thereon:

“Suate of Alsbame In the District Court

Geneva Commty of Geneva County, Aicbame

“Before me, George A. Black, Judge of

the District Court of Geneva County, Ala-

Sheriff of Geneva County Sheriff Dept.

who is known to me and after being first

duly wworn, deposes and states under

oath as follows:

“1. That Harold Lacks of the Do-

than Potise Boparumant information

that Rena Mae Calline was killed on Avu-

gust 16, 1977 and that her death was

result of a pipe bomb.

i Se further stated that Ran-

dali ines (sie) told him he saw Hubert

Richardson leave the scene of the crime

at 129 East North Street at approximate-

ly 6 & m. on August 16, 1977, immediate-

ly after leaving Randall Kallines (sic) said

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216 Ain 376 SOUTHERN REPORTER, 2d SERIES

“TO THE SHERIFF OR ANY CON.

STABLE OF SAID COUNTY:

“Proof by affidavit having this day been

made before me by Jimmy Hand that he

had probable cause to believe that Roset-

“ta Richardson whose name ie otherwise

unknown to affiant, has in possession ex-

plosive device or explosive i

On the afternom of August 16, 1977,

ey Tom Sorrell. Sorrelle gave Hand the

information contained in the affidavit, tell-

by Officer Locke. Locke was personally

known to Hand.

1

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if

rt

under oath, told Judge Black that he re-

' ewived this infermation from Sorrells who

wae relnying ft from Officer Locke. Hand

‘told Judge Black that the police officers

Richardson at the residence lisied in the

affidavit. A tag twwwed to appellant's car

was registered to that address,

ticipated im a search of Rosetta Richard-

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€ 5 2 ~~ Pe

Locke and two Aleohel, Tebesee

arms Agents, a unit of the United

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id this pipe was very similar to the

field a Judge of the Houston County Dis.

trict Court, Houston County, Alabama, 2

personally appeared L. E. Stokes 3. who,

RICHARDSON +. STATE Ala. 23)

Cie BS, A Agp.. 576 fede wes

hed seen @ plastic bag on @ chair on the being duly sworn, deposes and says that

frent porch but he did not know what was Herbert Lee Richardson, with malice

im the plastic bag. He further testified that aforethought and with premeditation,

“deo pep seryerd aig Mpad aoe killed Rena Mae Callins and did this by

seven o' that morning exploding « Somb, and that batterics,

before the bomb exploded. He gave the wires, switches and other paraphernalia

officers a description of the automobile weed in the making of a bomb are be-

driven by appellant. He stated that appel- lieved to be in the automobile, to-wit: a

last stopped at a record shop mar this - 1970 Postiac Firebird, brown over brown

address. Appeliant got out of his car and in calor, Alabama Tag #CMX-O85, .977,

looked back at the house for s while and the property of Herbert Lee Richardson.

then jeft. Affiant’s probable cause for believing the

Sergeant Harold Locke testified that he said facts are:

was assigned to the Criminal Investigation “(1) Witnesses observed the 1970 Pontiac

(2) The above described automobile was

deacribed by witnesses at the scene of the

_txplosion as being known to them to be

the property of Herbert Lee Richardson.

“(3) A search of the area around 129 East

North Street where Rena Mae Callins

was killed by a bomb at about 8:30 a. m.

on August 16, 1977, revealed

of @ battery or batteries.

“(4) Herbert Lee Richardson was known

to have been in the automobile when it

was seen at 129 East North Street and «

description of him and the automobile

was given cut over the City of Dothan

oliee Department radio network and the

car was located at the intersection of U.

8. Highway 64 West and the Ross Clark

Cirele at Tom's Drive Inn Restaurant

abandoned and locked up.

"(5) The car was found within « short

pertod of time after the explosion and the

City of Dothan Police who arrived at the

scene called the bomb disposal squad of

the U.S. Army at Ft. Rucker who opened

the car and took out all of the items in

the ear while the car was parked at the

above location.

“(6) At this time, affient saw a 8 volt

battery consistent with the pieces of bet-

tery found at the scene of the explosion.

Wires, two small switches that could have

been used in the making of « battery and

peed enna

H

‘

|

ss

i

Ben

pS kon —s i ee ee

i ee Se ee a le oe Se lame ; _ - : Agee ea Rn ha Sia nti CAE A nn *

eee rte er ” ht sal it neva - me

ETT TERESI SUN ge GSR NR a ar RE a ; ites caine a

errr, i tana Ser a lags *

te

*

‘ rbyl

Hae

Me 212 Als. 376 SOUTHESN REPORTER, 24 SERIES

| the sie and shape of a 9 volt battery was (1 le E. Stokes

consistent with the fragments found at dad Billy J, Sheffield

i the scene of a bombing. The car was Judge, Houston County District

| found at 11 a m. on August 16, 1977; Houston County, Alabema.”

examined by the bomb squad at 1 o'clock. Stokes testified that appellant's car was

“(7) Randy Cailins saw the above deserib- located at 11:00 «. m. parked at Tom's Res

ed car just prior to the explosion. Randy tgurant. When the EOD team arrived,

AE Callins shortly before the bomb went off Stokes stated, the members of the team 3

Ta saw the above described car and Herbert checked the car “from one end to the other, r

IE Lee Richardson driving the car leave the inside and out.” Following the inspection, ys

at! area of 129 East North Street. Witness Stokes was informed by an officer of the >

Uh es told affiant that the package was not detail that the car was safe to approach. ' oe

‘a there before the car drove by Stokes and Mullis, another pole Ag

ii! (8) The residence at 129 East North officer, placed all the items removed by the | Et

a Street, Dothan, Alabama was the resi- EOD team back into the car; Mullis then b

ae dence on August 16, 1977 of « daughter driving the car back to the police station ad

af of Emms Wymes. Herbert Lee Richard- 2s

; js ,

= * ‘a

Bet a

Et io Sale

5 He ~ 2

mf i bt ’

fad ‘ é J ;

’ ‘ a .

“two 30-06 rounds (markings 6 $ § L)

s 1 partial roil of electrical tage :

a I partial roli of Red Cross adhesive Sy

a VUPWGRY Of tbat caughter. re. tape :

a Caitins was in fact at the residence at 129 l heavy duty long Pox glo-plog a

e pioded and she was in the house when he Sat tes

% ae Se Rete bet the been wont 8 AG-1B flashbuibe by GE

44 “Herbert cee 1 Eveready 9 volt transistor battery

ive Saat ea ae ee had within the 2 small wadded piere of electrical tape

|, ot iene die threatened to kill } small Craftaman screwdriver

ot Emme Wymnes. 1 pair of eyebrow tweesers (no nameb- :

. “(9) Affiant was told by witnesses at the roan) . a

aly: scene of the explosion that Herbert Lee 1 pointed steel rod %" in diameter ap-

| | Richardson was mad at Rena Mae Calline’ POX. 24 in. long :

Hit mother because she had been refusing to 1 roll of masking tape (coated with

ik let Herbert Lee Richardson see her sister €84e)

AE whom he had formerly dated. 1 rubber spacer (3.N. 6149-48)

an “Tam the Lt. in charge of the Criminal } partial roll of electrical tape ‘

a | Investigation Division of the City of Do- 1 strip of black electrical tape (approx. §

f hl than Police Department and | am 4° long)

ihe charge of the above described investiga- 1 Murray Corp. hose clamp «he

ae tion. 3 blue rubber cylinder type ineulstors

. if “Sworn to and subscribed before me this taped together with electrical tape

1} vt the 16th day of August 1977 2 metal washers

ae +}

i NW 4

meas | te

ra

aia ° ™ om Re Cer =~

Sng meg ee NRE A a gE a AE OE HE ae RE AR

i ‘

SRE EE Seng EE ean ORM: ae agente

~

af

ri

f

|

a8

..

we

, : . 3

* * ia 3

‘

.s

, a

»

RICHARDSON +, STATE

Ala. 213

Cite on, Ale Cr App, 376 Sede 265

(a) appx. &" shock washer

(>) appx. 4" Mat metal washer

_ 1 etrip of 3 strand electrical wire

assorted papers”

Stokes testified that he interviewed Ran-

dy Callins at the blast site. Randy told him

that he had not seen the package on the

porch before he saw appellant ride by the

house. Several of the dead child's relatives

were interviewed at the scene. Mrs. Remus

Callina, the mother of the deceased, told

Stokes that appellant had threatened her

because she would not allow him to see her

sister. While at the scene, Stokes found

what appeared to be the base of a nine-volt

battery

On cross<xamination, Stokes testified

that Tom's Restaurant was « public place

and that patrons were present at the time

appellant's car was found. Based on the

information Stokes gathered at Lhe scene of

the blast, and the belief that the public

should be protected, Stokes determined that

it was necessary to summon the EOD team

from Fort Rucker. Stokes testified that,

although he had not included it in the affi-

davit of told the iecing magistrate, Doris

Wymes told him that appeiant had talked

to her about making bombs. Ms. Wymes

had seen pipe in appellant's yard before. In

addition, appellant had told Doris Wymes

that he killed a woman in New Jersey and

had to leave that state.

{2.3} Appellant first contends that the

exigent circumstances existed, and that no

situation was presest. Here ap-

pellant is mistaken.

The facts in the case at bar are strikingly

similar to those of Cady v. Dombrowski, 413

US 483, 98 S.Ct. 2523, 37 L.Ed2d 706.

There the respondent Dombrowski was ar-

rested by police for drunken driving after

heing involved in » one car accident; he

told the officers he was a Chicago police

officer. On the next day, believing that a

Chicago police officer must carry his service

revolver at all times, « local police officer

conducted « warrantless search of Dom-

browski’s car, since he had not found the

revolver on Dombrowski’s person. In the

locked trunk of the car, the investigating

officer found several items, some bloodied.

Subsequently this evidence, coupled with

other information obtained from Dombrow-

ski, led police to a bleodstained bedy on

Dombrowski’s brother's farm. The United

States Supreme Court held that the search

of the vehicie'’s trunk was not unreasonable

since it was necessary © keep the weapon

from falling into improper hands, and pre-

Secondly, it should be noted that the me-

bility of the vehicle coupled with the know!-

edge obtained by Stokes at the blast scene

warranted the course of action taken. The

constitutional difference between the

searches of houses and cars is well estab-

lished. Chambers v. Maroney, 909 U.S. 42,

90 S.CL 1975, 26 L.Bd.2d 419.

police were not justified in carrying out of) Next appellant attacks the sufficiency of

warrantless search of his vehicle. As

lant correctly notes, there are six exceptions

eet ee a a warrant be

the affidavit for the warrant for the search

to a lawful arrest, (4) hot pursuit or emer-

gency situations, (5) exigent circumstances

coupled with probable cause, and (6) stop

and frisk situations. Baker v. State Als.Cr.

App. 40 Se.2d 64.

Appellant points out that the search was

not incident to a lawful arrest, not plain

view, that consent was not at issue, and

that a stop and frisk was not involved. He

further contends that no probable cause or

Ai at ee

2 eee A ata

th A MR A OR Na th ig Bi ie Scat

*

Sn Te

ss

376 SOUTHERN REPORTER, id SERIES

under Aguilar v. Texas, 378 US. 108,

S.Ct. 1608, 12 L. Edd 723; Brooks v. Unit-

od States, 416 F 2d 1044, Fifth Circuit Court

of Appeals; Davis v. State, Ala.Cr.App., 33

So.2d 168. The question of the reliability of

the information supplied by members of the

victim's family to Locke remains,

In United States v. Beli, 457 F.2d 1231,

the Fifth Cirevit Court of Appeals ad-

214 Ale

ney v. State, 281 Ala. 9, 198 Sod 298. As

other authority for his argument, appellant

cites Sopejak v. State, 42 Ala.App. 608, 173

So.2d 408. There the affidavit steted that

the affiant had personally appeared before

the magistrate when in fact he had not;

this Court reversed and remanded the case.

It appears in the record of the motion to

suppress the evidence that Deputy Hand

talked to Locke and Sorrelis in the presence dressed this iasue. We find the following

of the judge who issued the warrant. From language

Hi: the record: Pm

f “Q: And did you tell him you were talk-

Bie oe

1 SR RE A RN li 2

on eed

ap abe

ET ae

SaCeinnE: “it ceeesinmannnces

‘ It is now @ well-settled and

familiar concept, as enunciated by Agui-

. m“, 4

scnalpaagie.. Fie ‘ a

% re,

t a

& he La Fy ~ J , . a

oe ie

OS A i A 9 alae NR et, eps imaren

” ORE ee. i :

a

na

Hf ing to the Police Department, to the Dis-

trict Attorney?

“A. Yea, sir.

“Q. And he was telling you what Ser-

geant Locke was telling him?

“A. Yes, sir.

“Q And did you swear to everything

you told the Judge then after this conver-

lar and Spinelli, that supporting affide-

vite in an application for a search war

rant must attest to the credibility of an

informant and the reliability of his infor-

mation. See aleo United States v. Harris,

408 U.S. $73, 91 S.Ct. 2075, 29 L.Ed ad 723

(1971). We have discovered no case that

extends this requirement to the identified

ime *

a =

2 se

PLR ESA REDE OO nee EN PS «SS IS! Te 1p ae RS eR ee oe

sation on the phone? bystander or victim-eyewitnes to « es

“A. Yea, sir.” crime, and we now hold that no such ey

: a {4,5} In United States v. Thomas, 489 requirement need be met. The rationale 4g 4,

- : F.2d 664, the Fifth Circuit Court of Appeals pear ype gh —<w yb |

ele adopted the standards to be used in evaluat- lability is prevent searches ye j

a: ing affulevits cil Gs sa to cue, based upon an unknown informant’s tip | :

i misrepresentations. Evidence should be thet may not reflect anything more than ‘

a suppressed when either of the following ike rumor or irresponsible conjecture. ‘

aes occurs: Thus, without the establishment of the ‘ |

a “. . . +) em intentions! misstate- probability of reliability, ‘neutral and “i

Ms ment by an affiant-agent, whether mate- detached magistrate could net adequate 5 % 1

44 rial or immaterial to showing probable ly amwess the probative value of the tip in ? j

; cause; or (2) & negligent or unreasonable exercising hic judgment as to the exist- i ’

“i assertion in an affidavit, if material to °°? °f probable cause. Many infor- AF

showing probable cause, but not where mants are intimately involved with the rs FF I

a. (3) the mistake is innocent, even if mate- __Perwone informed upon and with the ille- : :

st rial to probable cause.” gal conduct at hand, and this circum- L

OH haben ma stance could also affect their credibility, é

| Deput grog the record that = None of these considerations is present in t

; y Hand has intentionally or the eyewitness situation such as was ‘

misrepresented any of the facts un- present here Such observers are seldom

i derlying the search warrant im question. involved with the miscreanta or the '

1 See also, Smith v. State, AlanCrApp, 351 crime Eyewitnesses by definition are r

aii (6, 7] he to egpeinia's tied: on the either have been the vietims of the crime 9

Bi sffidavit on the basis of Clenney, supra, or have otherwise seen some portion of it. 5

: ae that, too, must fail. At the initial point of A ‘neutral and detached magistrate’ could “s. h

a analysis, it should be noted that law en- adequately assess the probative value of .

i forcement officers participating in a com- an eyewitness's information because, if it PY

ie mon investigation are reliable informants is reasonable and accepted as true, the ¢

—

a Egg mie ai <A RE A: ARE A Ses: Nace ig | te

Re

a

ied

Fi

PRREPRISTRSESSIFETES FR eA ES REEL FT

menis are limited to the informant situa-

tien only.”

lit

ai

il

ite

|

FF

Ff

|

i

i

i

f

Randy Cailins testified that he was ten

years oid, the brother of Rena Mae Callina,

and that he lived at 129 North East Street

on August 16, 1977. On that morning, Ran-

dy got up early, before anyone else did, and

F

i

1

Eris

sigs

if

the

Hi

iE

Ey

fey

ti

E

H

f

af

EFESEs

RICHARDSON +, STATE

Che an Ale Cr Rep. 276 So Bd ROS

Als. 215

of her face was missing, it appearing to

hundred and twenty-eight feet

twenty-eight feet east of the body to forty

feet weat of the body.

A search of the area by Lynn turned ca

numerous items; his inventory follows:

“Q. Would you tell ws what you found

om the street there?

<~ o . Pound what appeared

to be « spring from a« clock at the inter-

Pe ae

~ ee a

~ Pe

SCR RRR tN St

Sail ital

i

cl,

“ge!

tte

& sg # , $ 4 + i es i m4 4

ee ating ile alo sry tr gg tne ie Raat nei amiga agp le

SPL LP ETT PN

”

ee

tg

se

i

j

et SO Ns liom,

ie se

cde ot

* ee ae

‘a

AUER CREE alte “Hien. ite De. al

is aitiaeenaamionaneain

pg lie ie a a

Rage ke ie oe

SN Nt, saat

eek cogs

ea

ER ge MRE ST 5 MOOSE AE TE

‘ ‘

216 Als.

129 Bast North Street. One piece of

threaded pipe laying against the east wail

of the house at, 20 feet from the east wall

. © went h the

Tront wail of 130 East North Street, pen-

etrated @ one inch board in the outside of

feet south of

One piece of white masking tape was

found in the yard at 127 East North

Street. One piece of metal pipe, 246 feet,

8 inches west of North College Street,

approximately 19 feet north of the center

line of the roadway. One 2 inch bolt, 200

feet, 3 inches west of North College

Street, approximately 18 feet north of

the center of the roadway. One metal

bolt, 250 feet, 1 inch west of North Col-

lege Street on the north edge of the

roadway. One round piece of metal, 278

feet, 3 inches west of North College

Street, 17 feet north of the center of the

rosdway. Another piece of round metal

threaded pipe waa lodged in the door of

376 SOUTHERN REPORTER, 24 SERIES

F

i

!

Rena Mae Catlins and spent the night at

:

Fre

iret

i

é

i

!

i

“A. Yea, sir.

i

rl

FE

iF

i

4

F

:

ee ee ae ee as a gee Nee ee Ye Ce en eae aa

Pa ee a i

SS a a a ae ee

ie Mm 6

rs + te

ud

.« © @ew back her arm to throw the bag away,

«+ when the thing exploded. At that time,

was standing next to Rena Mae and

she ran into the howe when the explosion

eocurred.

On cross-éxamination, Valioa testified

that Rena Mae was her [irst cousin. When

the explosion occurred, Valica's face, arma,

nd clothes were sprayed with a white pow-

der; she was also hit in the head by a piece

of wire. Eddie and Salina, Valioa’s sisters,

whe had also spent the night, ran out on the

porch right after the explosion.

Larry Lynn was then recalled to testify;

he stated that articles recovered at the

scene were placed in thirty-two amall bags

and then placed in one container. These

tema were in the same condition as when

they were recovered from the scene. How-

RICHARDSON v. STATE

Cite as, Ale.Cr Age. 376 f.04 906

Als. 217

evidence over appellant's objection on the

ground that it was irrelevant.

Lynn further testified that he lifted

prints from the can of gunpowder and sent

them to the Alabama Ruresu of Investiga-

tion, asking that they be compared with

appeliant's fingerprints. In addition to all

the other items that he found on the scene,

Lynn testified that he also discovered a

piece of cardboard from which « circular

pattern had been cut.

Jack Still testified that he was the Coro-

ner in Houston County, Alabama. On Av-

gust 16, 1977, Still went to 129 East North

Street in Houston County, where he exam-

ined the body of Rena Mae Callins. Still

observed that the victim's left hand and the

left portion of her skull had been biown

away. Surrounding the victim's body,

which was covered with powder stippling,

were pieces of pipe and other debria. Still

ee eed

aa

Ps he

We

concluded that the victim was killed by !

*

mes

-“

a

at.

a

P ee ee - by

* we fe bz Cae oS

+ ye ey “ie F 4

“ae ah!

& = * s

ee ee a oe re

7

|

& ee

he

.

:

|

:

ree

2

i aac ti i

ES nM OO SR I

got ate

ee Tie,

ok h

ee

= op Teh i EISSN ie CENA NOEL GERD RETA aS IRE ea aR aca ae bce apace

NESE wm Pe a ae ee aE Se ee ee 3 BP age +) SEPT SS ee a PS garcersarnes ont gies. benatttiom ee te ee

EO EN SCRE NS RTT OE, On gt ORR ee ae Ue Oe ad s " i i pace e's ae = ere ee oss a Aisha .

Zis Ai. 376 SOUTHERN REPORTER, 2¢ SERIES

removed from the body, over to Lieutenant From the trunk of the car, Dubose took a

Stokes roll of black tape, three rubber spacers

L. E. Stokes testified that he was a lieu- sap, ek eaather sake anveied wea

a ee % °*P- All of these items, sent to Atlanta,

cinta’ te tion Division. Stokes “ere returned in the same condition as

teatified received = package, fied that he received the articles of clothing

aising Somaty stethng, Ont ciear tape ahs ates itis Secs Lk Stokes Seen

a 3 X 5 index card, from Dale Carter on were sent te Atlanta and returned in the

August 17, 1977. Stokes placed these items came condition.

next door to Rena Mae Callina before she

— a ree was killed. On the morning of the fatal

ployed by the Federal Bureau of Alcohol, perch of her house when she heard some.

i; Tobacco, and Firearms as & special agent, thing that “sounded kind of like « gun;”

4 working out of Montgomery, Alabama. On immediately thereafter she saw Rena Mac

August 16, 1977, Dubose was requested te tying at the bottom of steps of the

Dubose and sent to s laboratory in Atlanta, drove to Abbeville to run “conduit,” « gai-

vanized pipe, on a jobsite pe

were i

wi; “. . . & package of flash bulbs, a © journeyman electrician. Spivey re-

ait plug, a9 volt Eveready battery withacat Doris Wymes testified that she lived at

ait i : on the front of it. A roll of black electri- 1806 Kinsey Road and that she had known

+ clan's tape, « screwdriver and « pair of appellant approximately two years Ms.

tweezers. And another one of those Fox Wymes had dated appellant and broke off

glo pigs, all removed from the driver's the relationship about three months before

compartment of the car.” the death of Rena Mae Callins, her niece.

” pr cae

*

-

shiid

PGaRse Raab LEslGastas Fitaskess eFhideed edzi,

| director of the Houston Memorial Library

2. fs =e

RICHARDSON v. STATE Als. 219

Che wa, Ala.Cr App. 276 Sate 206

Appellant and Ms. Wymes had lived togeth- Mike Jones testified that he was em-

ployed by the City of Abbeville Police De-

“Too bad you don't enjoy life no more.

bom <r] > Ciel mJ Serprinted appellant on August 16, 1977.

i py birtha: That card whick he made was admitted into

Ma. Wymes further testified that three or 5

four months before Rens Mae was killed

appellant told her that he could make a

bomb if he wanted to de so. One week

before the day in question, appellant drove

by her mother’s house while she, her moth-

er, and some friends were present and

threw something up into the yard. This

was immediately followed by what sounded

like @ shotgun blast; Ms. Wymes did not

know what it was. Then the next Tuesday,

Rena Mae was killed.

Wayne Love testified that he was the

Larry Lynn was then recalled to testify.

in Dothan and that in that capacity he was

custodian of the records. Love testified

that library records indicated that a book

entitied “Explosives and Bomb Disposal

Guide” was checked out on a card inewed to

appellant, hie

Joseph Wise testified that he was a coun- lift

ter salesman for Mack Electric Supply Com-

pany. On August 10, 1977, Wise sold a

micro mercury switch to a person who iden-

we moe F

mk i gg

eal OE IRE CE IIR IER a mB A Sm

ne

ON ge te

a

oa,

‘oe fi BE oy oe *

Se ic elie ay A 0

-

ES ao Cote

te ie ae ee

ee eae

220 Als.

the laboratory in Atlanta by him to Waiter

Mitchell.

ie

HE

Hat

FHLE

i

1

iF

i}

ify

ii

gs

way the fragments had

ripped, and the condition of the wire cover-

ings, the battery parts, and tape. Mitchell

further testified that he did not know how

if

el

i

1

ti

admitted into evidence over the appellant's

ebjection Usat their relevancy had not been

shown. The trial court asked the witness,

“You mean everything that is in this pile

here was part of some bomb or explosive

device™ The witness then reiterated that

§

t

F

sion.”

376 SOUTHERN REPORTER, 2d SERIES

Included in the debris recovered at the

scene, Mitchell testified, were parte. a

battery large enough to allow him to deter.

mine thet they came from «8 om

SIGNEDAIOON 9 volt Eveready battery,

which was stamped on one of the frag-

ments. In evidence received from appel-

lant's car, Mitchell testified, there was an

Eveready 9 volt no. 2IGNEDAIG04 battery.

A piece of light blue plastic recovered at

the scene matched the plastic of flashbulbs

recovered from appellant's car. Tape takes

from appellant's home and car was of the

same chemical analysis as tape recovered

from the bomb scene. Powder samples tak-

en from the victim's clothing and defend-

ant's clothing hed the same physical and

chemical characteristics, as did powder from

the appellant's residence and samples from

the bomb scene. Mitchell aleo found in a

mercury switch box from appellant's resi-

dence a lead wire from a mereury switch,

which he determined was sold nowhere in

the southeasiern United States except Do

than, Alabama. The rubber glove recov-

ered at appellant's home was subjected to

analysis and determined by Mitchell to have

gunpowder on it of the same type he had

previously testified to.

Lawrence Eugene Casey testified that he

was employed in Washington, D.C. by the

Bureau of Alechol, Tobacco, and Firearms

United States Treasury Department. Ca-

sey worked as an Explosive Enforcement

Specialist, assisting state and jocal officials

in investigations of violations of bombing

and explosives laws. Having commanded a

bomb disposal unit in the United States

Army, Casey was also a bomb technician for

the Oklahoma Bureau of Investigation for

four years, a consultant to the International

Association of Chiefs of Police, and an Ex-

plosive Disposal Officer in the United

States Army Reserve. Casey alo wrote

training material on bomb investigation and

diwposai.

Casey further testified that he examined

the debris recovered from the scene and

determined from what type of device they

had come and how such a device functioned.

RO Ne Rs age Nae emanates eye

Be ase ereveeseeacaankeeeeteewnetadceuwwso@en tm teawnn 8&3 efter

|

i

it

He

|

i

- a >

a a nai

~~ 5 aa it

Brille tee

“A. The movement of a package in two allowing him to position that mercury

different planes of movement in » 9 qwitch at the

|

t

ee.

degree movement of the package would = tion. The bomber could use a number of i

indicate that the device functioned by an materials to cause that positioning to be ‘ ri

antidisturbance or antimovement fusing known. He could use tape or pieces of is

system. wood or cardboard or any hard material Hi

“Q. All right. What © an antimove- that would allow him to preposition thet

ment fusing system? switch in a known position. ee

“A. There are many components that “Q flow would he utilize cardboard in mee

can be used to construct the fusing sys doing that? at

tem thet ie activated by movement. But “A. He could vtiliee 0 piece of card- WG

one of the primary examples of the fus- paper bo alle bis HH)

ing system of this manner i# using what oe positioned os tile a ithe

is commonly called a mercury switch, A insert a Prees x

mercury twitch simpy atiows clectricity cardboard similar errors aes ,

to flow through the clectrical circuit wate Whe material or cardhaars t= we

when movement is applied to that compo- that ewitch in the known position. ; ‘

nent or through that mercury switch, Having sifted through the debris recov- 13h

“Q. Aili right. Now, is there any kind ered at the scone, Casey reconstrucied { :

ef, in order for there to be any kind of device using such a fuse eystem. In partic- i

safety factor in building ome of these iar he noted the presence of the cardboard BI

bombs, is there anything needed to keep fragments, flashbulb fragments, and por- ;

the location that he is going to plant the “, The as |

Spits wom | ocr een hi

inamvently or plead & te orice fact that it is detonated or exploded by 4

i me * the victim which is unsuspecting of its Hit

ea hia final connec: ction. It requires the movement of the ty

tion. The device could function with him eg te ae + |

aren. tan bal ek geet This insures that the victim to be will be rr

ty «sing some of remote in close proximity to the explosion when A:

switeh or mechaniem which timing de- — ‘4 a

vices are commonly employed or used to Casey also testified that he was familiar ‘

close that cirevit for him and give him with “Explosives and Bomb Disposal

enough time to ge: away from the bomb- Guide,” describing it as a widely used text-

ing scene.

book in bomb investigation and disposal

rere

CO AN LORS Sete: ttl: eek: et

222 Als.

techniques. This book discussed fully each

of the factors requisite to the construction

of such an explosive device.

At this time the State rested and appel-

* lant made the following motion.

“MR. HERRING: Judge, at this time the

Defendant would move to exclude the

State's evidence on the grounds that they

have failed to prove a prima facie case.

“THE COURT: Okay. Do you want to

offer any argument?

“MR. HERRING: Judge, I would like to

point out to the Court that there has been

no testimony to show that this Defendant

intentionally placed any sort of explosive

device at the site of the crime. There is

nothing to connect him with the inten-

tional act that is complained of in the

indictment. We feel that the State has

failed to make out a case on that basis

and the fact that the intentionalness of

the act has not been shown, nor has it

been shown that the Defendant actually

committed the ect complained of.”

Appellant then called Lou Paul, whe tes-

Uified that she had known appellant and his

wife Rosetta a “good while.” Ma Paul saw

appellant standing by his car om the morn-

ing that Rena Mae Callins was killed; how-

ever, she just noticed that the hood was up

im the car, and she didn't remember any-

thing eine.

William Crawford testified that be had

known appellant over a year. On the morn-

ing Rena Mae Callins was killed, Crawford

saw appellant at about 6 o'clock. Appellant

376 SOUTHERN REPORTER, 2¢ SERIES

Horace Fred Chamblis testified that he

had checked the mileage from appellant's

home in Hartford, Alabama, to 12 East

North Street in Dothan, Alabama. By the

Shortest route that Chamblis discovered, the

trip took forty-eight minutes at the posted

speed limit.

Appeliant testified that he had not made

the bomb that killed Rena Mae Calling, Ab

though he admitted that he had bought

smokeless powder, @ mercury switeh and

made round cardboard cutouts, these things

were all used in repairs on his automobile.

In particular, the gunpowder was used te

help firm lead to build a battery terminal ia

his car. Appellant denied having purchased

the powder at Dothan Shooter Supply, snd

saying that the powder was to be used te

feed his dog and make it mean.

In rebuttal, Danny Hornsby testified that

he sold appellant a pound of smokeless pow-

der at Dothan Shooter about a month and a

half before Rena Mae Callins was killed,

Appellant told him that he was going to

feed the powder to his dog to make it mean.

Charies Henderson testified that he visit-

ed appellant in jail in December. Appellant

asked Henderson if he could have been mis-

taken about a bomb being mentioned dur-

ing the conversation they had the night

before Rena Mae Callina was killed. Hen-

derson testified that he was not mistaken.

Larry Casey testified that in his opinion a

battery terminal could not have bees

formed by the process deseribed by appel-

lant. However, this was excluded by the

trial court on appellant's motion following

voir dire examination revealing that Casey

had not attempted such a process before.

This concluded the testimony in this case.

{8-10} As can be seen from the recital : a

of the facts, the amount of evidence :

and Crawford talked for a few minutes.

a Marjorie Ca‘lins testified that she was

ai i the mother of Rena Mee Callins and that

, she had known appellant since he had been

“>

“— night, the night before Rena Mae died, Mrs.

ie Callins did see appellant drive by the house.

‘i Doris Wymes and her mother were at the

house at the time, and their car was parked

out im front of the house.

dence is entitled to the same weight as

direct evidence, provided it points toward

the guilt of the sceused. Woods v. State,

Ala.Cr.App.. 344 So2d 1225. Conflicting

evidence is always a question for the jury to

determine. Lee v. State, Ala.Cr.App., 346

So.2d 31.

Here the evidence presented by the State

as more than enough from which the jury

could infer that appellant placed an explo-

sive device on the front porch or steps of

_ a the victim's home. His intention to kill the

cm vietim is evident from the fact that the

a device had to be triggered by the victim

- Appellant contends that Act 213, 1975

‘we page 701 ¢t sey. now Sections

vk. 13-11-2, et seg. Alabama Code 1976, is

| unconstitutional. The constitutionality of

| this law is no longer an open question in

ite this State. On May 19, 1978, the Supreme

Court of Alabama, in Ex parte Jerry

on Wayne Jacobs, Ala, 961 So.2d 640 (Jr re

: éerry Wayne Jacobs v. State of Alabama)

oe affirmed this Court's opinion in upholding

"ed. the conviction of murder, including the sen-

ns tence of death, and holding the Act consti-

7 tutional. On August 11, 1978, the Alabama

Bell v. Ohio, 488 U.S. 687, 98 S.Ct. 2977, 67

L.Ed.24 1010 and Lockett v. Ohio, 8 Uf.

586, 98 S.C. 2954, 57 L._Ed.2d 973 and con-

cluded that those cases do not invalidate

Alabama's sentencing scheme in death

Came8

At the sentencing hearing in this case

appellant's counse! made known to the

Court that the defendant did not wish to

present any testimony tending tc show mit-

igating cireumstances but insisted the de-

fendant still maintains his innocence. Both

tides presented hga! arguments and rested.

From the record.

“THE COURT: AN right. The Court

hereby finds that under Section 19-11-46

of the Code of Alabama of 1975 and from

the evidence that was presented in this

case, that the following aggravating cir-

cumstances exist. I find that you know-

ingly created great risk of death to many

persons. And | further find that the

felony which was committed by you was

an especially heinous, atrocious and ervel

PactePehe FFT TLTS PEST EEE By

RICHARDSON v. STATE

Cte a0, Aln.Cr App. 376 S020 308

Ale. 223

act. And based upon that, I hereby order

that on May 25, 1978, that the Warden of

William C. Holman Unit of the Alabama

Prison System, within the walls of the

said William C. Holman Unit of the Ala-

bama Prison System, shall cause to pass

through your body a current of electricity

of sufficient intensity to cause death.

And that application and intensity of

such current through your body shall con-

tinue wotil you are dead.

“All right. He ie in your custody.”

Section 13-114, Ala. Code 1975 provides,

in pertinent part, as follows:

“If the Court imposes a sentence of

death, it shall set forth in writing, as the

hasie for the sentence of death, findings

of fact from the trial and the sentence

hearing, which shal! at least include the

following:

“(1) One or more of the aggravating cir-

cumstances enumerated in section 13~—11~

6, which it finds exists in the case and

which it finds sufficient to support the

sentence of death; and

“(2) Any of the mitigating circumstances

enumerated in section 13-11-7 which it

finds insufficient to oulweigh the aggre-

vating cireumstances.”

Chief Justice Torbert in his concurring

opinion in the Jacobs case, supra, said:

“The Court of Criminal Appeals and this

Court, by statute (Section 12-22-1590,

Code of Alabama 1975) and by Court rule

(amended Rule 3%(c), Ala. R.App.P.) re-

spectively, must review the decision of

the trial court where the death penalty is

imposed. This mandatory review guaran-

tees that, before » defendart can be exe-

euted in Alabama, the sentence of death

must be found appropriate by both the

Court of Criminal Appeals and this court

unless the trial judge conducts a full and

fair sentencing hearing and enters com-

if 224 Ala 376 SOUTHERN REPORTER, 2¢ SERIES

plete written findings In Nebraska the trial court in capital

and mitigating cases must order a presentence investiga.

(Emphasis supplied) tion and must set out a gensral order of

OE al A ie tap,

as to aggravating

* * oo”

oe

ae Temeagye *

re

The trial court set a sentencing hearing

but he did not enter “complete written find-

ings as to aggravating and mitigating cir

procedure prior to the commencement of

the sentencing hearing. (Citing another

Nebraska case). In other words, the sep-

tencing hearing must involve s serious

attempt to examine the aggravating and

mitigating factors surrounding the of-

fense and the offender. The defendant °...

cannot waive this right to due proces

through the failure of his attorney t a

make an objection. Gardner v. Florida, ‘

supra.”

cumstances.”

SAN Mee a capin “=

aa snipes:

a ° a ag

See¢ck.e»s oe

he *

———

with the defendant and his tia! counsel

present.

& 8324 7eRe 28 &

SOs

fairly weigh the aggravating and miti

Pe ing circumstances, and the appellate

R cannot adequately review his sentem-ing de- Remanded for further proceedings in ac.

Cition,” :

At Prior to the date set for the hearing the

‘nal court shall order a pre-sentence report All the Judges concur. ¥

, and furnish the defendant and bis Alter 5 sate ty

* «

es

rev oe, Aghige

+“

ln Ji the Chief Justice wrote: Presentence report and furnish the defend.

‘tha eaten hearing must not be 2 ®*! and his attorney with @ copy of same

constitutional facade; though the burden M4 to afford the defendant the opportunity

of establishing mitigating circumstances ‘ *dduce any testimony that he may wish

must realistically rest with the defendant Present.

(citing cases), this does not relieve the

trial court from the requirement of due

process in the sentencing hearing. Gard-

ner v. Florida, 430 U.S. 349 (1977), State

v. Lee, 114 Aris. 101, 859 P.2d 657 (1976).

* a a *

ne. man. Vonitilies sim ce

seen aatiang

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oem

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: lied : “aye

See

RICHARDSON v. STATE

Als. 225

Cite 28, Ain. Cr App.. 376 $0.26 265

At the rescheduled hearing set for Octo-

her 27, 1978, a presentence report was fur-

ished to the defendant and his counsel.

Appellant called Reverend J. C. MeCleod as

a witness in his behalf. Appellant also tes-

tified and. filed a written statement in

which he denied his guilt. Both sides made

lengthy legal arguments on the law and the

evidence

Reverend McCheoxd testified that he had

known the appellant for about three years

and sometimes he attended church with his

family. He found appellant to be s very

intelligent man and that he had # repute-

tion for being peaceful and minding his own

business. His only contact with appellant

was related to church affairs and he was ®

active man, & very knowledgeable,

very sensible and quiet man during ovr

meetings.”

On cross-examination he stated that he

did not know of any problems appellant had

in Dothan, Alabama, New York or North

Carolina. He further testified that there

was some defective electrical wiring in the

church and appellant repaired the wiring

without making a charge for his work.

Appellant was sworn as a witness and the

is punishable by death when a person has

intent to kill by an explosion. 1 empha-

size the killing. | understand this to

mean that the victim was the intended

victim of the explosion by the Defendant.

Okay. The statute does not say when 8

person is killed by the Defendant, but it

plainly states intentionally killed. 1 also

realize that intent can be or may be in-

acter of the weapon used. If intentional-

ity can be inferred, then the purpose of

the statute is defeated and it is reduced

to a single act instead of two acts that

this statute sets out and requires. It has

been said that the mere fact that the

device had to be triggered by the victim

is evidence of intent te kill the victim.

Well bere again, the character of the

weapon is being used to infer intent. it

is a twofold statute stands defeated, re-

duced to a single act. The Code Title also

states that the offense charged shall not

include any lesser offenses. This too I

think, must fail, because of the evidence

presented by the State does include s

lesser offense. Okay. The State's own

evidence reduces any presumption of

Rena Mae Callin being killed intentional-

ly. There is no evidence of prior difficul-

ty between the Defendant, myself, and

the victim. The victim's own mother tes-

tified to this in evidence for the Record.

It shows no malice or threat to the moth-

er or the victim in this case by the De-

fendant. That intends to prove Rena

Mae Calline was killed intentionally. The

State's Case in chief and theme and theo-

ry shows that the victim was killed a2 a

result of an explosion meant for someone

else. Okay. The State's Evidence point-

ed to Doris Williama end Emma Williams

as being the actual intended victim. The

State went to great lengths to show prior

difficulty between the Defendant and

Doris Williams, along with her mother,

this.

dence that Rena Mae Calline was the

intended victim as to show that she was

intentionally killed by the Defendant, be-

cause of the explosion. Okay. The infer-

ence drawn from the mechanics of the

device is that it had to be triggered by

that triggered it was the intended victim.

Even if one was to consider this a fact

Sg, LTE LON APSR Be 0 NRE

LET AI EI ME

Pm ca ME 2h CROMER ZEEE I i NC NR me

aii

La

‘4:

Mm) 226 Ala. 376 SOUTHERN REPORTER, 2¢ SERIES

Mee i

+ Mag

| and not s conclusion, it is still heavily 1967. He was convicted of assault on «

if outweighed by the evidence presented by female in 1969 and was sentenced to 20

t the State against any presumption that days on the County Farm. He was also

“MED Rena Mae Callins was killed intentionally sentenced to 90 days on the County Farm

HL by the Defendant. 1 offer this statement for damage to personal property in Wil-

; || in my own behalf of mitigating circum- mington. He was convicted for Breach of

TE stances against the imposition of the the Peace in the District Court of Houston

ml) death penalty. And in no way is this County, Alabama, and sentenced wo 12

alt | statement to be looked upon as an admis- months. He appesied this conviction and

‘oe DE sion of guilt, because wholeheartedly I the appeal was pending when he was ar

. aE maintain my innocence. I would like to rested for the crime of murder for which he

iii. ge further and comment on the trial it- now stands convicted.

ae feel that the death penalty should not be ten findings in support of the imposition of

et} imposed on me for one reason is the Prom a 2.4) sentence: “ee.

i eee sy om, “ORDER ON HEARING AS TO IMPO. fi

of def eoverely SITION OF DEATH SENTENCE oe YM

pi, ‘ense by mentioning false accusations a as

LF where he admitted, he said in front of the “The Court, having conducted a rehear- Ve

a then be said | killed a women in New ef the Court of Criminal Appeals of Als- scae yee

a Jersey, which was incriminating. And bama, of October 3, 1978, to determine

B that 1 made bombs in Vietnam, which he Whether or not the Court will sentence ray

pe knew, he had a paper in hie hand and Herbert Lee Richardson to death or to ‘>|

| i hkaew thet this was not true. So, } don't life imprisonment without parole; and i

mS feel that you can give a man a death the Court having considered the evidenc: .

My sentence when you have people telling presented at the trial, the evidence at the -

. outright lies. Rae foe! that this Coart sentence hearing and a presentence hear- fy

of did not cure the accusations in the mind = ®@ Prepared by the Probation Officer of '

f of the Jury. Also, 1 believe that the post Houston County, Alabama; the Court -

iy card sent te Doris Williams should not makes the following findings of fect: :

,! have been admissible in the sense that = “The Court first considers the aggravat-

oO the herself was saying ber birthday was ing circumstances as described in Section :

. on the 16th when in actuality it was not. 13-11-6, Code of Alabama 1975:

4 It was on the 15th, August Mth. This is “(a) The Court finds that the capital felo- ‘

' the Prosecutor made the card look like it ny was not committed by Herbert Lee

i" wae such an incriminating thing, a threat. Richardson while he was under sentence

vs And actually, she took the stand herself — of imprisonment.

i! and seid her birthday was on the 16th “{b) The Court finds no evidence that

Wi and in reality it was on the 15th. This is Herbert Lee Richardson was previously

4 the reason I think it shouldn't be im- convicted of another capital felony or any

Ue posed, because actually, was no fair felony involving the use or threat of vio-

4 trial. And I think this is a gusrantee of = tence to any person.

ip any man, the least you can give him isa = “(c) The Court finds that the Defendant,

H fair trial before you impose anything a = Herbert Lee Richardson, knowingly cre-

if severe as the death penalty. That is it. ated s great risk of death to many per-

ra pellant had previous convictions in North capita! felony. The testimony on the tri-

a | Carolina for assault on « female and was = al of this case convinced the Court that

Hii. sentenced to 30 days on the County Roads Herbert Lee Richardson placed a bomb on

ii and placed or probation for two years in the from porch of an inhabited dwelling

'

~

eC NR Ip Sli <P RRE NR RRR eta ert ep il eg, “RENO RL ARN i ms Sea fe am

RICHARDSON v, STATE

Als. 227

Cie as, Aber Ag. TM Sed 288

“(f) The Court finds that the capital felo-

ny Was not committed for pecuniary gain.

“(g) The Court finds that the capital felo-

ny Was not committed to disrupt or hin-

der the lawful exercise of any govern-

mental fection or the enforcement of

awa,

“(h) The Court finds that the capital felo-

ny was especially heinous, atrocious and

ervel. The Court finds from the evidence

that the Defendant, Herbert Lee Rich-

ardsonm, made or assembled a bomb thet is

known as an antidisturhance or antimove-

ment bomb; that such bombs are created

for the purpose of killing people as op-

posed to destroying property; that the

Defendasi placed this bomb on the front

porch of a house which was inhabited by

several minor children ond adults in a

heavily populated residential area of the

City of Dothan; that the victim, Rena

Mae Callins, wes & ten year old child;

that when the victim attempted to throw

or dispose of the bomb, it exploded and

view parts of ber body over a two-block

area.

“The Court row considers mitigating cir-

cumstances as described in Section 13-

11~7, Code of Alabama 1975:

“{a) The Court finds that Herbert Lee

Richardson has a significant history of

prior criminal activity having been previ-

ously convicted or two occasions of as-

sault on a female in the State of North

Carolina.

“(b) The Court finds that capita! felony

was not committed while Herbert Lee

¢} The Court finds that the victim,

Rena Mae Callina, was not a participant

in the Defendant's conduct nor did the

victim consent to his act.

“(d) Tae Court finds that Herbert Lee

Richardson was not an aceomplice in the

capital felony committed, but was, in

fact, the principal who created the bomb

and pleced it an that the victim came into

— of i thereby causing her

a on finds that Herbert Lee

Richardson did not act under extreme

duress or under the substantial domina-

tion of another person.

“(f) The Court finds that the capacity of

Herbert Lee Richardson to appreciate the

criminality of hia conduct or to conform

his conduct to the requirements of law

was not substantially impaired and was

not, in fact, impaired in any degree.

“ig) The Court finds that Herbert Lee

Richardson's age wi the time et ne crime

ia not a mitigating circemstance.

it is the judgment of the Court that the

death penalty as fixed by the jury should

be and is hereby acceptert.

“IT IS THEREFORE ORDERED, AD-

JUDGED AND DECKEED BY THE

COURT that Herbert Lee Richardson, ic

guilty of the capital felony charged in the

Indictment specifically of willfully sct-

ting off or exploding dynamite or other

“THE COURT THEREFORE ORDERS

AND ADJUDGES THAT YOU, Herbert

Lee Richardson, suffer death by electro-

eution at any time before the hour of

OE FIC NT ah PL A te a OR

‘

errhi

Ht 228 Als 376 SOUTHERN REPORTER, 2¢ SERIES

«<n f sunrise on the rd day of February, 1979, Such a crime is deserving of no sentence

‘aie inside agente C. Holman but death. wr

“a Unit of the Prison ystem at Atmore, The judgment of conviction and the @n-

4 Alabama, in a room arranged for the tence of death is affirmed. ad ry

mili: purpose of electrocuting convicts sen- ED

: tenced te death by electrocution. AFFIRMED. es

, “IT 18 THEREFORE FURTHER OR-

| DERED, ADJUDGED AND DECREED All! the Judges concur. of & (3)

a BY THE COURT, that the Warden of Ms:

William C. Holman Unit of the Prison : ae

whit System at Atmore, Alabama, or in case of G | ateaaaaie : sen

his death, disability or absence, his \

ty, or in the event of the death, disability \

ie or absence of both the Warden and his 1. §

f Re hag grpnte sige

= orrections, at any time

aii fore the hour of sunrise, shall on the 3rd Ex parte Herbert Lee RICHARDSON a

“Ti day of February, 1979, inside the walls of :

i the William C. Holman Unit of the Prison Gn co Herbert Lee Richardaen na

fi - System at Atmore, Alabama, in a room v. not

oe arranged for the purpose of electrocuting State of Ainbama). she

i convicts sentenced to death by electrocy- 7-183. daw

iat tion, cause to pass through the body of or

. oF the said Herbert Lee Richardson, a cur- Supreme Court of Alabama. mol

fi rent of electricity of sufficient intensity pipe

.* to cause his death, and the continuance of Sept. 28, 1979 whe i

*) the application of such current through Rehearing Denied Nov. 6, 1979. “a

a the body of Herbert Lee Richardson until 5

) the said Herbert Lee Richardson, be dead. % 28

5 MAY GOD HAVE MERCY ON YOUR Defendant was convicted before the

a SOUL. Cirewit Court, Houston County, Jerry M a

4 “DONE AND ORDERED this 27th day White, J., of murder, and he appealed. The ty s

ai dad Jerry M. White 376 Sold 205, affirmed, and certiorari fact

A JUDGE, TWENTIETH JUDICIAL —«-¥®5_- ranted. The Supreme Court held mati

lig CIRCUIT OF ALABAMA that: (1) warrantless search of defendant's org

4g “Filed in office this 27. day of October, *™tmobile was justified where police offi- of ju

Ht Ble , "cer had determined that defendant had pa

it driven pest explosion site a short time prior sal

a): Cod-Aalin Lo. Traut to explosion, and had allegedly threatened

Hi, é mother of girl killed in explosion because aH

isa “Recorded in Minute Book No. $2; Page she would not allow defendant to see her

Hit 161 daughter, and where witness had told offi- ly k

Hi, We are in full accord with the findings of cer that defendant had talked to her about pt

i the trial court and find that they are fully making bombs and that witness hed seen conv

i. supported by the evidence in this case. pipe in defendant's yard; mobility of vehi-

i Caly a cunning and diabolical mind could cle coupled with knowledge obtained by of-

#7)! have constructed such an insidious and ficer warranted the warrantless search; (2) Ds

Ht death dealing device. This murder of « affidavit for search warrant was not rene Hert

Hii. > helpless, defenseless and innocent child is dered faulty merely because police deputy Ch

el | one of the most cruel, atrocious snd heinous swore that police sergeant had informed

| crimes in the annals of human depravity RO peuomuncigai ci re

a. ao

fs

EX PARTE RICHARDSON

Ale. 229

Cite as, Ala.Cr App. 378 Se.2d 528

fact district attorney had relayed the infor-

mation for sergeant, since deputy talked to

sergeant and district attorney in presence

of judge who issued warrant, and it was not

spparent that deputy had intentionally or

negligently misrepresented any facts; and

(3) evidence sustained conviction.

Affirmed.

Faulkner, Embry and Beatty, JJ., dis-

sented.

1. Searches and Seizures @= 3.3/6)

Warrantless search of defendant's

automobile was justified where police offi-

cer had determined that defendant had

driven past explosion site a short time prior

to explosion, and had allegedly threatened

mother of girl killed in explosion because

she would not allow defendant to see her

daughter, and where witness had told offi-

cer that defendant had talked to her about

making bombs and that witness had seen

pipe in defendant's yard; mobility of vehi-

cle coupled with knowiedge obtained by of-

ficer warranted the warrantless ssarch.

2. Searches and Seizures @ 3.6(3)

Affidavit for search warrant was not

rendered faulty merely because police depu-

ty swore that police seryeant had informed

him of all information in affidavit when in

fact district attorney had relayed the infor-

mation for sergeant, since deputy talked to

sergeant and district attorney in presence

of judge who issued warrant, and it was not

apparent that deputy had intentionally or

negligently misrepresented any facts.

3. Homicide e 2324/1)

Evidence in prosecution for intentional-

ly killing a person by wilfully causing an

explosion near a dwelling house sustained

conviction.

Daniel E. Robison, Dothan, for appellant;

Herbert Lee Richardson, filed pro se brief.

eon

Charles A. Graddick, Atty. Gen, and

Samuel J. Clenney, 111, Asst. Atty. Gen., for

the State.

PER CURIAM.

This is a death penalty case. Petitioner

was tried and convicted of intentionally

killing « person by wilfully causing an @&

plosion near a dwelling house. He

sentenced to death pursuant to Code 1}

§ 13-11~-1, et seq. The Court of Criminal

Appeals affirmed his conviction. Richard-

son v. State, (1972). 376 So.2d 205 (Ala.Cr.

App.1978). This Court granted certiorari to

review his conviction on the ground that

this was a death case. Rule 30%¢) ARAP.

We affirm.

The facts of the case are sufficiently set

forth in the decision of the Court of Crimi-

nal Appeals.

{1,2] Petitioner makes two allegations

of error: (1) that the initial warrantless

search of his automobile was illegal; (2)

that the search of his home was conducted

pursuant to an improperly issued search

warrant. We find no merit in either con-

tention made by petitioner, We agree with

the appellate court that Cady v. Dombrow-

eki, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d

706 (1973), is applicable and controlling with

regard to the automobile search, Regard-

ing the insufficiency of the search warrant

for the house, we agree with the reasoning

of the Court of Criminal Appeals and cite

the following authorities in support of the

reasoning of that court: Franks v. Dela-

ware, 438 US. 154, 98 S.Ct. 2674, 57 L.Ed 2d

667 (1978); Rugendorf v. United States, 376

US 628, 8 SCL 825, 11 LEd2d 887

(1964); United States v. Thomas, 489 F.2d

664 (Sth Cir, 1973) cert. denied 423 US.

B44, 96 S.Ct. 79, 46 L.Ed Dd G4 (1975).

[3) We have carefully reviewed the reo-

ord and find that petitioner's conviction is

adequately supported by the evidence.

AFFIRMED.

TORBERT, C. J., and BLOODWORTH,

MADDOX, JONES, ALMON and SHORES,

4J., coneur. / *

FAULKNER, EMBRY and BEATTY,

4J., dimsent. i

identified him as the

We hoki there was 2 legs! arrest

the facta and circumstances of ths

In 2 long line of cases we have beld

alibi evidence is always a jury ques-

Re Ronnie PARKER

¥.

STATE of Alabama.

Ex parte Rennie Parker.

T7-S45.

Supreme Court of Alabama.

sane 30, 1978.

Certiorari to the Court of Criminal Ap-

peals.

r+ &

s Mark B. Polson, Birmingham, for peti-

sf boner.

ae No brief for the State, respondent.

Sd}

| @ EMERY, Justice.

44 deny the writ because it is clear from

t of Criminal Appeals’ opinion, 360

‘ 344, that this offense occurred at .

: after 6:20 P.M. on December 19, 1974,

= we know to be nighttime.

WATERS v. STATE

Cite as, Ala. Cr App... 360 So.26 347

Als. 347

We do not necessarily agree with the rule

announced in the opinion to the effect that

nighttime, as it relates to burglary, begins

at sunset. See footnote one in Gaskin v.

State, 58 Ala. App. 64, 297 So.2d 388 (1974).

WRIT DENIED.

TORBERT, C. J., and BLOODWORTH,

FAULKNER and ALMON, JJ., concur.

J

C <r

STATE.

4 Div. G18.

Court of Criminal Appeals of Alabama.

May 2, 1978.

Rehearing Denied May 30, 1978.

By a judgment of the Cirevit Court,

Houston County, Forrest L. Adama, J., the

defendant was convicted of buying, receiv-

ing and concealing stolen property and he

f The Court of Criminal Appeals,

Bookout, J., held that: (1) defendant had

standing to challenge the initial illegal

search of warehouse which led to the search

of his apartment in which other stolen prop-

erty was discovered, and (2) since the chain

of evidence leading from the illegal search

of warehouse to the search of apartment

was clear and unbroken, evidence obtained

as result of search must be con-

sidered as fruit of poisonous tree and there-

Reversed and remanded.

DeCarlo, J., concurred in the result.

Writ denied, Ala, 360 So.2d 358.

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348 Als.

1. Searches and Seizures @=7(26)

Fourth Amendment rights are persona!

in nature and may be asserted by only those

whose own protection has been infringed by

the, search and seizure. U.S.C.A.Const.

Amend. 4.

2. Criminal Law @»394.5(2)

When possession of seized evidence is

an essential element of offense, prosecution

is precluded from denying that defendant

sack Gea oe coe a ech Amend.

ment right even though he has no possesso-

ry interests in premises. U.S.C_A.Const.

Amend. 4.

4. Searches and Seizures @=7(26)

Defendant charged with possession and

concealment of stolen property had stand-

ing to challenge the egal search of ware-

house space in name of another, in which

which in turn led to the subsequent search

of defeadant’s apartment in which police

found more ston property. USCA.

Const. Amend. 4.

&. Searches and Seizures @@7(16)

Protection of Fourth Amendment

extends to commercial warehouse. U.S.C.

A.Const. Amend. 4.

6 Seerches and Seizures = 3.3(2)

Informant's tip may be sole basis for

probable cause for search provided it meeta

the veracity prong and the basis of know!-

edge prong. U.S.C_A.Const. Amend. 4.

7. Searches and Seiseres ¢= 3.6(3)

Affidavit for search warrant merely

reciting that affiant received information

from a reliabie informant, leaving magis-

trate with only officer's conclusion that the

informant was reliable, and failing to set

out any of the underlying circumstances to

show how informant became aware of

knowledge was insufficient to establish

360 SOUTHERN REPORTER, 2d SERIES

probable cause for issuance of

US.C.A.Const. Amend. 4

& Searches and Seizures 3.607".

Affidavit for search warrant

of information from an infe 4

supply magistrate sufficient

enable him to make judicial det

of reliability of informant rether thee

pend solely on officer's conclusion;

mum information allowable for such

pose is a statement that informative

from a person whose record of

for correctness has been good.

Const. Amend. 4 &

9. Searches and Seizures e=2.6(3) | *

Even if an informer's tip fails to med!

the veracity prong or the basis of .

edge pong with respect to testing safl.

cleney of affidavit for issuance of semdh

warrant, informant's tip may still constitute |,

sole basis for finding of probable coum @ >

bis information is in such detail and sole

particularity that magistrate whee

fronted with such detail could reasonably:

infer that informant gained his informatio i

in a reliable way. “

16. Criminal Law @© 994.13)

Since record showed that search aff

of defendant which led to d+

covery of the stolen property was the eal ,

eet ge cone ye non ga

Generally, motion for a new tia . .

addreased to sound discretion of trial judge —

who may grant the same on a showing af . |

ao ren ane oe

cong osm nt a

would probably change results of

be material, not merely

—* cumulative and must not be ad-

ea to minor discrepancies in the testi-

ee

(> Wiliam H. Mills, of Rogers, Howard,

(a «© Beddee & Mills, Birmingham, for appellant.

06 fs«WWilliam J. Baxley, Atty. Gen. and John

& Rucker, Ill, Asst. Atty. Gen. for the

eek, Bale, appelles.

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“Wiliam R. Waters, Jr, alias Billy

Waters and Lethia Speigner, whove

Mae Stembridge, knowing that they were

stolen and not having the intent to re

store them to the owner. r

The stolen items listed in the indictment

were recovered through a search of the

appellant's apartment. Police officers were

led to the apartment based upon informa-

tion they obtained as a result of a search of

a local warehouse. The search of the ware-

motion and hearing, objections during trial,

and by motion for a new trial and a hearing

WATERS v. STATE

Chee an, Alar. App. 900 ha2d 247

Ala. 349

The facts presented on the pretrial mo-

tion and during trial, upon which the h

for a new trial. We will summarize the

facts as they ultimately appeared.

On October 19, 1976, Dothan Police Offi-

cor James Wachob received information

from a confidential informant, known by

Wachob for a year and a half, who told him

that a rental warehouse in town contained

furniture stolen by the appellant. The in-

formant gave Wachob keys to the ware-

house and (to the appellant's apartment, but

did not give him the name of the ware-

house. Officers Wachob and Locke contact-

ed Mrs. Gladys Jackson, manager of the

Store-All Warehouse in Dothan, and asked

if William Waters had rented a storage unit

from her. She stated that he had not;

however, the officers returned the next day

and asked if a woman had rented space

recently, Mra. Jackson went through her

files for the officers, and the name Lethia

Speigner turned up. Mra. Jackson told the

offiwers that Lethia Speigner had rented

the warehouse space some two months ear-

lier, wed at that time she observed Mra.

Speigner storing in the warehouse a white

wicker baby carriage and other antique fur.

After Mra. Jackson had closed the ware-

house office for the day, Wachob and Locke

returned, without a search warrant, and

hy

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350 Ala.

the same serial numbers were listed with

the ACJIS as stolen.

The two officers then called the police

departments in the cities of Montevallo, Eu-

faula, and Enterprise to determine if any of

the items observed in the warehouse had

been reported stolen in those cities, They

were informed by police in Enterprise that

a wicker baby carriage and other items had

been stolen from the residence of Mrs. Mar-

garet A. Rawle about a year earlier on

October 30, 1975. Officer Wachob drove to

Enterprise that night and obtained copies

ef various offense reports from the Enter-

prise Police Department. The wicker baby

carriage was listed in ene of those reports.

The next morning, October 21, 1976, Wa-

chob went to the district attorney's office

where an affidavit was prepared which he

presented to the Dothan City Recorder (mu-

nicipal judge) The officer gave no sworn

testimony before the Recorder, and the

searc’ warrant was based solely wpon the

affidavit.

The affidavit was in pertinent part as

follows:

. there is now being concealed

in warehouse no. 232, Store-Ali Ware-

house, 310 Bic Road, Dothan, Alabama,

property which was stolen from the resi-

dence of Mrs. Margaret A. Rawls, 901 W.

College, Enterpriac, Alabama, on October

30, 1975, said stolen property being more

partiewlariy described as follows: An-

tique furniture, inebuding one white wick-

er baby carriage. Affiant's probable

cause for believing that the above-de-

scribed items are concealed at the above-

mentioned jocation is as follows: Affiant

received information from a reliable in-

formant within the past 48 hours to the

effect that Billy Water had stolen furni-

twre and weapons stored in a loca! (Do-

than) rental warehouse. Affiant checked

& local Dothan warehous-and found that

Lethia Speigner, known to affiant as a

frequent companion of Billy Waters, had

rented a warehouse there . wabd

warehouse being no. 232. Affiant con-

tacted the manager of the above describ-

ed Store-All Warehouse, and found that:

360 SOUTHERN REPORTER, 24 SERIES

scribed no. 232

known companion,

warehouse, the manager of the abovede-

seribed warehouse, Mrs. Jackson, ob 2

served Lethia Speigner unloading numer.

ows antiques and storing them ia the

among them a white wicker baby can

riage, distinct in appearance, and

. oats §

matching the description of the white <2

wicker baby carriage which had bees sto-

len from the residence of Mrs. Margaret

ri “”

(1) Billy Waters had attempted to rent a “Gane

warehouse there within the last 2 months <2 .

but had been turned down; and (2) the ‘gauuee:

day the manager réfited the abovede “Glues

to Waters’

(sic) Speigner,

which was rented wane oe

Waters had been refused rental of a |

A. Rawk. “ye (Emphasis Bp ‘

plied.)

Armed with a search warrant based upos

the above affidavit, Wachob, Locke, aad

other officers returned to the warehouse

and again opened the storage unit with the

key furnished by the informant. :

the typewriter keys nor the trade name of

the typewriter. However, he went to the

x pases and says that he has probable

in? «,, to believe and doves believe that certain

he’; articles taken in the burglary of Whittak-

that the above-described stolen articles

dence io as follows: (1) Based partly on

information received from Mrs. Jackson,

manager of Store-All Warehouse, Inc.,

$10 Bic Road, Dothan, Alabama, to the

effect that she had rented Lethia Speig-

ner warehouse no. 222 approx-

‘ jmately 2% months ago, and, shortly af-

ter, had obarrved Lethia Speigner moving

various antiques into said warehouse

@ 22. including a white wicker baby

carriage which exactly matched the de-

scription of » baby carriage which was

taken in the burglary of Margaret A.

Rawls affiant obtained

search warrant this date (10/21/76) for

Warehouse no. 32. (2) Affiant

executed said search warrant and found

numerous items of stolen merchandise

i

&

ty placed which had been taken in several recent

doutsde 13 burglaries in Dothan, Alabama and En-

| ‘he? numerous personal effects of one Billy

ap tad oe Waters, whom affiant knows to be a fre-

4 ked re quent companion of Lethia Speigner, and

‘dak ond & whom affiant knows to be residing with

f .t Lethia Speigner at the present time in a

i. on ee residence listed in Billy Waters’ name,

shan ) said residence being located at # 92 Col-

ache wes “3 ony Square Apartments, Dothan, Als-

shape of n bama. (3) Immediately upon finding this

peme of " stolen merchandise, which did not include

at te the the Olympia typewriter . . and

ond om f the Casino hand caleulater . . . af-

ich ee fiant proceeded to Apt. .

oe we

Square Apartments

WATERS v. STATE Ala. 351

Chie an, Alm Cr App... 980 So.2d 347

:* | . Harold Locke . . . de = purpose of arresting Lethia Speigner.

affiant's knock at the door, opened itand TOS

affiant immediately saw. behind ther. mit.

within this apartment, lying on the mutt!

a typewriter which, as near as affiant

could tell, matched the description of the il

above-described typewriter taken in the iti

aforementioned burglary, . . .” iH

(Emphasis supplied.) Hi

Both Officers Wachob and Locke con- Al

j

i

i

i

cealed their illegal entry into the warehouse ay

prior to obtaining the search warrant. In at

sworn testimony given during the suppres- i]

sion hearing, both officers testified that

they had not opened the warehouse prior te

obtaining the search warrant. During ex- |

amination of Wachob, the following oc- ty

curred: i

"Q. Sergeant Wachoh, at any time be- |

fore you went to the store or warehouse “iy

with a search warrant on October 2ist, 1

and opened the door with a key at that i

time, had you ever attempted te use that

key on that door at any previous time?

“A. No, sir, I had not.

“Q. Hed you ever tested to see if it

work?

ae

Sm

ci Sea gat a

ens oat Ua iil A

2 hi OO ty SE See :

knowledge’®

“A. No, sir, Not to my knowledge, no

one from the police department had.”

“Q. Did you ever try any other keys at

the Stor-All Warehouse to see if they

would open any of the doors there’

“A. No, sir.

“Q. Alt any other time, before you went

there with the search warrant?

“A. No. sir.

“Q Anybody else, to your knowledge?

“A. No, sir, not to my knowledge.”

During the examination of Officer Locke,

the following occurred:

“Q. Now, on that occasion—I'm talking

about the afterno~e of the 20th, when

you were at the Stor-All Wa did

either of you or Sergeant Wachob |

any keys? :

352 Ala

“A. Sergeant Wachob had some keys.

“Q. Did he test any of these keys to cee

if they would fit any of the locks at the

warehoure?

“A. Ne, sir.”

it was not until after the trial that de-

fense attorneys discovered evidence which

caused the police officers in question to

recant and tell the truth. Attorneys for the

appellant requested information from the

ACJIS concerning the inquiry made by the

Dothan police concerning stolen articles

found in the warehouse. It was only then

that the appellant's attorneys discovered

that Officers Wachot and Locke had, on the

night before obtaining the search warrant,

furniahed the ACJIS with the serial num-

bere of the guns stored in the warehouse.

Thus, during the hearing on the motion for

a new trial, the newly discovered evidence

came to light. Officers Wachob and Locke

then testified that they had entered the

warehouse the night before obtaining the

search warrants and hed furnished the

ACJIS with the serial numbers of the weap-

ons found in the warehouse prior to the

search. After receiving negative reports

from the ACJIS computer, the two officers

then placed telephone calls to police depart-

ments in cities where they knew the appel-

Wachob testified “hat after they had

looked inte the warehouse on October 20,

the calls were made to other police depart-

menta. He stated that he went to Enter.

prise that night after Locke had talked to

someone with the Enterprise Police Depart-

ment. He picked up offense reports and

dmeuseed the baby carriage with Lt. Rainey

of the Enterprise Paice Department. Wa-

chob stated that, “the purpose that I went

to Enterprise for was te get his report on

the baby carriage.” He testified that at the

time be first looked inskle the warehouse,

the only information be had about the baby

carriage was what Mrs. Jackson hed told

his.

Officer Locke testified that after the

ACJIS inquiry resulted in a negative reply,

he placed a call to Enterprise and talked to

LA. Rainey of that police departmert. He

360 SOUTHERN REPORTER, 24 SERIES

165, 89 S.Ct. 961, 22 LEd2d 176 (1968,

That case involved the use of evidence

eG

Pde

see

a)

HY

&. 2S

| Fourth Amendment rights are per-

Bee ete misma nt

* these whose own protection has been in-

” fringed by the search and seizure. At one

me, a defendant asserting suck a righi

hed to establish that he was the owner or

pamewor of the seized property or that he

hed & pomsemory interest in the premises

gurched. However, the Supreme Court re-

+ fag in Jones v. United States, 362 U.S. 257,

@ £0. 725, 4 LEd2d G7 (1960). The

| ttaedards now applying are:

~ (2) (1) When possession of the seized

- evidence is an exsential element of the of-

fense, the prosecution is precluded from

denying that the defendant has the requi-

site possessory interest to challenge admis-

ability of the evidence; acd

[3] (2) A person legitimately on the

premises when the search occurs may assert

s Fourth Amendment right even though he

900 U.S. 377, 88 S.Ct. 967, 19 L.Ed2d 1247

¢ é (1968),

he “4 In the instant case, the appellant is

\ protection © charged with a possessory crime. The

: State's affidavit to obtain the warrant to

port in the warch the warchouse stated specifically

«, MUS that an informant provided information,

176 (1968). “that Edlly Waters had stolen furniture and

of evidence weapons stored in a local (Dothan) rental

os a warehouse.” After the warehouse was

searched, » second affidavit was executed

— for a warrant to search the appellant's

oxigen apartment. That affidavit set out the cir-

cy cumstances of the warehouse search, stat-

en aoe es ing that mumerous items of stolen merchan-

priate . ow dise had been found therein, “including nu-

1 sanding ye | merous personal effects of one Billy

sasioonape pega Es in two search war-

co subject of ‘4 ng we

bis to ot rant offidavits that there was probable

There, « cause to believe Waters was concealing sto-

uler surveil- len property in a warehouse and in his

a two other apartment, the State now contends that he

The tacts had no standing to challenge the searches.

In effect, the State is charging him with

WATERS v. STATE

Cite a8, Ala.Cr App... 288 Se.26 347

** taxed the standards for establishing stand- .

“Ala 953

erty in the indictment, but maintaining in

the suppression hearing that he did not

possess the merchandise. This it cannot do.

Jones v. United States; Simmons v. United

States, supra. See also: United Stites +.

Jeffers, S42 US. 48, 72 $.CL. 98, 96 L.Ed. 59

(1960); United States v. Harwood, 47 F.2d

322 (10th Cir. 1972).

THE WAREHOUSE WARRANT

$$} The protection of the Fourth

Amendment extends to a commercial ware-

house. See v. City of Seattle, 387 U.S. 541,

87 S.Ct. 1737, 18 L.Ed2d 343 (1967). Also

see: Adair v. State, 53 Ala App. 251, 98

So.2d 671 (1974). Since we determine that

appellant has standing to challenge the

searches, the next strand of this Gordian

knot to enravel is that of the effect of the

legal warehouse search on subsequent ac-

tions taken by the police.

[6] The officers were initially led to the

warehouse through the tip of a confidentia!

informant. Probable cause may be based

solely upon hearsay information obtained

from 2 reliable informant. Jones v. United

States, supra; Aguilar v. Texas, 378 U.S.

108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964);

Glenney v. State, 281 Ala. 9, 198 So2d 293

(1986). The informant’s tip may be the sole

basis for probable cause provided it meets

the two proaged test of Aguilar: the verac-

ity prong and the basis of knowledge prong.

[7,8] Im the instant case, the affidavit

fails to meet either prong of the Aguilar

test. First, the affidavit merely recites

that the affiart received inform dion from,

“a reliable informant.” The magistrate is

left with only the officer's conclusion that

the informant is reliable. The law requires

that the magistrate be given sufficient in-

formation to enable him to make a judicial

determination of reliability of the infor-

mant rather than depending solely upon the

mation allowable for this purpose in an

affidavit in Alabama is a statement that

the information came from, “a persen

whose record of reliability for correctness

has been good.” Neugent v. State Als,

eine

sey

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2

354 Ala.

340 So.2d 52 (1976); State ex rel. Attorney

General, 236 Ala. 117, 237 So.2d 640 (1970).

The conclusion that officers “received relia-

ble information from a credible person” was

condemned in Aguilar, supra. An affidavit

that the FBI “ ‘has been informed by a

confidential reliable informant’” was con-

demned in Spinelli v. United States, 393

U.S. 410, 89 S.C. S84, 21 L. Bd_2d 697 (1969)

Secondly, the instant affidavit fails to set

out any of the underlying circumstances to

show how the informant learned of the

stolen items being stored where he says

they were stored. Again, the magistrate is

left only wiih the officer's mere canclusion

that the infmement’s heavens fefmemation

was correct.

Judge Charlies E. Moyian, Jr, of the

Maryland Court of Special Appeals, sets

forth with exceptional clarity the functions

of @ magistrate in evaluating hearsay infor-

mation. In “Hearsay and Probable Cause

Ao Aguilar and Spinelli Primer,” Mercer

Law Review, Vol. 2%, p. 741 (1974), Judge

Moylan states:

“Just as the magietrate must satiafy him-

self as to the credibility of a primary

source by administering an oath to him

and by looking at him, so too must he, by

some alternalive means, satiefy himself

aa to the credibility of the secondary

wource. In neither case may he accept

someone else's conclusion in lieu of arriv-

ing ot bie own. Just ap he may not

permit en affient’s assertion as to bis

own credibility te serve as dispensation

for the oath, neither may be permit the

affiant’s assertion as to bie informant’s

credibility to nerve as dispensation for the

required recital of all necemary data

about that informant that will permit the

magistrate to draw his own conclusion as

to credibility. This, simply, iv the ‘eredi-

bility/reliability’ or ‘veracity’ prong of

Aguilar.

“Once the magistrate has decided that

the informant i» believable, he has still

only half completed his ultimate determi-

nation. He must will decide what the

information is worth. He has decided

that the source is not lying, but he has

360 SOUTHERN REPORTER, 2d SERIES

not yet decided whether the semen fs’:

mistaken. The magistrate's second )

tien is now to evaluate the infor

which he is accepting as true and to em

what probabilities emerge from tat’

available data. Again, be may not scope"! >

the conclusion of either the affiantah ©

* ,

&

ie

server or the nonswearing informant,

He must take from either of than

sources hin facts and then arrive at bis

own conclusion as to the significance f

thowe facts.” ”

{9} Thus, the instant affidavit fais &

meet either prong of the tests set eat ie

Aguilar and :

tim Fatty

mant's tip may still

*

— ache ceed ee

constitute the sole basis *

oe a

for a finding of probable cause if bis infer. ~-

mation is in such detail and minute parties.

larity that the “magistrate, when confrest. °»

ed with such detail, could reasonably infer “

that the informant had gained his informa

tion in a reliable way.” Spinelli, supra >

This is the self-verifying tip. Hatten «.

State, Ala.Cr.App., 369 S:.2d 822 (Ma Ne

vember 15, 1977] In the instant case, we

find the informant’s tip eompletely lacking

in detail.

Less detailed information from a rediable

source may also establish probable cause

where the key elements of the informatica

are verified or corroborated. State ex rel

Attorney Generali, supra; Payton ¥. Siste,

47 Ala. App. 347, 254 So.2d 361 (1971), BF.

nally, @ tip that will not meet any of these

standards may still be used in conjunction

with a number of other factors to support s

finding of probable cause. Hatton, supra

In United States v. Squeila-A vendano,

447 F.2d 575 (Sth Cir. 1971), at 580, it was

stated:

. First, if the information pro

vided is in such ‘detail’ and ‘minute par-

ticularity’ that ‘a magistrate, when con-

fronted with such detail, could

infer that the informant had gained his

information in a reliable way,’ then the

report, if sufficiently incriminating, may,

without more, be grounds for finding

probable cause. Secondly, less detailed

information from @ reliable source may

*

*

et

Spinel supra. However, if a ¢. ‘

eh “

ae

¥*

pe

t

»

a

i

. ble cause if independent investigation by

. baw enforcement agencies yields suffi-

; .. @eat verification or corroboration of the

+ jgformant's report to make it ‘apparent

that the informant had not been fabricat-

ing his report out of whole cloth.’ Cor.

|, teberation must render the report ‘of the

* sort which in common experience may be

* pecognined as having been obtained in a

reliable way.’ Thirdly, even a report that

» ie not ender the above two standards

sufficient of itself to establish probable

-. ¢euse may count in the magistrate’s de-

; , Sermination of probable cause, but only

a one of a womber of other factors of

‘further support’ tending to show proba-

ble cause. Examples of satisfactory ‘fur-

ther support’ given in Spinelli involved

law enforcement agencies’ knowledge of

independent facts which suggest criminal

aFikea icky

ad

~&

fer waduct or of facta which take on an aura

— of suspicion in light of the informant's

agua tip.” (Footnotes omitted.)

-

#

Here, although the affidavit dees not

satisfy the two pronged test set out above,

R may have nevertheless appeared to the

magistrate that the affiant had made an

independent investigation based upon the

informant's tip and had determined that a

stolen baby carriage had been stored in the

warehouse in question by the appellant's

girl friend sometiow within the prior two

months. However, there is no showing in

the affidavit that the officers had probable

couse to believe that the baby carriage

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WATERS v. STATE Ala. 355

* Che as, Ala.Cr. App. 188 So.26 947

be used as grounds for a finding of proba- she did not remember. But assuming ar-

guendo that the affidavit on its face states

sufficient facts to establish probable cause,

we are still left with the ultimate fact,

established on motion for a new trial, that

much of the information contained in the

af{.davit, independent of the informant’s

tip, came about through leads obtained by

way of the llega) search conducted on the

night of October 20.

The State's contention is that the infor-

mation contained in the affidavil was

“obtained entirely from independent

sources.” The State contends that the

“fruit of the tree” doctrine ap-

pies onty op elllanes that bs cktneal an’

result of the prior illegality, citing Silver.

thorne Lumber Company v. United States,

251 U.S. 385, 4 S.Ct. 182, 64 L.Ed2d 319

(1920). It contends im its drief that the

information received from Mrs. Jackson and

the informer was the “fruit of a healthy

tree” and that the officers’ prior informa-

tien did not become unusable merely be-

cause they saw objects (the baby carriage)

during the legal search whieh they already

knew about.

The fallacy in the State's position reiative

to the independent source doctrine is that

the officers did not know that a baby car-

riage had been stolen at the time they

committed the illegal entry into the ware-

house on October 20. Both officers later

testified that the only information they had

at the time of the illegal search was what

Mrs. Jackeon had told them. Both atated

that the only thing Mra. Jackson told them

was that she had olwerved Lethia Speigner

storing a white baby carriage in the ware-

house some two and one-half months earti-

er. At the time of their legal entry, the

officers did not know (1) whether the baby

carriage was still in the warehouse, (2)

land the warehouse thet they verified that

the wicker baby carriage was still there. It

was only after confirming that fact by ille-

ga! means ‘hat the officers then began to

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call other cities making inquiry about a

wicker baby carriage. It was only after

calling three cities that the officers discov-

ered that such a carriage had been stolen in

Enterprise almost a year earlier. It was

only then that they could state in the affi-

davit that there was a carriage in the ware-

house “exactly matching the description of

the white wicker baby carriage which had

been stolen.”

It is obvious that confirmation of the

existence of the carriage, through the ille-

gal search, is what led the officers forward

in their inquiries to the other cities to deter-

mine if such a carriage had in fact been

stolen. The record reveals that the illegal

warehouse search previded the impetus for

the officers’ ferther investigation and so

influenced all their future actions in tha

case that its taint is evident in everything

the officers did or said thereafter.

The purpose of the exclusionary rule is

“to deter—to compel respect for the consti-

tutional guaranty in the only effectively

available way-—by removing the incentive

to disregard it.” Ejkins v. United States,

964 U.S. 206, 60 S.Ct. 1497, 4 L.Ed 2d 1669

(1960); Mapp v. Ohio, 367 U.S. 643, 81 &Ct.

1684, 6 L.Ed.2d 1061 (1961). The exclusion-

ary rule would thus deny the State the use

of any evidence it obtained as a result of

the illegal warehouse search. The next

question presented then is whether the

search of the appellant's apartment came as

a result of the prior search of the ware-

house.

THE APARTMENT SEARCH

Ao examination of the affidavit support-

ing the warrant to search the apartment

reveals the following:

(1) A typewriter and « hand calculator

were alleged to have been stolen from En-

terprise two months earlier;

(2) Based “partly” on information re-

ceived from Mrs. Jackson, the warehouse

had been searched;

43) The warehouse search revealed nu-

merous stolen items stored there, “including

numerous personal effects of one Billy

Waters;”

360 SOUTHERN REPORTER, 2d SERIES

(4) The affiant knew Waters to be a fre |

quent companion of Lethia Speigner,

residing at the appellant's apartment;

(5) Since the stolen merchandise at the

warehouse did not include the typewriter

and hand calculator, the affiant apparently

concluded that those two items must be af

the apartment;

(6) That when the affiant went to the

apartment to arrest Lethia Speigner, be

waw a typewriter which, “as near as affiaat

could tell,” matched the description of the

stolen typewriter in question.

Since Officer Locke swore to the affide-

vit, the magistrate had no reason to doult

the truth of the statements contained there-

im. Taken ot face valuc, the affidavit

would support the isevance of a warrant.

Likewise, evidence presented during the

hearing on the motion to suppress did act

contradict the facts set out in the affidavit.

On the motion to suppress, the trial judge

therefore was not in error in finding that

probable cause did exist for the issuance of

the warrant to search the apartment.

However, evidence taken during the hear-

img on the motion for a new trial was

altogether different than that presented

initially to the magistrate or to the trial

judge on the motion to suppress.

Evidence on the motion for a new trial

along with prior evidence in the case would

support the following findings:

(i) Information obtained by the officers

during the illegal search of the warehouse

prompted their inquiry to the Enterprise

Police Department. The Enterprice Police

Department then furnished the Dothan of-

ficers with copies of offense reports from

which affiant obtained the ir’ “mation con-

cerning the baby carriage, the typewriter,

ard the hand calculator which appeared in

his affidavit to obtain the warrant to search

(2) Leading officers to the appellant's

apartment was the discovery of “numerous

personal effects” of the appellant during

the warehouse search;

ak

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Stason aren oes

i? GR The affiant deduced that the type-

bathe ‘ * eter snd hand caleulator were probably at

age the appellant's apartment simply because

es day were not turned up in the search of

| the ‘a. the warehouse,

~—, (4) Officer Locke only had a momentary

&

through » crack in the door of the

apartment and saw only what appeared to

be 2 keyboard of a typewriter;

a

&

) the (5) The officer had no description of the

» he ye stolen typewriter except its trade name and

= (6) His observation of the keyboard in-

oe when the apartment war 86 BOE that he

fide- | qould not ascertain whether the keys were

out geand or square or the color of the type-

an writer body, ‘

javit (7) That in fact the only typewriter

rant. found im the apartment was an antique

the block L. C. Smith typewriter rather than a

| not gray Olympia typewriter, and furthermore

Avil. the hand calculator was not found in the

udge apartment either,

_— (B) Officer Locke's testimony established

~— that his recitation in the affidavit compar-

-_ ing the typewriter he saw with the descrip-

— tion of the stolen typewriter was complete-

wee ly invalid. The qualifying phrase, “as tar

nted os sffiant could tell,” added nothing to its

inal eredibility.

trial te In McConnell v. State, 4 Ala.App. 523,

ould mM, & 266 So.dd 228 (1972), this court reversed «

ah conviction for buying, receiving, and

ff concealing stclen property where another

vers : Dothan police officer had made false state-

ouse 4 ments in an affidavit to obtain a search

prise . 4 warrant. This court found the affidavit te

olice ie be sufficient on its face, but held the search

y of. a / warrant to be invalid because material

from ¥ ; statements in the supporting affidavit were

oon- am 4 subsequently contradicted and proven erro-

ee neous by the testimony of the effisnt him-

din i self. In McConnell, this court quoted from

arch i. Walker v. Graham, 228 Ala. 974, 154 So. 806

. (1934), stating:

ant’s Z| eo [NJe one will be permitted to

rous 4 wrongfully procure the issuance of

ring ‘ process by practicing a frauc or imposi-

w tion upon the court or authority, and seek

dl

WATERS v. STATE

Cine as, Ala.Cr_ App. 348 $0.26 347

~ wp Pag NG EME ONE. LM MLN TET EON EY: NE I RR IE EE BSR,

Ala. 357

shelter behind such a process, though it

be ever so regular upon its face.. .'”

CONCLUSION

{10} After a review of the evidence sub-

mitted on the motion for « new trial and

considering the totality of the circumstanc-

es of the entire case, we can only come to

the conclusion that the search of the apart-

ment was the end result of an exploitation

of information obtained by the illegal

search of the warehouse. The chain of evi-

dence leading from the illegal search of the

warehouse to the search of the apartment is

cloar ane unbroken The eviklence obtained

as a result must be considered as “fruit of

the poisonous tree” and, therefore, inadmis-

sible. Wong Sun v. United States, 371 US.

471, 8 S.Ct. 47, 9 L.Ed2d 441 (1963).

[11,12] The one remaining issue con-

cerns the trial court's overruling of the

motion for a new trial. Genevelly, a motion

for a new trial is addressed to the sound

diseretion of the trial judge. Such a motion

may be granted upon a showing of newly

discovered evidence which cozid not have

been discovered with due diligence before

trial. The newly discovered evidence must

be such that it would probably change the

results of the trial; must be material; not

merely impeaching, not merely cumulative:

and must not be addressed to minor discrep-

ancies in testimony. Lackey . State, 41

Ala.App. 46, 123 So.2d 186, cert. denied, 271

Ala. 699, 123 So.2d 191 (1960).

In the instant case, evidence of the offi-

cers’ illegal search of the warehouse had

been concealed and was such that it could

not have been reasonably discovered with

due diligence by the defense before trial.

The evidence presented on the motion for a

new trial was such that, had it been known

and presented during the hearing on the

motion to suppress, it would have changed

the results ef the trial in that suppression

of the evidence would have been mandated.

The newly discovered evidence presented

was certainly material, was not cumulative,

and was not introduced for the purpose of

merely impeaching testimony of other wit-

nesses given during the course of the trial.

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The appellant's motion for a new trial . ae:

should therefore have been granted. William R. WATERS, Jr. alts: dey.

The appellant is presently under a five *. oe:

sentence for burglary from Barbour - STATE. so

County which this court affirmed in Waters

v. State, Ala.Cr.App., 357 So.2d 968 {2978}

He is also under a five year sentence from

Houston County on another charge of buy-

ing, receiving, and concealing stolen proper-

ty which we have this date also affirmed.

However, due to the reason set out herein, 7.

appellant is entitled to a new trial on the Pi

So By a judgment of the Cireuit Cout,!

KEVERSED AND REMANDED.

Court of Criminal Appeals of Alabama. 5

All the Judges concur except DeCARLO,

J., concurs in result only.

Bookout, J., held that: (1) State did present

evidence sufficient to establish corpus de-

licti; (2) evidence was sufficient to show a

¢ | era proper chain of custody of stolen items

ant; (3) failure te raise at trial objection

that proper predicate was not laid before

jury for admission of confession waived aay

alleged error; (4) confession was properly

admitted although defendant refused to

sign written waiver form, and (5) trial ecert

did not abuse discretion in allowing cross

Ex parte STATE of Alabama ex rel.

ATTORNEY GENERAL.

77-686. examination of defense witness concerning

her arrest to show bias.

Supreme Court of Alabama. Af

dune 30, 1978. Writ denied, Aia., 360 So.2d 367.

Certiorar! to the Court of Criminal Ap-

peals, 360 So.3d 347. lL. Receiving Stolen Goods >]

Elements State is required to prove in

JONES, Judge. case of buying, receiving, or concealing sto-

WRIT DENIED. : len goods are thet the goods in question

have been feloniously taken away by some-

one, that defendant bought, received, con-

cealed, or aided in concealing the goods,

knowing that they were stolen and without

an intent to restore them to the owner.

Code of Ala., Tit. 14, § 338.

2. Receiving Stolen Goods ¢=8(3)

Evidence as to damage to store build-

ing and the disappearance of a number of

items was ample evidence to prove the felo-

nious taking of goods by someone in prose-

TORBERT, C. J. and MADDOX,

SHORES and BEATTY, JJ., concur.

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