# Appendix — HERBERT L. RICHARDSON v. ALABAMA (No. 82-5987) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1356%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1982 ## Text 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 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 ges ct ee: SN ag . at Stage Geno 9 al Bt oe ie eb nome Ne ie 2s ee see ak eet Oh ANB cg oP aRrtenss auc ap hiiege een ag wan Toe ee OO ReadMe a Ree) ee ee ee ee ee ee ee we eae 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 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 | PEESEE fit ; i it : : {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 atte ak 2 ies : —_ FESEtE rE F $5 feeckseaue #t% + FF cs = > ym . 8 “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 4 He ae ie fie if | | | sj* | i { bE 5 EDEN SESE eR TI RNR TE RTE IBS T Ne MO OR, MEL IN TERM te ee ROR ME a PSE Tots Nt te eh ee cee A tt * - * OE A Nii At OM ” % i — . , ait. Be * _a = , a ait _—-. . . . ~~ ae ot ae —— i as ey ’ bi ~ * nee age * RO ao sae HRD A ge ee ee ee ee te ae ae ae Bi es: Soe et ie Al an Atco Sia, tials ea nce 8 yg ih Ni agai ae ine Rec gn lice ays: Alb ya we ya ee. - a 3 ei a * « “alts. eat. gg, 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 fr 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- Fa +, We ee ee OE ee F € 5 2 ~~ Pe Locke and two Aleohel, Tebesee arms Agents, a unit of the United E ; * & F S ee te nn OE oe er ocreseeevcrrT BAS - 4 a er — sinc ap? 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 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 eh ~ eam: Ee a RRs fe e-aieeo. oem > ae saecgaree ee eee “ — inininaigelice. es ont - * SON ie ee i wit A folk F th pe is in Bi m vi 0} pe ph rei fer Bu ele an an Ea its alit No i ee aE ee ee a ee tite ER = trem + +. & F542 546 Pe Kr Tee & ye ae ae ae ee ee ee nice - + C 4 : ’ a a : 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 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 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. i } 4 | : s f > | NY — , et St 2 nails Le ae et ee eet E * tT Fe r i i ; z i “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 iad AO ete ets RE A cae te ey Se il agp : he ls Ree? «A ey - : a tt — Pee 6 as tea | ate it oe . %, * ar oe oe e * ‘g = + amaemaens . eer eee A III i el ce id oe oles mene seem Re na * » - ee ed 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 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 - = s 73h? es 2 F i i z ‘ - 5 g 8 baat = FFSF 5 ¢ oren =F i : , | FFs z z 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 ee le darren ain ene 7 ~ SANNA ae ah Signe Sn: Ragen ae ca ate aa ‘dannnteia Sienna ii LB ie: eg AM sii $56 Als. 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 1g eet. ag, } a8 ll peste 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. wa tae Rn acet Fox $e ee ae agg E Say * eel Re APRN RITE TERTRIOR SNR I POR TE I I EI OE REI A NR nN SONNE SI EM 26 ™ sins sileriaihs - coe FR GORE i ete TIE ESA A ay Pa OD coer inc $58 Als. 960 SOUTHERN REPORTER, 2¢ SERIES 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. ® fs coe site i oy é 4 Div. 578. RE Houston County, Forrest L. Adams, J. Ue. | from person who bought them from defend — ae . 2 ee, my ‘ ' | ha a de . ten. a. #2 4 Se ae OE ee ag eg * at A Py se + rad z » - * . “ P- < pare My oe asa “ EEATEERESATE * CREREZESEEES TOBEITE. GAESE © ES --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1356%3A2. Public record. Not legal advice.