Arrington v. State

513 So. 2d 40
CourtCourt of Criminal Appeals of Alabama
DecidedJanuary 13, 1987
StatusPublished
Cited by13 cases

This text of 513 So. 2d 40 (Arrington v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Arrington v. State, 513 So. 2d 40 (Ala. Ct. App. 1987).

Opinion

513 So.2d 40 (1987)

Earnest L. ARRINGTON
v.
STATE.

1 Div. 152.

Court of Criminal Appeals of Alabama.

January 13, 1987.
Rehearing Denied May 12, 1987.
Certiorari Denied August 28, 1987.

*41 Barbara A. Brown, Mobile, for appellant.

Charles A. Graddick, Atty. Gen., and Fred F. Bell, Asst. Atty. Gen., for appellee.

Alabama Supreme Court 86-1116.

LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal from a judgment of conviction and sentence on a jury trial on an indictment that charged in pertinent part the following:

"EARNEST LEE ARRINGTON, did in the course of committing a theft of lawful currency of the United States of America, the specific denomination(s) of said currency being unknown to the Grand Jury, of the approximate aggregate value of one thousand two hundred dollars ($1,200.00), the property of Weichman's All Season Restaurant, use or threaten the imminent use of force against the person of Glennon Bosarge, with intent to overcome his physical resistance or physical power of resistance, while the said EARNEST LEE ARRINGTON was armed with a deadly weapon or dangerous instrument, to-wit: a gun, in violation of § 13A-8-41 of the Code of Alabama."

The defendant-appellant was sentenced to imprisonment for life.

We now consider the six issues of appellant in the order presented in the brief of counsel for appellant.

I.

By this issue, counsel for appellant contends that "The trial court erred in denying the defendant Youthful Offender Status" as now provided by Section 15-19-1, Code of Alabama 1975. Said counsel for appellant, who was appointed by the trial court to represent appellant on appeal and who was not his attorney on the trial, has made a strong and almost convincing argument that defendant was denied Youthful Offender status because of the nature of the crime charged. She concludes her argument as to Issue I as follows:

"There is nothing in the record to establish that the denial of youthful offender treatment was not based solely on the nature of the crime charged, i.e., robbery first degree.
"For the above-stated reasons and in accord with the above-stated law, appellant contends that the trial court erred in denying him Youthful Offender Treatment."

Counsel for appellee has responded in the brief for appellee by what was held by this Court in an opinion by Presiding Judge Bowen in Garrett v. State, 440 So.2d 1151, 1152 (Ala.Cr.App.1983), cert. denied, Ala. (1983) as follows:

*42 "The defendant's application for treatment as a youthful offender (Alabama Code Section 15-19-1 (1975)) was not denied solely because of the nature of the offense. The record does show that the trial judge stated that he would `not give the reason (for his ruling) because of the nature of the offense.' The record reflects that the trial judge ordered an investigation by the pardon and probation officers of Walker County `for the purpose of determining whether the defendant should be tried and sentenced as a Youthful Offender.' The judge's order denying youthful offender treatment reflects that the court conducted a hearing and heard evidence `as presented in support of said application.'

"Summarizing what we said in Morgan v. State, 363 So.2d 1013, 1015 (Ala.Cr. App.1978), the Youthful Offender Act, does not require a formal hearing or investigation and the trial judge is not required to state his reason for denying youthful offender status. Here, it does not affirmatively appear that the decision of the trial judge was arbitrary or made without some examination or investigation. The record provides no basis for overturning the denial of the defendant's request for youthful offender status. Carthon v. State, 419 So.2d 293, 295 (Ala.Cr.App.1982)."

In accordance with the law as we have just quoted from Garrett v. State, supra, we decide appellant's first issue adversely to appellant.

II.

By this issue, counsel for appellant states, "The trial court erred in allowing a state witness to testify as to defendant's character" and cites as authority therefor, Christian v. City of Tuscaloosa, 53 Ala. App. 81, 297 So.2d 405 (Ala.Cr.App.1974). Counsel for appellant quotes to a great extent what was held by this Court in Christian v. City of Tuscaloosa, and we quote therefrom at 53 Ala.App. 85, 297 So.2d 408:

"That such evidence may have some probative value does not in and of itself entitle it to admission. Evidence of bad character has probative value against a defendant, but the policy of the law is as stated in 22A C.J.S. Criminal Law § 676 as follows:
"`As a general rule, the prosecution may not initially, in its case in chief, resort to any kind of evidence of accused's evil character, disposition, or reputation in order to establish a probability of guilt; and the good or bad character of accused is never an issue to which the state may offer evidence unless the accused chooses to make it an issue.'
"When considering whether evidence that has some probative value as to the guilt of the defendant but which constitutes an attack upon his character should be admitted into evidence, due regard should be given to the principles stated in Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 as follows:
"`.... The State may not show defendant's prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such character might logically be persuasive that he is by propensity a probable perpetrator of the crime. The inquiry is not rejected because character is irrelevant; on the contrary it is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge. The overriding policy of excluding such evidence, despite its admitted probative value, is a practical experience that its disallowance tends to prevent confusion of issues, unfair surprise and undue prejudice.'
"We hold that the complained-of-evidence was too indefinite, tenuous and speculative for the purpose of showing motive or intent to be admissible when juxtaposed to its great potency to `overpersuade' to the unjust prejudice of defendant."

We do not believe that Christian v. City of Tuscaloosa supports the position of counsel for appellant in the instant case as to *43 the issue now under consideration. We now quote from that part of the direct examination of Joseph Dion Nixon, who identified the defendant as the robber with the shotgun who took part in the robbery alleged in the indictment:

"Okay. Now, Dion, have you ever seen this defendant up by Harmon Rec Center before?
"A. Yes, sir.
"Q. So, when you saw him that night at Weichman's Restaurant, that wasn't the first time you've ever seen him, is it?
"A. No, sir. It wasn't.
"Q. You'd seen him before?
"A. Yes, sir.
"Q. You'd see him around the neighborhood?
"A. Yes, sir.
"Q. And this is the neighborhood kid pulling shotguns on you, is that right?
"A. Yes, sir.
"MR.

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513 So. 2d 40, Counsel Stack Legal Research, https://law.counselstack.com/opinion/arrington-v-state-alacrimapp-1987.