Bates v. State

574 So. 2d 868, 1990 Ala. Crim. App. LEXIS 996, 1990 WL 124119
CourtCourt of Criminal Appeals of Alabama
DecidedAugust 3, 1990
Docket2 Div. 723
StatusPublished
Cited by2 cases

This text of 574 So. 2d 868 (Bates 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
Bates v. State, 574 So. 2d 868, 1990 Ala. Crim. App. LEXIS 996, 1990 WL 124119 (Ala. Ct. App. 1990).

Opinion

McMILLAN, Judge.

The appellant was convicted of receiving stolen property in the second degree, in violation of § 13A-8-18, Code of Alabama (1975). He was sentenced to 20 years’ imprisonment.

I

The appellant argues that the trial court erred in allowing into evidence the Alabama Uniform Incident/Offense Report and testimony concerning the identification of the stolen property. The record indicates that Deputy Stockton, who investigated this case, testified extensively concerning the missing items, without objection [870]*870from the appellant. Thereafter, on redirect examination, the State sought to introduce the incident report into evidence. The appellant objected to its admission, stating that it could be used to refresh Stockton’s recollection but should not be admitted because the State had not laid the proper predicate for the business record exception to the hearsay rule.

Incident reports made by investigating officers, although generally hearsay, may be introduced if they meet one of the hearsay exceptions. Worsham v. Fletcher, 454 So.2d 946 (Ala.1984). In order to lay a proper predicate for the admission into evidence under the business records exception to the hearsay rule, the following must be established:

“Testimony by any witness, frequently the custodian of the record, that the document now exhibited to him is a record of the business; that he knows the method (i.e., the standard operating procedure) used in the business of making records of the kind now exhibited to him; and that it was the regular practice of the business to make records of such kind and to make them at the time of the event recorded or within such specified period thereafter as could be found by the trier of fact to be reasonable, is a sufficient authentication of the record to require its admittance into evidence.”

C. Gamble, McElroy’s Alabama Evidence, § 254.01(3) (3d ed. 1977).

In the present case, Deputy Stockton testified that the incident report was a record of police business that is always made in the investigation of an incident. Thus, the proper predicate was laid.

The appellant further argues that, even if the report meets the business records exception, it should not have been admitted into evidence because it was not the best evidence of the identification of the stolen property. C. Gamble, McElroy’s Alabama Evidence, § 254.01(5) (3d ed. 1977). The appellant submits that an original handwritten list, which contained the serial numbers of the guns in the victim’s family’s possession, would have been the best evidence of the missing guns. However, the record indicates that the list contained the serial numbers of every gun in the family’s possession, and did not specify those that were stolen during the burglary. Therefore, the incident report, which does specify and identify the stolen guns, was the best evidence.

Moreover, we note that both Deputy Stockton and Mrs. Martin, who owned the home from which the guns were stolen, had already testified concerning the missing items without an objection from the appellant. See Smoot v. State, 520 So.2d 182 (Ala.Cr.App.1987).

II

The appellant argues that the trial court erred in allowing the case to be continued at the State’s request. The record indicates that at 1:00 p.m. on Wednesday, April 5, 1989, the State requested a continuance because a witness, for whom a subpoena had been issued, had not been located and served. The defense counsel objected on the grounds that a continuance would serve only the State’s interest and not the appellant’s. The trial court granted the continuance until Friday, April 7, 1989. Although the appellant argues that he was prejudiced by this continuance, he fails to cite specifically how he was prejudiced. Granting a motion for continuance is a matter addressed to the trial court’s discretion, Reynolds v. State, 539 So.2d 428 (Ala.Cr.App.1988), and this decision will not be reversed on appeal absent a showing of abuse of discretion by. the trial court. Jackson v. State, 560 So.2d 1100 (Ala.Cr.App.1989). We find that the trial court 'did not abuse its discretion in granting the State’s motion for continuance.

III

The appellant argues that the indictment contained an improper joinder of offenses and that the trial court erred in failing to require the State to make an election as to the offenses. The record indicates that count I of the indictment charged the appellant with receiving stolen property in the second degree; count II of [871]*871the indictment charged the offense of theft of property in the second degree; and count III of the indictment charged the offense of burglary in the third degree. The appellant contends that because he could not be convicted of the charge of theft and/or burglary and also the charge of receiving stolen property as to the same property, the State should have been required to elect among the charges. The appellant cites § 15-8-52, Code of Alabama (1975), which states:

“When offenses are of the same character and subject to the same punishment, the defendant may be charged in an indictment with the commission of either in the same count in the alternative.” (Emphasis added.)

Therefore, the appellant alleges that he should have been charged with the theft and burglary offenses in the alternative in the count of the indictment charging the receiving of stolen property.

However, Rule 15.3(a), A.R.Crim.P.Temp. reads as follows:

“Two or more offenses may be joined in an indictment, information, or complaint, if they:
“(i) are the same or similar character; or
“(ii) are based on the same conduct or are otherwise connected in their commission; or
“(iii) are alleged to have been part of a common scheme or plan.
“Offenses shall not be joined in the same count of an indictment or information.”

Thus, Rule 15.3, A.R.Crim.P.Temp., specifically prohibits the joinder of offenses in the same count of an indictment and provides for the joinder of offenses in the same indictment where they are based on the same conduct or connected in commission or alleged to be part of a common scheme or plan. Therefore, the indictment properly charged the appellant with the three offenses in three separate counts.

Moreover, although the appellant alleges that the State should have been required to elect which offense it would pursue, the Alabama Supreme Court has held that “although the defendant could not be convicted of both larceny and buying and receiving or concealing stolen property where the same property is involved, the State could seek convictions upon both.” Ex parte Wilcox, 401 So.2d 794, 796 (Ala.1981). Ex parte Wilcox, supra, specifically overruled Jones v. State, 373 So.2d 1221 (Ala.Cr.App.), cert. denied, 373 So.2d 1225 (Ala.1979), which held that a defendant could compel the State to elect between the charges of larceny and buying, receiving, or concealing stolen property.

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Related

Hunt v. State
642 So. 2d 999 (Court of Criminal Appeals of Alabama, 1994)
Reynolds v. State
615 So. 2d 94 (Court of Criminal Appeals of Alabama, 1993)

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Bluebook (online)
574 So. 2d 868, 1990 Ala. Crim. App. LEXIS 996, 1990 WL 124119, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bates-v-state-alacrimapp-1990.