Green v. State

599 So. 2d 631, 1991 Ala. Crim. App. LEXIS 1356, 1991 WL 184469
Court of Criminal Appeals of Alabama·Decided August 23, 1991·No. CR-89-1428·Published·Cited by 6 cases

Opinion

JAMES H. FAULKNER, Retired Justice.

In a three-count indictment returned on June 3, 1988 (CC-88-423), Richard Monroe Green was charged with the offenses of burglary in the third degree in violation of § 13A-7-7, Code of Alabama 1975; theft of property in the first degree in violation of § 13A-8-3, Code of Alabama 1975; and receiving stolen property in the first degree in violation of § 13A-8-17, Code of Alabama. In a two-count indictment returned on June 30, 1988 (CC-88-538), Green was subsequently charged with the offenses of theft of property in the second degree in violation of § 13A-8-4, Code of Alabama 1975; and receiving stolen property in the second degree in violation of § 13A-8-18, Code of Alabama 1975.

A third indictment was returned in case number CC-88-242, charging Green with unlawfully breaking and entering of an automobile; theft of property in the second degree; and receiving stolen property in the second degree. This indictment and the clerk’s records pertaining to this case were not made a part of the record on appeal.

The three indictments returned against Green were consolidated for trial. The jury found Green guilty of the offense of theft of property in the first degree as charged in the indictment returned in case number CC-88-423, and Green was sentenced as an habitual offender to life imprisonment and ordered to pay restitution to the victim, Abston Construction Co., Inc., in the amount of $10,000.

The jury found Green guilty of the offense of receiving stolen property in the second degree as charged in the indictment returned in case number CC-88-538, and Green was sentenced as an habitual offender to 17 years’ imprisonment and was ordered to pay restitution to the victim, Thomas Ray Johanson, in the amount of $580. Four issues are raised on appeal.

I.

Green contends that the trial court erred in consolidating for trial the three indictments returned against him.

Rule 15.3(b), A.R.Crim.P.Temp., provides for the consolidation for trial of offenses against a single defendant if the offenses could have been joined in a single indictment, information, or complaint. Under subsection (a) of this rule, joinder of two or more offenses in an indictment, information, or complaint is proper if they:

“(i) are of the same of 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.”

In determining whether to consolidate indictments, risk of inconvenience, loss of time, and wasteful duplication caused by multiple trials must be considered. King v. State, 518 So.2d 880 (Ala.Cr.App.1987).

In the case sub judice the prosecutor moved to consolidate for trial the three indictments against Green, and the court granted the motion following a hearing. Immediately prior to the commencement of trial, defense counsel objected to the consolidation on the record in chambers, and the court denied the objection.

[633]*633The offenses charged in the three indictments involved burglary, theft of property, and/or receiving stolen property — these offenses are clearly “of the same or similar character” within the meaning of Rule 15.-3(a)(i), A.R.Cr.P.Temp. The offenses charged in the 3 indictments allegedly occurred within a period of 16 days and could arguably be “connected in their commission” within the meaning of Rule 15.3(a)(ii), A.R.Cr.P.Temp.

Furthermore, testimony from two of the witnesses, Officer Abrams and Murray Davis (an alleged accomplice), concerning any one of the offenses would have uncovered information concerning the other offenses. Because at least two of the witnesses would have been the same in all three trials, judicial economy militated in favor of consolidation.

In light of Green’s failure to allege any prejudice as a result of the consolidation, we therefore hold that the trial court did not abuse its discretion in consolidating the three indictments for trial.

II.

Green contends that the trial court erred in denying his motion for mistrial based upon the State’s attempt to elicit testimony concerning Green’s assertion of his right to remain silent following his arrest.

During the prosecutor’s examination of Officer Rex Abrams, the following occurred:

“Q. [BY MR. SMITH, Prosecutor]: Now, in connection with the case on Mr. Billy Joe Patton, did you have occasion to take any statements from this defendant, Richard Monroe Green?
“A. I have no idea.
“Q. Sir? Did you attempt to take any?
“MR. CORNWELL [defense counsel]: Now, I object to that.
“THE COURT: I will sustain.
“MR. SMITH: May I ask for the basis?
“(Whereupon, the following was held at the bench sotto voce:)
“THE COURT: Andrew, you’re going toward a mistrial. You can’t refer to the defendant’s failure to give a statement, he’s got a privilege against self-incrimination.
“MR. SMITH: Your Honor, the law is they can — that he had an opportunity to make a statement and he did not give one. Whether or not he testifies is a different issue.
“THE COURT: If you’ve got a case on that, because he’s got a right to remain silent and you can’t refer to his—
“MR. SMITH: Not with me, sir, but yes, sir.
“THE COURT: We’ll take a break and let you get it.
“MR. SMITH: I will withdraw the question if it’s going to be that big a problem.
“MR. CORNWELL: Real close to one already here.
“MR. SMITH: How so?
“MR. CORNWELL: Even asking him. As the Judge has indicated, the very asking of that question is so prejudicial, I probably ought to move for a mistrial now.
“MR. SMITH: Well, do what you have to do, but I would ask the Court to tell me what it does not want me to ask and I will be happy not to ask it.
“THE COURT: About his making a statement or failing to make a statement. Since the question has not been answered, I will overrule the motion for a mistrial.”

The granting of a mistrial is within the broad discretion of the trial judge, and his ruling will not be disturbed on appeal unless there is a clear abuse of discretion. Free v. State, 495 So.2d 1147 (Ala.Cr.App.1986).

An improper question is rendered harmless when a timely objection is made and sustained by the trial court so that the witness is never allowed to answer. Minor v. State, 402 So.2d 1121 (Ala.Cr.App.1981); Strickland v. State, 269 Ala. 573, 114 So.2d 407 (1959). Clearly, defense counsel made a timely objection to the prosecutor’s question. The objection was sustained by the court and the witness was not allowed [634]*634to answer; thus, any error from the prosecutor’s question was harmless. The trial court, therefore, did not abuse its discretion in denying a mistrial.

III.

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Green v. State, 599 So. 2d 631, 1991 Ala. Crim. App. LEXIS 1356, 1991 WL 184469 (Ala. Ct. App. 1991).

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