RLB v. State

647 So. 2d 803, 1994 Ala. Crim. App. LEXIS 220, 1994 WL 264772
CourtCourt of Criminal Appeals of Alabama
DecidedJune 17, 1994
DocketCR 93-809
StatusPublished

This text of 647 So. 2d 803 (RLB 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
RLB v. State, 647 So. 2d 803, 1994 Ala. Crim. App. LEXIS 220, 1994 WL 264772 (Ala. Ct. App. 1994).

Opinion

647 So.2d 803 (1994)

R.L.B.
v.
STATE.

CR 93-809.

Court of Criminal Appeals of Alabama.

June 17, 1994.

Robin Reynolds, Dadeville, for appellant.

James H. Evans, Atty. Gen., and Stephen Dodd, Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

This is an appeal from the order of the Juvenile Court of Tallapoosa County ordering the transfer of the appellant, R.L.B., to circuit court for criminal prosecution as an adult on a charge of robbery in the first degree.

I

The crime charged involves the robbery of Dewitt Starnes, a pizza delivery driver, in Alexander City, Alabama, on the evening of January 2, 1994. The appellant's alleged accomplices in this robbery were R.K.L. and T.W. The petitions against the appellant and R.K.L. were heard at the same transfer hearing.

At that hearing, Starnes testified that he was robbed at gunpoint at approximately 7:20 on the evening of January 2,1994, at 806 "E" Street by a masked individual who took *804 the pizzas he was delivering, $130 cash he had in his pocket, a bank bag containing $20, and his wallet, watch, and knife, and gave those items to the appellant. Starnes positively identified the appellant as a participant in the robbery, but could not identify the person with the pistol. Starnes testified that he was robbed while he was attempting to deliver a pizza to 806 "E" Street and that the order had been telephoned in by a person named "Johnson," whose telephone number was 329-8876.

Latasha Thomas testified that T.W., the appellant, and R.K.L. (who was her nephew and who lived with her) were at her residence at 721 Malibu Circle on the evening of January 2. She stated that at approximately 7:30 that evening, the three left her house on foot. Her telephone number was 329-8876. She stated that "E" Street is located "[a]cross the highway" from Malibu Circle. R. 36. She testified that she saw T.W. using the telephone while the three young men were at her residence.

Alexander City Police Department Investigator Steve Morgan testified that telephone number 329-8876 is listed for the residence located at 721 Malibu Circle. That residence is "250 to 300 yards" from 806 "E" Street. R. 41. Morgan testified to the contents of a statement given by R.K.L. R. 43. However, the juvenile court judge thereafter excluded the statement. R. 45.

Morgan also testified that he obtained statements from the appellant and T.W. He testified that T.W. was currently incarcerated in the Tallapoosa County Jail. The attorneys for both the appellant and R.K.L. objected to the admission of T.W.'s statement. Initially, the juvenile court judge sustained those objections, although he subsequently held that he would take the issue of the admissibility of T.W.'s statement under advisement.

"COURT: Back on the record. Gentlemen, I have spent some time going through this case. This goes not only to O.M. v. State, 595 So.2d 514 [(Ala.Cr.App. 1991)], this case not only goes to the issue of hearsay being admissible or inadmissible at a transfer hearing, there is a collateral issue, but the cent[ral] part and the subject of this case, actually goes to whether or not the charged juvenile has a violated right of confrontation. In this case, the witness/statement is actually made by a codefendant. The requirement of this case is that the witness would be unavailable. Because of the Fifth Amendment of the U.S. Constitution, this is an unavailable witness. He has an absolute Fifth Amendment right, that I don't see how this case or any other case can circumvent.
"....
"I agree with you and I sustained the objection up until the time that I actually sat down in the last five or ten minutes and read the case. And, I think that it's going to fall that you have someone who is unavailable.
"....
"The way I read it, this goes to the right to confrontation and from what the case says, I do not believe that a codefendant, actually charged, can be seen as an available witness. Mr. Lowe [the prosecutor], as I said, initially, I sustained the objection based on the reading of one paragraph, because, in the context of that one paragraph that's what it says. But in the context of the ten or so pages or more that that covers, I want to say that it is admissible. If you choose not to offer it, fine.
"....
"I'll tell you what I'll do based on what you just offered. I want it sealed, I will not look at the statement. It's offered, and if, under the law it is excluded, then it will be excluded. I will issue no ruling until we have the law on it. But, with that exception, then we will go ahead and leave it open for all parties to present any other evidence today. I don't want to put a flaw in the record when it can be avoided. I will not take an in camera inspection of the record. If I rule that it is admissible I will look at it, if not, it goes back to Mr. Lowe." R. 47-51.

In his order of transfer, the juvenile court judge concluded that the statement was admissible:

"In the context of all evidence and testimony presented the Court finds that the *805 statement of the codefendant is admissible at this transfer hearing. The Court specifically finds that the statement is corroborated by other sufficient evidence and that the codefendant is not available to the State." C.R. 45.

The statement made by the alleged accomplice T.W. to Investigator Morgan implicated the appellant in the planning of the robbery. C.R. 23. This statement was clearly hearsay and was not admissible against the appellant under any of the exceptions to the hearsay rule recognized in this state. See Emphraim v. State, 627 So.2d 1102, 1105 (Ala.Cr.App.1993); cf. C. Gamble, McElroy's Alabama Evidence § 195.03 (4th ed. 1991) ("[a] co-conspirator's act or statement after the commission of the crime ordinarily is not admissible against the accused") (emphasis added).

Furthermore, even if the statement had been admissible over the appellant's objection that it was hearsay, it was not admissible over his objection that its admission denied him his Sixth Amendment right to confrontation and cross-examination. "Evidence admissible over a hearsay objection may be inadmissible because it violates the right of confrontation and cross-examination." O.M. v. State, 595 So.2d 514, 516 (Ala.Cr.App.1991), cert. quashed, 595 So.2d 528 (Ala.1992).

"[T]he Confrontation Clause `operates in two separate ways to restrict the range of admissible hearsay. First, ... the Sixth Amendment establishes a rule of necessity. In the usual case ..., the prosecution must either produce or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant.' Second, once a witness is shown to be unavailable, `his statement is admissible only if it bears adequate "indicia of reliability." Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.'"

Idaho v. Wright, 497 U.S. 805, 814-15, 110 S.Ct. 3139, 3146, 111 L.Ed.2d 638 (1990) (quoting Ohio v. Roberts, 448 U.S. 56, 65-66, 100 S.Ct. 2531, 2538-39, 65 L.Ed.2d 597 (1980)), quoted in O.M. v. State, 595 So.2d at 519.

Under Idaho v. Wright,

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Bluebook (online)
647 So. 2d 803, 1994 Ala. Crim. App. LEXIS 220, 1994 WL 264772, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rlb-v-state-alacrimapp-1994.