Cure v. StateCure v. State
This is a consolidated appeal brought by Charles and Kathleen Cure. The appellants were indicted separately and their cases were consolidated for trial. Kathleen Cure was convicted of child abuse, in violation of
I
Kathleen Cure contends that she was denied the opportunity to be heard prior to the consolidation of the cases against both appellants. This argument has no merit. The record reveals that the appellant was given the opportunity to be heard on the State‘s motion to consolidate. Furthermore, the appellant presented a thorough argument against consolidation. Thus, the record does not support the appellant‘s argument.
II
Both appellants contend that the trial court erred in failing to provide them with the reports of abuse and neglect pursuant to
In order to determine the appellants’ entitlement, if any, to the reports under the statute, we must first examine the legislative intent of the statute. “The cardinal rule for construction of a statute is to ascertain the legislative intent, which must be determined by examining the statute as a whole in light of its general purpose.” Decatur v. City Board of Educ. v. Aycock, 562 So.2d 1331, 1333 (Ala.Civ.App. 1990) (quoting Gulf Coast Media, Inc. v. Mobile Press Register, Inc., 470 So.2d 1211, 1213 (Ala. 1985)).
Chapter 14 of Title 26 is entitled, “Reporting of Child Abuse or Neglect.” Section
“In order to protect children whose health and welfare may be adversely affected through abuse and neglect, the legislature hereby provides for the reporting of such cases to the appropriate authorities. It is the intent of the legislature that, as a result of such efforts, and through the cooperation of the State, county, local agencies and divisions of government, protective services shall be made available in an effort to prevent further abuses and neglect, to safeguard and enforce the general welfare of such children, and to encourage cooperation among the states in dealing with the problems of child abuse.”
The statute cited by the appellants,
Our review of the statute, as a whole, indicates that Chapter 14 was clearly enacted and designed for the protection of children. In fact, the Court of Civil Appeals reached this conclusion in Decatur City Board of Educ. v. Aycock. The court stated, “A careful reading of the various sections of Title 26, Chapter 14 indicates the intent of the legislature to protect children and to safeguard and enforce their general welfare through the reporting of abuse and neglect.” 562 So.2d at 1334 (emphasis in original). The court further stated that “[r]eports and records of child abuse and neglect are confidential and may be used for the purposes listed.” Id.
The relevant federal statute is the Child Abuse Prevention and Treatment Act. The Act provides that one of the things a State must do in order to qualify for a grant is “provide for methods to preserve the confidentiality of all records.”
This issue was addressed by the Maryland Supreme Court in State v. Runge, 317 Md. 613, 566 A.2d 88 (1989). In interpreting a substantially similar statute, the court stated that when the statute allows for disclosure under certain limited circumstances or to designated entities, “it is telling us that custodians have authority to release the information within the statutory framework and that if it is so released, the custodians will not be subject to prosecution under [the statute].” 566 A.2d at 91. The court further stated, that contrary to the defendant‘s contention, “the subsection is not a mandatory discovery provision that directs disclosure of confidential social services records to child abusers or to the parents of abused children.” Id.
We agree with the Maryland court and find that
III
Both appellants contend that the trial court erred in allowing James Taylor to testify that he pleaded guilty to an offense that also involved the appellants’ daughter. This issue was not preserved for review. James Taylor‘s guilty plea was first brought out during the direct examination of one of the law enforcement officers who investigated the case. Kathleen Cure simply stated that she objected and moved to strike the question. A general objection does not preserve an issue for appellate review. Thompson v. State, 575 So.2d 1238 (Ala.Crim.App. 1991); Jackson v. State, 553 So.2d 647 (Ala.Crim.App. 1989). James Taylor‘s guilty plea was also brought out without any objection during the State‘s direct examination of James Taylor and during Charles Cure‘s cross-examination of James Taylor. Thus, Charles Cure cannot now claim that he was injured by the admission of this testimony. Mooney v. State, 548 So.2d 1091 (Ala.Crim.App. 1989). We note that we also disagree with the appellants’ characterization of James Taylor as a co-defendant or an accomplice. There is no evidence in the record that he was a participant in any of the charged offenses.
IV
Both appellants next contend that the trial court erred in admitting a statement made by Kathleen Cure because she was not advised of her Miranda rights before giving the statement. The statement that the appellants object to was overheard by a law enforcement officer during a telephone conversation between Kathleen Cure and a friend who lived in New Orleans. The record reveals that Kathleen Cure called the friend while law
The record reveals that Kathleen Cure was not in custody within the meaning of Miranda when she made the telephone call. A person being questioned is not in custody within the meaning of Miranda unless the questioning occurs “in a context where [his] freedom to depart [is] restricted in any way.” Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 714, 50 L.Ed.2d 714 (1977). “In recognizing ‘that a prison inmate is not automatically always in “custody” within the meaning of Miranda,’ United States v. Conley, 779 F.2d 970, 973 (4th Cir. 1985), cert. denied, 479 U.S. 830, 107 S.Ct. 114, 93 L.Ed.2d 61 (1986), we hold that ‘custody’ or ‘restriction’ in the context of prison ‘necessarily implies a change in the surroundings of the prisoner which results in an added imposition on his freedom of movement,’ id (quoting Cervantes v. Walker, 589 F.2d [424, 428 (9th Cir. 1978)]. ‘Thus, whether an inmate is “in custody” under Miranda depends on the circumstances of the case.’ United States v. Cooper, 800 F.2d 412, 414 (4th Cir. 1986).” Arthur v. State, 575 So.2d 1165, 1188 (Ala.Crim.App. 1990), cert. denied, 575 So.2d 1191 (Ala. 1991). Without deciding whether the Cures’ friend was an agent acting on behalf of law enforcement officers or was a private citizen, we hold that the trial court properly admitted the statement because of the noncustodial context in which the statement was made. The appellant had the freedom to make a telephone call and could have hung up the telephone at any time. She was not “in custody” within the meaning of Miranda. Furthermore, even if the friend was considered an agent, she only acted as an agent with reference to Ussery‘s question about the briefcase. The other statements made by Kathleen Cure were purely voluntary and unsolicited and had no connection with the briefcase.
V
Kathleen Cure argues that she was improperly charged and convicted of three counts of aiding and abetting rape. Because Charles Cure was the victim‘s father, she argues, she should have been charged with aiding and abetting incest, in violation of
VI
Both appellants contend that the trial court improperly admitted evidence of Kathleen Cure‘s extramarital affairs. This argument was not preserved for review. The record reveals that prior to the objection
VII
Kathleen Cure contends that the trial court improperly admitted evidence of marijuana use other than that charged in the indictment. She first contends that the trial court erred in allowing the State to ask her if she had ever been present when anyone had given her children marijuana. This objection was not preserved for review because the appellant made a general rather than a specific objection. Thompson v. State, 575 So.2d 1238 (Ala.Crim.App. 1991); Jackson v. State, 553 So.2d 647 (Ala.Crim.App. 1989). The appellant‘s objection to Deputy John Stewart‘s rebuttal testimony has no merit because the record reveals that his testimony constituted proper rebuttal. See, e.g., Stoner v. State, 418 So.2d 171 (Ala.Crim.App.), cert. denied, 418 So.2d 184 (Ala. 1982), cert. denied, 459 U.S. 1128, 103 S.Ct. 764, 74 L.Ed.2d 978 (Ala. 1983). The appellant‘s cited challenge to James Taylor‘s testimony was also not preserved for review. The first objection to the testimony regarding marijuana use was based on improper predicate. The appellant now challenges the admission of the testimony on other grounds. The assignment of specific grounds of objection waives all other grounds. Snowden v. State, 574 So.2d 960 (Ala.Crim.App. 1990); Leonard v. State, 551 So.2d 1143 (Ala.Crim.App. 1989). The appellant‘s second objection to James Taylor‘s testimony was not preserved for review because the appellant made a general rather than a specific objection. Thompson; Jackson. The appellant‘s cited challenge to the testimony of Calvin Cure was also not preserved as the appellant made no objection to the testimony. Furthermore, even if there had been error, any error was harmless in light of the witness‘s negative response to the State‘s question. Coleman v. State, 452 So.2d 1355 (Ala.Crim.App. 1984). The appellant‘s challenge to the testimony of Leta Cure has no merit as the testimony constituted proper rebuttal.
VIII
Both appellants contend that their indictments were defective because they failed to adequately inform them of the offenses with which they were charged. We first note that Kathleen Cure failed to file her motion to dismiss within the 14 days after arraignment that the trial court allowed for special pleas.
The appellant also apparently argues that the trial court erred by not requiring the State to elect between two incidents of child abuse prior to trial. This argument has no merit. The State proved two incidents of child abuse. The trial court required the State to elect an incident prior to the testimony of the appellants. The State elected the incident which occurred in Fish River. The other incident of child abuse was clearly admissible as part of the res gestae because it occurred during one of the other charged incidents of rape and sodomy. The jury was clearly instructed as to which act to consider in determining guilt. Thus, there was no violation of Reed v. State, 512 So.2d 804 (Ala.Crim.App. 1987). The State was required to make an election at the appropriate time and the jury was clearly instructed that the child abuse charge only referred to the incident at Fish River.
IX
In his final argument, Charles Cure sets forth several alleged errors, the cumulative effect of which he contends, denied him his right to a fair trial. We have carefully reviewed the appellant‘s arguments in light of the record and find that none of them have any merit. The arguments and issues set out by the appellant either were not preserved for our review, are not supported by the record, or do not constitute error.
For the reasons set forth above, this case is due to be, and hereby is, affirmed.
AFFIRMED.
All the Judges concur.