Smith v. StateSmith v. State
William Allen Smith was convicted of receiving stolen property in the first degree and sentenced as a habitual offender to life imprisonment. Two issues are raised in this appeal from that conviction.
On December 1, 1987, George Aplin, fleet control manager with Supreme Beverage Company, discovered that a 1983 Buick Regal automobile owned by Supreme and valued at $3,500 was missing from the Supreme lot. Aplin reported the vehicle stolen on December 2, 1987. At this time, the defendant Smith, whom Aplin knew by the name of “Charles Hill,” was frequently working as extra help at Supreme.
Around 1:30 on the morning of December 12, 1987, Birmingham police officers Kelvin Dudley and Jerome McCaskey stopped a 1983 Buick Regal for an improper left turn. The driver, identified by both officers as Smith, exited the vehicle without being requested to do so and identified himself to the officers as “Charles Hill.” An NCIC check revealed that the vehicle was registered to Supreme Beverage Company and that the vehicle had been reported stolen. When Dudley informed Smith that there was a problem with the vehicle and asked him to step back to the patrol car, Smith “began to run.” Although Dudley caught Smith momentarily, Smith escaped after a short scuffle. After Smith escaped, the keys to the Regal were found in the ignition. Attached to these keys were several other keys, including a “brassy looking” Chrysler key. The Regal was impounded and subsequently reclaimed by Aplin.
Officers Dudley and McCaskey saw Smith again on January 24, 1988, when they were dispatched to Cooper Green Hospital to “pick him up” after his arrest for public intoxication and disorderly conduct. Upon their arrival at Cooper Green, both officers recognized Smith as the driver of the stolen Regal which they had stopped on December 12, 1987. Smith identified himself at this time as “William Edward Smith.”
Also on January 24, 1988, Officer Donald Toole questioned Smith about the Regal registered to Supreme Beverage Company.1 Smith stated that he did not know anything about this vehicle. He also informed Toole that his own car had been involved in an accident some two weeks earlier and “that the police had pulled it into Kemp‘s.” During this questioning, Smith identified himself to Toole as both “William Smith” and “Charles Hill.”
Smith did not testify. His defense consisted primarily of attacking Dudley‘s and McCaskey‘s identification of him as the driver of the Regal stopped by them on the morning of December 12, 1987.
I
Smith contends that the evidence was insufficient to support a conviction. Specifically, he asserts that the state failed to prove that he possessed the stolen car “with either intent or knowledge of the alleged stolen status of the vehicle.” Appellant‘s Brief at 20. This contention is totally without merit.
The crime of receiving stolen property in the first degree consists of intentionally receiving, retaining, or disposing of stolen property which exceeds $1,000 in value, “knowing that it has been stolen or having reasonable grounds to believe it has been stolen.”
In this case, there was uncontroverted evidence that the Regal had been stolen. Two officers testified that Smith was driving this vehicle on the morning of December 12, 1987, less than two weeks after it had been stolen. Smith did not even attempt to explain his possession of this vehicle. Moreover, when informed by Officer Dudley that there was a problem with the vehicle, Smith ran away. It is well settled that “[e]vidence of the flight of the accused is admissible to show his consciousness of guilt.” Prock v. State, 471 So.2d 519, 521 (Ala.Cr.App.1985). See also Ex parte Jones 541 So.2d 1052 (Ala.1989); Bighames v. State, 440 So.2d 1231, 1234 (Ala.Cr.App.1983).
Viewing the evidence in the light most favorable to the state and under the principles set forth at length in Dolvin v. State, 391 So.2d 133 (Ala.1980); White v. State, 546 So.2d 1014 (Ala.Cr.App.1989); and Cumbo v. State, 368 So.2d 871 (Ala.Cr.App. 1978), cert. denied, 368 So.2d 877 (Ala. 1979), we find that it is clearly sufficient to support Smith‘s conviction.
II
Smith contends that the trial court erred in admitting Officer Toole‘s testimony concerning the ability of the Chrysler key which was found in the stolen Regal to operate the door locks and ignition switch of Smith‘s Chrysler. He maintains that this evidence should have been suppressed as having been obtained during an illegal warrantless search. The state asserts that the vehicle had been abandoned by Smith and, consequently, that no warrant was required.2
United States v. Thomas, 864 F.2d 843, 845 (D.C.Cir.1989) (footnote omitted). See also, Lewis v. State, 518 So.2d 214, 217 (Ala.Cr.App.1987). Where the prosecutor seeks to rely on abandonment, however, he must establish this fact by “clear and unequivocal” evidence. United States v. Moody, 485 F.2d 531, 534 (3d Cir.1973); United States v. Abbott, 584 F.Supp. 442, 451 (W.D.Pa.), affirmed, 749 F.2d 28 (3rd Cir.Pa.1984). Cf. King v. State, 521 So.2d 1042, 1046 (Ala.Cr.App.1987), cert. denied, 521 So.2d 1050 (Ala.1988) (When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he must establish by “clear and positive testimony” that the consent was freely and voluntarily given).
At the hearing on Smith‘s motion to suppress, the only evidence offered by the state to establish Smith‘s abandonment of the car was the testimony of Officer Toole. Under questioning, Toole stated variously that: Smith‘s car “was left in the street, and it was pulled into Kemp‘s“; “Mr. Hill [Smith] told me it was abandoned in the street because it was wrecked, and it was pulled into Kemp‘s“; and “my understanding it [sic] was involved in a wreck and left abandoned in the street.” Toole‘s trial testimony on this matter was that “he [Smith] told me it had been towed in because it had been abandoned in the street from an accident.”
However, during the arguments on the motion to suppress, the following appears in the record: “The Witness [Toole]: He didn‘t abandon it. He said it—” (Tr. at 82.) In view of Toole‘s previous testimony and the context in which this statement appears in the record, it appears that this statement was incorrectly attributed to Toole and was actually made by defense counsel. “This court is bound by the record,” Hollins v. State, 415 So.2d 1249, 1252 (Ala.Cr.App. 1982), and we cannot violate the sanctity of that record, even to correct what we perceive may be a misstatement contained therein. However, under the authority of Rule 10(f), A.R.A.P., we may remand this cause to the trial court for the purpose of correcting this apparent misstatement in the record.
This case is therefore remanded to the circuit court with directions that a determination be made as to whether the statement quoted above was made by Officer Toole or by defense counsel. The trial court is directed to make written findings of fact regarding the matter. In the event this statement was incorrectly attributed to Officer Toole, the trial court shall order the record corrected. The trial court‘s findings, the transcript of the proceedings, and the corrected record, if any, shall be forwarded to this court for further review.
REMANDED WITH DIRECTIONS.
All Judges concur.
ON RETURN TO REMAND
BOWEN, Judge.
On return to remand, the trial judge found that the record on appeal incorrectly
With that correction, we find that the State presented sufficient evidence of abandonment and that the motion to suppress was properly denied. The judgment of the circuit court is affirmed.
OPINION EXTENDED; AFFIRMED.
All Judges concur.