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08/23/91 CHARLES HERNDON FREEMAN II v. STATE

August 23, 1991

CHARLES HERNDON FREEMAN II
v.
STATE



Appeal from Madison Circuit Court, No. CC-89-1730; Joseph L. Battle, Judge.

Taylor, Judge. All the Judges concur.

The opinion of the court was delivered by: Taylor

The appellant, Charles Herndon Freeman II, was indicted by the Madison County grand jury for murdering his father in violation of § 13A-6-2, Code of Alabama 1975. The appellant was found guilty as changed and was sentenced to life imprisonment.

The state's evidence at trial tended to show that on the afternoon of August 15, 1989, the victim, 63-year-old Charles Herndon Freeman was killed as a result of a gunshot wound to the back of his head with a .25 caliber pistol.

At trial, Johnny Black, a friend of the appellant, testified that the appellant had telephoned him one afternoon during the latter part of August 1989. Black testified that the appellant told him during the telephone conversation that the victim had been "beating up on him, locking him out of the house, and would not let him use the phone." Black testified that the appellant said that "he couldn't take it any more and he was going to kill [the victim]." Further, Black stated that the appellant called him back that same night and "said he did it," i.e., that he had killed the victim. Black further testified that several days later, the appellant picked him up to go for a ride. The appellant was driving his father's truck at that time. During the course of this drive, the two men drove over a bridge crossing a river. Black testified that the appellant threw a small caliber pistol into the river at that time.

The body of the victim was found in his home by his ex-wife some six days after he had been killed. After attempting to contact the victim for a number of days, Ms. Lois Freeman, the victim's ex-wife and the appellant's mother drove, together with a number of other persons, to the victim's home to check on him. Upon entering his home, they found his body.

The victim's four-wheel drive truck, his wallet, and his checkbook were missing from his home. Authorities were contacted, and among those responding to the call was Investigator Bud Parker of the Huntsville Police Department.

Parker testified that on the day the body was found, he issued an all points bulletin describing the victim's truck. Later that same day, Parker was notified that the truck had been found and that the appellant had been transported to the Huntsville Police Department. Parker then proceeded to the police department, where, after advising the appellant of his Miranda rights, the police questioned him concerning the victim's death. During that interview, the appellant confessed to Parker that he had killed his father.

Freeman presents several issues for our consideration.

I

The appellant contends that the trial court erred by not requiring the prosecutor to state clear, valid, and reasonably specific race-neutral reasons for striking five out of seven blacks from the venire panel.

Initially, we observe that the appellant in this case is a white male. At the end of the jury selection process, counsel for the defense made an objection pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L. Ed. 2d 69 (1986). In that case the United States Supreme Court held that the equal protection clause of the United States Constitution prohibits prosecutors from striking potential jurors from the venire solely because of their race or "on the assumption that black jurors as a group will be unable to impartially consider the state's case against a black defendant." The United States Supreme Court further held that "once the defendant makes a prima facie showing [that the state has struck a number of black veniremen], the burden shifts to the state to come forward with a neutral explanation for challenging black jurors." From the time of the Batson decision until recently, our Court and the Alabama Supreme Court had consistently held that the decision in Batson applied only in those cases where the defendant was a member of "a cognizable racial group," and did not apply where the defendant was white.

Recently, the United States Supreme Court held in Powers v. Ohio, U.S. , 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991), that a white defendant may complain that blacks have been struck from the jury because of race.

In this case, defense counsel made a Batson objection; however, the trial Judge held that the appellant could not make a prima facie showing of discrimination because he was not a member of a racially cognizable group. (This holding was correct at the time of the learned trial Judge's decision.) However, in light of the United States Supreme Court's decision in Powers, supra, we must comply with the holding and remand this case to the Circuit Court for Madison County with instructions to hold a Batson hearing and, if the appellant makes a prima facie showing, the prosecutor must be required to state race-neutral reasons for the complained of challenges.

In the interest of judicial economy, we will address the appellant's other issues on appeal to this court.

II

The appellant next contends that his case must be reversed because his warrantless arrest was illegal. He argues that there was no probable cause for the arrest.

Although we reject the appellant's contention that his arrest was illegal, the ultimate outcome of this case would not change if we were to accept this argument. Under Yancey v. State, 48 Ala. App. 476, 478, 265 So.2d 918 (Ala. Cr. App. 1972), "an unlawful arrest is not bar to a prosecution of a subsequent indictment for the same charge." See also Coral v. State, 551 So.2d 1181, 1182 (Ala. Cr. App. 1989); Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L. Ed. 421 (1886). In this case, an indictment was returned against the appellant in October of 1989 charging him with murder. This indictment, subsequent to his arrest, cured any alleged arrest irregularities.

The appellant next contends that the trial court erred when it failed to suppress statements made by the appellant after his warrantless arrest.

This argument is based upon the premise that no probable cause for arrest existed when the appellant was taken to the Huntsville Police Department for questioning. We believe, however, that sufficient probable cause existed at that time. Investigator Parker, an 18-year veteran of the Huntsville Police Department testified that the following facts were known at the time the appellant was transported to the police station: 1) The body of the victim was found in his home on August 31, 1989; 2) it was apparent upon opening the door that he had been dead for a number of days; 3) the victim had in fact been dead for six days; 4) the appellant had been residing at the victim's house up until the time of the victim's death; 5) the appellant had not reported the victim's death; 6) the victim had a gunshot wound to the back of his head; 7) the victim's truck was missing from his residence at the time of the investigation; 8) the appellant had been seen driving the victim's truck after the victim had been killed; and 9) the victim's wallet and checkbook were missing from his house. After the all points bulletin was issued, but before the appellant was located, Parker learned that checks belonging to the victim had been written after the victim was killed.

All of these facts were known to Investigator Parker at approximately 1:45 p.m. on August 31, 1989, the date and time at which the appellant was located. Although Parker did not himself locate and transport the appellant to the police department, the facts known to one officer are imputed to other officers working under the same authority. See Brinks v. State, 500 So.2d 1311 (Ala. Cr. App. 1986).

In Sexton v. State, 349 So.2d 126 (Ala. Cr. App. 1977), Judge Bowen, writing for this court, held:

"Whether a warrantless arrest is constitutionally valid depends upon 'whether, at the moment the arrest was made, the officers had probable cause to make it.' Beck v. State of Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964).

". . . .

"Officers are said to have 'probable cause' to arrest if at the moment of arrest:

"'The facts and circumstances within their knowledge and of which they had reasonable trustworthy information were sufficient to warrant a prudent man in believing that (the subject of the arrest) had committed or was committing an offense.' Beck, supra, 379 U.S. at 91, 85 S.Ct. at 225. See also Sellers v. State, 48 Ala. App. 178, 186, 263 So.2d 156, 163 (1972)."

In Bush v. State, 523 So.2d 538, 540 (Ala. Cr. App. 1988), we stated that "'probable cause is concerned with "probabilities," that "are not technical; they are factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." [citations omitted].'" We held in Cooper v. State, 480 So.2d 8, 11 (Ala. Cr. App. 1985):

"To make such a determination [as to probable cause] 'the facts are Judged on the basis of whether a reasonably prudent man of the officer's experience and training, looking at the "totality of the circumstances and the inferences" therefrom, would conclude that there is probable cause to believe that the vehicle or the individual is involved ...


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