Webb v. State

1

Earl Fitzgerald Webb v. State of Alabama

No. CR-21-0143

Alabama Court of Criminal Appeals

November 3, 2023

Appeal from Lee Circuit Court (CC-18-717)

MINOR JUDGE

Earl Fitzgerald Webb appeals his convictions for first-degree burglary, see § 13A-7-5(a)(2), Ala. Code 1975 intimidating a witness, see § 13A-10-123, Ala. Code 1975, and third-degree assault, see § 13A 22(a)(1), Ala. Code 1975.^[1]

On appeal, Webb argues: (1) that the circuit court erred by denying his motions to suppress the evidence seized from a search of his vehicle and house, (2) that the circuit court erred by admitting collateral-act evidence, and (3) that the circuit court erred by denying his motion for a judgment of acquittal. (Webb's brief, p. 3.) We affirm Webb's convictions and sentences for first-degree burglary and third-degree assault and his conviction for intimidating a witness. But, because the version of § 15-18-8(b), Ala Code 1975, applicable to Webb's conviction for intimidating a witness requires that that sentence be split we remand this case to the circuit court.

FACTS AND PROCEDURAL HISTORY

About 1:00 or 2:00 a.m. on October 4, 2017, J.B.E. woke up to the sound of breaking glass in her apartment on East Magnolia Avenue in Auburn. J.B.E. fell back to sleep but woke up a second time to something that "sounded like electricity." (R. 206.) J.B.E. opened her bedroom door and saw someone "crouching in the corner of [her] hallway." (R. 206, 208.) J.B.E. testified that the male, whom she described as "dressed in all black" with a stun gun in hand, ran at J.B.E. and tackled her. (R. 206, 208-09.) The male got on top of J.B.E., punching her and using the stun gun on her. She said she was hit with the stun gun "[f]ive or six" times. (R. 266.) As a result, J.B.E. eventually lost fingernails, as well as was burned and bruised.

At some point, J.B.E.'s roommate came out of his room and yelled at the male, who got up and ran out of the front door. J.B.E. telephoned emergency 911, and law enforcement arrived on the scene about one or two minutes later.

J.B.E. described the male as wearing a black ski mask, and all she could see were "dark skin, dark eyes." (R. 210, 230, 263.) She also described him as "[k]ind of stocky, ... wide shoulders." (R. 211.) J.B.E. testified that the description fit Webb's description.

J.B.E. testified that a window of her apartment had been broken- "[t]he exact same window that [she] caught a peeping Tom looking through" in August 2017.^[2] (R. 213.) She testified that the "peeping Tom" was wearing a black shirt, black pants, black boots, black gloves, and a black ski mask. J.B.E. testified that in the 10 years she had been living in her apartment, she had no other issues with crime except for these incidents.

Detective Will Turner testified that J.B.E. had described the stun gun used in her attack and that it was similar to the one found during the August search of Webb's vehicle. Detective Turner developed Webb as a suspect, given the August incident, the "physical description that was very similar to Mr. Webb's," and "[t]he cell phone data ... [that] put him in close proximity to her apartment at the time of the incident." (R. 295-96.) And Detective Turner confirmed that Webb on the morning of the October attack was scheduled to appear in court for the August 2017 incident.

Sgt. Chelsea Williams interviewed Webb on the day of the attack. Webb stated that he left Auburn at 7:00 p.m. the night before and went to a strip club in Atlanta. He stated that the strip club closed about 3:00 a.m., so he slept in his car until it was time to drive back to Auburn for his court appearance. He also stated that he did not own a stun gun.

Michael Bosillo, a custodian of records for T-Mobile cellular telephone company, reviewed the records associated with Webb's cellular telephone. Bosillo testified that the last telephone call made by Webb's number was 10:51 p.m. on October 3, 2017, and that the next call was not made until 6:09 a.m. on October 4, 2017. According to cell tower records, both calls were placed in the Opelika area.

Webb moved for a judgment of acquittal, arguing that the State had failed to make a prima facie case because, he said, "Mr. Webb was not identified at the time [of the October incident]." (R. 496.) The circuit court denied Webb's motion. The jury returned guilty verdicts for first-degree burglary, intimidating a witness, and third-degree assault. Webb appealed.

I. MOTIONS TO SUPPRESS^[3]

Webb moved to suppress the evidence seized as a result of a search of Webb's vehicle and house.^[4] On February 6, 2020, the circuit court held a hearing on Webb's motion. At the hearing, the State called Sergeant Dale Knowlton and Detective Turner.

About 1:00 a.m. on August 16, 2017, law enforcement received a telephone call from J.B.E., who had seen "a black male masturbating outside of her home." (R. 15-16.) J.B.E. stated that the male was "wearing all black, looking in her window" and that he drove off "in a vehicle, darkcolored, early '90s sedan, towards Magnolia Avenue." (R. 16, 24.) Within minutes, law enforcement observed a vehicle matching that description about a half mile from J.B.E.'s house and initiated a traffic stop. Sgt. Knowlton, who was at the stop, testified that, at the time, traffic was "very light" and there were "maybe one or two cars at the most on the road." (R. 18, 28.)

At the traffic stop, Sgt. Knowlton noted that the automobile was a dark-colored, mid-nineties sedan, and in the vehicle was a black male, Webb. According to Sgt. Knowlton, Webb was wearing a black shirt with shorts and there was a "pair of black pants wadded up on the passenger seat." (R. 20-21.) Because both the vehicle and the driver matched J.B.E.'s descriptions, law enforcement brought J.B.E. to the scene of the traffic stop, where she identified Webb as the person that she had seen masturbating outside her window. (R. 21.)

Webb gave law enforcement permission to search his vehicle. Law enforcement found inside a jar of Vaseline in the pocket of his pants, a roll of toilet paper on the seat, and a stun gun in the center console. J.B.E. signed a complaint, and Webb was arrested.

Detective Turner testified that Webb had "had a lot of contact with the Auburn Police Division for the same type of crime." (R. 38, 40.) He also interviewed J.B.E. on October 4, 2017, about the August 2017 incident. (R. 53.) On October 4, J.B.E. described her assailant as a black male "based off the eye and mouth area," wearing dark clothing, a ski mask, and possibly gloves. (R. 54.) J.B.E.'s description "was consistent with Mr. Webb." (R. 56.) And Webb had a court appearance scheduled for October 4, 2017, for the August incident involving J.B.E. (R. 56.)

Detective Turner spoke with Webb, who denied being in the area at the time of the October 4 attack because, Webb said, he was at a strip club in Atlanta and did not return to Auburn until about 7:00 a.m. (R. 56.) Yet Detective Turner testified that Webb's telephone records "put him within a half mile of the victim's residence at that time." (R. 57.) And the window used to enter J.B.E.'s house in the October incident was the same window Webb was seen masturbating outside of during the August incident. (R. 57.) As a result, Detective Turner obtained a search warrant for Webb's house.^[5] (R. 38, 41.)

At the end of the suppression hearing, Webb's counsel argued that, although several identifying statements had been made, "nobody described him as a black male." (R. 61-62.) He argued that the statements could not support initiating the traffic stop and obtaining a search warrant for Webb's house. (R. 30-31, 61-62.) The circuit court found there was reasonable suspicion to support the traffic stop and sufficient probable cause to apply for the search warrant. (R. 62-67.) The circuit court denied Webb's motions to suppress. (R. 67.)

"'In reviewing decisions of a trial court concerning a suppression of evidence, we apply a de novo standard of review when the evidence is not in dispute. State v. Hill, 690 So.2d 1201, 1203 (Ala. 1996). Because the evidence is undisputed, and the only quarrel is with the application of the law to the facts, we will review the evidence de novo, 'indulging no presumption in favor of the trial court's application of the law to those facts.' Stiles v. Brown, 380 So.2d 792, 794 (Ala. 1980) (citations omitted)." State v. Abrams, 263 So.3d 736, 739 (Ala.Crim.App.2018) (quoting

State v. Banks, 734 So.2d 371, 372 (Ala.Crim.App.1999)). See also State v. Gray, 354 So.3d 1000, 1004 (Ala.Crim.App.2021) ("In reviewing a trial court's ruling on a motion to suppress, this Court reviews the trial court's findings of fact under an abuse-of-discretion standard of review.").

A. VEHICLE SEARCH

First, Webb argues that the circuit court erred by denying his motion to suppress the evidence relating to the search of Webb's vehicle. Webb argues that law enforcement lacked reasonable suspicion to initiate the August 2017 traffic stop. (Webb's brief, pp. 13-15.)

At the suppression hearing related to the search of Webb's vehicle, Webb argued:

"Judge, I mean, our argument would be that the probable cause for the stop itself and, you know, anything that-the description just wasn't good enough, frankly, to identify this particular defendant as the culprit here. ... And initiating a traffic stop based on that description, especially a traffic stop which did not include a late '90s sedan, is-is not enough. And that anything after that is fruit of the poisonous tree."

(R. 30-31.)

About investigatory stops, this Court has held:

"'"Under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), law enforcement officers may conduct investigatory stops of persons or

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