Fitz v. State

497 So. 2d 552, 1986 Ala. Crim. App. LEXIS 5857
CourtCourt of Criminal Appeals of Alabama
DecidedJanuary 7, 1986
Docket3 Div. 7
StatusPublished

This text of 497 So. 2d 552 (Fitz 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
Fitz v. State, 497 So. 2d 552, 1986 Ala. Crim. App. LEXIS 5857 (Ala. Ct. App. 1986).

Opinions

' LEIGH M. CLARK, Retired Circuit Judge.

A jury found defendant-appellant guilty on a trial on an indictment that charged in pertinent part that he:

“... did, in the course of committing a theft of assorted controlled substances, a better description of which is unknown to the Grand Jury, taken from or in a pharmacy, the property of Thomas Babington and/or Tina Carothers, use force against the person of the owner, or any person present, Thomas Babington and/or Tina [553]*553Carothers, with the intent to overcome his/her physical resistance or physical power of resistance or threaten the imminent use of force against the person of the owner, or any person present, Thomas Babington and/or Tina Carothers, with the intent to compel acquiescence to the taking of or escaping with the property, while the said Ronald J. Fitz ... was armed with a deadly weapon or dangerous instrument, to-wit: a pistol, in violation of Section 13A-8-51 of the Code of Alabama....”

Section 13A-8-51 of the 1975 Code of Alabama constitutes a codified section of Acts 1982, No. 82-434, which Act is now codified and provides as follows:

“§ 13A-8-50 Short title.
“This article shall be known and cited as ‘The Pharmacy Robbery Act of 1982.’ “§ 13A-8-51. Definitions.
“When used in this article, the following words and phrases shall have the following meanings, respectively, unless the context clearly indicates otherwise:
“(1) Pharmacy. Any building, warehouse, physician’s office, hospital, pharmaceutical house or other structure used in whole or in part for the sale, storage and/or dispensing of any controlled substance as defined in section 20-2-2 as amended.
“(2) Pharmacy Robbery. A person commits the offense of ‘pharmacy robbery’ under this article if in the course of committing a theft of any controlled substance as defined in section 20-2-2 such person violates section 13-8-41.
“§ 13A-8-52. Penalty for Violation of Article.
“(a) Upon conviction of the criminal offense of ‘Pharmacy Robbery’ as defined in section 13A-8-51(2), the offender shall be imprisoned at hard labor for not less than 10 years nor more than 99 years and shall be ineligible for consideration for parole, probation or suspension of sentence.
“(b) On a second or subsequent conviction under this article, the offender shall be imprisoned for the remainder of his natural life and shall be ineligible for consideration of probation or suspension of sentence.”

The evidence was undisputed that two persons committed the robbery as charged in the indictment, but there was a conflict in the evidence as to whether this appellant was one of the robbers. No issue is presented on appeal as to whether the evidence was sufficient to present a jury question as to appellant’s guilt, and we find it unnecessary to set forth in this opinion any of the evidence presented on the trial other than that which may pertain to any of the three issues presented by appellant, which we now consider.

I.

The following is the caption of the first issue as found in appellant’s brief:

“WHETHER THE COURT ERRED IN ADMITTING TESTIMONY CONCERNING OTHER CRIMINAL ACTS BY APPELLANT TO ESTABLISH MOTIVE.”

In response to the first issue presented in appellant’s brief, the following argument, inter alia, is made in the brief of counsel for appeilee:

“On rebuttal, after the defense had rested its case, the State offered testimony that appellant was arrested for possession of drugs approximately four months after the drugstore robbery. Appellant did not object to the introduction of the evidence when it was offered.
“It is well settled law in Alabama, that matters which are not objected to at trial cannot be considered on appeal. Chapman v. City of Mountain Brook, 373 So.2d 1230 (Ala.Cr.App.1979); Speigner v. State, 389, [369] So.2d 39 (Ala.Cr.App.1979), writ denied, Ex parte Speigner, 369 So.2d 46. In the present case, there was no objection made at trial and thus no specific ruling adverse to Appellant for this Court to review.”

What we have quoted from the briefs of counsel for the opposing parties indicates that there is some disagreement between them as to what the second issue is, but we [554]*554find from each of their briefs that there is no genuine difference between them as to the ruling of the trial court as to defendant’s Motion in Limine, which alleged in one of the paragraphs thereof:

“The Defendant believes and hence alleges that at the said trial the State will attempt to introduce evidence, make reference to or otherwise leave the jury with the impression that the Defendant has been involved as a perpetrator, and subsequently convicted in previous cases charging the Defendant with the offenses of armed robbery and possession of drugs and other possible acts of Defendant completely unrelated to nor tending in any way to prove the offense at Bar, other than to place Defendant’s character in issue.”

At the conclusion of the argument on the motion in limine, the trial court ruled as follows:

“All right. Well, with regard to his prior convictions, I do not believe and the State concedes that those are not admissible, but I think the other matters are probably relevant with the proper instructions from the Court.”

The following is a part of the Court’s oral charge to the jury:

“Now, during the trial of this case, I have given you what is referred to as certain limited instructions. The testimony with regard to the Defendant’s possession of other controlled substances or drugs, testimony with regard to his drug problem was put before you merely as to bear on the question of motive in this case, and that is the only matter for which they are before you in this case, and that is the only reason you can consider those facts in this case.”

We disagree with the contention of attorneys for appellee that by the failure of defendant to object to the introduction in evidence of the fact that subsequent to the pharmacy robbery defendant possessed illegal drugs, defendant failed to preserve his right to review the action of the trial court in permitting the introduction of such evidence. We think the issue was preserved for review by the ruling of the trial court on defendant’s motion in limine. Nevertheless, none of the cases cited by appellant is in support of his position on the issue as to the admissibility vel non of such evidence, including Christian v. City of Tuscaloosa, 53'Ala.App. 81, 297 So.2d 405 (1974), involving a prosecution for possession of burglary tools, in which it was stated at 297 So.2d 409:

“We are of the opinion that the evidence of defendant’s addiction to or use of drugs amounted, in effect, to an attack on his character by proof of a specific course of improper conduct which, of course, is not permissible. 1 McElroy, Law of Evidence in Alabama, § 26.01, p. 25 (2d Ed.)

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Related

Rayford v. State
297 So. 2d 409 (Court of Criminal Appeals of Alabama, 1974)
Christian v. City of Tuscaloosa
297 So. 2d 405 (Court of Criminal Appeals of Alabama, 1974)
Ex Parte Speigner
369 So. 2d 46 (Supreme Court of Alabama, 1979)
Brazell v. State
369 So. 2d 25 (Court of Criminal Appeals of Alabama, 1979)
Ex Parte Brazell
369 So. 2d 31 (Supreme Court of Alabama, 1979)
McBride v. State
480 So. 2d 619 (Court of Criminal Appeals of Alabama, 1985)
Dill v. State
429 So. 2d 633 (Court of Criminal Appeals of Alabama, 1982)
Matthews v. State
361 So. 2d 1195 (Court of Criminal Appeals of Alabama, 1978)
Crittenden v. State
414 So. 2d 476 (Court of Criminal Appeals of Alabama, 1982)
Chapman v. City of Mountain Brook
373 So. 2d 1230 (Court of Criminal Appeals of Alabama, 1979)
Hope v. State
381 So. 2d 676 (Court of Criminal Appeals of Alabama, 1980)

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Bluebook (online)
497 So. 2d 552, 1986 Ala. Crim. App. LEXIS 5857, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fitz-v-state-alacrimapp-1986.