Taylor v. State

337 So. 2d 1368, 1976 Ala. Crim. App. LEXIS 1744
Court of Criminal Appeals of Alabama·Decided October 5, 1976·No. 6 Div. 43·Published·Cited by 6 cases

Opinion

HARRIS, Judge.

Appellant was convicted of robbery and the jury fixed his punishment at ten years imprisonment in the penitentiary. Prior to arraignment appellant was found to be indigent and counsel was appointed to represent him at arraignment and trial. After conviction he gave notice of appeal and was furnished a free transcript and trial counsel was appointed to represent him on appeal.

The evidence is undisputed that on April 6, 1975, James Edward Bailey, an employee of Pinkerton Security Agency, was on duty as a security guard at Butrus Supermarket in Birmingham, Alabama, when a black man came in the store and pointed a pistol in his face and took his .38 Smith and Wesson pistol out of his holster. Appellant did not testify or offer any evidence in his defense.

Bailey further testified that when the black man entered the store, he walked up to where he was sitting near the front door and asked him for a match and he told the man that he did not have a match. The man turned and walked toward one of the [1369]*1369two cash registers then in operation and he thought the man was going to buy some matches, but a few moments later the man came back to Bailey and pointed a .22 caliber pistol in his face and took his pistol. After getting Bailey's pistol he held one pistol on Bailey and the other pistol on the person at the first cashier register demanding that he remove the money drawer from the register and place it on the counter. After the drawer was placed on the counter, another employee threw a beer or wine bottle on the counter near the bandit and the bottle exploded. The explosion of the bottle scared the would-be robber and he turned and fled out the front door of the building. Bailey followed him out to the parking lot and got within two or three car lengths of the fleeing robber who turned and fired two shots at Bailey. Bailey ran back in the store and called the police who arrived in five or ten minutes. He told the officers that the robber was short, stocky built, had sideburns and was wearing some type of cap.

On April 16,1975, appellant was arrested at another grocery store and at that time the pistol taken from Bailey at Butrus Supermarket was recovered.

Appellant objected to any in-court identification and was allowed to conduct a voir dire examination of Bailey out of the presence and hearing of the jury. Bailey testified that the robber was in the store for five or ten minutes and for two to three minutes of that time he was face to face with the robber who had the pistol pointed directly at his face. He further testified that later he was called at his home to go to the City jail to view a lineup. He immediately picked out the fifth man in the lineup as the man who took his pistol at gunpoint on April 6,1975. He also stated that at the lineup he was informed that his pistol had been recovered. He said, “I recognized the person the moment I saw him,” but at that time he didn’t know that anyone was under arrest. Bailey further testified that he had never seen the robber before but he made a positive identification of appellant as the man who took his pistol saying, “I mean when someone walks up to you and puts a gun in your face, you look at him.” Bailey further testified that he had seen appellant on several occasions since the lineup when he was called to Court as a witness.

At the conclusion of Bailey’s testimony the Court announced that he was satisfied about the identification of appellant.

Sergeant E. M. Cousins of the Birmingham Police Department was called on voir dire concerning the voluntariness of a confession. He testified that on April 17, 1975, he took a statement from appellant at the Birmingham City Jail and he was aware that there had been a struggle when appellant was arrested at Ritchey’s Grocery Store. The struggle was between Mr. Rit-chey, his son, and appellant, and Mr. Rit-chey got shot in the scuffle. No police officers were involved in the scuffle and struggle with appellant. Sergeant Cousins stated that after appellant had been identified in the lineup, he read him his constitutional rights from a Miranda card and that appellant stated that he understood his rights and was ready to make a statement. A written statement was taken and signed by appellant.

Appellant was then called on voir dire. He testified that Officer White informed him of some cases in which he was under investigation and told him “if I would scratch his back, he would scratch his.” He further stated that at the time of this interrogation he was faint and dizzy as a result of a head wound and that he was never informed of his rights and never signed a waiver. He also denied that he signed any statement concerning the robbery of the security guard at Butrus Supermarket. Appellant admitted that Mr. Ritchey was the man that hit him on the head.

During the voir dire hearing the officer testified that no promises, threats, rewards, pressure or other inducements were used or employed to get appellant to make a statement.

Appellant was shown the written statement that he signed and he stated that it [1370]*1370was his name but not his signature. The officer explained that he had appellant put his initials at the top of the statement so that he would know that no one added anything to the statement between his initials and his signature at the bottom of the statement.

The next witness called by the State was Officer L. H. Clements who testified that he first saw appellant at Ritchey Grocery where he had been taken into custody prior to being transported to City Hall. This witness testified that he advised appellant of his rights and he said he understood his rights and he made a statement admitting that he had taken the pistol from the guard at Butrus Supermarket having walked in with a .22 pistol and disarming the guard. This witness further stated that appellant made the statement that the cashier or someone frightened him and he ran out of the store and fired two shots at the guard who had run out of the store behind him.

At the conclusion of the hearing on the motion to suppress the Court overruled the motion to suppress the identification of appellant and also held that his confession was voluntarily and knowingly made and would be read to the jury for whatever weight and credibility they wished to accord to it.

Back before the jury Mr. Bailey testified to substantially the same facts that he stated on the voir dire hearing. He was shown State’s Exhibit No. 1 and identified the pistol that appellant took from him in the robbery on April 6, 1975. He further testified that he went to a lineup and positively identified the appellant as the man who took his pistol at gunpoint.

The State called Officer L. H. Clements. The Court cautioned the prosecutor and this witness to avoid bringing up the fact that appellant was apprehended at the scene of another alleged robbery. Clements testified that on January 16,1975, he received a call to proceed to Ritchey’s Grocery and when he and his partner, Officer Bruce Jones, arrived, they saw appellant inside the store. They took appellant into custody and were given a .38 caliber revolver by Mr. Ritchey. Clements then stated that Sergeant Tommy White of the robbery detail made a preliminary investigation and they transported appellant to the robbery detail on the eighth floor at City Hall. Over objection of defense counsel this witness testified that after appellant was placed in the patrol car, he gave him his constitutional rights by reading from a Miranda

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Taylor v. State, 337 So. 2d 1368, 1976 Ala. Crim. App. LEXIS 1744 (Ala. Ct. App. 1976).

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