362 So.2d 1322 (Ala.Crim.App. 1978), 8 Div. 64, Dickerson v. State

Docket Nº:8 Div. 64.
Citation:362 So.2d 1322
Opinion Judge:LEIGH M. CLARK, Retired Circuit Judge.
Party Name:Howard Luther DICKERSON v. STATE.
Attorney:Finis Royal, Scottsboro, for appellant. William J. Baxley, Atty. Gen. and Eddie Hardaway, Jr., Asst. Atty. Gen. for the State, appellee.
Case Date:October 03, 1978
Court:Alabama Court of Criminal Appeals
 
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Page 1322

362 So.2d 1322 (Ala.Crim.App. 1978)

Howard Luther DICKERSON

v.

STATE.

8 Div. 64.

Court of Criminal Appeals of Alabama.

October 3, 1978

Page 1323

Finis Royal, Scottsboro, for appellant.

William J. Baxley, Atty. Gen. and Eddie Hardaway, Jr., Asst. Atty. Gen. for the State, appellee.

LEIGH M. CLARK, Retired Circuit Judge.

A jury found defendant-appellant guilty of robbery and fixed his punishment at thirty years imprisonment. He was sentenced accordingly.

The only witness for the State was Eugene McCamy, who testified that about 5:00 P.M., July 16, 1977, defendant came into the drug store of witness in Scottsboro and while asking about some articles of merchandise, grabbed McCamy, placed his left arm around McCamy's neck and said, "If you do what I tell you, you won't get hurt. I want all of your Class A." He said defendant placed a gun in McCamy's side, picked up a box off the floor, and instructed McCamy to fill it with some Class A drugs. McCamy did so, Dickerson left the store with the drugs and McCamy then called the police.

Appellant does not contend that the evidence does not present a jury issue, but he insists that the fact that there was only one witness against him emphasizes the likelihood of an unjust result by reason of various errors of the trial court either on the trial or in its denial of defendant's motion for a new trial.

Defendant was represented on the trial by retained counsel. After his conviction, he was determined an indigent, and counsel

Page 1324

was appointed for him on appeal. The motion for new trial was filed by his appointed counsel, which the court denied after a hearing thereon, in which evidence was taken.

Appellant urges that the trial court "abused its discretion when it refused to grant a continuance in this case."

The record does not show that defendant ever unequivocally requested a continuance. When the case was called for trial, the State announced that it was ready, and defendant's counsel said, "Judge, I need to call my witnesses." Defendant's witnesses were then called for the trial of the case, and defendant's counsel then said:

"Judge, due to our defense in this matter, I couldn't announce ready without those witnesses. I would like to find out if they were definitely served by calling the Sheriff down there and get a arrest order or something."

The court was then recessed to allow defendant's counsel time to make phone calls concerning these witnesses. Upon reconvening, defendant's counsel said:

"Judge, it shows the Sheriff's office reports Mr. George Echols was served yesterday, 3-20-78; Terry Haley has moved to Oklahoma; and they could not locate Mr. Ginn or Mr. Spurlin at the address, which, well, I can't understand it because they run a business out on the highway there; it's well known to everybody, just outside of Anniston; and they are material witnesses for the defendant."

After further colloquy, the following occurred:

"(Defendant's Counsel): Defendant couldn't announce ready until we could get those witnesses.

"THE COURT: Well, we passed the matter over from yesterday until today to try to get them line up and get them here. The circumstances of the case situation which you are aware of demands that that case be tried this term of court; and we'll do everything within the power of this court to get these people here. Any suggestion that you have at this time or later on,

"(Defendant's Counsel): I would like for the record to show that the defendant has made every effort, also.

"THE COURT: If you will, issue an attachment for the witness George Echols of Anniston, Alabama, please. All right...

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