Acres v. State

• Decision Date: 10 February 1987
• Docket Number: 3 Div. 843
• Parties: Gregory ACRES v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 459

548 So.2d 459

Gregory ACRES v. STATE.

3 Div. 843.

Court of Criminal Appeals of Alabama.

Feb. 10, 1987.

Rehearing Denied March 24, 1987.

On Return to Remand Oct. 28, 1988.

Rehearing Denied Dec. 30, 1989.

Certiorari Denied March 31, 1989

Alabama Supreme Court 88-456.

On Return to Remand July 21, 1989.

Charles M. Law, Montgomery, for appellant.

Charles A. Graddick, Atty. Gen., and William D. Little, Asst. Atty. Gen., for appellee.

PATTERSON, Judge.

The appellant, Gregory Acres, was indicted and convicted for the capital offense of murder of Elbert Lee Jackson, during a robbery in the first degree, or an attempt thereof, in violation of § 13A-5-40(a)(2), Code of Alabama 1975. After a sentencing hearing, the jury recommended, by a vote of seven to five, to sentence appellant to life imprisonment without possibility of parole. Thereafter, the trial court rejected the jury's advisory verdict and sentenced appellant to death.

The prosecution's main witness was Tommy Floyd, who had already been convicted for the capital murder of Jackson, ¹ and who testified to the following events. On April 28, 1982, appellant went to Floyd's house. He, Floyd, and Sammy Lee Felder, ² who was already at Floyd's house, stayed Floyd's testimony was substantially corroborated by the testimony of Franklin Ellis. He testified that, on the afternoon of April 28, near High Street, he met Floyd, Felder, and appellant and went to Riverside with them; that on the way back, his three companions tried to break into several locked cars; and that, then, they went to the Trailways Bus Station. Ellis further explained that, after he exited the restroom at the station, he saw the other three in a cab numbered "7," so he got into the cab, too; that when he heard over the cab radio that the fare was $8.00, he told the driver that he had forgotten something and to turn around; that he said this because he did not have $8.00; and that, when the driver returned to the station, he exited the cab and left the area. Ellis also testified that, a couple of weeks after this incident, appellant told him the following: "I heard about you going around telling everybody we killed the cab driver. You better be cool cause something will happen to you." Finally, Ellis stated that appellant continued to harass him until appellant assaulted Ellis on October 9, and Ellis, while being treated at the emergency room, talked with several police officers about the robbery-murder.

                at Floyd's house approximately forty-five minutes, where they were "drinking a little gin and beer and wine and stuff."   Thereafter, they left Floyd's house and met Franklin Ellis, and the four walked to Riverside.  During the walk, they consumed a six-pack of beer.  When they arrived at Riverside, Ellis left the other three, who then purchased a bottle of wine.  After they consumed it, Ellis rejoined them, and they started back to Floyd's house.  While walking, they talked about how much they wished for some money and how they did not have any.  After dark, they went to the bus station, where they saw a cab parked.  It was numbered "7."   Felder said, "Let's get this cab."   Then, the four of them got into the cab and when the driver asked where they wanted to go, Felder replied, "Madison Park."   Right after they left the bus station, Ellis said he had left something, so the driver returned to the station and Ellis got out of the cab.  When Ellis did not return, appellant said, "He ain't coming.  Let's go."   When they got to Madison Park, Felder directed the driver, but the driver stopped after a few directions and asked, "Whereabouts?"   Then, appellant, who was sitting in the back seat, grabbed the driver from behind;  Floyd put the car's transmission into "park";  and Floyd and Felder got out of the cab and pulled the driver out of the cab.  Appellant got out of the cab;  searched the driver's pockets and the floorboard of the cab;  and gave the money, which he had taken from the driver, to Floyd, who put it into his pocket.  Up to this point, the driver had said nothing;  but after Floyd and appellant hit him and Felder hit him and knocked him down, he said, "Don't ya'll hurt me, ya'll can have the money."   Then, the trio kicked the driver, two or three times each;  they jumped on his chest;  appellant tied a rope around his neck, and Felder took the free end of the rope, and they both pulled it very tightly;  Felder drove the cab and backed it over him;  and, finally, they dragged him by the rope to a tree and tied the rope around the tree.  At this point, the victim was still alive.  During this heinous assault, after they jumped on the driver, appellant urged the others to kill the driver.  He stated, "We might as well go ahead and kill him because we're going to go to jail anyway."   When Felder objected and explained that there was no need to kill him, appellant persisted and argued that the driver would talk.  After the assault, they left the scene in the cab, Felder driving.  As they were leaving, Felder backed the cab over the victim again.  They drove south on Interstate 65 until the car ran out of gas.  After they stopped, Felder tried to pull the sign from the roof of the cab.  In addition, the radio microphone had been pulled out at an unspecified time by Floyd at appellant's instruction
                

The prosecution also presented testimony establishing the following events. The victim, who drove cab number "7," radioed the night dispatcher of the Yellow Cab Company at 10:19 p.m. on April 28. The dispatcher's entry in his log shows that the The cab was found at approximately 2:00 a.m. on April 29, parked on the shoulder of the southbound lane of Interstate 65, south of Montgomery. Its gas gauge registered empty, and it would not start. Blood spots were found on the trunk lid and on the back seat; the radio microphone's cord had been cut, and the cord and microphone were missing; the lever of the meter was broken off; the advertising sign on top of the car was damaged; the gravel shield underneath the rear bumper was damaged; mud and dirt were apparent on the bumper and wheels; and Felder's prints were found on a box in the trunk, on the trunk lid, and on the rear door on the driver's side.

                victim's point of departure for this fare was the Trailways Bus Station and his destination was Madison Park, 231 North.  The dispatcher talked with the victim again at 10:24 p.m.;   but when he tried to contact him at 10:45 p.m., 11:15 p.m., and 11:45 p.m., he received no response.  The log book also shows that the victim had eight fares that day, but he turned in no money
                

The victim's body was found at approximately 6:30 a.m. that same morning, approximately fifteen feet from a dead-end, dirt road. It was tied to a limb of a bush. An autopsy revealed that the body's injuries were consistent with the victim having been choked by a rope and hanged; having been kicked and beaten; having been dragged across dirt; and having had great force applied slowly to the torso area. The pathologist opined that this great force could have been the tire of an automobile if the automobile was moving slowly over the body. The cause of death was determined to be ligature strangulation.

At the scene where the body was recovered, the police evidence technician found a wrist watch which had a cracked crystal and had stopped at 10:32. A lever from a cab's meter was also discovered and later determined to have come from the victim's cab. A belt which was missing a buckle was also found; a buckle found on the back seat of the cab had the same class characteristics as the recovered belt. Finally, the victim's shirt had stains consisting of undercarriage grease from a vehicle and blood stains.

After the investigating officers took statements from Ellis and Felder on October 9, they arrested appellant pursuant to a warrant. After appellant was advised of his Miranda rights several times and had signed two waiver forms, he gave a statement, which was taped. In this statement, appellant explained that, on the afternoon of April 28, Felder said he wanted to rob someone, and he told Felder that that was not a good idea; that when he, Felder, and Floyd got into the cab, Felder directed the driver to the area in Madison Park where Felder and Floyd assaulted the driver; that he did not touch the driver or rob him, but simply sat in the cab and watched; that Floyd told Felder that the driver had to be killed, so Felder ran over him and tied him to a tree, and Floyd tore out the radio microphone and broke the meter lever; and that, after the three left the scene, the cab stalled at the Bell Street Exit of Interstate 65 and, there, he got out of the cab and went home. Appellant also stated that he did not know that Floyd and Felder were going to do anything. Finally, he stated that he did not get any of the money taken from the victim; but that the following day, Floyd and Felder bought some wine, and he drank it with them.

Although the defense counsel called several witnesses, no defense of any substance was presented.

I

Appellant contends that the trial court erred in denying his motion to dismiss the indictment and overruling his demurrer to the indictment. He specifically argues that the indictment fails to charge an offense because Counts V through VIII do not specify the value of the "currency or coinage" taken in the robbery and that it is vague and indefinite because, if the value of the "currency or coinage" is unknown, it could be of no value, which would render the counts invalid for not charging a crime. Counts V through VIII charged appellant with the murder of Elbert Lee Jackson during the time that appellant was committing "was in the course of committing a theft of lawful currency or coinage, or currency and coinage of the United States of America, a better description of which is unknown to the Grand Jury, in an amount or value otherwise unknown to the Grand Jury, the property of Elbert Lee...