Allen v. State

• Decision Date: 30 October 1979
• Docket Number: 5 Div. 465
• Parties: Mark Anthony ALLEN v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 826

376 So.2d 826

Mark Anthony ALLEN v. STATE.

5 Div. 465.

Court of Criminal Appeals of Alabama.

Oct. 30, 1979.

Donald R. Cleveland, Lanett, for appellant.

Charles A. Graddick, Atty. Gen., and C. Lawson Little, Asst. Atty. Gen., for appellee the State.

LEIGH M. CLARK, Retired Circuit Judge.

Appellant was convicted of robbing Resa Willingham of lawful currency of the value of forty dollars, the property of Sunshine Jr. Food Store 184, a corporation, and sentenced to imprisonment for fifteen years.

Mrs. Willingham testified that about 9:00 P.M. April 3, 1978, while she was night manager of Sunshine Jr. Food Store 184, in Langdale, Chambers County, Alabama, a black male, with a brown paper sack covering his face, with holes therein over his eyes and nose, entered the store carrying a gun. She said he walked over to the store cash register, and, with the gun pointed at her, told her he wanted the money; she opened the cash register, and the man reached over and took the money, which totalled approximately sixty dollars. The robber told her to go to the back and lie down, and he then left the store.

Dale Kennedy, a twelve-year-old girl, who lived across the street from the store, testified that she went to the store with her cousin, "saw a colored man standing there with a gun, no shoes on, no shirt, and he had a brown paper bag over his head." She said it was a paper sack "with the eyes cut out." She could see the man as he was close to the cash register and saw the "lady that was running" the store. She and her cousin did not go in the store. They ran home promptly. About five minutes later they went back to the store with their mother, and the man was not there. She said her mother then called the police.

Dale's mother testified that when her daughter and her daughter's cousin came from the store they told her there had been a robbery at the store and she promptly returned with them to the store. She saw a man running away from the store when she returned, but there was no one in the store but Mrs. Willingham at the time, and she was crying. She said law enforcement personnel arrived promptly.

Charles Magby testified that as he drove up to the store about 9:00 P.M. April 3, 1978, he saw a man come out of the store with a gun and a sack over his face. He said he trailed the man in his automobile for approximately a mile, then turned around and came back to the store. Police officers were there when he returned. He gave them a description of the automobile in which the man with the gun and a sack over his face had left the store. He described the automobile as a "reddish looking Duster," with one tail light and a bent right front fender.

According to all the witnesses who saw the man, the gun was not a pistol. It was referred to as a long gun, Mrs. Willingham calling it a shotgun and Mr. Bagby referring to it as a "rifle or something." Police officers from the nearby Lanett Police Department and deputy sheriffs of Chambers County converged upon the store soon after the robbery.

Sergeant Wilbert Hutchison of the Lanett Police Department testified that he came on duty about 10:00 o'clock the night of the robbery and he was notified that there had been an armed robbery. He said he was given a description of the car and was told to be on the lookout for it. It was described to him as "red Plymouth Duster, with a bent right fender, front fender, and one tail light." He said that the next night, about 10:00 or 10:30, his partner, Officer Mack Powell, who was in another automobile, called him and told him he had spotted the vehicle that fit the description of the automobile near the Hughley Restaurant and asked Sergeant Hutchison to meet him there and "back him up." He did so, and the two got out of their vehicles. Sergeant Hutchison testified:

"And, the car did fit the description, and the subject in the car did fit the description, the height, build and everything. And, we asked him out of the car, and to just stand behind the police car. So, my partner was holding him behind the police car there, a talking with him, and, I walked up to the passenger's side and looked in, and I saw a brown sack laying up under the seat on the floor board."

At that point in the testimony of Sergeant Hutchison, defendant requested that the testimony be taken out of the hearing and presence of the jury, which request was granted.

On the hearing out of the presence of the jury it developed that two persons were in the automobile, defendant and his brother, and that defendant was the driver. Sergeant Hutchison testified that he could see that the automobile "did fit the description of the armed robbery, and the subject in the car did fit the description of the subject he was looking for." He understood that the subject was "thin, tall and black," had been advised that "he had a sack over his head, with eye holes." He said, "I was looking for a gun, money bags and a brown paper sack." His testimony out of the presence of the jury was in pertinent part as follows:

"THE COURT Did you put him under arrest?

"A At that time, I did not, I just asked them, would they step out of the vehicle.

"COURT What did they do?

"A They stepped out of the vehicle and went to the rear of the patrol car with my partner.

"COURT Did you check them to see if they had any guns on them or anything like that?

"A Not at that time.

"COURT Was anybody standing back there with them.

"A Yes, my partner.

"COURT All right, then what did you do?

"A I walked up to the passenger's side of the vehicle, and opened the door and I looked, and there was I guess an inch of a brown paper sack sticking out from under the seat. So, I just reached and pulled it out. And I looked at it, and it did have two eye holes cut in it, with it rolled up on the side as if it was used as a mask.

"COURT Did you see that brown paper bag before or after you opened the door?

"A Well, you could see it from looking in the window, you know, shining the light. Well, when the passenger got out of the car, you could see it then.

"COURT Did you see it then?

"A Right, after he got out, the door was open see.

"COURT As he was getting out, as he opened the door to get out

"A And I said to him, I said, let the door open on the passenger's side, and then they walked back to the back of the car, and I walked up you know, to verify what I had seen.

"COURT You had already seen a brown paper sack

"A As he got out of the car.

"COURT As he got out of the car.

"A Right.

"COURT Then what did you do?

"A I pulled the sack out from under the seat.

"COURT Was the door still open, or did you reopen the door?

"A No sir, it was still open. We shut the driver's side back, at the road. And I walked back up to pull the sack out to verify, you know, see what it was."

The interrogation of Sergeant Hutchison out of the presence of the jury continued through interrogation by both parties as to statements made by defendant, which will be hereinafter discussed in connection with any question as to the admissibility of such statements. At the conclusion of the interrogation of the witness out of the presence of the jury, defendant moved to "suppress the evidence of the bag and the statement," which motion was denied.

Appellant takes the position that the paper bag was not admissible in evidence and that his motion to suppress it was erroneously overruled. He relies heavily upon Paschal v. State, Ala., 365 So.2d 681, rev'g Ala.Cr.App., 365 So.2d 672 (1978). There are some similarities between Paschal, supra, and the instant case, but there are distinguishing differences. According to the opinion of the Alabama Supreme Court in Paschal, there was an arrest and a search of an automobile as the result of a "radio dispatch, and the radio dispatch alone," and further that in Paschal :

" . . . (T)here is no evidence of the underlying circumstances which gave rise to the dispatch; there is merely the naked fact that a radio dispatch had described an automobile that fit the description of the defendant's automobile." 365 So.2d at 682

Appellant's reference to the message from one law enforcement officer (Officer Powell) to another (Sergeant Hutchison) as a "radio dispatch" is an oversimplification of an urgent call for help. It is clear that at the time the vehicle was stopped each officer was acting upon information that he had personally received, in the course of his duty, as to the robbery of the store and the circumstances thereof. The information included the race of the robber, that he was wearing a sack as a...