Anderson v. State

• Decision Date: 14 April 1987
• Docket Number: 1 Div. 95
• Citation: 542 So.2d 292
• Parties: Josephus ANDERSON v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 292

542 So.2d 292

Josephus ANDERSON v. STATE.

1 Div. 95.

Court of Criminal Appeals of Alabama.

April 14, 1987.

Rehearing Denied April 26, 1988.

Douglas H. Scofield and William N. Clark, Birmingham, for appellant.

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

McMILLAN, Judge.

The appellant was indicted for the capital offense of murder of a law enforcement officer, in violation of § 13-11-2(a)(5) (repealed), Code of Alabama (1975). The appellant was tried on three occasions, twice in 1981 and once in 1983; those trials ended in mistrials because the jury was unable to reach a verdict. Prior to a fourth trial, the appellant filed a petition for a writ of mandamus, claiming that a fourth trial would violate his due process rights and double jeopardy. This court denied the petition and that decision was affirmed by the Alabama Supreme Court. Ex parte Anderson, 457 So.2d 435 (Ala.Cr.App.), affirmed, 457 So.2d 446 (Ala.1984). Following his fourth trial, the appellant was found guilty as charged in the indictment. The jury was unable to reach a verdict on the sentence and, pursuant to Beck v. State, 396 So.2d 645, 663 (Ala.1980), the trial court sentenced the appellant to life without parole.

Jill Tapscott, an employee of Jefferson Federal Savings and Loan Association, testified that on November 29, 1979, she observed a black man standing in the building holding a gun. She described the man as approximately 6 feet tall, weighing 180 pounds, wearing "a brown leather hat with a little visor and a light weight wool sweater with blue and white stripes going across the chest"; he was also wearing a jacket. The man had a mustache. Ms. Tapscott identified two of the State's exhibits as the pistol and the sweater that the man was wearing. She further testified that the man took money and American Express travelers checks and put them in a paper bag and left the bank. She identified the appellant as the man who robbed the Jefferson Federal Savings and Loan Association.

After the perpetrator left the bank, one of the employees pulled an alarm that is connected to the Birmingham Police Department. The officer who responded to the call broadcast a description of the man over his radio. Records of the police department indicated that this "robbery-in-progress" broadcast was made at 3:34 p.m.

Sergeant Albert Eugene Ballard, the victim, was in uniform on the day in question. Shortly after the broadcast concerning the robbery in progress, Sergeant Ballard had a conversation with another officer by radio. A witness, who was standing with her husband in the vicinity of the bank in downtown Birmingham, testified that she observed a police car, with one officer in the car, drive by slowly. A black man, who was tall and wore a long coat which was either black or dark brown, walked out to the police car. The man was carrying a yellow Pizitz bag, and he leaned into the car. She testified that she then heard three shots and observed the man whirl around with a gun. The police car took off as if the policeman's foot had hit the accelerator and the car hit a paper stand and a trash can on the corner. Another witness testified that she observed the officer in the police car call the man over to his car. She testified that the man reached into a bundle which he was carrying and pulled something out. She said that she then heard three shots and saw the man ran down an alley. She testified that the police car then ran into a utility pole and stopped. On cross-examination, she testified that the appellant looked like the man that she saw. The police records showed that a radio transmission was made at 3:49 which stated, in substance, "Oh me, 200 block. I'm hit bad. Lord, help me. 200 block 19th Street."

Officer Charles Newfield testified that in response to the radio descriptions that he had heard, he was looking for a black man, 6 feet to 6 feet 1 inch tall with a stocky build, wearing a three-quarter length brown coat and a brown hat. He observed a man fitting that description coming out of an alley; he therefore began to follow him. Newfield broadcast his movements to police headquarters and stated that the man continued walking in a calm manner, occasionally glancing in Newfield's direction. The man was carrying a yellow sack. The man rounded a corner and Newfield cut through a breezeway by the Southern Motor Inn. Newfield next saw the man lying in the parking lot of the Southern Motor Inn with gunshot wounds. He identified the appellant as the man he had seen. Approximately six other police officers were involved in the apprehension of the appellant. The appellant was ordered to stop, but did not do so. He was observed pulling something from his bag or his belt, as he was being pursued by the police officers. Gunfire was exchanged and the appellant was apparently shot in the face and the stomach. Articles of the appellant's clothing, rolls of coins taken from the appellant's pockets, a total of $2,058 in currency, and $13,300 in travelers checks were recovered from the scene. Two experts testified that they believed that the bullets found in Sergeant Ballard's body and his car were fired from the pistol taken from the appellant. Sergeant Ballard died as the result of three gunshot wounds.

I

The appellant complains that he was convicted solely on the basis of circumstantial evidence and that this evidence failed to exclude every reasonable hypothesis except that of the guilt of the appellant.

" 'In reviewing the sufficiency of the evidence the appellate courts of this State are bound by several well settled rules. It is not the function of this Court to decide whether the evidence is believable beyond a reasonable doubt and to a moral certainty. Instead, the function of this Court is to determine whether there is legal evidence from which a jury could by fair inference find the defendant guilty. Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.), cert. denied, 368 So.2d 877 (Ala.1979); Scruggs v. State, 359 So.2d 836, 842 (Ala.Cr.App.), cert. denied, 359 So.2d 843 (Ala.1978).

" 'In determining the sufficiency of the evidence to sustain the conviction, this Court must accept as true the evidence introduced by the State and accord the State all legitimate inferences therefrom. Ellis v. State, 338 So.2d 428 (Ala.Cr.App.1976); Edson v. State, 53 Ala.App. 460, 301 So.2d 226 (1974). The evidence must be considered in the light most favorable to the prosecution. Colston v. State, 57 Ala.App. 4, 325 So.2d 520 (1975), cert. denied, 295 Ala. 398, 325 So.2d 531 (1976).

" 'Where there is legal evidence from which the jury can by fair inference find the defendant guilty, this Court has no right to disturb the verdict. Bell v. State, 339 So.2d 96 (Ala.Cr.App.1976). A verdict of conviction will not be set aside on the ground of insufficiency of the evidence, unless, allowing all reasonable presumptions for its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince this Court that it was wrong and unjust. Bridges v. State, 284 Ala. 412, 225 So.2d 821 (1969); Morton v. State, 338 So.2d 423 (Ala.Cr.App.1976). There is a presumption in favor of the correctness of a jury's verdict, and when the trial judge declines to grant a new trial that verdict is strengthened on appeal. Tolliver v. State, 50 Ala.App. 654, 658, 282 So.2d 92 (1973).' "

Freeman v. State, 505 So.2d 1079 (Ala.Cr.App.1986), quoting Johnson v. State, 378 So.2d 1164, 1169 (Ala.Cr.App.1979), writ quashed by Ex parte Johnson, 378 So.2d 1173 (Ala.1979).

The appellant argues that some of the testimony presented by the eyewitnesses to the murder conflicted and that none of these witnesses testified that they saw a gun. However, during the direct examination of Mildred Wilkins, the following transpired:

"WILKINS: And the next thing I know I heard three shots.

"Q: Did you see anybody out there with a gun when you heard what you described as three shots?

"WILKINS: The guy whirled around with the gun in his hand."

Furthermore, the appellant's claims are jury arguments concerning witness credibility and do not address the legal sufficiency of the evidence. Jones v. State, 469 So.2d 713, 716 (Ala.Cr.App.1985). "The weight of the evidence, the credibility of the witnesses, and inferences to be drawn from the evidence, where susceptible of more than one rational conclusion, are for the jury alone. Willcutt v. State, 284 Ala. 547, 226 So.2d 328 (1969)." Walker v. State, 416 So.2d 1083, 1089 (Ala.Cr.App.1982). In reviewing a conviction based on circumstantial evidence, the test to be applied by this court is whether the jury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt; not whether the evidence excludes every reasonable hypothesis except guilt. Cumbo v. State, 368 So.2d 871, 874 (Ala.Cr.App.1978), cert. denied, 368 So.2d 877 (Ala.1979). Based on the evidence presented by the State, a jury could have reasonably concluded that every reasonable hypothesis except guilt was eliminated.

II

The appellant argues that his conviction in his fourth trial, following three mistrials, should be barred on the basis of double jeopardy. This issue has already been decided adversely to the appellant by the Alabama Supreme Court in Ex parte Anderson, 457 So.2d 446 (Ala.1984):

"In Clements v. State, 390 So.2d 1131, 1132 (Ala.Crim.App.), cert. denied, Ex parte Clements, 390 So.2d 1136 (Ala.1980), the court held that 'a jury's inability to agree either on a verdict or punishment is a proper reason for the declaration of a mistrial. After such a mistrial, the retrial of the defendant is not barred by double jeopardy.' (Citations omitted.) It has also been held in Alabama that a 'mistrial is no trial' and, therefore, that retrial would not place a defendant in double jeopardy. Willingham v. State, 50 Ala.App. 363, 279 So.2d 534, 537, cert denied, 291 Ala. 803, 279 So.2d...