Anderson v. State, 6 Div. 818

• Decision Date: 01 November 1983
• Docket Number: 6 Div. 818
• Citation: 443 So.2d 1364
• Parties: Josephus R. ANDERSON v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1364

443 So.2d 1364

Josephus R. ANDERSON v. STATE.

6 Div. 818.

Court of Criminal Appeals of Alabama.

Nov. 1, 1983.

Rehearing Denied Nov. 29, 1983.

Certiorari Denied Jan. 13, 1984

Alabama Supreme Court 83-316.

Orson L. Johnson, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., Patricia E. Guthrie, Asst. Atty. Gen., for appellee.

HARRIS, Judge.

Josephus R. Anderson was indicted by the Jefferson County Grand Jury on December 7, 1979, for robbery. Arraignment was held on January 16, 1981, with court-appointed counsel present, wherein appellant entered a plea of not guilty. On May 6, 1981, a motion to transfer appellant from Holman Station, Alabama, to the Jefferson County Jail was filed which was granted May 29, 1981. Appellant also filed a motion to produce and a motion for change of venue on May 6, 1981. After a hearing on May 15, 1981, before the Honorable James Garrett, Circuit Judge of Jefferson County, appellant filed a motion for continuance which also was denied. Appellant filed an amended motion for change of venue on December 18, 1981, which was denied on January 21, 1982.

Appellant was tried before a jury on January 27, 1982, and was found guilty as charged. Appellant was sentenced to life imprisonment in the state penitentiary.

A motion for new trial was filed on February 25, 1982. After a hearing on March 25, 1982, said motion was denied.

Jill Tapscott, branch manager of Jefferson Federal Savings and Loan on Fifth Avenue in downtown Birmingham, Alabama, testified that, on November 29, 1979, she was working at the branch office along with Shannon Hill and Jane Baird. At approximately 3:30 p.m., Ms. Tapscott stated that she walked into the front of the branch office and saw a black male holding a gun on Shannon Hill, a bank employee. She stated that Ms. Hill was attempting to open the bank safe. Ms. Tapscott stated that, when the black man saw her walk into the front office, he also pointed the gun at her.

Ms. Tapscott described this man as six feet tall, wearing a blue and white striped sweater-shirt and a brown leather hat with a small visor. He was also wearing a jacket, but Ms. Tapscott stated she could not remember what type. The black male was described as having short hair and a moustache and carrying a silver revolver with a brown handle. Ms. Tapscott further stated this man was carrying a brownish-yellow paper sack.

Ms. Tapscott stated that the robber was in her presence from three to five minutes and was within two feet of her. She identified appellant as the black male who robbed the bank on November 29, 1979.

Ms. Tapscott stated that Shannon Hill gave the robber some rolls of change and "marked" money from her teller drawer. Ms. Tapscott testified that she herself gave the robber over $13,000 in American Express Travelers Checks.

Shannon Hill testified that she was balancing and counting her money at a teller window when a black male walked up to her counter, pulled a gun and asked for money. Ms. Hill stated that she gave the man approximately $150 in marked money from her drawer and some rolls of coins. She stated that Jane Baird, another bank teller, gave him all the money from her drawer and that Jill Tapscott gave the man travelers checks. She stated that the robber put all the money into a yellow paper bag.

Ms. Hill stated that the black male remained in the bank for six minutes. She stated that he was wearing light blue denim blue jeans, a knit pullover with contrasting blue and white stripes and a beige wool cap with a small bill on the front. She also described the gun he was carrying as "being silver." Ms. Hill identified the appellant as the man who robbed the bank on November 29, 1979.

Frank Erwin, a Birmingham police officer, testified that he received a call around 3:30 p.m. on November 29, 1979, to go to the Jefferson Federal Savings and Loan on the corner of Fifth Avenue and 20th Street. After arriving at the bank, Officer Erwin stated that Jill Tapscott gave him a description of the robber which he then relayed over the police radio.

Charles H. Newfield, a Birmingham police officer, testified that he was working an extra job at Sears in downtown Birmingham on the day of the robbery. He stated that he heard a communication over his police radio regarding the robbery at approximately 3:55 p.m. Officer Newfield stated that after hearing the report he went outside the Sears building. Officer Newfield stated that he observed appellant walking down 16th Street toward him and turn left on Second Alley. He described appellant as wearing a leather cap with a small brim, a patchwork leather jacket, a light blue knit striped sweater and said he was carrying a yellow sack. Officer Newfield stated that he followed appellant until he turned off Second Alley at 12th Street. After losing sight of appellant, Officer Newfield stated that he heard gunshots. Officer Newfield testified that he then ran in the direction of the sound of the gunshots which led him to the Southern Motor Inn Motel. There he observed appellant lying on the ground in front of the motel swimming pool. A yellow sack was lying on the ground near the appellant.

Officer R.E. Middleton testified that he was a member of the tactical unit of the Birmingham Police Department and was working in "plain clothes" on November 29, 1979. Officer Middleton stated that he heard certain radio transmissions concerning the robbery which caused him to proceed in his patrol car west on Second Avenue to 13th Street where he turned north. Officer Middleton testified that he pulled up beside a person at Second Alley and 13th Street who fit the description of the robbery suspect which he heard over the radio. He stated that his partner said, "Halt, police," after which the black male began to run. Officer Middleton testified that he saw the fleeing man pull out a gun so he jumped out of the patrol car. After he and his partner fired a shot at the fleeing suspect, the suspect fell. The suspect turned and fired at the officers and then ran into the area of the Southern Motor Inn Motel.

A marked police car pulled up beside the suspect at the motel and the suspect shot at this vehicle. The officers in this police car returned his fire and the appellant fell again near the motel swimming pool after being shot. Officer Middleton stated that he approached the fallen suspect and took the pistol out of his hand. Officer Middleton identified appellant as the fleeing man.

Birmingham Police Officer Joe Johnson testified and corroborated the testimony of Officer Middleton.

Greg Bearden, an evidence technician with the Birmingham Police Department, testified that he collected money and travelers checks from the scene where appellant was apprehended. He stated that he made photographs of the scene and photocopies of the travelers checks found near appellant.

Gayle Yester, another Birmingham Police Department evidence technician, testified that she went to the Jefferson Federal Savings branch office at Fifth Avenue and 20th Street on November 29, 1979, at approximately 4:00 p.m. She took photographs, made diagrams and processed the scene for fingerprints. Officer Yester stated that, after she finished her duties at the branch office, she went to the Southern Motor Inn Motel where appellant had been apprehended. There she assisted Officer Bearden record the serial numbers of the money and travelers checks that had been recovered from appellant.

Shannon Hill was recalled and testified that the serial numbers on the money recovered from appellant matched the serial numbers on her "bait money" that had been taken from her teller drawer.

We note that, at the time of appellant's trial for robbery, he had previously been tried twice for the murder of Officer Eugene Ballard who was killed immediately after the robbery. Appellant's murder trials, both of which resulted in "hung juries," were had in Mobile, Alabama, because of extensive publicity surrounding the robbery-murder.

Initially, appellant contends that the trial court erred in denying his amended motion for change of venue. Appellant argues that, because of widespread publicity in the Birmingham area concerning the robbery and murder of Officer Ballard, he was denied his right to a fair and impartial trial. He specifically argues that editorials appearing in the Birmingham Post Herald after the second mistrial of his murder trial in Mobile emphatically stated that appellant was guilty of the robbery charge.

A defendant has the right to have his trial removed to another county if he cannot receive a fair and impartial trial in the county in which the indictment is found. Ala.Code § 15-2-20 (1975). However the defendant has the burden of showing to the reasonable satisfaction of the court that a fair and impartial trial cannot be had and an unbiased verdict cannot be reasonably expected. Anderson v. State, 362 So.2d 1296 (Ala.Cr.App.1978); Boutwell v. State, 279 Ala. 176, 183 So.2d 774 (1966).

The granting of an accused's motion for change of venue rests within the sound discretion of the trial court and its ruling thereon will not be disturbed except for gross abuse. Lopez v. State, 415 So.2d 1204 (Ala.Cr.App.1982). As stated in Anderson, supra, 1298-1299:

"Newspaper articles, without more, are not evidence on a motion for change of venue; their effect must be shown. Beddow v. State, 39 Ala.App. 29, 96 So.2d 175 (1956), cert. denied, 266 Ala. 694, 96 So.2d 178 (1957), 355 U.S. 930, 78 S.Ct. 412, 2 L.Ed.2d 414 (1958).

"Except in the situation where there is a showing of 'inherently prejudicial publicity which has so saturated the community, as to have a probable impact upon the prospective jurors', the trial court's primary responsibility in dealing with allegedly prejudicial pretrial publicity is whether, as a result of such publicity, it is reasonably unlikely that the defendant can secure a fair and impartial trial. Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct....