Ball v. State

• Decision Date: 02 October 1979
• Docket Number: 7 Div. 668
• Parties: Fernando BALL v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 868

409 So.2d 868

Fernando BALL v. STATE.

7 Div. 668.

Court of Criminal Appeals of Alabama.

Oct. 2, 1979.

Rehearing Denied Oct. 30, 1979.

Myron K. Allenstein, Gadsden, for appellant.

Charles A. Graddick, Atty. Gen., and Willis E. Isaac, Asst. Atty. Gen., for appellee.

HARRIS, Presiding Judge.

Appellant was convicted of robbery and sentenced to ten years in the penitentiary. At arraignment, in the presence of his retained counsel, he pleaded not guilty. After sentence was imposed he gave notice of appeal. The court determined that he was indigent and a free transcript was furnished him. Trial counsel was appointed to represent him on this appeal.

On the early morning of December 4, 1978, the Bonanza Steak House on Rainbow Drive in Gadsden, Alabama, was robbed by two black males. Mrs. Eloise McKee had been employed at the Steak House for about four years. Part of her duties were to open the place every morning and get things organized for business during the day. She drove her 1976 white Chrysler Newport car to work and arrived at the Steak House between 8:15 and 8:30 the morning of the robbery which was on a Monday. She unlocked the side door and turned off the burglar alarm system. When she entered, she placed her purse and coat on the counter and went to the office to check the list of employees who were scheduled to work that day. She made a pot of coffee and went to the rest room. After returning from the rest room she got the office key from her purse and unlocked the office door to check on any instructions that might have been left by the manager when he locked the business the night before. While she was in the office she heard a noise in the storage room located directly behind the office. As she emerged from the office she was confronted by a man wearing a stocking over his face who pointed a pistol in her face. Moments later another man came from the back and he, too, was wearing a stocking over his face.

These bandits told Mrs. McKee they wanted the money from the safe. She tried to convince the men the only money in the place was in the cash register but the man with the pistol told her to stop stalling and to open the safe. He shoved her back into the office with such force that she struck the filing cabinet, hurting her shoulder and arm. With the pistol still pointed at her head, she was again ordered to open the safe. Because of the pain in her shoulder and arm she had difficulty in working the combination to the safe. She worked with the combination the second time with the pistol still pointed at her head and finally got the safe open but was unable to pull the safe door open and she told the man with the pistol that he would have to pull on the door to the safe. The robber with the gun ordered her to lie on the floor and he reached over her and pulled the safe door open and got the money bags. Mrs. McKee was asked if the keys she had to open the office door were also the keys to her automobile. She told them the keys to her car were in her purse. One of the robbers went to the front and got her car keys and they walked her to the back and shoved her in the cooler and closed the door. She remained in the cooler until she was sure they had left the premises. She came out of the cooler and discovered the robbers had take her car and left. She immediately notified the police department that she had just been robbed and her car stolen.

The police officers promptly responded to her call and she gave them a description of the bandits and a description of her car. She told the officers that the robbers had taken about $650.00 from the safe and she told the officers that the man with the gun was a "black male, 5 feet 3 inches, stocky build, black leather jacket, no shirt, dark pants and stocking over the face." She stated the other robber was taller but she did not get a good look at him but stated he had a stocking over his face and was wearing dark clothes.

The victim of this robbery testified that the voice of the robber with the gun was familiar and she kept trying to place the name of the man with that voice. She finally identified the voice as that of Fernando Ball who had worked at the Bonanza for a short while some time in the past. She was called that night by one of the investigating officers who told her they had picked up one of the suspects and wanted her to view a lineup the next day. She was not given the name of the suspect before she viewed the lineup. There were five men in the lineup and they were viewed by the victim with and without stockings over their faces. She picked out the number 4 man from the left as appellant. A photograph of the lineup was taken and shown to the victim during the trial and she again identified the number 4 man as the appellant and the man who had robbed her at gunpoint on Monday morning, December 4, 1978. She also made a positive in-court identification of appellant.

The victim was questioned about the statement she gave the police. She stated that she remembered saying that the robber with the gun had on a dark jacket, not black or brown as the statement indicated. She also said the robber was approximately five feet, three inches to five feet, five inches.

Mrs. McKee further testified that she was told that Richard Elliott was the other suspect. In her report to the police she listed Elliott's height as between six feet, three inches and six feet, five inches. She stated she had never seen any of the other individuals in the lineup previously.

John Russell Creel testified that he was the acting manager of the Bonanza restaurant that was robbed. He closed the restaurant on the night of December 3, 1978, and just before closing he placed about $650.00 in the safe and locked it. He further stated that at about 8:30 on Sunday night he received a telephone call concerning what time the restaurant would open the next morning. He did not recognize the voice of the caller but when he stated the time the cafe would open on the morning of December 4, the caller said, "Oh, wow," and hung up.

Doris Huntley testified that appellant was her son-in-law and that she recalled the events of December 4, 1978. She stated appellant had been staying with her family for about two weeks prior to the robbery and he was unemployed at that time. She said she left for work at about 8:00 a. m. on December 4, and her husband, daughter, appellant and Richard Elliott were in the car with her; that appellant and Elliott were in the back seat. She let appellant and Elliott out of the car near a place known as Merle Norman's Cosmetics which was about three buildings from the Bonanza; that appellant said that he was going to a finance company located between Merle Norman's and the Bonanza, where Elliott was to loan him some money. She described appellant as wearing blue jeans, jacket and tennis shoes. The last she saw of appellant and Elliott they were walking in the direction of Merle Norman's Cosmetics and the time was 8:10 or 8:15 a. m. She did not know Elliott but appellant told her that "Richard" was coming to the house that morning to ride with them.

Doris Huntley's husband, Jessie, testified to substantially the same facts as Doris except that he thought appellant was wearing a brown jacket and a brown shirt which had flowers on it.

Officer Harley Cutchens testified that, on December 4, 1978, he received a radio call that a robbery had occurred at the Bonanza restaurant on Rainbow Drive and he proceeded to investigate. He stated he received an all points bulletin calling for the arrest of two black males who were involved in the robbery. The robbers reportedly left in a 1976 white Dodge automobile. He and his partner, Sergeant Ballenger, turned right on 15th Street and saw a 1976 Dodge parked on the side of the road. He saw a young black male walking up the hill. He got out of the car and gave "foot pursuit" in the direction the man was running. He said the fleeing man was Richard Elliott but the officer fell and lost sight of Elliott. Elliott made good his escape and at the time of appellant's trial he had not been apprehended. The car was returned to the victim.

Officer Cutchens checked the crime scene and was able to lift two partial prints inside a file cabinet. These prints could not be identified because smoke had obliterated them. He dusted the inside of the abandoned car for fingerprints and obtained partial prints from the rearview mirror and from glass on the driver's side, but they were not classifiable. He further testified that he knew Elliott "in passing" but did not know his name. He found a stocking in the car which contained hairs but the crime laboratory reported these hairs did not match the hair of appellant.

Harry Jackson testified that appellant was his brother-in-law and on the morning of December 4, 1978, around 9:10 or 9:15, he saw him walking near the corner of Harvey and Riley Streets. He asked appellant to get in the car and go with him to a named place but appellant want to go by his mother's house and get a suit, pants and shirt. While they were riding appellant pulled out $105.00 from his pocket. He was shown a jacket and stated appellant was wearing that type jacket when he picked him up.

Officer William A. O'Bryant testified that he participated in the investigation of the robbery of the Bonanza Steak House and got the details from Mrs. McKee. He identified a jacket shown him in court and stated that this jacket was turned over to the Police Department by appellant's brother-in-law, Harry Jackson.

O'Bryant further testified that he received information from a confidential and reliable informer who had given him information in the past, upon which arrests were made and convictions obtained, that appellant was involved in the robbery of the Bonanza Steak House. He also talked to Doris Huntley, Jessie Huntley and Harry Jackson. Based upon all this information he arrested appellant at the Nancy Oden Gymnasium on the...