Bibby v. State, 6 Div. 356

• Decision Date: 28 October 1980
• Docket Number: 6 Div. 356
• Citation: 394 So.2d 73
• Parties: Paul D. BIBBY, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 73

394 So.2d 73

Paul D. BIBBY, alias v. STATE.

6 Div. 356.

Court of Criminal Appeals of Alabama.

Oct. 28, 1980.

Rehearing Denied Nov. 25, 1980.

James L. O'Kelley, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., Sandra M. Solowiej, Asst. Atty. Gen., for appellee.

BOOKOUT, Judge.

Appeal from denial of writ of error coram nobis.

By petition for writ of error coram nobis, the appellant challenged his 1980 conviction for robbery and twenty-year sentence thereon. His petition, in pertinent part, is as follows:

"Your Petitioner respectfully shows that said conviction was unlawfully and improperly taken against him in consequence of the fact that long before the trial date, the District Attorney of Jefferson County, through his Deputy District Attorneys, informed Petitioner's counsel that the alleged offense occured (sic) on July 27, 1978. Said counsel ... relying on this assertion by the District Attorney, prepared his case around said date. Numerous witnesses were present on behalf of your Petitioner at the trial to testify as to his true whereabouts on said date.

"On the date the trial was had, after these witnesses were excused from the Courtroom pursuant to the rule being invoked, it became apparent that the District Attorney's office, prosecuting on behalf of the State, presented testimony to show that the alleged offense occured (sic) on July 19, 1978, as opposed to the earlier date given, July 27, 1978. Under these facts, your Petitioner was denied the due process of law as guaranteed by the Constitution of the United States.

"Your Petitioner shows that he has a valid and lawful defense against the said conviction and that if given the opportunity, can and will make and propound his defense, as may be authorized and allowed by law and the rules of this Honorable Court. Also, petitioner is not guilty of the offense charged."

At the coram nobis hearing, the appellant's trial counsel testified that prior to the robbery trial he discussed the charge with David Barber, an assistant district attorney. He said Mr. Barber told him that the robbery occurred on July 27, 1978, at approximately 5:10 p. m. The only alibi witnesses which defense counsel had available were the appellant's mother and girl friend. To the best of trial counsel's recollection, the first time he was apprised that the robbery in question took place on July 19, 1978, was during the course of the prosecutor's opening argument.

The appellant's sole contention is that the date of the offense was different than trial counsel had been led to believe it to be prior to trial and that the appellant's mother and girl friend were not called as alibi witnesses at the trial. However, the case is not that simple.

The evidence shows that there were actually two cases pending against the appellant at the time his trial counsel had a discussion with the deputy district attorney. Appellant's counsel in chief did not recall the date of July 19 being mentioned by Mr. Barber, whereas Barber's recollection and notes are to the contrary. He testified that in talking to appellant's trial counsel "two dates and two times were discussed as to each charge, as to the escape and as to the robbery." Barber further testified:

"The robbery charge involved a P & S Apothecary in the 7700 block of 2nd Avenue, South. It was reported to the Birmingham Police Department to have occurred on July 19th at 5:10 P.M.

"The escape case came to the attention of our office on the 28th of July, and the escape was reported to have occurred on the 27th of July, something like 10:00 A.M."

The record likewise reveals that the failure of trial counsel to call the appellant's mother and girl friend as alibi witnesses was not solely due to the conflicting dates on which the robbery purportedly occurred. Both the appellant's counsel in chief and associate counsel at trial testified on the coram nobis hearing that the two alibi witnesses were not used due to the unreliability of their proposed testimony. The appellant's associate trial counsel testified as to the girl friend that "she did not remember being with Paul any time during the two or three weeks prior to the robbery, the alleged robbery, is my recollection. His mother, Mrs. Bibby, we were just not sure what she would say." He said there were several discrepancies in Mrs. Bibby's stories which conflicted with the appellant's version of his whereabouts: "Mrs. Bibby said that he had been on work release and was working, and Paul said he had not worked for a several week period."

Appellant's counsel in chief likewise testified:

"One thing I would like to clarify is Mrs. Bibby stated I believe...