Black v. State
| Decision Date | 07 July 1995 |
| Docket Number | CR-93-1467 |
| Citation | 680 So.2d 942 |
| Parties | Paul Earl BLACK v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Paul Meyers II, Dothan, for Appellant.
Jeff Sessions, Atty. Gen., and Cedric Colvin, Asst. Atty. Gen., for Appellee.
The appellant, Paul Earl Black, was convicted of robbery in the first degree and assault in the first degree. Pursuant to Alabama's Habitual Felony Offender Act, he was sentenced to life imprisonment and to life imprisonment without parole, the two sentences to be served concurrently. He raises five issues on this appeal.
In the early morning hours of January 16, 1992, Joey McKinney, an employee of a Texaco gasoline station in Dothan, Alabama, was ringing up the sale of two Sunkist sodas, two bags of potato chips, and a pack of cigarettes, for two men. He looked up from making change and saw that the taller of two men was holding a nickel- or chrome-plated semi-automatic pistol. McKinney handed money from the cash register to the taller man. The shorter man jumped up onto the counter and lunged at McKinney. The two men then walked out the door. The shorter man ran around the corner of the building. The taller man took about two steps out the door then went back inside and shot McKinney. McKinney, who suffered a serious wound to his arm, testified that the person depicted in State's Exhibit Number 22, which was a photograph of the appellant, resembled the smaller of the two men.
A paramedic for the City of Dothan provided emergency care to McKinney at the crime scene. An investigator for the Dothan Police Department recovered the bullet and the spent casing. He also recovered the potato chip bags and soft drinks, which had been left behind by the two men, and he submitted this evidence for fingerprint analysis.
A certified examiner of latent prints was able to identify prints from one bottle as being from the left index finger of Corey Clark. She identified a print from the appellant's left thumb and a print from his left index finger taken from one of the potato chip bags, by comparing these latent prints with his known prints obtained from Alabama's Automated Fingerprint Identification System.
An acquaintance of Clark's turned over to the police a pistol, which was tested and determined to be the one used to shoot McKinney. The police apprehended the appellant; when they found him he was under a bed in his sister's apartment. Also found in the apartment were a box of the same type of bullets as those used in the pistol during the robbery and a black hooded sweatshirt similar to the ones described by McKinney as being worn by each of the robbers.
The appellant argues that the State failed to prove a prima facie case of robbery in the first degree or assault in the first degree, or any lesser included offenses.
In determining the sufficiency of evidence to sustain a conviction, we must accept as true the evidence introduced by the State, accord the State all legitimate inferences therefrom, and view the evidence in the light most favorable to the prosecution. Faircloth v. State, 471 So.2d 485 (Ala.Crim.App.1984), aff'd. 471 So.2d 493 (Ala.1985); Underwood v. State, 646 So.2d 692 (Ala.Crim.App.1993). Although the victim in this case failed to make a positive identification of the appellant, he did describe one of the robbers in terms that fit the defendant. The recovery of the sweatshirt and ammunition further supports the State's case against the defendant. The matching fingerprints, taken with the other evidence presented, provided sufficient evidence to properly present the case to the jury.
Next, appellant argues that the jury's verdict was contrary to the weight of the evidence.
The weight of the evidence, the credibility of the witnesses, and the 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, 330 (1969); Deutcsh v. State, 610 So.2d 1212, 1234 (Ala.Crim.App.1992). This court may not reweigh the evidence presented to the jury; it may not substitute its judgment for that of the jury, except in those extreme cases when it determines that the verdict of the jury is wrong and unjust. Deutcsh, supra at 1234. We find no such deficiencies in this case.
The appellant contends that his indictment was unconstitutional because, he says, the grand jury that indicted him was constitutionally infirm in that historically blacks have been excluded as forepersons of the grand jury in the Houston County Circuit Court.
The appellant first raised this issue in his motion for a new trial and argues that because the State failed to object to the motion as untimely and because the trial judge ruled on the merits of his motion, this issue was preserved for review by this court. Our search of the record does not reveal that the trial judge in this case ruled on the merits as to this particular issue. In fact, the trial judge's ruling on the appellant's motion for a new trial was entered simply as follows: "Upon hearing, Motion for New Trial is denied." The appellant had raised seven issues in his motion.
Rule 15.2 Ala.R.Crim.P., provides that "objections based on defects in the commencement of the proceeding or in the charge ... may be raised only by pre-trial motion as provided in Rule 15.3." This rule requires a defendant to raise an issue such as this one before arraignment or by such time as set by the trial court.
The facts of this case are distinguishable from those in the case cited by the appellant. In Rutherford v. State, 612 So.2d 1277 (Ala.Crim.App.1992), we held that there would be no procedural bar to a review of this issue where the trial court ruled on the merits of the defendant's motion to dismiss the indictment. Those circumstances do not exist in the case before us. The appellant did not timely object to the alleged misrepresentation of blacks on the grand jury and the trial judge did not rule on the merits of that objection. Thus, the appellant is barred from raising this issue on appeal.
The appellant next argues that the trial court erred by overruling his objection to the prosecutor's waving bloody clothes before the jury, given that those clothes had been previously identified by the victim. The appellant contends that the prosecutor's actions were inflammatory and more prejudicial than probative.
A bloody shirt and sweater were identified by the victim as those he was wearing when he was shot. Those...
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