Bland v. State

• Decision Date: 12 May 1964
• Docket Number: 6 Div. 946
• Citation: 166 So.2d 728,42 Ala.App. 392
• Parties: Ernest George BLAND v. STATE.
• Court: Alabama Court of Appeals

Page 728

166 So.2d 728

42 Ala.App. 392

Ernest George BLAND v. STATE.

6 Div. 946.

Court of Appeals of Alabama.

May 12, 1964.

Rehearing Denied June 9, 1964.

McCollough & McCollough, Birmingham, for appellant.

Richmond M. Flowers, Atty. Gen., and John C. Tyson, III, Asst. Atty. Gen., for the State.

JOHNSON, Judge.

The appellant prosecutes this appeal from a conviction for the offense of robbery in the Circuit Court of Jefferson County, Alabama. The appellant was sentenced to a term of twenty years in the penitentiary. A motion for a new trial was filed, heard, and overruled. The appellant gave notice of appeal and filed proceedings requesting that a pauper's transcript be furnished without cost. Said transcript was granted by the court.

The evidence at the trial disclosed that the appellant journeyed from Texas to Birmingham, Alabama, to join forces with one Floyd Leon Watson, a native of Birmingham, to commit a robbery against the person of Tom W. Woods, Manager of Hill's Super Market located at Woodlawn in the City of Birmingham. Testimony of the State's witnesses shows that the appellant arrived at the home of Watson's mother in Birmingham on the afternoon of November 22, 1960, and proceeded from said house to Hill's Super Market in Woodlawn. The record discloses that Watson stayed outside the store as a 'lookout' while the appellant entered the store and approached Mr. Tom W. Woods, who was in the manager's office, or cage.

Mr. Woods testified that he was sitting in his office with his back to the door when someone asked him to 'okeh' a check and that when he turned around the appellant was standing at the door with a gun in his hand and demanded the money in his possession, and that he put $2,550.00 in a paper sack and handed it to the appellant who then left the store.

Kenneth C. Courington and James William Leonard, who worked at the check-out counters, testified that they observed the robbery being committed and followed the appellant outside but met Watson, the alleged accomplice, who pulled a gun and told them to 'get back in that damn store'. They further testified that the last time they saw Watson and appellant they were running around the corner of the store.

One Roger Dale Jones, who lived and worked in Birmingham, testified that he was at the Watson home, 821 47th Street, North, during the afternoon of November 22, 1960, and that the appellant and Floyd Watson returned to the Watson home around 5:00 or 6:00 P.M. and that the appellant and a woman with him stayed about fifteen or twenty minutes and then left. When the witness Jones was asked if he knew the appellant's name, he answered, 'All I knew was Trigger.'

Mrs. Lillie Watson testified that Floyd Leon Watson, the alleged coconspirator was her son and that she knew the appellant and that he was in her home during the afternoon of November 22, 1960.

Lt. M. L. Singleton, a detective of the Houston, Texas, Police Department, testified that he had a conversation with the appellant, Ernest George Bland, on November 30, 1960, and, after a proper predicate was laid, Lt. Singleton said that the appellant stated that 'he had been involved in the robbery, he had pulled a robbery over here, but he did not want to come back to Alabama.'

Detective A. M. Bailey, present Sheriff of Jefferson County, testified that he had a conversation with Floyd Leon Watson in the presence of the appellant in which Watson stated as follows:

'He stated that he had observed the location of this Hill's Grocery Company store, at 5501 (reporter's note: sic) First Avenue, North, and set up the operation of the robbery, and, in turn, called Bland in Houston and related these operations to him and asked him to come here and assist in the robbery.'

Bailey further stated that Bland did not deny any of the statements made by Watson in his presence.

Floyd Leon Watson, the alleged coconspirator in the robbery, testified for the appellant and stated that he didn't know Bland and had never seen him until he saw him in the Jefferson County jail. He stated that he and one John Phillip Rogers, known as 'Trigger Phil', committed the robbery of the Hill's Super Market on November 22, 1960, and that after dividing the money at his mother's house, Rogers and a girl with him left and that he didn't know where they went and had not seen them since.

The defense introduced interrogatories that had been propounded to two witnesses residing in Texas who were unable to attend the trial. One was propounded to one James J. Shown, a practicing attorney in Houston, Texas, and contained testimony to the effect that the appellant was in his employ and was in Houston, Texas, on November 22, 1960, figuring a repair job on his house. Mr. Shown stated that the reason for his vivid recollection was because it was two days before Thanksgiving.

The transcript of the proceedings in the trial of this cause affirmatively shows that no objections or exceptions to the closing argument of Mr. Hawkins, the prosecuting attorney, were reserved as a matter of record.

At the hearing of the motion for a new trial, which was prepared by the appellant Bland himself, the following transpired:

'The Court: 'C': The trial court erred in allowing the Solicitor to refer to defendant as a person who had previously been in trouble with the police.

'What does that have reference to?

'The Defendant: I believe Mr. Hawkins stated to the jury that the large cities kept a file on professional robbers and thieves, or some such like that, and in that statement he was inferring that I was picked out from that file.

'The Court: I recall the argument. I recall on objection. I did not, frankly, construe it to be what you construe it as, when taken into consideration with the entire argument that was made by Mr. Hawkins.

'Now, let's see. That was 'C'.'

Bland's trial counsel, who was appointed to prosecute this appeal, argues that the failure of the court reporter to transcribe the closing argument of the solicitor and the objections and exceptions thereto in this, the capital case of an indigent defendant, constitutes reversible error.

Appellant's counsel strongly argues that the failure of the court reporter to transcribe every part of the proceedings had in the trial below and annex it to the free transcript furnished an indigent defendant, is a denial of due process under the Fourteenth Amendment of the Constitution of the United States. Counsel for appellant relies on the case of Stephens v. United States, 5 Cir., 289 F.2d 308, which hald that the failure of the court reporter to record the examination of the veniremen and the arguments of counsel to the jury during a federal court trial constituted reversible error.

Judge Cameron, predicating his decision on several sections of U.S.C.A., used the following language:

'Since the failure of the court reporter to observe the terms of the statute is undisputed and the result is that a full transcript is not available to us, we do not see how we can, under Rule 52(a), F.R.Cr.P., 18 U.S.C.A., adjudicate that there was no showing that any errors which might have been reflected by the transcript were harmless. This conclusion seems to be in line with whatever jurisprudence is available on the subject.'

The above case refers solely to transcripts prepared by the federal court reporters and is based on the mandatory federal acts governing the preparation of the trial transcripts. The decision seems to have no application to transcripts of appeal prepared by the state trial courts.

The case of Lane v. Brown, 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892; was not cited or argued by appellant's counsel, but we think it is pertinent since the U. S. Supreme Court, by its holding, affirmed a strong line of decisions, cited therein that once a state chooses to establish appellate review in criminal cases, the equal protection clause of the Fourteenth Amendment requires that the state not foreclose indigents from access to any phase of that procedure because of their poverty.

Under Alabama criminal appellant procedure a transcript of the proceedings below is necessary for appellate review and an indigent defendant convicted in the Alabama trial courts is furnished a free transcript upon proper motion as the appellant here was. The requirements of an adequate transcript to insure a complete review of the appellate courts of this State was discussed by Judges Cates in Wills v. State, Court of Appeals of Alabama, April 30, 1963, 152 So.2d 883, as follows:

'It is clear from Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891; Eskridge v. Washington State Bd. of Prison Terms & Paroles, 357 U.S. 214, 78 S.Ct. 1061, 2 L.Ed. 1269; and Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899, that the Supreme Court of the United States had not required a state of furnish a poor man a full transcript of ALL the evidence. All that is required for a main trial is some unbiased narrative or recital which gives the background ('stenographic support or its equivalent') to illumine the appellant's question or questions reserved for consideration on review for error.

'Under Griffin v. Illinois, supra, a state is not dispensing red beribboned souvenirs or mementos. Rather the convicted pauper is entitled to essential parts of the transcript (or a substitute) because of his need to show the appellate court the setting of the rulings below.'

The practice of the court reporter to transcribe only objections and exceptions to arguments in criminal cases in Alabama is followed in the trials of the rich as well as the poor unless a special request is made at the beginning. The failure of the court reporter to record the objection to that part of the solicitor's argument made a ground of defendant's Motion for New Trial, will not warrant a reversal of this cause as the Motion for New Trial seems to present the alleged improper argument for review and consideration by this court as...