Burress v. State

• Citation: 56 Ala.App. 414,321 So.2d 752
• Decision Date: 04 November 1975
• Docket Number: 8 Div. 659
• Parties: John BURRESS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 752

321 So.2d 752

56 Ala.App. 414

John BURRESS v. STATE.

8 Div. 659.

Court of Criminal Appeals of Alabama.

Nov. 4, 1975.

Philip A. Geddes and Charles T. Frew III, Huntsville, for appellant.

William J. Baxley, Atty. Gen., and Carol Jean Smith, Asst. Atty. Gen., for the State.

SIMMONS, Supernumerary Circuit Judge.

These consolidated appeals (one from a conviction of murder, the other from a conviction of robbery) were originally assigned to the Presiding Judge. Afterwards, the writer, under Section 2 of Act No. 288, July 7, 1945, took over the assignment and prepared Parts I--V of this opinion. Cates, P.J., prepared the remainder.

I

Under Code 1940, T. 15, § 389, this court must search the record for any adverse rulings in the trial below which contain error injurious to the appellant. See Rendleman, The Scope of Review in Criminal Appeals, etc., 22 Drake L.R. 477; Rule A, 49 Ala.App. XXI and 28(a)(7) ARAP and Form 23.

We cite the foregoing because we find in the record before us the following order:

'The defendant John Burress having given notice of appeal from his conviction in the above styled cause and having filed his petition for a free transcript, the court being of the opinion that the provisions of Sections 380(14)--380(25), Code of Alabama 1940 as amended, and in particular Section 380(17), should be followed 'It is therefore ORDERED, ADJUDGED and DECREED by the court that the petition by the defendant be amended to comply with said provisions.' R. 118.

The trial judge seemingly imposed a merit test on a pauper seeking a free transcript under his construction of § 4 of Act 525, September 16, 1963. This section requires averments of error in a pauper's petition for a free transcript of testimony. The enforcement of this section so as to revive assignments of error is unwarranted since § 389 is a paramount provision which has not been repealed.

Also since § 4, supra, applies only to paupers it cannot be construed to cut off a poor man's access to an appellate court in any significant way which is different from that available to an affluent appellant. Draper v. Washington, 372 U.S. 487, 88 S.Ct. 774, 9 L.Ed.2d 899.

Concededly, appellant did not complain of the trial judge's order quoted above by an appeal under § 6 of Act 525, supra. Whether or not in such proceedings an appellant is constitutionally entitled to have the sought for transcript sent up on the ancillary appeal (from denial of a free transcript) we need not here decide. But compare Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 where we find:

'* * * If, on the other hand, the claims made or the issues sought to be raised by the applicant are such that their substance cannot adequately be ascertained from the face of the defendant's application, the Court of Appeals must provide the would-be appellant with both the assistance of counsel and a record of sufficient completeness to enable him to attempt to make a showing that the District Court's certificate of lack of 'good faith' is in error and that leave to proceed with the appeal In forma pauperis should be allowed. If, with such aid, the applicant then presents any issue for the court's consideration not clearly frivolous, leave to proceed In forma pauperis must be allowed.'

In the light of Draper and Coppedge, supra, we have carefully considered the entire record before us which contains only one evidence transcript, i.e., that of the murder trial. No appeal was lodged here under § 6 of Act 525. No claim is made in brief that the evidence on the robbery trial was different from that on the murder trial. Nor is there any reference to adverse rulings made in the robbery trial that do not appear in the record which appellant's counsel have filed here. In Orum v. State, 286 Ala. 679, 245 So.2d 831, our Supreme Court said:

'The appellant is under the duty of seeing that his appeal is perfected according to the requirements of statutes and rules of court. * * *'

II

Appellant-defendant was convicted of two separate and distinct offenses; namely, murder in the first degree, and subsequently, robbery. The indictments were separate, returned at the same time, and the alleged offenses were tried separately on the different dates. The appeals are combined here by agreement in the same transcript. For the conviction of murder the punishment was life (a general verdict) and for robbery the punishment was ten years. Both punishments were fixed by a jury. Defendant was an indigent at nisi prius with appointed counsel. The same indigency with appointed counsel obtains here.

We note that the record or transcript here filed contains a certified copy of the evidence and of the exhibits in the murder trial, but not in the robbery proceedings. However, it appears that the murder charge was an incident to the robbery according to the transcript of the evidence. We have no assurance that the evidence in both The robbery occurred at about 8 p.m. on November 14, 1974, at a general urban grocery store located on the fringe of Huntsville, Alabama. The victim of the homicide was Anthony Lasiter, the twelve year old grandson of Glen Thomas and his wife.

trials comported in all respects with each other. Our summary of the evidence is based on the evidence adduced in the murder trial.

An additional and brief re sume of the evidence will suffice. Mr. and Mrs. Brown had closed and locked their grocery store building. They were proceeding with their daughter and grandson to their automobile for transportation to their house. The robbers halted them enroute to the automobile parked nearby, and commanded them to turn over their money. Mrs. Brown delivered about $2,000.00 in currency and checks while the daughter surrendered a bag of coins in her possession. The husband and grandson did not have any money to surrender. The money was the proceeds of the business operated by Mr. and Mrs. Thomas.

At the time, the defendant had possession of a small caliber pistol, which he pointed at the face of Mrs. Brown, and the companion robber was brandishing a 38 caliber pistol; the robbers made threats to kill them.

The robbers directed them to turn over their automobile key, and to go back inside the store. The robbers were told that the key was in a money box and that the store was locked. The family thereupon proceeded to the store where Mr. Brown broke a window pane was his fist and unlocked the store door from the inside. The whole family entered through the unlocked door and sought shelter from further intimidation and danger.

While the family was complying with the order to enter the store, the robbers tried to crank the car. Failing, they retreated from the store on foot and while so doing, with the defendant Burress in the lead, the companion fired his 38 pistol in the direction of the store. A bullet entered the building through the glass of a window. The projected bullet found lodgement in a sensitive part of the grandson who was killed thereby. Death was immediate.

Brenda Burress, a sister of the defendant, was called as a witness for the defense. She testified that some detectives called at her house in search of her brother and that when her brother called her over the telephone from Nashville, she told him about the homicide and robbery and that he was wanted for arrest in connection therewith. She further testified that he returned immediately and submitted to arrest.

It further appears in the testimony of Mr. Brown that the time element between the beginning of the robbery and the firing of the fatal shot was about three minutes. As to how far the defendant had retreated when the shot was fired is not free of uncertainty.

III ON THE HOMICIDE

We will now address our comments and opinion to appellant's contentions of error in the murder trial and the questions of law pertinent thereto.

Title 14, Section 314, Recompiled Code, 1958, embracing the felony-murder rule, reads in part as follows:

'Every homicide * * * committed in the perpetration of * * * robbery, * * * although without any preconceived purpose to deprive any particular person of life, is murder in the first degree * * *.'

Appellant asserts that the trial court erred in refusing some written charges. The asserted errors refer to charges numbered 7, 9, 10, 11, 12, 14 and 15. We have

carefully examined each charge, supra, and conclude that the Court's refusal of each charge was free of error. The charges are either abstract, not based on the evidence, not applicable to the evidence, argumentative, misleading, confusing, or were covered by the oral charge. Duchac v. State, 52 Ala.App. 327, 292 So.2d 135(8); Adkins v. State, 20 Ala.App. 278, 101 So. 779, cert. den., 212 Ala. 125, 101 So. 780; Reynolds v. State, 154 Ala. 14, 45 So. 894; Bain v. State, 61 Ala. 75; Mitchell v. State, 14 Ala.App. 104, 71 So. 982; Champion v. State, 35 Ala.App. 7, 44 So.2d 616, cert. den., 253 Ala. 436, 44 So.2d 622; Duke v. State, 257 Ala. 339, 58 So.2d 764; Title 7, Section 273, 1940...