Colston v. State

• Decision Date: 04 November 1975
• Docket Number: 6 Div. 890
• Citation: 57 Ala.App. 4,325 So.2d 520
• Parties: Danny Ray COLSTON v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 520

325 So.2d 520

57 Ala.App. 4

Danny Ray COLSTON v. STATE.

6 Div. 890.

Court of Criminal Appeals of Alabama.

Nov. 4, 1975.

Rehearing Denied Dec. 9, 1975.

J. Wm. Thomason, Bessemer, for appellant.

William J. Baxley, Atty. Gen., Montgomery, and David L. Weathers, Asst. Atty. Gen., Birmingham, for appellee.

BOOKOUT, Judge.

Robbery; Sentence: 50 years imprisonment.

The state's first witness, Joe Corsentino, testified that on April 9, 1974, he was operating a store in the city of Bessemer, Alabama. On that day, around 1:20 p.m., he was on the way from the rear of the store to the front when his single employee, Mrs. Latino, informed him that there were some customers in the rear of the store. He saw two men standing before the meat counter. One of the men said, 'We want seventy-five cents worth of bologna,' and one of them then said, 'Zeigler's bologna.' He took the bologna out to slice it and one of the two men said, 'I'm sorry, this is a stick-up, we won't need this bologna.' They then searched him and took him by the hand and said, 'Let's go to the front.'

Mr. Corsentino stated that he saw Mrs. Latino, his employee, kneeling in a corner at the check-out counter. One of the two men said, 'Open the cash register,' but when he started to open it, they said, 'No, let her open it.' Mrs. Latino opened both registers and also gave them money from a money box. The currency taken included two rolls of quarters. Mr. Corsentino stated that the appellant then walked over to the register and got some Kool cigarettes, started around the counter, and shot Mrs. Latino and then shot him. Mr. Corsentino fell to the floor and saw the appellant shoot Mrs. Latino again.

Mr. Corsentino testified that one hundred sixty-four dollars ($164.00) in the cash register and an unknown amount of money in the currency box was taken. He also identified State's Exhibits 1 and 2 as the coat and sweater that the appellant was wearing at the time of the robbery.

On cross-examination Mr. Corsentino was questioned concerning his identification of the appellant and one Johnny Lee White as the robbers. He admitted that he was not able to identify the appellant previously from a lineup in which the appellant was present.

However, he made a positive in-court identification of Colston and testified that his recognition came, '(b)ecause in--during the questioning of him at the inquest that there was certain expressions that he put on his face that I'll never forget whenever he shot that lady.' Defense counsel then commented:

'Okay. You are telling this jury that you're identifying this man based on an expression on his face?'

Mr. Corsentino replied:

'That's right, the look on his face when he came around the counter there with that gun.'

There was also some question as to statements the witness made at preliminary hearing as to whether he was so nervous at the time of the robbery that he could not identify either robber. However, the witness denied that he had become nervous and gone to pieces during the robbery, and his in-court identification was definite.

The next witness called by the state was James A. Boohaker. He testified that he was self-employed and sold groceries, candy, dry goods, and cigarettes to stores on a wholesale basis. He had served Mr. Corsentino's store for over twenty years and he always went there on Mondays, and did so on April 8, 1974, at which time he left two rolls of quarters. Mr. Boohaker testified that he had obtained the rolls of coins from customers and had taped each one with masking tape and that he had been doing this as a practice for twenty years. He then identified State's Exhibit 3 as one of the coin wrappers. He also identified his tape machine and tape.

Joanne Latino testified that she lived with her grandparents, but that before her mother's death on April 9, 1974, she had lived with her. The main thrust of her testimony was that she identified her mother's purse as State's Exhibit 5 and also stated that inside her mother's purse was a small gold coin purse, which was shown later to be in the possession of the appellant.

Loy Ray Simmons testified as to his residence and that he knew the appellant and had known him for some time. He testified that the appellant came to his house on April 9, 1974, to pick up a jacket and some pants that Simmons had been making for him. Simmons testified that the appellant showed him a small gold coin purse and asked him to burn it, but that he told Colston to take it away. On cross-examination he was not certain of the date he was shown the purse. Simmons admitted to being a homosexual, but said he had not had homosexual relations with his roommate, Willie Williams, or with Johnny Lee White. He also denied having made nay sexual advances to the appellant and denied testifying against the appellant because Colston would not have sexual relations with him.

Willie Richard Williams testified that he lived with Loy Ray Simmons and that he had known the appellant a good while. He recalled Colston and White coming to his house, although he could not recall the specific date. Williams identified State's Exhibits 1 and 2 as the clothes worn by the appellant. He also testified that he went into a room with the appellant and White and observed a sack containing Kool cigarettes, a pocketful of change, and some one, five, and ten dollar bills, a twenty-two caliber pistol, a radio, and a movie camera.

Williams stated that he no longer lived with Simmons, and he also admitted to being a homosexual. However, he stated that he had not had sexual relations with Simmons or Johnny Lee White. Williams also denied having made any homsexual advances toward the appellant. He stated that it was not a fact that his testimony was based on a desire to see Colston convicted because Colston refused to have homosexual relations with him.

Willie Williams, correcting prior contradictory testimony, testified further that he heard Colston tell White that White did not have to shoot the lady. On redirect examination, Williams said that this occurred the last time that Colston and White were at his house together.

Joe Padalino testified that he operated a grocery store in Bessemer each day from 6:00 a.m. until around 3:00 p.m. He testified that the appellant came into his store about ten minutes before 3:00 p.m. on April 9, 1974. Appellant asked if he could get ten dollars in exchange for a roll of quarters. The appellant handed a roll of quarters to Mrs. Padalino and she handed them to Mr. Padalino. Appellant then asked if there was anything wrong and Mr. Padalino replied that there was not; that he would count the quarters later since it was almost time to close the store. Mr. Padalino stated that the roll of quarters was distinctively marked and that masking tape was over both ends. He identified State's Exhibit 3 as the same wrapper he had given to the police on April 9, 1974.

Lieutenant J. R. Pace testified that he was Chief of Detectives for the Bessemer Police Department and that he had participated in the investigation of the robbery. Lieutenant Pace, pursuant to an investigation, went to 500 Dunbar Court in Bessemer and recovered two items of clothing identified as State's Exhibits 1 and 2. He also indentified a quarter wrapper he received from a police sergeant which he had turned over to the State Toxicologist's Office in Birmingham for testing. Lieutenant Pace also stated that the appellant had been in numerous lineups but had never been positively identified. He stated that both the appellant and Johnny Lee White were known by him and that the appellant is the darker of the two black males.

Craig Bailey testified for the state that he was a criminologist employed by the State Department of Toxicology and Criminal Investigation, located in Birmingham. He had examined a quarter wrapper and he identified it as State's Exhibit 3. He also had examined a tape dispenser which was identified as State's Exhibit 4. The witness then explained that he had made a gross examination and a microscopic examination of the width of the teeth marks made by the tape dispenser and had compared those to the tape on the rolls and found them to be of the same consistency. He stated that he had examined them as to color, texture, and aging, and found them to be similar. State's Exhibits 1, 2, 3, 4, and 6 were then received into evidence without objection.

The defense called as its first witness, Carl Sims, who stated that he had been in Mr. Corsentino's store prior to its being robbed and that he saw two black males there. He stated that he could not identify whether Johnny Lee White was one of them or not. He was also asked whether he had a judgment as to whether the appellant was in the store at the time. This was objected to and sustained. The witness then testified that he observed the two black males in the street and that they were about the same height and that one appeared a little darker than the other. He stated that one of them told him they were about to rob the store and to get what he wanted and leave. Sims then left, and seeing Mrs. Corsentino down the street, stopped her and informed her that there might be trouble at the store.

Appellant, Danny Ray Colston, testified that the first time he saw Johnny Lee White on April 9, 1974, was early in the day when he and Willie King and Myron Williams were riding around together and picked up White. The appellant stated that White was talking about robbing something that day and appellant told him that he (White) had just gotten out of jail and should not do anything like that. The appellant said that he and White got out of the car. He refused to go with White and instead went to look at a car a car lot. It was some time later that he was walking to Simmons' house to get the suit, that White pulled up and told him to get in the car. He stated that another person was driving the car and that the other person told White that he did not...