Cory v. State, 8 Div. 153

• Decision Date: 22 May 1979
• Docket Number: 8 Div. 153
• Citation: 372 So.2d 394
• Parties: Kenneth Victor CORY v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 394

372 So.2d 394

Kenneth Victor CORY v. STATE.

8 Div. 153.

Court of Criminal Appeals of Alabama.

May 22, 1979.

Rehearing Denied June 26, 1979.

Larry Edwin Perry, Huntsville, for appellant.

Charles A. Graddick, Atty. Gen. and David W. Clark, Asst. Atty. Gen. for the State, appellee.

DeCARLO, Judge.

Appellant was charged with robbery by a Madison County Grand Jury, but prior to trial he was committed to Bryce State Hospital at Tuscaloosa, Alabama. On May 18, 1978, he was determined to be competent to stand trial and was returned to Madison County.

On August 29, 1978, the appellant was tried before a jury, and on August 30, 1978, he was found guilty and sentenced to ten years imprisonment. On that date, he gave notice of appeal and, after a motion for a new trial was overruled, the case was appealed to this court for review. Appellant was determined to be an indigent for the purpose of this appeal.

The facts presented at trial are substantially as follows:

Charles Lifer was the lone operator of a U-Totem store in Huntsville, Alabama, on November 20, 1977. At approximately 10:30 or 10:45 P.M., a male, whom he identified as the appellant at trial, came into the store. According to Mr. Lifer, the man purchased "two pieces of gum" and, when the store operator "rang up four cents," the appellant "started to grin, reached in his back pocket and pulled out a gun." Mr. Lifer described the gun as "shiny, like chrome or nickel, and it was real small, and the tip of it just barely showed up, sort of to the side underneath his coat." Mr. Lifer said he could not see part of the weapon, "but from the tip, it looked real small, I would have thought it would be an automatic."

The store clerk stated that, at that time, the appellant said, "Give me the money," and, when he opened the register, the appellant said, "Make it fast." Mr. Lifer placed the money on the counter and the appellant picked it up. The appellant stopped to look out the front door and, after a car had passed, went out.

Mr. Lifer testified that, after the appellant left, he ran out of the store and "looked out to see if they were out there, but I couldn't see anything in front of the store." According to the witness, he "couldn't see anybody anywhere, it was real dark." Mr. Lifer stated that he then returned to the store and called the police.

Mr. Lifer also testified that he viewed a lineup at the Huntsville City Jail in late December. He stated that, at that time, he identified the appellant as the person who had robbed him on November 20, 1977, and also stated that no one had indicated to him which one of the six men he was viewing was the suspect. Mr. Lifer stated that he identified the appellant when he "first walked in" to view the lineup.

During cross-examination, Mr. Lifer said that the main reason for his identification of the appellant was the "basic shape of his head." The witness stated, "I guess I just felt when I saw him, right away I just remembered everything from back then."

Regarding the gun used in the robbery, Mr. Lifer admitted, on cross-examination, that there was a possibility that more than one gun of the type he had identified existed. Further, even though Mr. Lifer stated that he could not definitely tell what type of material the appellant's coat was made of, or whether it was unbuttoned, he said "when I (saw) the coat like I saw the guy, it just came back to me what it looked like." Mr. Lifer said that he did not observe the appellant leave in any type of vehicle.

Huntsville Police Officer, Daniel R. Dilacausey, Jr., testified that, on December 26, 1977, he saw the appellant "driving a white Dodge Van, '73 model, with a black stripe around it." Officer Dilacausey explained that he had received a "radio traffic that a van fitting this description which had been used in an armed robbery that had happened on the previous date was in the area." He then proceeded to that location where he saw the van and "stopped it at South Park Drive, and South Parkway."

In court, the officer identified the driver of the van which he stopped, as the appellant.

Officer Dilacausey stated that he asked the appellant for his driver's license and, at the same time, asked him to come to the squad car. At that point, there was "radio traffic in the presence of the (appellant) asking about certain weight, height, description of the armed robber, which fit very closely to the person (appellant) I had beside me."

The officer stated that he then asked the radio dispatcher what kind of weapon was used in the robbery. The dispatcher responded, in the appellant's presence, that it was a "small caliber automatic nickel or chrome plated" weapon.

At that point, the appellant advised him that he had "by the way, a gun under the front of may van, but it's not an automatic." The officer then asked, "do you mind if I go up and get the gun?" The appellant responded, "No, sir, I don't."

Officer Dilacausey retrieved the weapon and found that it was a loaded ".25 automatic Guardian pistol that was nickel plated." According to the police officer, the appellant said, " 'well maybe it is,' or something to that effect," agreeing with him that it was an automatic.

Further, Officer Dilacausey testified that, when the appellant was unable to show a permit to carry the pistol, he was arrested for violation of the State Uniform Firearms Act and taken to the detective division of the Huntsville Police Department.

During cross-examination, defense counsel asked Officer Dilacausey how he received the information concerning the van that the appellant was driving. Dilacausey answered that the information was from a call made on the night of the robbery, from "a lady in the neighborhood of the store" who had "called in immediately after the armed robbery. . . . " He stated that he did not talk to the woman personally, but received the information through "radio traffic, standard police procedure, (which) came out over the radio and was put out as a possible vehicle in an armed robbery."

Further, during cross-examination, the officer said that, to the best of his recollection, when he stopped the appellant in his van, he advised the appellant that his van fit the description of a van that "we believed to have been used in an armed robbery." He stated that not only did the appellant fit the description of the person who had robbed the U-Totem store, but also that the gun fit the description of the gun used in the armed robbery.

Dilacausey went on to state that he had received the "radio traffic from an officer who was working a traffic accident," and who had seen the van, but was unable to leave his accident scene. Officer Dilacausey testified that he, therefore, located the van and stopped it.

During further cross-examination, Officer Dilacausey stated that he had never seen another white Dodge van, with a black stripe around it. Further, he stated that he never questioned the appellant about the armed robbery, and said that the only comment about the robbery was made by the appellant, who told him, " 'It couldn't have been me, I was at home,' or 'I was not in the state at that time,' or something to that effect."

Patrick Dillaha, a homicide and robbery investigator with the Huntsville Police Department, testified that he investigated the robbery at the U-Totem store on November 20, 1977. According to Officer Dillaha, he went to the U-Totem store and talked with the victim, Charles Lifer. Officer Dillaha stated that he received a description of the offender from Mr. Lifer, and then left the store.

On December 26th, about 9:00 A.M., Officer Dillaha talked with the appellant, after advising him of his constitutional rights, but the appellant did not sign a waiver or give a written statement at that time. According to the officer, he informed the appellant that he was going to contact the victim of the robbery and then place him in a lineup along with other persons "for purposes of identification."

The lineup was conducted on December 26th and, at that time, the victim identified the appellant as the man who had robbed him. Officer Dillaha said that he then placed the appellant under arrest for the robbery of the U-Totem store.

During cross-examination, the officer testified that the victim had described the robber's clothing, and had stated that he had a light-colored mustache at the time he robbed the store.

Following this testimony, the State concluded its case and the appellant called twelve-year-old Helen Irene Bentley as his first defense witness.

This witness testified that the appellant was her uncle and that, on November 20, 1977, she was home watching television. She stated that the appellant came in about 10:00 P.M., and watched television with her in her room. She said that, after a movie ended at 10 o'clock, he remained until the news concluded and that she later saw him in his bed in the living room of the house. She stated that her room was near the front of the house and that she did not hear any sounds of a vehicle leaving her house that night.

Roberta Clemmons, the appellant's next-door neighbor, testified that, on November 20, 1977, she had gone to the appellant's house to view a television program, and that at that time, the appellant was at home. She said that she went home around 9 o'clock and that he was also there when she left.

Further, Mrs. Clemmons stated that the appellant did not have a mustache at that time and that she had never seen him with one.

The appellant, Kenneth Victor Cory, testified that, on November 20, 1977, he was living with his sister and his niece, and that he was home watching television until about 10:00 P.M. on that night. He stated that, after the television news program was over, he went to bed and did not leave the house. He said that he had never see Mr. Lifer before the lineup and denied robbing him.

Further, the appellant testified that, while returning from a Christmas party, he was stopped by...