Crawford v. State, 6 Div. 775

Decision Date28 January 1986
Docket Number6 Div. 775
Citation485 So.2d 391
PartiesJohnny Otis CRAWFORD, Jr., alias v. STATE.
CourtAlabama Court of Criminal Appeals

L. Dan Turberville, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen. and Martha Gail Ingram, Asst. Atty. Gen., for appellee.

TYSON, Judge.

Johnny Otis Crawford, Jr. was indicted for the first degree robbery of three separate fast food restaurants. The offenses were joined for trial, and the jury found the appellant "guilty as charged in the indictment" in each case. The appellant was sentenced as a habitual felony offender to life imprisonment without parole.

At 9:00 p.m. on March 28, 1984, Sharon Jackson was working at Jacks Hamburgers at 8th Avenue West in Birmingham, Alabama. She was the only employee working the counter but Joe Richardson and Doris Hines were working behind her where the food was being prepared.

A man with a small barrel gun approached the cash register. He pointed the gun at Jackson and told her to put all of the money in a bag. Jackson took the money from the cash registers, put it in a bag and gave it to the armed man.

At some point, Doris Hines noticed the man and started running. The man cocked the gun. Jackson told him not to shoot her and he said he would not. The man then left and ran away.

Jackson said the man was wearing a yellow windbreaker, a white shirt with a red and blue stripe, dark pants, and a baseball cap. He had a moustache, was about 5'5"'' tall, and weighed about 140 pounds. She identified the appellant as the man who robbed her.

Sometime shortly after the robbery, she was shown a group of pictures by the police. She saw the man who robbed her in these pictures.

Clarence Mitchell of the Birmingham Police Department was assigned to this robbery case. The day after the robbery he showed Sharon Jackson a group of six photographs. All of the men were black males with beards and moustaches. Jackson picked out the appellant's photograph.

On April 3, 1984, Joe Richardson attended a police line-up of six black males. Four of the subjects were 5'8"'' tall and the other two were 5'9"" and 5'10"'' tall. The weights of the subjects only differed by 18 pounds. Richardson picked the appellant out of this lineup and identified him as the man who robbed Jacks on that night. Richardson also identified the appellant at trial. He said the appellant had a beard and a moustache on the night of the robbery.

Tanya Law was working alone at the cash register at the Burger King on Airport Highway in Birmingham on the evening of March 28, 1984. At approximately 5:20 p.m., a man walked in and came to the register. Law asked if she could help the man and he pointed a gun at her and told her to put the money in a bag. Law put the money from the register into a bag and the appellant left and ran across the parking lot.

She stated the man had on a biege jacket, dark pants and a painter's hat. Law testified that the man was not clean shaven, was about 5'6"" or 5'7"" tall and weighed between 145 and 160 pounds.

Law identified the appellant as the man who robbed her on this date. Law also picked the appellant out of the same line-up that Richardson viewed.

Mildretta Lewis was working the cash register at Mrs. Winner's Chicken and Biscuits at 26th Avenue and 35th Street in Birmingham shortly before 5:00 p.m. on March 28, 1984. A man came in and milled around the condiment stand until some customers left. Lewis asked if she could help the man. He pointed a small gun at her and told her to put the money in a bag. Lewis then emptied both registers and put the money in a bag. After the man got the bag, he left.

Lewis stated that the man had on a white shirt with blue on the sleeves, a baseball cap, dark pants and tennis shoes. The man was approximately 5'5"'' tall, weighed about 145 pounds, and had a beard and a moustache.

A short while after the robbery, the police brought a suspect to Mrs. Winner's for Lewis to look at. This suspect was not the man who robbed her.

Lewis identified the appellant at trial as the man who robbed Mrs. Winner's that night. She also picked the appellant out of the line-up.

Two of the employees at Mrs. Winner's that night testified for the defense. Both stated that they could not identify the appellant as the man they saw that night. However, both women stated that they would not recognize the man if they saw him.

Another witness for the defense, Mae Irvin, stated she was in the parking lot of the Burger King during the time this robbery took place. She said the appellant does not look like the man she saw leave the Burger King but she does not know what the man looks like. She just glanced at him.


The appellant contends the trial court erred by allowing the out-of-court identifications of this appellant into evidence. He alleges that the live line-up and photographic array were unnecessarily suggestive. From our examination of the record, we find nothing to support this allegation. The State's witnesses identified the appellant at trial based on their observations during the robberies.

"Even had the confrontation procedures been suggestive, which we hold they were not, reliability remains the linchpin in determining the admissibility of identification testimony. Manson v. Brathwaite [432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977) ], supra. The United States Supreme Court has set out the following five factors to be considered in determining reliability: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness' degree of attention; (3) the accuracy of his prior description of the criminal; (4) the level of certainty demonstrated at the confrontation; and (5) the time between the crime and the confrontation. Manson v. Brathwaite, 432 U.S. at 114, 97 S.Ct. at 2253; Neil v. Biggers, 409 U.S. at 199-200, 93 S.Ct. at 382 [34 L.Ed.2d 401 (1972) ]. Applying these five criteria to the case before us, we conclude that the identification testimony presented to the jury was proper."

Flowers v. State, 402 So.2d 1088, 1092 (Ala.Cr.App.), cert. denied, 402 So.2d 1094 (Ala.1981).

There is no basis of error to reversal on this issue.


The appellant contends the trial judge erred by failing to give his requested jury charge number 9. That charge states: "It is the Defendant's theory of the case that the witnesses have mistakenly identified him as being the robber in case numbers CC 84-311, CC 84-2196, and CC 84-2202." (R. 442)

While a defendant is generally entitled to have his theory of the case presented to the jury, Strauss v. United States, 376 F.2d 416 (5th Cir.1967), an instruction on that theory must contain a statement that the theory is based on the evidence at trial. Bell v. State, 473 So.2d 622 (Ala.Cr.App.), cert. denied, 473 So.2d 622 (Ala.1985).

As can be seen from the charge quoted above, there was no statement included that the appellant's theory of the case was based on this evidence. Therefore, the charge was properly refused. Bell, supra.


The appellant contends these three cases were improperly joined for trial. Rule 15.3(a), Alabama Temporary Rules of Criminal Procedure, provides that two or more offenses may be joined if the offenses "(i) are of the same or similar character; or (ii) are based on the same conduct or are otherwise connected in their commission; or (iii) are alleged to have been part of a common scheme or plan."

The three offenses in this case are certainly of the same or similar character. All three robberies occurred at fast food restaurants in Birmingham, Alabama. In each instance, the robber had a gun and told the victims to put all of the money in a bag. The robber, in all three cases, had on a hat, had facial hair, wore some similar clothing, and was of somewhat similar height and build.

Further, it could be maintained that the three offenses were part of a common scheme, design or plan. The robberies were committed at three fast food restaurants on the same day within a matter of a few hours. Certainly, the case at bar is a "classic case" for joinder. See Butler v. State, 439 So.2d 210 (Ala.Cr.App.1983).

Although the appellant admits that joinder was permissible in this instance, he contends that he was prejudiced by this joinder. He states that the jury confused the cases and used the evidence presented at trial cumulatively to convict the appellant in each case.

We find no merit to this argument. Each of the victims in the three cases positively identified the appellant at trial as the man who robbed them.

Based on this evidence, the appellant would have been convicted in each case even if three separate trials had been conducted. Therefore, the fact that the three offenses were joined in one trial does not prejudice this appellant in any significant manner.

Moreover, as the State submits in its brief, even had separate trials been held, evidence of two of the robberies might well have been admissible in each of the trials as evidence showing a common plan, scheme or design. C. Gamble, McElroy's Alabama Evidence, § 69.01(6) (3rd ed. 1977).

The appellant was not prejudiced by the proper joinder of these three offenses. His motion to sever was properly denied by the trial judge.


During the examination by the prosecutor of Tanya Law, the following took place:

"Q How much in your opinion do I weigh?

"MR. TURBERVILLE: I object, Your Honor. That is irrelevant, immaterial. Her testimony was at first he was 145, 160, and then she said he was 160.

"MR. NAIL: I object to him editorializing, Your Honor.

"MR. TURBERVILLE: How much she thinks Mr. Nail weighs is totally irrelevant and immaterial.

"THE COURT: Overruled.

"Q How much in your opinion do I weigh?

"A About 180, 190.

"Q How tall am I?

"A About 5'8"" or 5'9"".

"Q Would it surprise you to know I'm 5'11"""?

"A No. I can't tell you.

"Q Did you...

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