Cummings v. State

• Decision Date: 21 March 1978
• Docket Number: 8 Div. 34
• Citation: 356 So.2d 779
• Parties: Thomas CUMMINGS, alias Nieko Cummings v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 779

356 So.2d 779

Thomas CUMMINGS, alias Nieko Cummings v. STATE.

8 Div. 34.

Court of Criminal Appeals of Alabama.

March 21, 1978.

Dave L. Beuoy, Russellville, for appellant.

William J. Baxley, Atty. Gen. and Jean Williams Brown, Asst. Atty. Gen., for the State.

TYSON, Judge.

Thomas Cummings, alias Nieko Cummings, was indicted for the second degree burglary of Voss Grocery, situated at 700 Waterloo Road, Russellville, Alabama, the property of Lee Voss. The jury found the appellant "guilty as charged in the indictment," and the trial court entered judgment, setting sentence at five years imprisonment. The appellant's motion for a new trial, challenging the weight and sufficiency of the evidence, and averring that such was "contrary to law," was overruled following a hearing thereon.

Lee Voss testified that on March 29, 1977, he owned Voss Grocery Store, located at 700 Waterloo Road in Russellville, Alabama. Mr. Voss indicated that he closed his business at 6:00 p. m. on Tuesday, March 29, 1977, and locked the door and windows. He related that the windows were on either side of the front door and they had multiple glass panes in them. None of these were broken when he left the store. From the record (R. p. 30):

"Q. Mr. Voss, how did you come to know that there had been a break-in there at the store?

"A. The next morning when I opened at 6:30 in the morning and entered the store, I noticed my cigarette rack was empty and I glanced at the windows and found one of the panes had been removed from the frame."

Mr. Voss stated that the cigarette rack is against the front wall with the right edge near the window. He stated that the glass had been completely removed from one of the panes, including the putty, and pieces of glass were lying on the ground outside with a few small particles inside the store.

Mr. Voss indicated that he maintained an inventory of items within the store, and that missing was a personal radio of the value of about $30.00, and also the following (R. p. 31):

"A. There was, also, approximately 50 cartons of cigarettes missing, various pieces of jewelry, some hearts and star necklaces, a gold ball necklace, a number of lighters were gone. Every lighter we had in the place was gone. We found food stuff gone and as best we could estimate, there was about a stick and a half of baloney and various packages of ham and other lunch meats, cheese, potato chips, bread, some cakes and candy, gum, soft drinks, all were missing.

"Q. What would be the total and combined value of all those items?

"A. Approximately, $490.00.

"Q. Mr. Voss, were any of these items marked by you? Were any kind of marks on them that indicated Voss Grocery?

"A. No sir, nothing other than, say we had recovered any meat I possibly could have identified the marking on the meat packages.

"Q. As far as cigarettes, for instance, were there any particular distinguishing marks on the cigarettes?

"A. No sir."

Mr. Voss was then shown State's Exhibit No. 1, a radio, which, he stated, had belonged to him for approximately eight years and was inside the store when he closed about 6:00 p. m. on March 29, 1977, and was missing the following morning when he unlocked the store at 6:30 a. m. He stated the break-in occurred on Tuesday night, and that on Friday, April 1, 1977, one Ray Smith brought the radio in question to his store. While Voss talked with Smith, Captain Burns Saint, a police investigator, drove up and Voss turned the radio over to him.

Mr. Voss indicated he knew the appellant, Thomas "Nieko" Cummings, and that Cummings' sister, Melissa, lived on College Avenue, about one block from the store. Voss indicated that Cummings was "a fairly regular customer of his store."

On cross-examination, Voss indicated that he did not have an exact inventory of the missing items, but had made his "best estimate." He further stated that it was possible that Cummings may have handled merchandise inside the store as from time to time he made purchases. Voss indicated that the broken pane was approximately twelve inches long by about sixteen inches wide, that it was from a window which was about chest high, being four or five feet from the ground.

On redirect Mr. Voss indicated that the radio was the only missing item, which was subsequently recovered and returned to him.

Captain Burns Saint of the Russellville Police Department stated that he was working as an investigator on March 29-30, 1977. He indicated that he received a call shortly after 7:00 on the morning of March 30, 1977, and drove to Voss' store. In examining the premises, he noticed there were two windows on each side of the front door, and that on the north side of the door, one of the window panes was broken out. He indicated there was glass on the ground and a little inside the store, and that one piece of glass was still in the window. Captain Saint indicated that on Friday, April 1, 1977, he stopped by the store and Mr. Voss handed him a black radio which he identified as State's Exhibit No. 1, that this radio had been in his possession since April 1, 1977, until the date of trial. Officer Saint also indicated that he received a list of missing items from Mr. Voss.

Officer Saint indicated that during his investigation he talked with the appellant, Thomas "Nieko" Cummings, and that Cummings' sister's home (Melissa Green) was located on College Avenue, one block directly behind Voss Grocery.

Officer Saint also stated that he and Police Officer Terrell Potter lifted several "latent fingerprints" from the piece of glass still in the window and also from some of the glass on the ground directly beneath the window.

Ray Smith testified that he lived at Eastside Apartments, and that he was nineteen years of age in March, 1977. Smith testified that the first time he saw the radio in question it was on an automobile seat between two young males, Thomas "Nieko" Cummings and Ricky Pounders. Smith indicated he did not know which of them claimed the radio, but they offered to sell it to him for $2.00, and that he put $2.00 on the automobile seat, that Cummings picked it up, and he then drove around in his automobile, a 1966 Ford, with Cummings and Pounders. This occurred "around the end of March, 1977." Smith indicated that neither Cummings or Pounders stated where the radio came from. He stated that there was no discussion concerning a break-in at Voss Grocery in his presence.

Smith related that when he picked up Cummings and Pounders they drove around a while and he then dropped them about one block from the grammar school, which was in the vicinity of College Avenue. Smith indicated that he came back by a short time later and the two men were walking down the street, that they then got in the car with him. He stated that Cummings and Pounders told him they were "going to let Jimmy Washington have it until that weekend and they were going to pick it back up." At this time Smith "laid $2.00 on the seat and told them he would take it" (R. p. 43).

Smith also stated that "Well, Buckshot and me talked about it and then he told me to take it to Mr. Voss" (R. p. 49). Smith stated that he learned of the break-in at Voss Grocery "about a day later" and took the radio to Mr. Voss. Smith stated that Captain Saint and Mr. Potter, a district attorney investigator for Franklin County, were at Voss Grocery on April 1, 1977, when he turned the radio over to Mr. Voss.

Terrell Potter stated that he was an investigator for the Franklin County District Attorney on March 29-30, 1977, and that he investigated a break-in at Voss Grocery. In the presence of Captain Burns Saint, he examined a window which was broken and noticed a small piece of glass in the corner of the window, and the remainder of the glass on the ground outside the window. He also found a small piece of glass inside the store. Potter lifted latent fingerprints from the piece of glass still in the window frame and from the glass on the ground outside.

In response to inquiry, Potter indicated that he had lifted probably 200 or 300 latent fingerprints, that he had taken a course and had been certified by the State of Alabama as a competent fingerprint examiner. Potter then stated that he made "two lifts" from the piece of pane in the frame and got "some ridge detail." He also lifted some prints from a piece of glass on the ground outside the window. Mr. Potter then identified three pieces of plastic, which were jointly identified as State's Exhibit No. 2. They contained the latent fingerprints which he had lifted from the glass. Potter stated that these items from Exhibit No. 2 remained in his custody until April 7, 1977, when they were turned over by him to Lieutenant Denver T. Tidwell of the Alabama Bureau of Investigation.

Potter also stated that he recognized State's Exhibits Nos. 3, 4, and 5 as being "known prints" which he also turned over to Lieutenant Tidwell on April 7, 1977.

Captain Burns Saint was then recalled and stated that he had Franklin County Jailer Mike Robinson make some prints of the appellant which were turned over by him to Investigator Terrell Potter.

Franklin County Sheriff's Jailer Mike Robinson stated that on April 7, 1977, as part of his duties, he made fingerprints of the appellant, Thomas "Nieko" Cummings. He then identified State's Exhibits Nos. 3, 4, and 5 as being the prints which he made of Cummings on this date. On this same date, these prints, which were placed on the fingerprint cards, were turned over by him to Captain Burns Saint, who in his presence turned them over to Investigator Denver T. Tidwell.

Denver T. Tidwell stated he was an investigator for the Alabama Bureau of Investigation in April, 1977, and he had been such for six years. On April 7, 1977, he "received three latent fingerprint lifts and three fingerprint cards" from Captain Burns Saint. He identified his mark on State's Exhibits Nos. 2 through 5. Mr. Tidwell then delivered these items to Mr. John Kilburn at the State...