Dailey v. State, CR-91-877

• Decision Date: 21 August 1992
• Docket Number: CR-91-877
• Citation: 604 So.2d 436
• Parties: Derric DAILEY v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 436

604 So.2d 436

Derric DAILEY v. STATE.

CR-91-877.

Court of Criminal Appeals of Alabama.

Aug. 21, 1992.

S. Alec Spoon, Montgomery, for appellant.

James H. Evans, Atty. Gen., and Robert C. Ward, Asst. Atty. Gen., for appellee.

TAYLOR, Judge.

The appellant, Derric Dailey, was convicted of robbery in the first degree, a violation of § 13A-8-41, Code of Alabama 1975. He was sentenced to 25 years in prison.

The state's evidence tended to show that on the evening of May 23, 1991, Karen Reagan, a pizza delivery worker for Pizza Hut restaurant in Montgomery, was robbed. After midnight, a pizza order was placed from a pay telephone. Reagan went to deliver the pizza to the address given over the phone. She was apprehensive because a previous incident involving an order placed on a pay telephone ended in a robbery. When Reagan arrived at the delivery address, she took out her .38 Colt revolver and put it in the pocket of a pouch that she wore around her waist. As she headed to the rear of the vehicle with the pizzas, a black man approached her and stuck a gun in her chest. He said, "Give me the pizzas." She complied. He then said, "Give me the money." She was having some difficulty unfastening the pouch around her waist when the man asked her, "How much money is in this bag?" Before she could answer, the man pushed the gun at her and pulled the trigger. The gun clicked but did not fire, so she grabbed the man by the arm and he fell against the window of her vehicle. When he fell against the vehicle she saw a second man standing behind him. Reagan drew her revolver and fired several shots in their direction as they ran up the street. They jumped into a car across the street and sped off. Reagan got back into her vehicle and drove down the same street that the robbers had taken. She saw a car driving through stop signs without stopping and she followed it to get the license number. As she neared the car she saw a man stick a gun out of one of the windows. She did not think that the gun was fired at her at this time.

Reagan returned to the restaurant and called the police. A description of the vehicle was given over the police radio along with the fact that three or four black youths would be in the vehicle. Corporal Michael Thomas, an off-duty Montgomery police officer, saw a car matching the description. Corporal Thomas recognized two of the youths in the car because they had had contact with the police prior to this incident. He followed them for several miles until back-up could arrive and then he stopped them. After the four youths exited the vehicle, he saw pizza boxes in plain view in the vehicle. A pouch matching the description of the one taken from Reagan and a 12-pack of beer were also recovered from the vehicle. No pistol was found in the car.

The four youths were taken to the police station where police discovered that the appellant had been shot in the leg. He was taken to Jackson Hospital for treatment, and while he was there he made a statement to Officer Steve Saint. After he was read his Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), rights, the appellant said that he was in the car when two of the others had discussed the robbery, but that he had told them that he wanted no part of the robbery. He also stated that he was shot by Reagan but that he was just leaning against the vehicle when the shooting occurred. He said that he was not one of the two individuals who did the actual robbery.

I

The appellant initially argues that the trial court erred in not granting his motion for judgment of acquittal at the end of the state's case. He contends that his motion should have been granted because there was no evidence presented by the state that he was the one who had used the gun in the robbery. He maintains that there was no evidence that he violated § 13A-8-41, Code of Alabama 1975.

Section 13A-8-41, states, in pertinent part:

"(a) A person commits the crime of robbery in the first degree if he violates section 13A-8-43 [threatens the imminent use of force against the person of the owner or any person present with intent to compel acquiescence to the taking of or escaping with the property] and he:

"(1) Is armed with a deadly weapon or dangerous instrument."

In Alabama it makes no difference whether the individual charged with robbery was the person who actually held the gun to the victim's face.

"The general rule in Alabama is that '[a]n aider or abettor in the commission of a felony must be tried as a principal. Code of Alabama (1975), § 13-9-1.' Wright v. State, 494 So.2d 936, 937 (Ala.Cr.App.1986); Magro v. State, 384 So.2d 871 (Ala.Cr.App.), cert. denied, 384 So.2d 875 (Ala.1980). The words 'aid and abet' encompass all assistance by acts, words of encouragement, or support, or presence, actual or constructive, to render assistance should it become necessary. Wright, supra; Sanders v. State, 423 So.2d 348 (Ala.Cr.App.1982). Actual participation in the crime need not be proved by positive testimony to convict someone of aiding and abetting. 'The jury is to determine whether the appellant's participation exists and the extent of it from the conduct of the parties and all the testimony presented.' ... Such facts as the defendant's presence in connection with his companionship, and his conduct at, before and after the commission of the act, are potent circumstances from which participation may be inferred."

Henry v. State, 555 So.2d 768,...