Davis v. State

• Decision Date: 21 November 1967
• Docket Number: 1 Div. 119
• Parties: Louis James DAVIS v. STATE.
• Court: Alabama Court of Appeals

Page 490

204 So.2d 490

44 Ala.App. 145

Louis James DAVIS v. STATE.

1 Div. 119.

Court of Appeals of Alabama.

Nov. 21, 1967.

Oliver J. Latour, Jr., Mobile, for appellant.

MacDonald Gallion, Atty. Gen., and Paul T. Gish, Jr., Asst. Atty. Gen., for the State.

JOHNSON, Judge.

Appellant was convicted of the offense of grand larceny in Mobile County, Alabama and sentenced on September 20, 1961, to a term in the State penitentiary as punishment therefor. On June 7, 1965, his petition for writ of error coram nobis was granted and the first judgment of conviction was set aside. Appellant was then indicted by the Mobile County Grand Jury for the offense of robbery. Upon a plea of not guilty, trial was had and appellant was convicted, and sentenced to a term of ten years in the State penitentiary. From this judgment, he makes this appeal.

Tamar Robinson of Mobile County, Alabama testified that he was robbed by two men in April, 1961, on his way home from the Jolly Spot Night Club. He testified that he had been on a 'little outing'; that he knew appellant but did not see him the night prior to the robbery; that when he left the night club he was attacked from behind by two men, one of whom 'put a knife around' his neck while the other took approximately $3.00 in coins from his wallet. Robinson stated that he turned and saw them running away and recognized appellant by 'his shape and shadow'. He obtained the money and wallet from the Mobile Police Department, neither of which was introduced into evidence.

Robinson stated on cross-examination that he could not recall the amount of beer he had drunk on the night he was robbed between 7:00 P.M. and midnight, but that he was not drunk as the next day was a 'working day'. He said that there were no lights around at the time of the robbery; that he did not see the knife; could not describe it; and did not know which of the two men had it. Robinson testified that when he saw the men running away, they were 'running off pretty good'; that they were approximately the length of the courtroom away from him; and that he attempted to telephone the police from the house of a neighbor whose name he could not remember but no one answered the door. He stated that he eventually met a police scout car and told the officer he had been robbed; but was unable to describe the robbers except as being colored, though he said he knew appellant was one of them by 'the back of his head--and I knew the shape of him.'

Officer Huey of the Mobile Police Department testified that he received the complaint from Robinson the night of the incident and that Robinson appeared nervous and upset and could only say that the men were tall. Officer Huey stated that Robinson appeared sober, steady, clear of speech and that he detected no odor of alcohol on him.

Detective Rigby of the Prichard Police Department testified that he was one of the officers who arrested appellant and Felix Coleman at 'around 1:00 or 1:30' A.M. on April 22, 1961, about six or seven blocks from the Jolly Spot Club. He stated that he first saw appellant and the other man 'walking real fast'; that he arrested them knowing nothing about the robbery of Robinson; and that he arrested them because one of them dropped 'a pretty good sized knife', but he does not know whether this was appellant or not.

Detective Rigby searched the two and found that one had a mask made of a sweat shirt sleeve and the other had a towel with holes cut in it and a safety pin. He could not say who had which mask. He also testified that one of the two had what appeared to be a pool stick when stopped and that there were dogs in the neighborhood. Rigby took them to the docket room of the Prichard Police Headquarters and turned them over to the lieutenant. He described the knife in question as being a black handled push button knife (an automatic). He could not say which of the two parties 'flipped' the knife at his approach.

Lieutenant Jack Clark of the Mobile Police Department testified that he interrogated appellant. His testimony was in part as follows:

'Q. Was he (appellant) transported to Mobile on the 27th?

'A. The 27th, that's right.

'Q. 27th of April, and when was the first time you saw him?

'A. As I told you before on the 27th or 28th, I'm not sure which,--whether it was that day or the next, but shortly after he came to the station.

'Q. O.K.,--did you talk to him at that time?

'A. Yes, sir.

'Q. Did you have an arrest--you say you had a 'hold' on him,--what exactly was--

'A. A detainer, investigation for robbery.

'Q. Investigation for robbery?

'A. Right.

'Q. What exactly is a 'hold'?

'A. Well, a 'hold' in this particular case refers to them having admitted to the Prichard Police Department that they had robbed an old man in the Mobile jurisdiction; and that particular night we had a robbery of an old man near the Bullshead area; in fact, where this one has been described. We had that, so we placed a detainer until--Prichard had some other robberies they were investigating him on, and until they released him to us, they were interviewing him on some of their robberies, or muggings, or rape, or what not. They detained him possibly a week before they released him to us.'

Lt. Clark further stated that appellant and Coleman were placed in the Mobile City Jail but said that he did not personally place them under arrest. This testimony was in part as follows:

'Q. You didn't arrest them for robbery until they were identified by the complainant?

'A. That's right.

'Q. Did you have them under arrest when you brought them to Mobile?

'A. They were under arrest for investigation, yes.

'Q. They were under arrest for investigation--

'A. Of robbery, yes sir.

'Q. Did you have a warrant?

'A. No warrant for investigation, no sir.

'Q. Had you gone before a magistrate asking for a warrant?

'A. At that time, no sir.

'Q. Did you have any information--did the Mobile Police Department have any information that it had gathered on its own with regard to whether or not this defendant was implicated in that robbery out in the Bullshead area?

'A. That it had gathered on its own?--Repeat that question?

'Q. O.K. Did the Mobile Police Department have any information that it had gathered on its own,--by that I am attempting to exclude any information you got from the Prichard Police Department, as to who committed this particular robbery?

'A. Yes sir.

'Q. What information did you have?

'A. Well, Prichard had them, and we located the old man,--it was a couple of days after it happened, this Robinson, the Complainant, and he told us that the boy,--one of the boys,--he knew one of the boys, and he had worked with him. He believed his name was Davis, he didn't know Davis what, not enough to arrest him and we already knew that one of them was Davis that they had in Prichard, but we didn't know whether it was the same one until after he come back to Mobile. We had a pretty good idea, but we didn't know, and we didn't obtain a warrant until we were sure.

'Q. Why didn't you obtain a warrant--did you have an opportunity to obtain a warrant?

'A. No,--we had a little trouble finding the complainant, for one thing, after we got the subjects back to the jail.'

Lt. Clark further stated that the mask which he had obtained from the Prichard police was shown to appellant and that a Prichard police officer, whose name he was not sure of, had called and told him (Clark) that 'they had admitted it'. Clark stated that appellant admitted the crime the first time he was interrogated by the Mobile police. He testified that there were no threats or promises made to appellant in his (Clark's) presence, and that appellant's statement was reduced to writing, read back to him, and signed by appellant.

Appellant objected to the admission of his statement, Exhibit No. 1, on the grounds that he had not been advised at the time of interrogation of his right to counsel; that he was shown documents and articles which were obtained by an illegal search and seizure; that he had been held in the Prichard jail for seven days without counsel; and that there was no warrant for this arrest in Mobile. These objections were overruled.

On cross-examination, Lt. Clark stated that appellant did not ask him if he could make any calls; that he told appellant he had a right to remain silent and not to say anything at all but did not tell him he had a right to remain silent during subsequent interrogations after he confessed.

After appellant's motion to exclude the evidence was denied, Felix Coleman testified that he and appellant went to the Jolly Spot Club and that he stayed outside while appellant went inside; that he saw Robinson come out of the club and he was drunk; that there were several boys outside the club who were 'horse playing' with Robinson and a boy named Sonny took Robinson's billfold without Robinson's knowledge. The witness stated that Sonny threw the wallet away and he (Coleman) picked it up.

When appellant came out of the club a few minutes later, they walked toward Highway 45 when stopped by the police. Coleman stated that the police asked for the stick he was carrying, and put both boys in the car upon finding out Coleman's name. At the Prichard jail the police took the wallet from Coleman and interrogated them together. He further testified that he was 'whipped a little' with a hose pipe, a belt, and the fists of an officer. He stated that he asked to make a telephone call but 'wasn't allowed to see nobody'. Coleman stated that he was beaten each night he was in the Prichard jail 'with a green hose pipe'; that he was beaten by Mobile police with his own pool stick. He further testified that he pled guilty to petty larceny and he is now serving his one year sentence therefor in the Mobile jail.

Appellant testified that he did not see Robinson in the night club but passed him going out as he went into the club. He stated that the police stopped them on the way home and they were arrested without...