Day v. State
| Decision Date | 09 April 1985 |
| Docket Number | 3 Div. 831 |
| Citation | 481 So.2d 1164 |
| Parties | John P. DAY v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Ian F. Gaston, Mobile, for appellant.
Charles A. Graddick, Atty. Gen., and Mary Ellen Forehand, Asst. Atty. Gen., for appellee.
The indictment charged John P. Day with unlawfully obtaining $3,300 in lawful currency from one Judy Hix, with intent to deprive the said owner of the property, contrary to § 13A-8-3, Code of Alabama 1975 as amended.
The jury found the appellant "guilty as charged in the indictment" and following an extensive sentencing hearing the trial court set sentence at 10 years' imprisonment under the Habitual Felony Offender Act.
Mrs. Nancy Goff testified that she operated the Hair Unlimited Style Salon on October 25, 1982. While waiting on Mrs. Judy Hix, she received a telephone call from a male who asked for her husband, Gary Goff. The male who telephoned identified himself as one Bill Taylor. Mrs. Goff stated that Taylor indicated to her that he was a gambler and had won some diamonds in a poker game and wanted to talk with her husband to see if he knew some people who might be interested in purchasing same.
Mrs. Goff related this conversation to Mrs. Hix, her customer, who happened to be an FBI agent. Mrs. Hix then asked Mrs. Goff to give Taylor her phone number and ask him to talk with her.
Mrs. Goff passed this information on the next day to Taylor who telephoned again and, after a week or more of attempting to contact Mrs. Hix, Taylor did so, and indicated that he would talk with her about some diamonds which he had in his possession.
Montgomery Police Detective A.L. Kirks testified that on November 3, 1982, he went to the Holiday Inn East with FBI Agent Judy Hix and Don Byrd, another Montgomery Police Officer. There he saw Mrs. Hix talking with the appellant, John P. Day, who was positively identified by him in court. The conversation lasted just a short time and he saw them later meet a second time the following day, also at the Holiday Inn East. He stated the conversation lasted somewhere between 45 minutes to one hour.
FBI Special Agent Judy Hix testified that she had served in that capacity since 1978. She reiterated being at Nancy Goff's beauty salon and being told of the telephone call from one Bill Taylor. Later she stated that Taylor telephoned her and indicated that he would like to talk with her about some diamonds that he had won gambling in Montgomery. He stated that he had played poker and that there were some doctors and lawyers involved and that frequently they would need extra money and they would put the diamonds up to use to obtain cash for gambling. She stated that Taylor told her this in his telephone conversation and they agreed to meet at the Holiday Inn East on November 2, 1982. She stated that after the first meeting Taylor came to her home on November 3, 1982 and that she told him to change the meeting to the Holiday Inn East. She stated that she then went to the Holiday Inn East where she was accompanied by Montgomery Police Detective Don Byrd. She stated that she then had a conversation with the appellant, John Day, near the swimming pool at the Holiday Inn East. She stated that the conversation lasted almost an hour and that he showed her three different stones. The first was a large stone which Day indicated to her was almost four carats and he stated that he wanted $8,000 for this. Mrs. Hix testified that she advised him that she wanted something smaller, in the 1.3 carat range. He said that he had one but that it would run $3,300. He then brought out certain types of jewelry equipment, including a loop, a magnifying glass and a pair of tweezers used to hold the stone so that it could be properly viewed. She stated that Day then went into considerable detail talking about the whiteness and clarity of the stone, indicating that there was a slight imperfection, pointing it out but indicating all the while that it was a diamond worth $3,300. She stated that she and Don Byrd then left but arranged to meet appellant again at the Holiday Inn a little after 2:00 o'clock that same day. She stated that she went back to the Holiday Inn that afternoon accompanied by a Montgomery Police Detective named Beverly Ranbo. Mrs. Ranbo was with her when she paid the appellant $3,300 and was advised by the appellant that it was an actual diamond which she was receiving.
On cross-examination Mrs. Hix indicated that she had been shown two other stones, but that they had agreed on the stone in question, which was identified as Exhibit 1 by her at trial.
On cross-examination she stated she took the stone and had it examined by a jeweler and was told that it was a zirconia, that it had the hardness of a diamond and had a flaw in it similar to a diamond, but that it was not a valuable stone.
Mrs. Hix also indicated that the appellant told her you could take the stone and it would cut glass. She indicated the appellant represented to her that it was, in fact, a valuable diamond.
Montgomery Police Officer Steve Ireland testified that on November 3, 1982, he assisted Police Investigator Wicker in talking with the appellant at police headquarters. He stated that the man in question was identified at that time as a Carl Bennett and that he gave him permission to search his room at number 171 at the Governor's House Motel. Ireland stated that a consent to search form was executed which was identified as State's Exhibit 5 at trial. He stated that a suitcase was removed from the room and brought back to headquarters which contained other stones.
Police Investigator James Wicker stated that he talked with the appellant on November 3, 1982 at police headquarters. He stated that appellant was given his Miranda rights and that, after an explanation of his Constitutional rights and without any fear, threats or intimidation, the consent to search form was executed by the appellant.
The appellant admitted, after questioning, that the suitcase in question was his property. Certain stones and jewelry which were removed from the suitcase were then identified at trial as having belonged to the appellant.
Montgomery Police Officer James Wicker stated that he took the Exhibits which had been removed from the suitcase, Exhibit 7 and 8, to Klein and Son Jewelers to be examined and then the stones were brought back to police headquarters. These were identified as zirconias by Joe Robinson of Klein and Son.
Mr. Robinson stated that Exhibit 1 was examined by him and he testified that it was definitely not a diamond. (R. 90).
The State next presented the testimony of Sheri S. Carroll who testified that in August, 1980 she was contacted by a person, whom she positively identified in court as the appellant, who wanted to sell her a diamond. She stated that she and her husband went to three different jewelry stores, Kleins, Brombergs and Wilson's, where a stone which was being offered to her by a party named Mr. Ellis, but whom she identified at trial as being the appellant, Mr. Day. He offered her a marquise cut diamond which he stated was around four carats and was worth approximately $40,000. He told her he wanted $8,000 for this. She stated that after having it examined at the three places, the appellant put the stone in a plastic tube and then put it in his pocket. She stated that they went to her husband's office and then paid the $8,000 and that the appellant then turned over the tube containing the stone to her. She stated that the next day she went to Zales Jewelry Store and later to Brombergs and was told that the stone in question was a zirconia.
Montgomery Police Investigator Jeff Roy corroborated Mrs. Sheri Carroll's story as he had been called upon to investigate the sale of the stone to her.
The State next presented the testimony of one Charles Cole who testified that he lived in Mobile, Alabama and was in the TV marketing business. He stated that he was acquainted with the appellant, John Day, whom he pointed out in open court. Mr. Cole indicated that he had met the appellant in February, 1980 and that the appellant had purchased some products from him. He stated that the appellant told him that he was a gambler but that he also sold diamonds and other precious stones. He stated that they went to a jewelry store in Mobile owned by one Leon Wildmire, the store in question being known as Leon's Jewelry, on Western American Drive. He stated that the appellant told him he was going there to obtain some cubic zirconias. He stated that he was going to make someone in Montgomery or Tuscaloosa "the proud owner of a cubic zirconia".
Later, the appellant told Mr. Cole about how difficult it was to distinguish a zirconia from a real diamond. He stated that it would cut glass and that the man he had making these could fix them where they even had a slight built in flaw which could only be distinguished from a real diamond by a true expert. He stated that he would sell these for diamonds to different persons using the story that he had won these in a poker game having played with some wealthy doctors and lawyers who would swap them in for cash.
The appellant, following the close of the State's evidence, moved for a judgment of acquittal and for a directed verdict on the grounds that the State failed to prove a prima facie case. Both of these motions were denied following argument.
The appellant presented no testimony at trial. Following the trial court's oral charge as extended the appellant announced "Satisfied, Your Honor." (R. 159).
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Ex parte Day
...theft in the first degree, under Code 1975, § 13A-8-3, and sentenced to a term of ten years' imprisonment. The Court of Criminal Appeals, 481 So.2d 1164, affirmed Day's conviction and denied his application for a rehearing and his Rule 39(k), A.R.A.P., motion to supplement the facts stated ......