Dick v. State
Decision Date | 08 March 1996 |
Docket Number | CR-94-1892 |
Citation | 677 So.2d 1267 |
Parties | Anthony DICK v. STATE. |
Court | Alabama Court of Criminal Appeals |
J. William Cole, Birmingham, for Appellant.
Jeff Sessions, Atty. Gen., and Jean Brown, Asst. Atty. Gen., for Appellee.
The appellant, Anthony Dick, was convicted of robbery in the first degree, a violation of § 13A-8-41, Code of Alabama 1975. He was sentenced to 21 years in the state penitentiary.
The state's evidence tended to show that on January 10, 1995, the appellant and an accomplice robbed employees of the Krystal restaurant in Tarrant City. Vanessa Tamiko Files, an employee of the restaurant, and Antoinette Whatley, a manager at the restaurant, testified at trial and identified the appellant as one of the robbers. Whatley testified that the appellant and his accomplice entered the restaurant, approached her while she was talking on the telephone, waved a gun at her, and said, "This is a robbery." Files and Whatley testified that the appellant had a gun and that he and his accomplice took money from the store safe and then tried to take money from them but were unsuccessful because they had no money.
Officer Andrew Straszewicz, with the Tarrant City Police Department, testified that he received a call that a robbery was in progress at the Krystal restaurant and that when he proceeded to the restaurant he saw two men in the area around the restaurant. One acted in a suspicious manner and Straszewicz followed him. This suspect ran to a automobile parked nearby and Straszewicz followed in his vehicle. A two and a half mile chase ensued, which ended when the car Straszewicz was following hit a telephone pole. The driver got out of the car holding a gun, dropped it, and ran into the nearby woods. Upon searching the car, Officer Straszewicz discovered the following items: a .357 Magnum pistol, a garbage bag containing coins, a bank deposit money bag, a check made out to "Krystal," and two ski masks.
The appellant testified in his own behalf. He testified that he was at home when the robbery occurred and that he had never been to the Krystal restaurant in Tarrant City.
The appellant initially contends that the court erred in denying his motion for a judgment of acquittal. Specifically, he contends that the state failed to prove a prima facie case of robbery in the first degree because, he says, there was no evidence that he used force or threatened to use force when he took the money. 1
Section 13A-8-41, Code of Alabama 1975. Section 13A-8-43 provides:
The record reflects that Whatley testified that when she was on the telephone one of the robbers waved a gun at her and instructed her to hang up the telephone and told her that this was a robbery. As this court stated in Glover v. State, 610 So.2d 1253, 1254 (Ala.Cr.App.1992):
In Lewis v. State, 469 So.2d 1291 (Ala.Cr.App.1984), aff'd, 469 So.2d 1301 (Ala.1985), this Court held "as a matter of law, that brandishing [a] weapon constitute[s] both the use of force and the threat of force...." 469 So.2d at 1298.
Moreover, the presence of a gun is not dispositive of whether a robbery has been committed. As this Court stated in Stewart v. State, 443 So.2d 1362, 1363-64 (Ala.Cr.App.1984).
Stewart v. State, 443 So.2d 1362, 1363-64 (Ala.Cr.App.1983). There was sufficient evidence presented for the jury to conclude that the appellant intended to use force.
The appellant further contends that the jury verdict was against the great weight of the evidence.
The appellant next contends that the trial court erred in denying his request for funds to procure a fingerprint expert. The record reflects that on the second day of trial, the state requested that the appellant be fingerprinted because a print found on the car matched a print on file with the police department.
The Alabama Supreme Court in Ex parte Dobyne, 672 So.2d 1354 (Ala.1995), set out the standard for analyzing a defendant's request for funds to pay for an expert. The Alabama Supreme Court stated:
672 So.2d at 1357. The record reflects that the appellant has failed to demonstrate a need for a fingerprint expert. In fact, when the appellant testified, he admitted that he had touched the car on several occasions. The trial court did not err in denying the appellant's request for funds for a fingerprint expert.
The appellant further contends that he was denied the effective assistance of counsel at trial and that the trial court erred in denying his motion for a new trial asserting this ground.
To prevail on a claim of ineffective assistance of counsel an accused must show 1) that counsel's performance was deficient and 2) that the accused was prejudiced by the deficient conduct. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,...
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...to be convicted of first-degree robbery under § 13A-8-41(a)(1); he need only represent that he is so armed. See, e.g., Dick v. State, 677 So.2d 1267 (Ala.Crim.App. 1996). Further, belief by the victim that the defendant has a weapon is sufficient. Stallings v. State, 793 So.2d 867, 868 (Ala......
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