Dixon v. State
| Decision Date | 07 March 1978 |
| Docket Number | 6 Div. 367 |
| Citation | 357 So.2d 690 |
| Parties | Robert Thomas DIXON v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Edward L. Ramsey, Birmingham, for appellant.
William J. Baxley, Atty. Gen. and Barry V. Hutner, Asst. Atty. Gen., for the State, appellee.
The indictment charged Robert Thomas Dixon with the robbery of Tucker Smith by feloniously taking some $75.00 from his person and against his will by putting him in fear, etc. The jury found the appellant "guilty of robbery as charged" and fixed punishment at ten years imprisonment. The trial court set sentence accordingly and overruled the appellant's motion for new trial, which challenged the weight and sufficiency of the evidence.
Tucker Smith testified that on March 26, 1976, he was employed at Banjo Grocery on Lomb Avenue in the southwest section of the City of Birmingham. Shortly after 8:00 o'clock that morning, about seven or eight customers were in the store. A young black male approached the cashier's counter with two bottles of Champale. As Mr. Smith attempted to ring up the sale, the robber, whom he positively identified in court as being the appellant, pointed a sawed-off shotgun at him and demanded the proceeds from the cash register. Mr. Smith stated that he placed $75.00 in United States currency in a paper bag and laid it on the counter. Mr. Smith and the customers Mr. Smith revealed that when the bills are pulled from the cash register in a certain manner an alarm goes off at Police Headquarters, and in minutes Birmingham police officers arrived at the scene. Smith gave a description of the appellant as being a black male, clean shaven, between five feet eight inches and five feet ten inches tall, and weighing approximately 165 to 170 pounds. Mr. Smith stated that he pointed out to the officers the two beer bottles which the appellant had brought to the counter.
inside the store were then directed to lie down on the floor. The robber then backed out of the store with his weapon in his hand. Mr. Smith described the shotgun as being either a twelve or sixteen gauge, sawed-off, the barrel only six to eight inches long, and the "whole thing about fifteen to twenty inches long" (R. p. 41).
Mr. Smith stated that on the same day of the robbery he had pointed out the appellant from some photographs shown to him by Police Sergeant Carreker. Mr. Smith testified that he attended a lineup on either April 13 or 14, 1976, but his pretrial identification was from photographs.
B.A. Lorina stated that he sold beer for Supreme Beverage in Birmingham on March 26, 1976. He stated that shortly after 8:00 on the morning in question he and his helper were placing beer inside Banjo Grocery at 1600 Lomb Avenue. He indicated that they were in the back of the store when they heard someone say, "Come here," and as he turned he saw a sawed-off shotgun being held by a black male. The robber directed Mr. Lorina to place his money in a paper bag, then lie down on the floor next to Mr. Tucker Smith. Mr. Lorina stated that he and his helper did so, but he was unable to identify the robber.
Manuel Ezell testified that he was in Banjo Grocery shortly after 8:00 o'clock in the morning on March 26, 1976. He stated that a black male came in with a sawed-off shotgun. He stated that the gun was eighteen to twenty inches long, and it was possibly a twelve gauge shotgun. He stated that the robber told him to lie on the floor, but did not take any money from him. Ezell said the robber was clean shaven, and he later saw Dixon, the appellant, during the first part of May, 1976. He said he thought he had a mustache at that time. He could not make a positive identification.
Booker T. Jones, a self-employed brick layer, indicated that on March 26, 1976, at approximately 8:00 o'clock in the morning, he was inside Banjo Grocery on Lomb Avenue in Birmingham. He stated he saw three men in the front of the store and three men in the back. He stated he picked up some items and walked up to the cashier's counter. He testified that a man standing there told the cashier to "Give me what you've got." Mr. Jones stated the robber had a sawed-off shotgun in his hand and pointed it at the "beer man" and told him to lie down on the floor. Jones stated that he hid his pocketbook before being directed to lie down on the floor. He remained there until the robber left.
Mr. Jones stated that the robber was a young, tall, clean shaven black male. He could not identify the robber.
Richard E. Royal, a Birmingham police officer, testified that he answered a call, shortly after 8:00 a. m., on March 26, 1976, at Banjo Grocery, located at 1600 Lomb Avenue in the southwest section of Birmingham. He stated that he talked with persons inside the store, then called for an evidence technician, Officer Wyatt.
Birmingham Police Officer Charles R. Wyatt testified that he went to Banjo Grocery, located on Lomb Avenue, on March 26, 1976, arriving there at 8:29 a. m. He stated that Officers Royal and Spears were at the scene when he arrived. Mr. Wyatt endeavored to raise fingerprints from a six-pack carton of beer and from the counter on which the carton was situated. He stated he was unable to get any reliable prints.
Birmingham Police Detective Tillman Carreker testified that he investigated the robbery of Mr. Tucker Smith at Banjo Grocery on March 26, 1976. He stated he received a description of the robber from Mr. Smith about 9:30 that morning. Officer Officer Carreker also stated that he took the appellant to Police Headquarters on April 14, 1976, where he was placed in a lineup, and at this time Smith did not identify the appellant. Officer Carreker indicated that only Sergeant B. P. Thornton assisted him with the lineup, that no suggestions were made to anyone during the lineup, nor were they called upon to make a statement. Carreker indicated that he received the following description of the robber from Tucker Smith (R. p. 35):
Carreker indicated that he arrested the appellant, Robert Thomas Dixon, on April 14, 1976. Carreker stated that he carried some photographs, two different groups, to Mr. Smith that afternoon and then again the next day. He stated that a photograph of the appellant, which he had obtained from Sergeant McKinsey of the Homewood Police Department, was included in the groups displayed to Tucker Smith. He stated that Smith made a positive identification of Robert Thomas Dixon from the photographs.
The appellant, Robert Thomas Dixon, took the stand on voir dire to indicate that in April, 1976, he was living on Eighth Avenue, West, with his mother, Jacqueline Cogman, and his stepfather. He related that on April 14, 1976, Birmingham Police Detective Carreker came to his home and told him he wanted him to go to Police Headquarters for a lineup. He stated that something was mentioned about handcuffs, but he stated he would go voluntarily. He testified that another officer accompanied Officer Carreker and they spent about fifteen to twenty minutes searching his home.
Dixon stated that about eight other persons were in the lineup at Police Headquarters, all of whom were black males. Dixon indicated that some were shorter and some taller than he, and that during the lineup he observed three people talking and pointing in his direction. He was asked to say the words, "Give me your money or your life." He stated that he could not determine if the officers were pointing at him.
On cross-examination Dixon admitted that he had an uncle named Randy Foster who was in jail in connection with a robbery in Homewood. He stated that he had been with his uncle and was also arrested in Homewood, that he was on leave from the Army at the time of this occurrence. He stated that several photographs were made of him by Homewood police officers. Dixon indicated later that he thought Detective Carreker was present when he was placed in a lineup.
The trial court ruled that the in-court identification of the appellant by Tucker Smith was not "tainted" by pretrial identification procedures, and further overruled the appellant's motion to exclude, at the conclusion of the State's case, which challenged the lineup and the State's evidence.
Michael Barber testified that he was at Banjo Grocery on Lomb Avenue on March 26, 1976, shortly after 8:00 a. m. He stated that a black male came in with a sawed-off shotgun, pointed it at the owner, and made the customers in the store lie on the floor, then left. He described the robber as "a guy about 6 feet, brown leisure, it wasn't exactly brown leisure suit, light brown, something like it, straight hair, hair combed down, brown skin." He stated the robber was not Robert Thomas Dixon and that he had never see Dixon before.
On cross-examination Barber stated he worked at Midfield Volkswagen and had been interviewed by Detective Carreker in the office the previous day (August 24, 1976). Mr. Barber stated that Carreker showed him six or seven photographs, and he told Carreker that he could not say who the robber was, but he had gone to the store to "buy some milk." He stated that he recalled the "beer man" being inside the store, and that the robber had directed all of them to lie down on the floor. He stated that he had $5.00 on his person, but the robber told him he did not need his money and did not take it.
Upon being shown photographs, Barber indicated they were the "same ones" shown to him the previous day by Detective Carreker. Barber indicated the appellant's picture was in the group of the photographs, but his hair looked different. He stated he "did not believe it was the same man."
Donald Dortch testified that he was in Banjo Grocery on the early...
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