Floyd v. State

• Decision Date: 20 March 1984
• Docket Number: 3 Div. 844
• Citation: 486 So.2d 1309
• Parties: Tommy FLOYD v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1309

486 So.2d 1309

Tommy FLOYD v. STATE.

3 Div. 844.

Court of Criminal Appeals of Alabama.

March 20, 1984.

On Return to Remand May 14, 1985.

Rehearing Denied June 11, 1985.

W. Mark Anderson, III, Montgomery, for appellant.

Charles A. Graddick, Atty. Gen. and Rivard Melson and William D. Little, Asst. Attys. Gen., for appellee.

HUBERT TAYLOR, Judge.

The appellant, Tommy Floyd, was indicted and convicted for the capital offense of murder of Elbert Lee Jackson, during a robbery in the first degree, or an attempt thereof, in violation of § 13A-5-40(a)(2), Code of Alabama 1975. His punishment was fixed at death by electrocution. Because this is a conviction of a capital offense resulting in a sentence of death, we are compelled to include a detailed narration of the facts presented at trial.

At approximately 5:30 p.m. on April 28, 1982, Franklin Ellis encountered Tommy Floyd, Samuel Felder, and "Tank" Acres on High Street in Montgomery. Since all of them were going to the Riverside area, they walked together. After arriving thirty-five to forty minutes later, Ellis went to his uncle's home and the other three men went to Floyd's sister's home. About fifteen minutes later, the four again set out together. Floyd, Felder, and Acres were conversing while they were walking, but Ellis did not hear the content of their conversation because he was walking ahead of them. As they passed cars parked along the curbs, the three checked the doors of the parked cars.

When the group reached Madison Avenue, Ellis went to the Trailways Bus station where he went into the bathroom. Floyd, Felder, and Acres followed. While Ellis was using the bathroom, he heard the other three mumbling. They left the bathroom a couple of minutes before Ellis. When Ellis exited the bus station, he saw Floyd, Felder, and Acres in the back seat of Yellow Cab number seven, which was parked to the left of the front door of the bus station. According to the dispatcher's notation in his log, the driver of cab number seven picked up a fare at the Trailways Bus station at 10:19 p.m. and asked the dispatcher for the estimated price to Madison Park, 231 North. Ellis got in the cab at the trio's request and asked where they were going. He got no answer, but he did hear over the radio, "That will be eight dollars." At this point, Ellis told the cab driver that he had forgotten something, so the driver made a U-turn and returned to the bus station. Ellis had decided that he did not want to go because he had no money for the fare and he did not want to depend on any of the other three to pay. At the bus station, he returned to the bathroom, waited ten minutes, and then left the station through the back door.

At approximately 2:20 a.m. on April 29, a 1974 Plymouth Fury belonging to the Yellow Cab Company and bearing the number "7" was found abandoned on Interstate 65, South, north of the Hope Hull exit. An examination of the cab revealed damage to the sign on top of the cab and to the undersides of the front and rear bumpers. Fresh mud was splattered on the exterior of the cab and was also found in the interior, being especially concentrated in the left back seat area and the driver's floorboard.

Blood stains were present on the lid of the trunk, on the rear antenna, on the sign located on top of the cab, and on the left side of the back seat. Missing from the cab was the arm from the fare meter and the two-way radio microphone and its cord. A belt buckle was found on the left rear floorboard. The fare meter read $8.10.

Elbert Lee Jackson had been assigned to cab number seven. The dispatcher's log showed that Jackson had two recorded fares between 5:00 p.m. and 10:19 p.m. when Jackson picked up the fare at the bus station. The estimated charges for these two fares totalled $5.30. By normal business procedure, this money and the cash kept to make change was to be turned in to the company at the end of Jackson's shift.

The dispatcher attempted to reach Jackson by radio at approximately midnight. He received no answer. His last communication with Jackson was at 10:25 p.m. when Jackson told him he was en route to Madison Park.

Jackson's body was discovered at approximately 6:30 a.m. on April 29. It was found in the Madison Park area about a mile down a dirt road which turns off Highway 231 North. The body was lying facedown between a ditch and some bushes. A rope was tied to one of the branches. The other end of the rope was tied around Jackson's neck. Surrounding physical evidence--blood stains on the road gravel and impressions in the mud--indicated that the body had been dragged about thirteen feet and that death occurred along the edge of the road in the area of the ditch. An impression was left in the mud of the drainage ditch "where something soft had been pressed down into the ground and slid." Physical evidence collected at the scene included a taxi driver's cap, a belt without a buckle, a broken arm from a taxi meter, and a wrist watch which had stopped at 10:32. The pockets of Jackson's pants had been pulled out.

The autopsy revealed that, in the pathologist's opinion, Jackson's death was due to ligature strangulation by the rope around his neck; however, the pathologist could not rule out, as the cause of death, a very heavy object having been placed on Jackson's chest for a number of minutes. Other injuries noted were facial abrasions and lacerations; black eyes consistent with blows by a fist; stretching abrasions to the abdomen consistent with the decedent having been run over by an automobile; bruises and contusions on the arms and back; sliding abrasions to the chest, arms, hands, and lower back; and injuries to the body consistent with kicks or stomps. The pathologist opined that all injuries were inflicted either before or around the time of death, which he estimated to be at approximately 1:00 a.m. or after.

After the murder, Floyd made several statements to Ellis. In a conversation occurring the day after the murder, Floyd told Ellis that after Felder knocked the cab driver down, Floyd put his foot on him and "did like that." Two weeks later, Floyd told Ellis that he "don't care how long it take me to get out or what they do ... I'm gonna get you." This threat was evoked by Ellis's sister's accusation to Floyd that he had killed a cab driver.

Approximately six months later, Floyd was arrested for the capital murder of Jackson. After several Miranda warnings and a written waiver of those rights, Floyd gave a voluntary statement. He claimed to have given the statement because "I was around here hurting, you know, so I wanted to tell somebody about it." In substance, Floyd's confession was as follows:

After Floyd, Felder, Acres, and Ellis arrived at the bus station and saw the cab, they said, "Let's get the cab." They entered the restroom. After exiting the restroom, Ellis returned on the pretext of forgetting something. Acres told Floyd and Felder, "Let's go, let's leave him," so they got in the cab. Floyd sat in the front seat and Felder and Acres rode in the back.

The cab driver then drove toward Madison Park at Felder's direction. The trio had no predetermined plan to rob the cab driver, but while riding to Madison Park, they began "making little signs and punching one another." When they arrived at After the driver stopped the cab, Acres grabbed him from behind and Floyd put the car in park. Then, they all got out. Felder grabbed the driver and Acres went through his pockets. After the three men slapped him, Felder knocked him onto the ground and the three continued their attack by kicking him. Floyd kicked him in the side and chest and also jumped on his chest. Then the three men tied a rope around the victim's neck, dragged him by the rope to a small tree, tied the other end of the rope to the tree, all the while choking him.

the requested destination, "things jumped off."

During this assault, which lasted less than five minutes, the victim pleaded, "Don't hurt me, you all can have the money, don't hurt me." Yet Acres said, "We gonna rob him, we might as well go ahead and kill him.... If we don't, we going off anyway." They wanted to leave no witness.

So while the victim was tied to the tree, Felder got in the cab and ran over him, but when they left the driver, he was still breathing and coughing. Before they drove away in the cab, Floyd pulled the microphone from the radio and threw it into some bushes close to where the victim lay. Then they drove down Interstate 65 until the car ran out of gas. Before they abandoned the car, Felder tried to pull the taxi sign off the top of the cab. After no success, Felder and his two companions hitchhiked back to Montgomery. Floyd arrived home at daybreak.

The driver had twenty to thirty dollars in his pockets and under the taxi's seat. Acres took the money from both locations. The seven to eight dollars that Floyd received was spent on wine.

I

The indictment contains eight counts, each charging Floyd with the murder of Elbert Lee Jackson during a robbery as prescribed by § 13A-5-40(a)(2), Code of Alabama 1975. In the first four counts, the property alleged to have been feloniously taken is a taxi; in the remaining four counts, the property alleged to have been feloniously taken is an unknown amount of currency. Floyd argues that the trial court erroneously denied his motion to require the State to elect under which count the question of Floyd's guilt or innocence would be submitted to the jury. We find this contention to be without merit.

The general rule is that the trial court will not exercise its power to compel an election unless it appears either from the indictment or the evidence that an attempt is being made to convict the defendant of two or more offenses growing out of separate and distinct transactions. Williams v. State, 383 So.2d 547 (Ala.Cr.App.1979), aff'd, 383 So.2d 564 (1980), cert. denied, 449 U.S. 995, 101 S.Ct. 534, 66 L.Ed.2d 293 (1980). Here, the...