Fortier v. State

• Decision Date: 28 April 1987
• Docket Number: 6 Div. 726
• Citation: 515 So.2d 101
• Parties: Kenneth Joseph FORTIER, Jr. v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 101

515 So.2d 101

55 USLW 2655

Kenneth Joseph FORTIER, Jr. v. STATE.

6 Div. 726.

Court of Criminal Appeals of Alabama.

April 28, 1987.

Rehearing Denied June 9, 1987.

Certiorari Denied Sept. 25, 1987

Alabama Supreme Court 86-1210 and 86-1211.

Certiorari Denied Jan. 25, 1988.

See 108 S.Ct. 776.

Thomas M. Goggans of Goggans, McInnish, Bright & Chambless, Montgomery, for appellant.

Charles A. Graddick, Atty. Gen., and Victor Jackson, Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

Kenneth Joseph Fortier, Jr., was convicted of robbery in the first degree and sentenced as a habitual offender to life imprisonment without parole. He presents four issues on appeal.

The State's evidence established that in the early morning hours of July 22, 1984, Jagjeet Sidhue, Rajesh Khedekar, and Sandeep Sharma, three University of Alabama students, were leaving the Zoo, a local campus nightspot, when a young woman identified as Tammy Gamso approached and began to talk to Sidhue. She told him that she was waiting for two male friends. She turned around and two black males, at least one of whom was holding a pistol, accosted Sidhue, Khedekar, and Sharma, demanded and obtained the wallets belonging to the three students, and fled in the direction of a light-colored older model Mercedes-Benz parked nearby. None of the three victims was able to positively identify the defendant as one of the assailants. Sharma testified that, although he could not be sure, he thought the defendant "looked like" one of the two men who had robbed him and his companions.

Tammy Gamso testified that she, Wayne Donnell Jones, and the defendant went to the Zoo bar on the evening of July 21, 1984, in the defendant's car, an older model blue Mercedes. As they left she met and talked with a foreigner and then walked back to the Mercedes, where she heard Jones tell the defendant that he "wanted the gun." Ms. Gamso stated that she "reached out to Wayne [Jones] and told him not to and he just pulled away." Jones and the defendant then left the car and headed in the direction of the foreigner with whom Ms. Gamso had spoken earlier.

Ms. Gamso was picked up about a block away by Jones and the defendant, who gave her a credit card bearing Sharma's name. She was apprehended several hours later after she attempted to purchase gasoline with the stolen credit card. Shortly after the police arrested her, she saw Jones and the defendant, wearing the same clothes they had worn during the robbery, drive by in the defendant's Mercedes. Fifteen minutes later, wearing different clothes, they drove by again, stopped and walked over to Ms. Gamso, and were taken into custody by the police. The Tuscaloosa police officer who apprehended them stated that they had alighted from an older model light blue Mercedes.

I

The defendant maintains that there was insufficient evidence to convict him of robbery by the use of force as charged in the indictment because (1) aiming a gun at the victims established only a threat of the use of force; (2) the testimony of accomplice Tammy Gamso was uncorroborated; and (3) he was not positively identified by any of the victims.

In Lewis v. State, 469 So.2d 1291 (Ala.Cr.App.1984), affirmed sub nom. Ex parte Blake, 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.... [A]iming a gun at the victim constitutes either the force or the intimidation required for robbery." 469 So.2d at 1298. See also Shedd v. State, 505 So.2d 1306 (Ala.Cr.App.1987).

The defendant never directed the trial court's attention to the issue of accomplice corroboration. At the close of the State's case he moved for a "judgment of acquittal on all charges" without stating grounds, and, in the alternative, he requested charges on lesser included offenses. He argued his alternative request and provided the court with a citation of authority allegedly However, in Maxwell, the Alabama Supreme Court held the following:

                supporting the giving of lesser included offense charges.  Following his conviction he filed a "Motion for Judgment of Acquittal After Verdict" pursuant to Rule 12.3, A.R.Cr.P.Temp. "on the grounds that there was insufficient evidence to convict defendant."   The court charged the jury that whether or not Tammy Gamso was an accomplice was a question of fact for their determination and then outlined for the jury the principles requiring corroboration of accomplice testimony.  The defendant made no objections to this part of the court's oral charge and tendered no requested charges defining "accomplice" or stating the necessity for corroboration of an accomplice's testimony.  Under the law prevailing prior to  Ex parte Maxwell, 439 So.2d 715 (Ala.1983), and Rule 12.3, A.R.Cr.P.Temp., the defendant would not have preserved the issue of corroboration for our review.  See Ward v. State, 376 So.2d 1112, 1115-16 (Ala.Cr.App.), cert. denied,  Ex parte Ward, 376 So.2d 1117 (Ala.1979).  See also Alexander v. State, 281 Ala. 457, 458, 204 So.2d 488, 489-90 (1967) cert. denied, 390 U.S. 984, 88 S.Ct. 1107, 19 L.Ed.2d 1284 (1968).  Compare Dunnaway v. State, 479 So.2d 1331, 1336-37 (Ala.Cr.App.1985)
                

"To preserve the issue for appeal, it is necessary for defendant to state his grounds upon moving to exclude evidence; however, it is not necessary to draw the trial court's attention to the particular defect. It is sufficient that the defendant state the ground that the prosecution has failed to make a prima facie case." 439 So.2d at 717.

Although the defendant's first motion for judgment of acquittal (made at the close of the State's case) stated no grounds, his post-verdict motion was based upon the claim that there was "insufficient evidence to convict defendant." Rule 12.3(a) states that "[i]t shall not be necessary to the making of the motion after a verdict or judgment of conviction that a similar motion have been made prior to the submission of the case to the factfinder." If a defendant is not precluded from testing the sufficiency of the State's case via a post-verdict motion under Rule 12.3 by his failure to have made an earlier motion under Rule 12.2, then it follows that he is not foreclosed from challenging the State's case by way of grounds stated in a Rule 12.3 motion which were not advanced in his earlier Rule 12.2 motion. We must, therefore, determine whether the State's case was legally sufficient insofar as it related to the accomplice corroboration issue.

The first question is whether Tammy Gamso was an accomplice.

"Whether a witness is an accomplice may be a question of law or fact, depending on the circumstances. Doss v. State, 220 Ala. 30, 123 So. 231 (1929). However the question of complicity is usually a question of fact; it becomes a question of law only where the court is clearly convinced by a preponderance of the evidence that the witness could have been indicted and convicted of the same charge of a felony for which the defendant is on trial and that the witness freely participated in the crime. Where there is no conflict in the testimony, the question of whether a witness is an accomplice is a question of law for determination by the trial court. Pryor v. State, 47 Ala.App. 706, 260 So.2d 614 (1972).

" 'The question of law for the court resolves itself into one of undisputed evidence. If this, taken altogether most favorably toward the noncomplicity of the witness, still leaves unchallenged acts which would support a verdict of guilt of the witness, then the court, if requested, must require the State to adduce corroboration.'

Leonard [v. State], supra, 43 Ala.App. , 464, 192 So.2d , 469 [1966].

"Thus where there is doubt or dispute whether a witness is in fact an accomplice, the question is for the jury and not the trial court. Skumro v. State, 234 Ala. 4, 170 So. 776 (1936). Where there is doubt whether a witness is in fact an accomplice, and the testimony is susceptible to different inferences on that point, that question is for the jury. Sweeney v Tammy Gamso neither admitted nor denied her participation in the robbery. She testified to her presence at the scene, her conversation with one of the victims, her attempt to dissuade Jones from leaving the car with the gun, and her knowing receipt and use of the property taken in the robbery. Compare Yarber v. State, 375 So.2d 1229, 1230 (Ala.1978) (where witness denied his participation in crime for which defendant was charged, complicity was a disputed question of fact for the jury); Daniels v. State, 50 Ala.App. 88, 91, 277 So.2d 364, 367 (1973) (where witness was present at the scene of the crime but denied intent to commit the offense, complicity was a jury issue); Jacks v. State, supra (where witness was present at scene of offense and denied prior knowledge of companion's intent to commit the crime but admitted to acts making him an accessory after the fact, question whether he was an accomplice was for the jury).

State, 25 Ala.App. 220, 143 So. 586 (1932); Horn v. State, 15 Ala.App. 213, 72 So. 768 (1916)." Jacks v. State, 364 So.2d 397, 403 (Ala.Cr.App.), cert. denied, Ex parte Jacks, 364 So.2d 406 (Ala.1978).

While "mere presence of a witness at the scene of a crime where he does nothing to aid and abet is insufficient to show him to have been an accomplice," Daniels v. State, 277 So.2d at 367; Jacks v. State, supra, the jury may have believed that Ms. Gamso's engaging one of the victims in conversation immediately prior to the robbery amounted to more than mere presence and constituted a ploy to distract the victims' attention as a means of facilitating the offense. On the other hand, when viewed in connection with Ms. Gamso's later testimony that, as Jones left the defendant's car with a gun, she reached out and "told him not to," Ms. Gamso's conduct may have been viewed by the jury as noncomplicitous in the robbery itself.

The fact that Ms. Gamso received and...