Griffin v. State

• Decision Date: 20 January 1981
• Docket Number: 6 Div. 803
• Citation: 393 So.2d 523
• Parties: Tommy Lee GRIFFIN, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 523

393 So.2d 523

Tommy Lee GRIFFIN, alias v. STATE.

6 Div. 803.

Court of Criminal Appeals of Alabama.

Jan. 20, 1981.

John A. Bivens and Eddie Hardaway, Jr., of England, Bivens & Hardaway, Tuscaloosa, for appellant.

Charles A. Graddick, Atty. Gen., and Joseph T. Simonetti, Jr., Asst. Atty. Gen., for appellee.

HARRIS, Presiding Judge.

Appellant was indicted and convicted for the November 24, 1977, robbery of Miss Rena Owen. The trial court fixed his punishment at twelve years imprisonment. At arraignment and throughout the trial proceedings, he was represented by counsel of his choice. After sentence was imposed he gave notice of appeal and was found to be indigent. He is in this court with a free transcript and trial counsel was appointed to represent him on this appeal.

The prosecutrix, Miss Rena Owen, testified that, on the afternoon of November 24, 1977, she visited her aunt in Northport and, around 8:00 p. m., returned to her apartment, located in the Bent Tree Apartments in Tuscaloosa. She stated when she got out of her car she saw a black male walk from between two apartment buildings and away from her. While she was walking to her apartment, an unidentified black male approached Miss Owen from behind, grabbed her hand, whirled her around and snatched her shoulder purse. Miss Owen stated that she fell against the exterior wall of the apartment building and saw two black males running in the direction from which she had seen the first black male come. Miss Owen testified that her right hand was scratched and thumb bruised by the robber pulling the purse off her shoulder. She stated that the incident occurred in a matter of seconds and, although the lighting in the area was good, she did not see the robber's face and could not describe him. Miss Owen testified that her purse was worth approximately $15.00, and inside was a .38 caliber Smith and Wesson pistol worth $160.00 and $15.00 to $20.00 in cash. She stated that she immediately called the Tuscaloosa Police. Miss Owen testified that approximately one week later someone found her purse and returned it.

On cross-examination, Miss Owen testified that, when she parked her car, the black male walking between the apartment buildings was approximately seven to ten feet away. She stated that he walked in the opposite direction from her apartment and she did not know that he had come behind her until she was near her apartment door. Miss Owen testified that it was only a matter of seconds between realizing the robber was behind her and the completion of the robbery. She testified that in January, 1978, Investigator Jones returned her pistol which was marked as an exhibit and identified by her.

Mr. Eugene Dunn testified that, in November 1977, he lived near the victim's apartment with his girl friend, Sarah Eubanks. He stated that his girl friend and he knew the appellant and that, near the end of November, the appellant visited him and told him that he needed some money. The appellant told Mr. Dunn that he had a pistol he would like to "pawn." Mr. Dunn testified that he told the appellant that he did not want to buy the pistol but that possibly his girl friend would. He stated that he had never bought a pistol from the appellant and did not see it. Mr. Dunn took the appellant to the bedroom to talk to his girl friend. He left before they began to talk, but stated that the appellant left with some money so he knew that his girl friend had bought the pistol. Mr. Dunn testified that, about one month later, he talked to Investigator Jones at his mother's house about the pistol. He stated that he told Investigator Jones that his girl friend had bought the pistol from the appellant. He went to his residence, got the pistol, returned to his mother's, and turned it over to Investigator Jones.

Miss Sarah Eubanks testified that she was the girl friend of Eugene Dunn and that they were living together. She stated that she knew the appellant and had talked to him one evening after Thanksgiving Day. She stated that the appellant had first talked to Mr. Dunn before coming inside the apartment to talk to her. Miss Eubanks testified that Mr. Dunn was not present when she talked to the appellant. She stated that the appellant told her that he needed some money and had a pistol to "pawn." She asked the appellant whether the pistol was "hot" (stolen) and whether it belonged to him to which he replied that the pistol was not "hot" and that it belonged to him. Miss Eubanks gave the appellant $30.00 in exchange for the pistol with the understanding that he would "buy" it back the following Friday, which he did not do. She further stated that she had not seen him since he pawned the pistol to her. Miss Eubanks stated that the pistol was loaded when she bought it, and she did not ask the appellant where he had gotten it. She stated that no one disturbed the pistol while it was in her possession.

Tuscaloosa Police Investigator Harold Jones testified that he had served one and one-half of his three years police service as an investigator. Investigator Jones stated that, in January, 1978, a reliable informer, who had given him credible information in the past, informed him that appellant had obtained the pistol stolen from Miss Owen and had sold it to Eugene Banks (Dunn). He said that the next afternoon he went to Mr. Dunn's mother's residence and, after identifying himself and his purpose, asked to see Mr. Dunn. He stated that Mr. Dunn came to his mother's and told him that his girl friend had the pistol. He returned to his residence and retrieved it and gave the pistol to Officer Jones. The pistol was offered and properly admitted into evidence.

Investigator Jones stated that, after Miss Owen identified the pistol Mr. Dunn had given him as belonging to her, he went to the appellant's home and told him that he needed to question him about a robbery. He read the appellant his Miranda warnings, placed him in his patrol car and transported him to police headquarters.

On voir dire examination, Investigator Jones stated that the appellant was not under arrest at the time he picked him up. He stated that he was under arrest "for investigation" although a warrant for his arrest had not been signed.

Continuing on direct examination, Investigator Jones testified that when the appellant and he were in the patrol car he mentioned the robbery and gun, without disclosing any details thereof, and asked him if he would be willing to make a statement to which the appellant replied, "Yeah, what do you want to know about." Investigator Jones asked him if he had sold a gun to Eugene Dunn to which the appellant negatively answered.

Around 7:45 p. m. at police headquarters, the appellant was given his Miranda warnings a second time and signed a waiver of rights form. Investigator Jones testified that no threat, promise, hope, or reward or other inducements were made to the appellant in exchange for making a statement. The waiver of rights form was properly offered and admitted into evidence. The appellant gave a statement to Investigator Jones wherein he said that he saw two males running, apparently from Miss Owen's apartment, and saw one drop a purse. He picked it up and went home. The appellant stated that he sold a pistol found inside the purse for $30.00 to Eugene Dunn although he did not identify Miss Owen's pistol, which was shown to him, as the one he had sold. The appellant told Investigator Jones that he did not know the two males he had seen with the purse and denied taking it, although he admitted taking the pistol. He stated that when he picked up the purse, it contained only the pistol. The appellant's statement concluded at 8:15 p. m. No objection was interposed to the first or second statement.

Investigator Jones testified that, prior to the appellant's making either of the above statements, he had not discussed any details of the incident with him and had not suggested that two males were involved in the robbery.

Around 8:45 p. m., the appellant made a third statement to Investigator Jones. No Miranda warning was given although the proper voluntariness predicate was laid. In the statement, appellant stated that about one month ago a person named Ronnie Dent and he had been at a convenience store near the Bent Tree Apartments and after leaving saw a white female with a purse driving toward the apartments. Ronnie Dent told the appellant that he was going to get the purse. After the female drove into the apartments, the appellant said that "Ronnie ran up and got her purse." Both ran away and about five minutes later Ronnie Dent came to the appellant's house and gave him the purse and pistol. The appellant stated that Ronnie had taken the money from the purse. The appellant threw the purse behind his house and about one week later sold the pistol to Eugene Dunn for $30.00. Investigator Jones stated that he could not locate anyone by the name of Ronnie Dent. The statement was properly admitted into evidence over the appellant's objection that he had not been given his Miranda warnings before the last statement was made. Love v. State, Ala.Cr.App., 372 So.2d 414 stands for the proposition that it is not necessary to repeat the Miranda rights before each successive interview.

On cross-examination, Investigator Jones reiterated much of his direct testimony. He added, during the second statement, that the appellant initially denied selling the pistol to Eugene Dunn (actually Miss Eubanks) but when Investigator Jones suggested that they go to Mr. Dunn's residence to make sure that he had picked up the right person, the appellant admitted selling it to Mr. Dunn.

Appellant challenges the sufficiency of the State's evidence, which is based primarily upon circumstantial evidence. Initially, we note that the State established the corpus delicti of the crime prior to the admission of appellant's statements through the testimony of the victim. Tice v. State, Ala.Cr.App., 386...