Hammond v. State, 6 Div. 359

CourtAlabama Court of Criminal Appeals
Citation497 So.2d 558
Docket Number6 Div. 359
PartiesNelson HAMMOND v. STATE.
Decision Date12 February 1986

Page 558

497 So.2d 558
6 Div. 359.
Court of Criminal Appeals of Alabama.
Feb. 12, 1986.
Rehearing Denied March 11, 1986.
Certiorari Quashed Nov. 14, 1986
Alabama Supreme Court 85-701.

William M. Dawson and George H. Jones, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., and Gerrilyn V. Grant, Asst. Atty. Gen., for appellee.


The appellant, Nelson Hammond, was indicted in a two-count indictment for the offenses of felony murder and of robbery in the first degree, as proscribed by § 13A-6-2(a)(3) and § 13A-8-41, Code of Alabama 1975, respectively. A jury found Hammond guilty of first degree robbery and he was consequently sentenced to imprisonment for a term of twenty years.

Page 559

The prosecution's evidence, in the light more favorable to the prosecution, tended to establish the following facts:

On November 20, 1982, at approximately 6:30 p.m., Hammond entered Joseph Alfano's grocery store and bought cigarettes. Alfano knew Hammond because Hammond had been coming into his store frequently for the past ten or fifteen years. At approximately 7:00 p.m., Alfano closed his store and walked toward his truck with his thirteen-year-old son, Chris, and his employees, Odell Hudson and John Williams. Chris unlocked the driver's door to his father's truck, which was parked in front of the store, put the keys in the ignition, and sat on the passenger's side. While Hudson and Williams walked along the passenger's side of the truck to put groceries in the truck and while or after Alfano got into his truck, a robber wearing a green and blue ski mask and holding a sawed-off shotgun ordered Alfano to lie down on the ground. Alfano complied. While Alfano was lying on the ground, the masked man took from Alfano a .45 automatic pistol, which was loaded, and a wallet containing from $250 to $300. Although Alfano did not see another individual, two people repeatedly asked him, with obscenities, where the rest of the money was. Alfano finally answered that it was in the cigarette box in the truck. Alfano was of the opinion that these two voices were those of two black males.

Sometime during the robbery, this second robber, who was wearing a blue and red mask, bent over into the truck through the driver's door, pointed a pistol at Chris, and asked if Chris had any money. After Chris answered, "No," the second robber quickly looked around the interior of the truck and then left and Chris crouched down. Then, two shots were fired; Alfano was shot in the left arm and the robber wearing the green and navy ski mask was killed by a shot from a .45 caliber pistol. According to Alfano, he was shot first; then he hollered to his son; and then a second shot was fired. Chris did not see who fired these shots, but he did rise up in time to see a masked man run away. Neither did Alfano see who shot him or the robber, but after the shots, he also saw a masked man fleeing toward the railroad tracks. He looked beside him and saw his keys and a man lying on the ground. A double-barrel 12-gauge sawed-off shotgun containing two live rounds was lying over the robber's right arm. In his right front pants pocket were two more 12-gauge shells. The dead man was later identified as Johnny Earl White (subsequently referred to herein as Earl). Earl had also been a customer at the grocery, but Alfano did not think he had been in the store on that particular day.

Earl resided three and a half blocks from the grocery with, among others, his mother and his brothers, Stanley and Owen. Stanley testified at trial that, between 4:30 p.m. and 5:00 p.m. on the day of the robbery, he saw Aaron Turner and Hammond talking with his brother Earl out in the yard of the White residence. He further stated that, as he was walking by the group, he overheard Earl tell Turner that he wanted Turner to return his shotgun, that he was going to rob someone. Turner replied that he could get his shotgun. In addition, Stanley testified that the three men stayed for ten to fifteen minutes and then left in Hammond's car. Stanley saw Earl again around 6:15 p.m. He was alone and not carrying a shotgun. Owen corroborated Stanley's testimony that Earl and Hammond were in the yard at the White residence at approximately 4:30 or 5:00 p.m. Owen also testified that he first saw the two together that morning.

Turner testified that, at approximately 6:00 p.m., Hammond and Earl came to his mother's house to get Earl's shotgun, but the weapon was at his house, so the three went in a car driven by Hammond to Turner's house. Turner further explained that the three went inside, Turner gave Earl the shotgun, and Earl and Turner drank some whiskey. He also stated that during the ten- to fifteen-minute visit, in Hammond's presence, Earl told him that "he needed some money and he had to go get him some money" and that "he missed Alfano or

Page 560

something the night before and he was going to rob him." He identified the shotgun found on Earl's body as that belonging to Earl.

Hammond was arrested at 10:58 p.m. on the same evening of the robbery of Alfano and the killing of Earl. Sergeant Ballard, a homicide detective with the Birmingham Police Department, interviewed Hammond at City Hall after he was advised of his Miranda rights, waived them, and signed a standard waiver form. In his statement, given at 11:56 p.m., Hammond stated that, at approximately 5:00 or 5:30 p.m., he went to Avondale for ten to fifteen minutes; that he got home at 6:00 or 6:30 and let Earl out; that after helping his mother, he drove in his car to a game room (located on the same side of the street as the grocery, but separated by railroad tracks) and spent a dollar playing a video game called "Pac Man"; that he then went to Alfano's and bought some cigarettes and potato chips; and that he then crossed the street and stood on the corner, where he saw "two dudes" come around the corner, heard Alfano holler, and saw Alfano's employees run. Hammond further stated that he then left in his car, arrived at his girl friend's house at 7:03, and stayed there until 10:00 or 10:30 p.m.

Two days later, November 22, Hammond gave a second statement at 4:21 p.m. while in the city jail. Again, he waived his Miranda rights, after being advised of them, and he signed a waiver form. During this second interview, Hammond extended his first statement by giving the following version of events: He met Earl at a crap game; he took Earl to Avondale at Earl's request and then to Turner's mother's house, where Turner joined them; then the three went to Turner's house, where Turner and Earl went inside. He left there sometime between 6:00 and 6:30, went home and helped his mother, and then went to the game room and then to Alfano's grocery. From there, he went across the street and while he was smoking, he saw Alfano and his son; he saw the younger Alfano get into the truck; and then he saw two men, one wearing a long black coat and the other wearing a light-colored jacket, come from around the building. He left in his car after he heard Alfano holler and saw the employees run away. Hammond further added that, after he and Earl took Turner somewhere after the three had left Turner's house, he picked up a man named Tatum Madison; he left Madison and Earl beside the grocery store; and, then, he parked his car across from the store and went to the game room.

Although Hammond was incarcerated on November 20 at approximately 11:00 p.m., an arrest warrant was not obtained until November 23. The Birmingham police were restricted by a policy which required that a warrant be secured within seventy-two hours of the accused's arrest. Although Hammond was incarcerated for roughly sixty-six hours, without the issuance of a warrant, according to Sergeant Ballard, Hammond never asked how long he was going to be at the city jail, with what was he charged, or whether he could be released on bond.

After a warrant was secured and after Sergeant Ballard interviewed Madison, Hammond gave a final statement at 5:58 p.m. at the city jail. This interview was conducted on the advice of the District Attorney's office. This statement was given after Hammond was advised of and had waived his Miranda rights a third time, as evidenced by his signature on a waiver form. In this statement, which was recorded on tape, Hammond stated the following: On November 19, Earl approached him on the porch at the game room and asked him if he wanted to make some money. Then Earl called Madison over and said that since it was raining, it would be a good night to "get" Alfano, which Hammond took to mean rob Alfano. After Hammond responded to Earl that he "couldn't handle it," he went into the game room and Madison and Earl left. When he saw Earl at a crap game the following day, Earl offered him five dollars to take him to Avondale, so Hammond took him. They went to someone's house, but the person Earl wanted to see was not there, so they waited. When

Page 561

the man arrived, Earl went with him into a back room while Hammond stayed in the living room. When Earl and Hammond left, neither had anything in his hands. During this time with Earl, no plans of the robbery were discussed. After they returned from Avondale, they went to Turner's mother's house and Earl got Turner, while Hammond remained in his car. Then, the trio went to Turner's house so that Turner could give Earl a shotgun, and while they were smoking "a couple of joints," Turner brought a shotgun from the back room. Then, Earl and Hammond left and went to Madison's house, where an agreement was reached by Hammond, Earl, and Madison. In accordance with the agreement, Hammond was to meet Madison and Earl in an alley two blocks from Alfano's store after the store closed; Madison and Earl were going to run there after the robbery and Hammond was to take them back to Madison's house. Hammond then took them to Alfano's grocery. Madison told Hammond that he did not have...

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