Harris v. State
| Decision Date | 31 January 1984 |
| Docket Number | 6 Div. 999 |
| Citation | 451 So.2d 406 |
| Parties | Winford Ray HARRIS, alias v. STATE. |
| Court | Alabama Court of Criminal Appeals |
John A. Bivens, England & Bivens, Tuscaloosa, for appellant.
Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
A jury found this appellant guilty of robbery in the first degree under the first count of an indictment, as follows:
"The Grand Jury of said County charges that before the finding of this Indictment WINFORD RAY HARRIS, ALIAS BILLY RAY HARRIS, ALIAS WINFRED RAY HARRIS, ALIAS WINFRED HARRIS, ALIAS 'BO', whose name is otherwise unknown to the Grand Jury, did in the course of committing a theft of one (1) J.C. Penney brand automobile type stereo cassette player, a better description of which is otherwise unknown to the Grand Jury, the property of J.C. Penney Co., Inc., a corporation, threatened the imminent use of force against the person of Larry Pate, a person present, with the intent to compel acquiescence to the taking of or the escaping with the property, while the said WINFORD RAY HARRIS, ALIAS BILLY RAY HARRIS, ALIAS WINFRED RAY HARRIS, ALIAS WINFRED HARRIS, was armed with a deadly weapon, to-wit: a knife, inviolation of Section 13A-8-41 of the Code of Alabama."
A sentence hearing was duly conducted at which the State invoked the provisions of the Habitual Felony Offenders Act, after having given due notice thereof to the defendant, and established by the evidence that he had been previously convicted of three felonies. The trial court fixed his punishment at imprisonment for life without parole pursuant to Alabama Criminal Code § 13A-5-9(c)(3).
The defendant, an indigent prisoner, was represented in the trial court by an attorney of the Tuscaloosa County Public Defender's Office. Within, but barely within, the time for filing a motion for a new trial, a pro se handwritten motion, captioned "Motion For a New Trial, Or Motion To Reduce Sentence and Motion For Appointment of Counsel " was filed by defendant. Except for that aspect of the motion asking for the appointment of counsel, the motion was overruled by the court. In accordance with the aspect of the motion asking for the appointment of counsel asserting that defendant had been denied effective assistance of counsel and a request by defendant's trial counsel "that our office be withdrawn as attorney of record in this case and that other counsel be appointed for the appeal of the conviction," the trial court appointed another experienced attorney of the Tuscaloosa Bar to represent appellant, who has ably presented two contentions for a reversal, which we now consider.
The first issue presented by appellant is thus captioned in appellant's brief:
"THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY REFUSING TO GIVE THE DEFENDANT'S REQUESTED CHARGES WHEN THE COURT FAILED TO SUBSTANTIALLY COVER THE INFORMATION COVERED IN THE REFUSED CHARGES."
Defendant's requested written charges, No. 5, 6, 7, and 8 are charges pertinent to lesser included offenses of robbery in the first degree. Although we are not persuaded that appellant is correct in his contention that it was reversible error for the trial court to have refused any of such charges, such charges pertained also to a vital question as to whether there was sufficient evidence to warrant a conviction of defendant of robbery in the first degree, which we will hereinafter consider.
Appellant captions the second issue presented by him as follows:
"THE TRIAL COURT COMMITTED GROSS PREJUDICIAL ERROR WHEN IT DENIED DEFENDANT'S REQUEST FOR A CONTINUANCE WHICH DENIED DEFENDANT AN OPPORTUNITY TO ADEQUATELY PREPARE A DEFENSE."
Before the commencement of the trial of this case, there was a lengthy in camera hearing conducted, in which defendant's counsel stated that he had represented defendant in a previous robbery case that was tried about three weeks before and was presided over by a judge of the Tuscaloosa Circuit Court other than the trial judge in the instant case and that at such time said attorney had "worked on both cases." The attorney stated further:
The colloquy among the trial judge, the Assistant District Attorney and the defendant continued, as shown by approximately two more pages of the court reporter's transcript, to the following conclusion of the trial court:
"...
Thereupon, the available jurors were called, questioned, qualified for the panel from which the jury that tried the case was selected, and the trial proceeded.
The only testimony in the case was by witnesses called by the State. According to the undisputed evidence, while the defendant was in the course of committing the theft of a cassette player owned by J.C. Penney Co., he was followed out of the store by an official of J.C. Penney Co. who brought him and the player back into the store. Upon their return to the interior of the store, Mr. Larry Pate, an automotive salesman of the store, called the telephone operator to alert the store security and the police. Mr. Pate testified, inter alia, as follows:
Mr. Harris got up and Mr. Lowe proceeded immediately behind him and I proceeded behind Mr. Lowe. And when I got out the door, Mr. Harris had turned around and was running back at Mr. Lowe.
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Cornelius Newman v. State (In re Newman.)
...or the attempt to flee with it. Here the property no longer existed and the theft had ceased before force was used. In Harris v. State, 451 So.2d 406 (Ala.Crim.App.1984), store personnel recovered a stolen cassette player before a perpetratorpulled a knife and ran from the store. The theft ......
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Ingram v. State
...rather, was used only after the stolen property had been returned to its owner. Casher, 469 So.2d at 680, quoting Harris v. State, 451 So.2d 406, 410 (Ala.Crim.App.1984). However, in Buchannon v. State, 652 So.2d 799 (Ala.Crim.App.1994), this Court "We hold that as long as the flight, pursu......
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Buchannon v. State
...pointed the weapon at the [store] personnel"). Compare Casher v. State, 469 So.2d 679, 680 (Ala.Cr.App.1985), and Harris v. State, 451 So.2d 406, 410 (Ala.Cr.App.1984) (when victim had already regained control of stolen property, accused's use of force was to resist apprehension, not to esc......
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Gordon v. State, 8 Div. 306
...since the "force" or "physical resistance" did not occur until after the property was abandoned. Id.; citing Harris v. State, 451 So.2d 406, 410-11 (Ala.Crim.App.1984); Annotation, 93 A.L.R.3d 643 Both Sapp and Casher are distinguishable, however, as aptly stated in the State's brief. State......