Higginbotham v. Com.
| Decision Date | 10 October 1975 |
| Docket Number | No. 741120,741120 |
| Citation | 216 Va. 349,218 S.E.2d 534 |
| Court | Virginia Supreme Court |
| Parties | Epoch Tacoma HIGGINBOTHAM v. COMMONWEALTH of Virginia. Record |
William P. Harris, Lynchburg, for plaintiff in error.
Alan Katz, Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen., on brief), for defendant in error.
Before I'ANSON, C.J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.
Epoch Tacoma Higginbotham (defendant or Higginbotham) was tried and convicted by a jury of robbery and first degree murder and his punishment was fixed at a total of 40 years confinement in the state penitentiary. Sentences were pronounced by the trial court on these verdicts. We granted a writ of error to review the defendant's claim that the evidence adduced at trial is insufficient to sustain his convictions.
Fredrick Allen Sechrest, Jr. (Sechrest), who was employed at Little Joe's Mini Market (Little Jose's) in Amherst County, was robbed and murdered at his place of employment on the afternoon of January 1, 1974. The Commonwealth's evidence against the defendant was wholly circumstantial.
Kenneth B. Waller (Waller), who subsequently discovered Sechrest's body, saw Sechrest standing near some 'drink boxes' outside Little Joe's between 4:18 and 4:20 p.m. as Waller drove by the store. He blew his horn and 'waved at (Sechrest)' who 'waved back.' There were no cars in Little Joe's lot at that time. Waller drove his car into the parking lot of a shopping center 'almost directly across' the highway from Little Joe's. He entered a store in the shopping center where he remained for 'probably five minutes.' Reentering his car, Waller drove to the highway where he stopped and waited for 'a couple of cars to go by.' He then drove across the highway and entered Little Joe's lot. A blue Chevrolet owned by Randolph Thomas (Thomas) entered the lot at approximately the same time Waller arrived there. Upon his arrival, Waller observed only one parked car, a 'brownish-tan Dodge', in the lot. As Waller 'pulled up and stopped', a man that Waller could not identify, 'came out of the store and went by (Waller's) car.'
Waller and Thomas entered the store together. Waller testified: Waller further testified: He was laying face down and blood was coming out of his back.' Waller 'glanced' at the open cash register and saw 'nothing but change.' He then used the store telephone to report to the sheriff's office what he had discovered. Waller and Thomas remained at the store until the arrival of a deputy sheriff a short time later.
Deputy Sheriff B. W. Bailess testified that he arrived at Little Joe's at 4:33 p.m. in response to a radio call from the sheriff's dispatcher at 4:30 p.m. When he entered the store Deputy Bailess found Waller, Thomas and two other men waiting there. Bailess did not see Sechrest's body until he was told to look behind the counter. He looked at the body, which was lying face down behind the cashier's counter near the front of the store, and observed two gunshot wounds, one of which was 'about the head' and the other 'in the back--upper part of the back, down below the neck.' Bailess testified that he noticed that the drawer of the cash register was open. His testimony shows that the store had only one usable entrance.
Henry Brockman, another deputy sheriff who participated in the investigation, testified that there was only one usable entrance to the store and that the other doors were 'fixed' so that they could not be opened and that the store windows were 'secured' by the use of screens and bars. Brockman participated in the defendant's arrest 'after midnight' on January 2 at the defendant's apartment in nearby Lynchburg. He testified that he did not 'find a gun', although he was looking for one, either on the defendant's person or in his apartment.
Don Wayne Doyle testified that he had worked at the store from 8:00 a.m. until he was relieved by the victim. Around 3:00 p.m. Doyle had ascertained that the cash register contained several checks, $720 in bills and an undetermined amount in coin. When Doyle left Little Joe's at 4:10 p.m., the victim and three lady customers were in the store. As Doyle drove away from the store, he observed that only one car remained in the parking area.
Allen Theodore King testified that on the afternoon of January 1 he was riding with the defendant in the latter's automobile in the vicinity of Little Joe's Mini Mart. They first 'went past' the store, then 'turned around and went back . . . to buy some wine.' Higginbotham parked the car, a 'beige-yellow' Dodge, with the front 'pointed opposite to' the highway. There were no other cars in Little Joe's lot when King and the defendant arrived 'right around 4:00 o'clock or 4:30.' The defendant entered the store while King remained in the car and listened to the radio. Higginbotham came out of the store in 'approximately a minute or so' carrying a bottle of wine. King testified that the defendant told him that 'he was going to get right, . . . threw (the wine) in the car and told me to turn the car around.'
While King was turning the car, Higginbotham again entered Little Joe's where he remained for 'about a minute or so.' When the Waller and Thomas cars entered the lot, the defendant came out of the store, got into his car and said to King, 'let's go.' King then drove the car from Little Joe's to the defendant's home in Lynchburg. Asked if he heard 'any noise' while the defendant was in the store, King responded: 'No sir, I was listening to the radio while (Higginbotham) was in the store.' When asked about the elapsed time between his arrival at Little Joe's and his departure from there, King answered:
James E. Moss, the owner of Little Joe's, arrived at the store around 4:40 p.m. Moss testified that the only currency in the cash register was 'eight or nine' twenty dollar bills which were concealed by 'some checks' in a compartment of the cash drawer. Moss testified that the store had only one usable entrance and that the windows were barred.
The foregoing constituted the Commonwealth's evidence. In his own behalf, the defendant testified that he went into Little Joe's on the afternoon of January 1. Upon entering the store through the door on the 'right side,' he glanced toward the cashier's counter on the 'left side' and did not see anyone there. He then went to 'a...
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