James v. State
| Decision Date | 14 April 1989 |
| Docket Number | 1 Div. 733 |
| Parties | Robert JAMES and Darryl Eugene Smith v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Gilbert Laden, Mobile, for appellant Robert James.
Pete J. Vallas, Mobile, for appellant Darryl Eugene Smith.
Don Siegelman, Atty. Gen., and Andy S. Poole, Asst. Atty. Gen., for appellee.
The appellants, Robert James and Darryl Eugene Smith, were found guilty of robbery in the second degree, in violation of § 13A-8-42, Code of Alabama 1975, for robbing a convenience store clerk. Robert James was sentenced to 20 years' imprisonment and Darryl Smith was sentenced to life in prison.
Appellants Smith and James both argue that the court erred in denying their motions for judgment of acquittal. Specifically, they argue that the state failed to prove the offense by failing to prove the existence of a weapon. Appellant Smith also argues that there was a material variance between the indictment and the proof of the offense. Appellants were indicted under § 13A-8-41, Code of Alabama 1975, which describes robbery in the first degree, and were found guilty of robbery in the second degree, a violation of § 13A-8-42, Code of Alabama 1975.
Section 13A-8-41, Code of Alabama 1975, provides:
Robbery in the second degree is defined in § 13A-8-42, Code of Alabama 1975, as follows:
Section 13A-8-43, Code of Alabama 1975, states:
We have often ruled that the presence of a gun at the place and time of the incident need not be proven by the state in order to find a defendant guilty of robbery in the first degree. See Breedlove v. State, 482 So.2d 1277 (Ala.Cr.App.1985).
As Judge Bowen stated in James v. State, 405 So.2d 71 (Ala.Cr.App.1981):
"[A]n accused need not even be armed with a deadly weapon or dangerous instrument where (1) he possesses any object reasonably believed to be a deadly weapon or dangerous instrument or represents in some manner that he has one and (2) there is no evidence to rebut or refute this reasonable belief or representation." Id. at 73.
The test to determine whether a person reasonably believes that an object is a deadly weapon is a "subjective" one. Breedlove, supra, at 1281. "A victim who is threatened with a supposed weapon which is concealed is put in the same degree of fear and feels as strongly compelled to comply with the robber's demands as a victim who is threatened with a weapon which is openly displayed." Breedlove, at 1281.
Here, the victim of the robbery testified that "he had his hand in his pocket and gestured as if he had a pistol." She also stated that one of the robbers said From the facts, the court could have found both appellants guilty of robbery in the first degree. The court did find each appellant guilty of robbery in the second degree. This would normally not be cause for complaint from an appellant, but appellant Smith states that he could not be convicted of robbery in the second degree since it is not what was charged in the indictment. A defendant may be convicted of a lesser included offense of the offense charged in the indictment. See, Doss v. State, 220 Ala. 30, 123 So. 231 (1929).
As appellant Smith correctly states, "to be a lesser included offense of one charged in an indictment, the lesser offense must be one that is necessarily included, in all of its essential elements, in the greater offense charged." Payne v. State, 391 So.2d 140, 143 (Ala.Cr.App.), writ denied, 391 So.2d 146 (Ala.1980), or unless it is so declared by statute.
Generally, robbery in the second degree is not a lesser included offense of robbery in the first degree. See, Lidge v. State, 419 So.2d 610 (Ala.Cr.App.), writ denied, 419 So.2d 616 (Ala.1982). However, in a limited circumstance, robbery in the second degree can become a lesser included offense. As Judge Bowen stated in Lidge, supra, at 613:
In the present case, robbery in the second degree was correctly treated as a lesser included offense of robbery in the first degree. The court committed no error in denying both James and Smith's motions for judgment of acquittal.
Appellants both further argue that the trial court erred in failing to suppress the in-court identification of them by the victim. They both contend that they were subjected to an impermissibly suggestive out-of-court "show-up." The victim, Ms. Moore, identified each of the appellants at a "show-up" within two hours after the robbery.
As this court stated in Brazell v. State, 369 So.2d 25 (Ala.Cr.App.1979), "a certain degree of suggestiveness is inherent in the show-up identification procedure." Further, "the admission of evidence of a show-up without more does not violate due process of law."
As the Supreme Court of the United States stated in Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977), "reliability is the linchpin in determining admissibility." The following five factors are evaluated when determining the reliability of identification testimony:
"(1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness's degree of attention; (3) the accuracy of his prior description of the criminal; (4) the level of certainty demonstrated at the identification; and (5) the time between the crime and the identification."
Walker v. State, 523 So.2d 528, 533 (Ala.Cr.App.1988); Phillips v. State, 462 So.2d 981, 988 (Ala.Cr.App.1984); Flowers v. State, 402 So.2d 1088, 1092 (Ala.Cr.App.), cert. denied, 402 So.2d 1094 (Ala.1981).
When considering the constitutionality of the pre-trial identification, we use the two-prong test discussed in Brazell. The first inquiry is "whether the initial identification was unnecessarily or impermissibly suggestive." 369 So.2d at 28. If this first inquiry is answered in the affirmative, the inquiry then proceeds to whether such a tendency gave "rise to a...
To continue reading
Request your trial
-
Johnson v. State
...S.Ct. 375, 34 L.Ed.2d 401 (1972)." Young v. State, 563 So.2d 44, 46 (Ala.Crim.App.1990) (citations omitted). See also James v. State, 549 So.2d 562 (Ala.Crim.App.1989); Johnson v. State, 453 So.2d 1323 (Ala.Crim.App.1984). There is absolutely no evidence in the record that indicates any sug......
-
Hopson v. State
...140, 143 (Ala. Cr. App.), writ denied, 391 So.2d 146 (Ala. 1980), ... unless it is so declared by statute." " ‘ James v. State, 549 So.2d 562, 564 (Ala. Cr. App. 1989). "Whether a crime constitutes a lesser-included offense is to be determined on a case-by-case basis." Aucoin v. State, 548 ......
-
Williams v. State
...391 So.2d 140, 143 (Ala.Cr.App.), writ denied, 391 So.2d 146 (Ala.1980), ... unless it is so declared by statute.’ “James v. State, 549 So.2d 562, 564 (Ala.Cr.App.1989). ‘Whether a crime constitutes a lesser-included offense is to be determined on a case-by-case basis.’ Aucoin v. State, 548......
-
Huff v. State
...demonstrated at the time of identification, we find that the identification testimony was sufficiently reliable. James v. State, 549 So.2d 562 (Ala.Cr.App.1989). Although it appears from the record that the witness's first identification of the appellant did not occur until three or four we......