James v. State, 6 Div. 529
| Decision Date | 06 October 1981 |
| Docket Number | 6 Div. 529 |
| Parties | Jeremiah JAMES v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Jan M. Eberhardt and James G. Stevens, Birmingham, for appellant.
Charles A. Graddick, Atty. Gen., J. Anthony McLain, James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
The defendant was indicted and convicted for robbery in the first degree. Section 13A-8-41, Alabama Code 1975 (Amended 1977). Sentence was life imprisonment without parole under the Habitual Felony Offender Act.
The defendant maintains that his motion to exclude the State's evidence should have been granted because the State failed to prove that the defendant was armed with a pistol as charged in the indictment in that the victim never actually saw the weapon.
The indictment charged that the defendant committed the crime of robbery while "armed with a deadly weapon, a pistol." The evidence reveals that, while no weapon was actually displayed, the defendant, by placing his hand inside his coat pocket, gave the victim the impression that he was armed with a pistol. While it is without dispute that no one at any time actually observed the defendant with a pistol, it is equally without dispute that the victim thought he had one. The victim's testimony on this point is best summarized in the following portion of the record.
The relevant portions of Section 13A-8-41, Alabama Code 1975 (Amended 1977), defining robbery in the first degree, provide:
"(b) Possession then and there of an article used or fashioned in a manner to lead any person who is present reasonably to believe it to be a deadly weapon or dangerous instrument, or any verbal or other representation by the defendant that he is then and there so armed, is prima facie evidence under subsection (a) of this section that he was so armed."
The comments to Section 13A-8-44 are helpful in deciding the issue under review.
A conviction of first degree robbery does not require evidence that the accused brandished or displayed any weapon. Indeed, in order to be convicted of first degree robbery an 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. To find as a matter of law that where a gun is not seen a defendant cannot be convicted of first degree robbery would allow all would-be robbers to keep a gun or other dangerous weapon concealed during the crime to be used only if needed. State v. Cooper, 140 N.J.Super. 28, 354 A.2d 713 (1976). Under our statute, such an interpretation would defeat the intent of the legislature and "basic theory" of the statute to "protect the citizen from fear for his or another's health and safety."
Here the defendant's actions instilled in the victim the reasonable belief that he was armed with a pistol. Under Section 13A-8-41(b) this constituted prima facie evidence 1 that the defendant was so armed. Since there was no evidence to rebut this presumption and as the State proved all the other elements of robbery in the first degree, the defendant's conviction must stand.
The defendant argues that the Habitual Felony Offender Act, Section 13A-5-9, Alabama Code 1975 (Amended 1977), should be applied prospectively so as to punish only those repeat offenders who have committed and been convicted of all of their crimes after January 1, 1980 the effective date of Section 13A-5-9 and Alabama's new criminal code. Section 13A-1-7.
Regardless of whether the term "retroactive" or "ex post facto" is employed, the argument advanced by the defendant is essentially the same as that presented and decided adversely to the defendant's position in Smith v. State, 392 So.2d 1273 (Ala.Cr.App. 1980); Watson v. State, 392 So.2d 1274 (Ala.Cr.App. 1980), cert. denied, 392 So.2d 1280 (Ala. 1981); Wilson v. State, 371 So.2d 932 (Ala.Cr.App. 1978), affirmed, 371 So.2d 943 (Ala. 1979). The obvious intent of the legislature in enacting the Habitual Felony Offender Act was to authorize the infliction of a more severe...
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