Jelks v. State
| Decision Date | 29 December 1981 |
| Docket Number | 6 Div. 632 |
| Citation | 411 So.2d 844 |
| Parties | Tyrone JELKS v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Tim W. Bice, Bessemer, for appellant.
Charles A. Graddick, Atty. Gen., and Rivard Melson, Asst. Atty. Gen., for appellee.
The Grand Jury of Jefferson County Circuit Court, Bessemer Division returned an indictment against the appellant, Tyrone Jelks, charging him with the offense of robbery in the third degree, a class c felony. He entered a plea of not guilty. A jury returned a verdict finding the appellant guilty of theft of property as charged in the indictment, and fixing the value of the stolen property at $26.00. After a sentencing hearing, the trial court found from evidence presented by the state and the appellant, that the appellant had two prior felony convictions, and sentenced the appellant to ten years in the penitentiary. The appellant appeals to this Court.
The appellant was represented at all proceedings in the trial court by counsel of his choice, and is represented in this Court by different counsel appointed by the trial court. This appeal was submitted to this Court on briefs.
The appellant states in his brief eight reasons why his conviction should be reversed because the trial court committed prejudicial error: (1) In not granting appellant's timely motion to exclude, and in not allowing appellant to motion the court, out of the jury's presence, relative to witness Stroud's testimony concerning appellant's photograph; (2) In overruling appellant's timely objection to non-responsive answer, and overruling appellant's timely motion to have answer excluded; (3) In failing to give appellant's request for jury instruction six after the court marked said instruction given; (4) In overruling appellant's motion to dismiss, and motion for a directed verdict on the basis that the state failed to prove a prima facie case of robbery, or other lesser included offense, to-wit: Theft, as charged in the indictment; (5) In allowing into evidence a statement given by the appellant to the police without appellant being given his constitutional rights after this incident shifted from the investigatory stage to accusatory stage; (6) In overruling appellant's timely objection, and motion to exclude state's question from the jury; (7) In not dismissing the charge against appellant on the plea of former jeopardy; and (8) In sentencing appellant under the statutes which enhanced punishment for habitual criminals and successive offenses.
State's evidence tended to prove that on March 15, 1980 state's witness Culpepper was working as a security agent in the J. C. Penny Store in Western Mall, in Fairfield, located in the Bessemer Division of Jefferson County, Alabama. That about 2:45 P. M. Culpepper saw the appellant leave the store, and later saw him re-enter the store. That about 3:30 P. M. Culpepper saw the appellant remove a shirt on a hanger from a rack of shirts in the store, and saw appellant take the shirt to another rack of dissimilar shirts, and lay the shirt into the rack of dissimilar shirts, and strip the shirt off its hanger, roll it up, clutch it with both hands, and walk into the blue jean section of that department of the store. In the blue jean section, appellant, with his back to Culpepper, pulled back some blue jeans on a rack, and stepped into the rack of blue jeans, and bent or stooped down, and started fondling with the waist part of his pants or body. At this time Culpepper could not see appellant's hands. That after about fifteen seconds the appellant stood up, stepped away from the blue jeans, and started walking out of that department of the store. Witness Culpepper had been observing the appellant through a one-way window in a security room overlooking the men's department, and when the appellant began to leave the department, Culpepper left the security room, checked the shirt rack where he had seen the appellant take the shirt from its hanger, found the hanger, walked to the blue jeans where appellant had stood, looked underneath the blue jeans to see if appellant had dropped the shirt there. That Culpepper did not find the shirt among the blue jeans. That the value of the shirt was $26.00.
State's evidence further tended to prove that Culpepper summoned his assistant, and followed the appellant, and as they walked out into the parking lot another associate joined them, and when Culpepper and his associates went out the J. C. Penny door, the appellant was some ten or twelve feet ahead of them. The appellant was walking toward his car, and as Culpepper and his associates came up to the appellant, Culpepper spoke to the appellant, and identified himself as J. C. Penny security agent, and asked the appellant to stop. The appellant ignored the request to stop, and replied that he didn't have anything to talk to Culpepper about. Culpepper and his associates then ran up behind the appellant in an attempt to question him, and the appellant turned around with a drawn knife, and threatened to cut anyone of the three security personnel who touched the appellant. When the appellant drew the knife, and threatened to cut anyone who touched him, the security guards, being unarmed, withdrew, but when appellant ran for his car, the security guards followed him, and arrived at appellant's car at about the same time as the appellant. As the appellant was getting in on the driver's side, Mr. Culpepper observed a shirt on the passenger side of the back seat of appellant's car that looked the same color and description as the one Culpepper had seen appellant take from the hanger in the store and roll up. The appellant then drove away. One of the security guards took down the number of the car tag. That Culpepper followed the appellant, who drove to 5118 Avenue C. in Fairfield, and got out of the car, and entered the residence at that address.
State's evidence further tended to prove that Culpepper then went to the Fairfield Police Department, and got Officer Stroud to go to 5118 Avenue C. in Fairfield, and knock on the door, and that there was no answer, and then Culpepper and Officer Stroud returned to the Fairfield Police Department. That when they arrived back at the Police Department, it had been about thirty or forty minutes after the time the appellant had drawn the knife on Culpepper and his associates in the parking lot at J. C. Penny's Store, in about five minutes the appellant walked in. That on a computer check of the tag number the security guard had taken from the car as it left the parking lot at J. C. Penny's Store, it was determined that the tag was issued to a person by the name of Jelks. That Officer Stroud immediately pulled from his files photographs of Mr. Tyrone Jelks, and showed them to Mr. Culpepper and his associate. Officer Stroud then arrested appellant on a warrant signed by Mr. Culpepper charging appellant with theft in the third degree, and menacing. The warrants were returnable to Fairfield Municipal Court. Both charges were later dismissed without a hearing on the request of Officer Stroud. The appellant was present at the Fairfield Municipal Court when the charges were dismissed, but he was not called before the Court.
The appellant's evidence consisted of one witness, Mr. Culpepper, whose testimony was substantially the same as given on direct examination when first called by the state. The appellant did not testify.
The first error complained of by the appellant in his brief is that the trial court erred to his prejudice by not granting appellant's timely motion to exclude, and in not allowing appellant to motion the court out of the jury's presence relative to witness Stroud's testimony concerning appellant's photographs. We quote from the record, during the direct examination of state's witness, Officer Stroud, by state's counsel, Mr. Tucker.
We have searched the record and do not find where the appellant assigned any grounds for his objection or motion. It has long been the law in this state that objections to the admission of evidence must be made at the time the evidence is offered, and must state the specific grounds so that the trial court may rule on the matter. Grounds of objection should not be raised for the first time on appeal. The appellant did not raise the issue of prejudice of the witness' answer during the course of the trial. He raised the issue for the first time in his brief filed in this Court. We find no prejudicial error in the court's ruling. Starling v. State, Ala.Cr.App., 398 So.2d 337, certiorari denied, Ala., 398 So.2d 342; Johnson v. State, Ala.Cr.App., 364 So.2d 1187, certiorari denied, Ala., 364 So.2d 1190; Slinker v. State, Ala.Cr.App., 344 So.2d 1264.
The second error complained of by the appellant in his brief is that the trial court erred to his prejudice by not allowing appellant's motion to exclude an answer made by state's witness, Mr. Culpepper, during appellant's cross-examination. We quote from the record.
To continue reading
Request your trial
-
Crowe v. State
...questions have been asked, is admissible against the defendant even though he has not been given his Miranda warnings." Jelks v. State, 411 So.2d 844 (Ala.Cr.App.1981); Ervin v. State, 399 So.2d 894 (Ala.Cr.App.), cert. denied, 399 So.2d 899 (Ala.1981); Terry v. State, 397 So.2d 217 (Ala.Cr......
-
Boggan v. State
...397 So.2d 223 (Ala.1981); Ervin v. State, 399 So.2d 894 (Ala.Crim.App.), cert. denied, 399 So.2d 899 (Ala.1981); Jelks v. State, 411 So.2d 844 (Ala.Crim.App.1981). The appellant's statement to Sergeant Gay was spontaneous, voluntary and not prompted by questioning. A careful review of the c......
-
Johnson v. State
...from raising this objection under the doctrine of invited error. Gibson v. State, 555 So.2d 784 (Ala.Crim.App.1989); Jelks v. State, 411 So.2d 844 (Ala.Crim.App.1981). Furthermore, we note that the charge did not constitute an erroneous statement of In a one-sentence argument, the appellant......
-
Sharifi v. State, CR-04-1185.
...applied to possible error resulting from the defendant's request for a particular jury instruction. E.g., Jelks v. State, 411 So.2d 844, 848 (Ala. Crim.App.1981); Burke v. State, 18 Ala.App. 152, 89 So. 162, 164 (1921); People v. Clements, 316 Ill. 282, 147 N.E. 99 (1925); Partee v. State, ......