Jenkins v. State, 4 Div. 754

• Citation: 384 So.2d 1135
• Decision Date: 20 November 1979
• Docket Number: 4 Div. 754
• Parties: Charlie Lewis JENKINS, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1135

384 So.2d 1135

Charlie Lewis JENKINS, alias v. STATE.

4 Div. 754.

Court of Criminal Appeals of Alabama.

Nov. 20, 1979.

Rehearing Denied Dec. 18, 1979.

J. Fletcher Jones, W. Sidney Fuller, Andalusia, for appellant.

Charles A. Graddick, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for appellee.

BOOKOUT, Judge.

Robbery; sentence: life imprisonment.

In the early morning hours of August 29, 1978, the appellant along with two accomplices robbed a Zippy Mart in Andalusia of three six packs of beer, a bag of potato chips, a can of meat, some magazines, and approximately $190. During the course of the robbery, the attendant, John Ezra Brown, was killed. See Coon v. State, Ala.Cr.App., 380 So.2d 980 (1979). The appellant did not participate in the commission of the homicide, but rather drove the get-away car. Within thirty minutes of the robbery, he was apprehended.

I

The appellant filed a motion to exclude the State's evidence at the end of the State's case-in-chief and likewise challenges the sufficiency of the evidence on appeal. It is therefore necessary to recite a more detailed version of the facts. For this purpose our review is limited to the evidence which was before the court at the time the motion to exclude was made and is considered in its most favorable light for the prosecution. James v. State, Ala.Cr.App., 339 So.2d 1047, cert. denied, Ala., 339 So.2d 1052 (1976); Kent v. State, Ala.Cr.App., 367 So.2d 508, cert. denied, Ala., 367 So.2d 518 (1978).

Officer Tarris Woods of the Andalusia Police Department testified that around 2:13 a. m. he was on patrol and saw Huey Coon, Earnest Marvin, and the appellant standing near the appellant's car, a green 1969 Chrysler, which was parked in front of his residence. Officer Woods had a short conversation with them, and the appellant indicated that he was getting ready to go to the Zippy Mart for some beer. The robbery occurred some time within the next forty-five minutes.

Officer Woods testified, that after the victim was taken to the hospital, he was informed by a nearby service station manager that some men in a green car had frequented the store several times that evening. Remembering his prior conversation with the appellant and his friends, Officer Woods and Investigator Charlie Glass went to the appellant's residence. Upon their arrival Earnest Marvin ran from the house and was apprehended. Investigator Glass asked the appellant whether he had any beer in the house to which he affirmatively answered. The appellant showed Investigatory Glass eleven cans of cold Budweiser beer under a cake cover in the kitchen. The appellant said he had purchased the beer the prior afternoon at a Piggly Wiggly store. However, the beer was cold, it bore a price label later proved to be from the Zippy Mart, and appellant had just earlier told Officer Woods he was going there to buy some beer. The appellant was taken into custody and transported, along with the beer to the police station.

James McCurley, an area supervisory for Zippy Mart, testified that he visited the office of Investigator Glass later that morning and identified the pricing labels and price on the beer. Mr. McCurley stated that Budweiser beer had been on special at the Zippy Mart for some time at $2.09 a six pack which was reflected on the cans he identified. Afterwards Mr. McCurley arrived at the scene of the crime with Investigator glass and noticed the cash register open and indicating a sale of $3.58.

The appellant's confession, properly introduced into evidence without objection, indicated that upon entering the store early that morning he headed to the canned meat section and got some meat. He stated that he and Marvin had placed a six pack of Miller beer and bag of potato chips on the counter. The appellant said that it was at this time that Coon grabbed Mr. Brown and appellant left the store and went to his car. After the robbery the beer, potato chips, and magazines were placed in the car. The appellant drove to his residence wherein Marvin divided the money from the cash register and the victim's billfold into three portions, and Coon changed clothes. When Officer Woods and Investigator Glass arrived, the appellant picked up the remaining portion of the money and placed it in a coat pocket. He had a Miller beer in his hand when he opened the door. The money was later found and introduced into evidence without objection.

Rufus Anderson, the uncle of the appellant with whom he resided, testified that his wife found a billfold which belonged to Mr. Brown. He turned it over to the police. After being identified by Anderson, the victim's wallet and its contents were introduced into evidence without objection.

Richard McCurley, an employee of the Andalusia Zippy Mart, testified that normally premium beer sold for $2.65 a six pack except for the special price for Budweiser. He also stated that one size of potato chips sold for $.73.

Covington County Deputy Sheriff Howard Easley testified that upon arrival at the Zippy Mart around 7:00 a. m. he took into custody the register receipt tape. It indicated the last entry as consisting of the amounts of $2.65 and $.73 for a subtotal of $3.38. With $.20 tax the total read $3.58. Sheriff Easley also searched for an item that sold for $.73. He found that item to be a large bag of potato chips. The register tape was subsequently introduced into evidence without objection.

In testing the sufficiency of the evidence, this court, unlike the jury, is not bound to believe the evidence beyond a reasonable doubt and to a moral certainty in order to affirm a conviction. Rather, it is our duty to determine whether there was legal evidence presented from which the jury could by fair inference find guilt. If so, we have no right to disturb the verdict. Trussell v. State, 57 Ala.App. 109, 326 So.2d 301 (1976), and cases cited therein.

As stated in Ward v. State, Ala.Cr.App., 356 So.2d 238, cert. denied, Ala., 356 So.2d 242 (1978):

" . . . The weight and probative value to be given the evidence, the credibility of witnesses, the resolution of conflicting testimony, and the inferences to be drawn from the evidence, even where susceptible of more than one rational conclusion, are for the jury. Hall v. State, 57 Ala.App. 132, 326 So.2d 660 (1976). A verdict of conviction must not be set aside on the ground of insufficiency of the evidence unless, after allowing for all reasonable presumptions in favor of its correctness, the preponderance of the evidence against the verdict is so strong as to clearly convince the court that it was incorrect and unjust. Bridges v. State, 284 Ala. 412, 225 So.2d 821 (1969). . . . "

In the instant case it is clear that there was legal evidence from which the jury could reasonably infer the appellant's participation in the robbery. Consequently, the trial court properly overruled his motion to exclude the State's evidence.

II

Appellant contends that the trial court erred in denying his motion for a change of venue. The appellant focuses his contention upon two arguments: (1) that there was excessive pretrial publicity, and (2) that there was systematic exclusion of blacks from the jury venire.

A

The only evidence presented before the court concerning pretrial publicity was one article from a local newspaper. After a careful review, we find no editorial comment was made in the article. Rather, it presented a factual account of the robbery-murder. Consequently, the burden of proof necessary to illustrate the requisite prejudicial effect to the appellant was not met. Colley v. State, Ala.Cr.App., --- So.2d ---- (Ms. September 4, 1979); Yoemans v. State, 55 Ala.App. 160, 314 So.2d 79 (1975).

B

In support of his second argument for a change of venue, the appellant's evidence consisted of testimony from his counsel which indicated that of the 37 veniremen drawn for this trial about 10 percent (4) were black, while the black population of Covington County equaled approximately 21 percent. Consequently, appellant asserts there was a systematic exclusion of blacks from the jury venire.

The constitution does not guarantee an accused a proportionate number of his race on the jury venire or on the trial jury. Deliberate, systematic exclusion must be proven. By merely showing the above percentages, it is apparent that the appellant has failed to carry his burden in proving systematic exclusion of blacks from the jury venire. Without more, we cannot find error in the trial court's ruling. Smith v. State, Ala.Cr.App., 364 So.2d 1 (1978); Washington v. State, Ala.Cr.App., 333 So.2d 618 (1976); and cases cited therein.

III

Appellant contends that his sentence of life imprisonment was so severe as to constitute cruel and unusual punishment prohibited by both the United States and Alabama constitutions.

Under § 13-3-110, Code of Ala.1975, a person convicted of robbery may be sentenced for not less than ten years imprisonment. The statute sets no maximum sentence. Section 15-18-20, Code of Ala.1975, confers upon the trial court the authority to impose punishment unless that power is expressly reserved to the jury, and § 15-18-23, Code of Ala.1975, grants the trial court the right to impose a life sentence for a crime where no maximum sentence is expressed. We find no abuse of the trial judge's discretion in the imposition of punishment as it was within the confines of our statutory scheme.

IV

Appellant asserts that it was error for the trial court to deny his motion for a continuance. The motion was based upon two grounds: (1) that appellant's co-counsel could not participate in his defense due to a death in the family, and (2) that he was prevented from receiving a haircut and shave before trial.

A

The only evidence reflected in the record supporting appellant's first ground is a statement by appellant's co-counsel indicating that his partner could not participate in his defense due to a death in the family. There was...