Johnson v. State
| Decision Date | 16 March 1976 |
| Docket Number | 1 Div. 626 |
| Citation | 329 So.2d 160,57 Ala.App. 470 |
| Parties | Brenda Jean JOHNSON v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Calvin Clay, Mobile, for appellant.
William J. Baxley, Atty. Gen., and James S. Ward, Asst. Atty. Gen., for the State.
Appellant was convicted of robbery and her punishment fixed at ten years in the penitentiary. At arraignment with retained counsel present she pleaded not guilty. After sentence was imposed, she gave notice of appeal. The execution of the sentence was suspended pending appeal and an appeal bond was set at $7,500.00. She was determined to be indigent and a free transcript was furnished her and new counsel was appointed to represent her on appeal.
The evidence for the State is undisputed that in the early morning hours of February 23, 1975, the Magic Mart Grocery Store located at 2320 Government Street in Mobile, Alabama, was robbed by a lone gunman armed with a pistol.
Mary Massengill testified that she was employed by the Magic Mart and that her hours of employment were from 11:00 p.m. until 7:00 a.m. She stated that in the early morning hours of that date a man with long sandy hair who appeared to be in his late forties and five feet, eight or nine inches tall pointed a pistol directly in her face and stated he wanted all the money. He told her to set the cash register drawer on the counter and he got all the money out of the drawer. With the pistol still pointed on her he motioned toward the safe and said he wanted the rest of the money saying, 'I don't want to hurt you.' She stated she was terrified about the pistol being pointed directly at her and she gave him the money bag from the safe and that the total amount taken was $470.00 in 20's, 10's, 5's, 1's and some change.
This witness further testified that she had seen this man, along with another man and woman, before the actual robbery took place. She said that a blonde headed man with a moustache came in the store with a girl and the girl bought a bag of potato chips, and she asked the girl if she was going to pay for the gas and she said, 'No he is.' Two dollars worth of gas was bought before the holdup. She observed the automobile at the gas pumps and it was a white Mercury with a luggage rack on top.
On cross-examination Miss Massengill testified she did not pay any attention to the girl and could not identify her. She stated that $470.00 in currency and change was taken and that $465.50 was subsequently recovered.
She further testified that Mr. Bruce Fowler, a federal man with the Corps of Engineers, was in the store when the robber came in with the pistol. He pointed the pistol on Mr. Fowler and told him he wanted his weapon and that Mr. Fowler told him he would have to take it from him.
On re-direct examination Miss Massengill said she could positively identify the man who held her up. That as soon as the man walked out of the store she picked up the telephone and called the Police Department and Mr. Fowler took the telephone and talked to the police.
Mr. Bruce Fowler testified that he was employed with the General Services Administration as a federal detective. He said he had been with the Federal Protective Service for three years and that on February 23, 1975, he was keeping the U.S. Corps of Engineers building under surveillance which building was next door to the Magic Mart that was robbed that morning. He stated that he walked into the Magic Mart at 3:53 a.m. to get a cup of coffee and at 3:55 a.m. a man came in and held up the store. He said the man told the clerk and him that this was a holdup and told Fowler to drop his gun belt. Fowler told the man if he wanted his gun, he would have to take it and he raised his hands. He stated the man moved behind him and put a .38 caliber pistol to the rear side of his head and unstrapped the safety strap on his gun belt and took Fowler's pistol and told him to move to the rear. Fowler moved to the rear of the store and positioned himself where he could see toward the front. He saw Miss Massengill pass the man a bag of money over the counter. He heard a conversation but could not understand what was being said. He heard a metal clanging on the counter and saw a white bag in the hands of the robber.
Mr. Fowler described the robber as being between 45 and 55 years of age and was approximately five feet, nine, and weighed 150 to 160 pounds. He had sandy red hair, freckled face, fair complexion and was wearing a tan-gold field jacket with light brown pants. He was shown State's Exhibit No. 1 and asked if he had seen it before and stated it appeared to be the same weapon that was held to his head when his pistol was taken.
This witness further testified that he had seen the robber a few minutes earlier get gas in a white square styled Mercury with a luggage rack on top. That after the robbery he saw the man moving toward the door and he put the pistol in his coat pocket as he went out the door. At this point the store clerk got on the telephone and called the City police, and he took the telephone from her and gave an all points bulletin to the police describing the robber, his clothes and the Mercury automobile.
Mr. Fowler further testified that he did not see appellant at the time the store was robbed. He saw her for the first time at the preliminary hearing.
Michael Lyness testified that around three o'clock on the morning of February 23, 1975, he and four other friends were walking up the street toward the Magic Mart when they saw a car parked on the corner. He described the car as being white with a luggage rack on top. He also stated the car had a license plate from the State of Washington on it. He stated that the car was slowly backing up as he and his friends approached the Magic Mart and he saw two men running from around the corner. He said one man was old and the other man had a moustache and long hair and one of the men had a gun and the other man had a bag.
This witness further testified that he saw the two men get in the white Mercury on the passenger side as the car was slowly moving backwards. He stated that neither one of them got in on the driver's side of the Mercury. He said he went to the Magic Mart and told the police exactly what he had seen and pointed in the direction in which the white car was heading when he last saw it.
Police Officer David Havard testified that he had been with the Mobile Police Department for five years and was assigned to the patrol division on the midnight shift. He stated he was familiar with the Magic Mart on Government Street and that around 3:55 a.m. on February 23, 1975, while he was at Roy Cranford's Barbecue on Highway 90, a holdup alarm came over his radio. He explained that a holdup alarm is the actual conversation between the person that has been robbed and the dispatcher at the police station and that the conversation is transmitted directly over the radios in all police cars and they receive a description and the information at the same time the operator does. The officer stated that when he heard the broadcast, he got in his patrol car and pulled out to Highway 90 and observed an old model white Mercury with a luggage canvass cover over the top with luggage underneath it. It had State of Washington plates on it. The car was headed west on Highway 90 away from the City of Mobile and was occupied by three subjects. He got on the radio and advised the operator that he had the suspect car spotted on Highway 90 and was going to attempt to stop it. He followed the car a short distance and turned on the blue light and stopped the Mercury on Highway 90 near the Pleasant Valley Road.
From the record:
'Q What if anything happened, then?
'Q Is that person in this courtroom today?
'A Yes, sir.
'Q Point her out for the ladies and gentlemen of the jury?
'A The defendant sitting beside Mr. Stevens.
'Q And?
The officer then identified State's Exhibits 1, 2, and 3 as pistols that were taken from the car driven by appellant and also identified State's Exhibit 4 as a .22 caliber pistol that was taken from beneath the seat of the car driven by appellant. He stated that a number of .22 caliber bullets were found in appellant's purse.
On cross-examination the officer stated that a description of the car driven by appellant was given in the radio dispatch. He said he did not find the .22 caliber pistol on appellant nor did he have knowledge of whether the gun was registered to her. He further stated that appellant told him the box of ammunition in her purse belonged to her. He further stated that appellant told him the two men in the car with her were her brothers, but he stated the two men denied any such relationship.
At this point the State rested and appellant moved to exclude the State's evidence on the ground a...
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