Johnson v. State, 6 Div. 942
Decision Date | 20 August 1985 |
Docket Number | 6 Div. 942 |
Citation | 507 So.2d 1337 |
Parties | Anthony O'Hara JOHNSON v. STATE. |
Court | Alabama Court of Criminal Appeals |
Carol J. Millican, Birmingham, for appellant.
Charles A. Graddick, Atty. Gen., and William D. Little, Asst. Atty. Gen., for appellee.
Anthony O'Hara Johnson was convicted by a Jefferson County jury of robbery in which the victim was intentionally killed, and sentenced to death. This court affirmed the conviction, Johnson v. State, 399 So.2d 859 (Ala.Cr.App.1979). However, the Supreme Court of Alabama affirmed in part, reversed in part, and remanded with directions requiring a new sentencing hearing. Johnson v. State, 399 So.2d 873 (Ala.1979). The conviction was then reversed and the case remanded upon the authority of Beck v. State, 396 So.2d 645 (Ala.1980). Johnson v. State, 399 So.2d 875 (Ala.Cr.App.1981). Johnson was retried, reconvicted, and resentenced to death, and is now before us on appeal from that conviction and sentence.
The trial judge made written findings of fact * which we find to be correct. No defense was offered. The trial judge found:
"That the victim, William Albert Farmer, owned and operated a jewelry store operated at 1902 First Avenue, North, Birmingham, Jefferson County, Alabama, and it was at this location that the robbery took place. Just before the robbery, the defendant and his companion went into the store next door, where a record player and stereo were being played and asked the clerk to turn the volume of the music up. This request was made by the defendant, Anthony O'Hara Johnson. Very shortly thereafter, the defendant and his companion proceeded into Farmer Jewelry Store, and robbed and killed Mr. Farmer, and ransacked the jewelry store of watches, rings, and other items of Jewelry. The companion proceeded out on the sidewalk and offered the occupant of an automobile, which was parked at the curb, ten dollars to drive him and his friend away from the location, and the occupants of the automobile refused and left. There was a witness there on the sidewalk, who was talking to the occupants of the automobile who heard and reported the conversation. She saw the defendant then come out of the store and proceed behind his companion who had walked around the corner and was boarding a bus. The defendant also boarded the bus, which proceeded North on 19th Street. The witness on the sidewalk summoned a policeman who appeared nearby on a three- "This witness further reported that the companion had a billfold and was counting money in the billfold, and was instructed by the defendant not to be counting the money until they [got] where they are going.
wheel motorcycle, who came to the scene and put out a police call, which resulted in the bus being stopped and the defendant being removed from the bus. The proceeds of the robbery were found nearby on the bus, and they, as well as the gun, were recovered by the police. There was a witness seated on the bus who identified the defendant as the man who sat in a particular seat with the two bags of loot under his arm and who reported the conversation between the defendant and his companion wherein the defendant suggested that the companion put his arm over the bags so that no one could see what was in the bags. One of the bags had one or more holes in it, and the contents were visible through the holes in the bag.
On appeal, Johnson first contends that the admission into evidence of state's exhibit "EE", a fingerprint record card, and reference to state's exhibit "CC", a photograph of Johnson, although not objected to, constitute plain error. Rule 45A states:
State's exhibit "EE" was a police fingerprint card. On the front of the card are the name of the appellant Johnson, a series of police numbers and an FBI number, the fingerprints themselves, and the signature of the taker of the impressions, and the date taken. The reverse side of the fingerprint card contains the name of the appellant, his signature, the offense charged at the time the fingerprints were taken, a description, and other information. Also on the back of the card is a list of dates of The first witness called to establish the fingerprint identification was Jack T. Brand, a policeman and former fingerprint officer in the city jail. He testified that one of his duties at the city jail was to take inked fingerprints, and he described the procedure. He was questioned regarding whether he signed the fingerprint card and whether the person whose fingerprints were taken signed the cards, to both of which questions he answered in the affirmative. Another card marked as state's exhibit "DD" contained the palm prints of appellant Johnson. Brand identified Mr. Johnson as the person whose picture appeared in state's exhibit "CC" for identification, which he testified was taken at the same time as the fingerprint cards were made; the photo and the print cards were all assigned the same identification number at the same time. He testified that the prints were made in the ordinary course of business of fingerprinting people at the Birmingham City Jail and were kept by the Birmingham Police Department in its Identification Bureau.
arrests. The arrest list shows an arrest for burglary in 1977 followed by a release, an arrest for burglary and grand larceny in 1977 followed by a release, an arrest in 1978 for grand larceny from a person followed by a release, and the present charge of murder in 1978 followed by a delivery to the sheriff's office. The card also shows the original arrest in 1973 for robbery followed by a delivery to the sheriff's office.
Sandra Tiplett, a fingerprint technician, testified to her qualifications, including employment with the Federal Bureau of Investigation in Washington. She proceeded to use a blackboard to explain in some detail the science of identification by fingerprint. There were then offered for identification state's exhibits "V", "W", "X", "Y", "Z", "AA", and "BB", all latent impressions on "lifts" from Farmer's Jewelry Store. She compared state's "DD" and "EE" with the latent impressions reflected by the other referenced exhibits, and found the prints to be of the same person. The latent print exhibits were received into evidence.
Then the state offered photocopies of exhibits "DD" and "EE" so that "the master print cards could be kept in the files of the Birmingham Police Department." The following ensued:
(Attorneys approach bench for side bar).
The case then proceeded with the introduction of evidence regarding evidence collection.
State's exhibit "CC" for identification was never offered into evidence. It is argued by appellant Johnson that the exhibit was a "mug shot" taken while he was in jail. However, it does not appear that the jury ever saw state's exhibit "CC", and that "CC" was used for purposes of securing the testimony of the fingerprint officer that "CC" was assigned the same number as "DD" and "EE" and that they were of appellant Johnson. The objections to receiving a mug shot into evidence are that the photograph suggests that the subject was in custody at the time the photograph...
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