Jones v. State, 8 Div. 839

• Decision Date: 14 August 1984
• Docket Number: 8 Div. 839
• Citation: 460 So.2d 1384
• Parties: Tommy G. JONES v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1384

460 So.2d 1384

Tommy G. JONES v.STATE.

8 Div. 839.

Court of Criminal Appeals of Alabama.

Aug. 14, 1984.

Rehearing Denied Oct. 23, 1984.

Certiorari Denied Dec. 21, 1984

Alabama Supreme Court 84-152.

PATTERSON, Judge.

Appellant, Tommy G. Jones, was convicted of robbery in the first degree, and sentenced to fifty years in the penitentiary.He appealed to this court.

This court by opinion dated November 29, 1983, 460 So.2d 1380, determined that the District Attorney's comment during closing argument on appellant's exercise of his Fifth Amendment right against self-incrimination constituted reversible error.On the basis of this determination, we reversed and remanded the case.

The Supreme Court of Alabama granted certiorari to consider whether this court was correct in finding that an improper comment had been made upon appellant's claim of the Fifth Amendment privilege with consequent reversal of his conviction, and remandment.Subsequently, the Supreme Court found that this court erred in its determination, and reversed and remanded the cause to us for further consideration in accordance with its opinion.Jones v. State, 460 So.2d 1382(Ala.1984).

The Supreme Court found that the record was silent as to the prosecution's argument, and that defense counsel's objections were not specific, and did not point out substantially the language deemed objectionable.Because of this the Supreme Court held that this court was without means from which it could ascertain any impropriety in the closing argument.

We, in accordance with the opinion of the Supreme Court, find that appellant's contention that the District Attorney's comment upon his claim of Fifth Amendment privilege was improper, is without merit as the issue was not properly preserved for appellate review.Jones v. State, supra.

The above issue as to whether the comments of the District Attorney during closing argument constituted reversible error was the only issue addressed in this court's original opinion.Appellant raises additional issues in his appeal which we will now discuss.

James "Tex" Johnson owned and operated a concrete business in Huntsville, Alabama.On April 7, 1982, he received a telephone call from a person who wanted him to pour a concrete slab in a "pig parlor" at a location in rural Madison County.The calling party gave him instructions on how to get to the location, and he drove there in his truck.It is apparent from the record that the understanding between the caller and Johnson was that Johnson would visit the site, measure the dimensions of the proposed slab, and determine the concrete requirements.Johnson testified that when he arrived at the rural location, which appeared to be an abandoned farm, he was met by the appellant, Tommy G. Jones.He testified that as he stepped out of his truck the appellant said, "Are you Mr. Johnson?"He said, "Yes, sir", and the appellant said, "Well, I was just cleaning up till you got here, we can measure it up in here."Johnson testified that he got a tape measure and notebook from his truck, and he and the appellant walked into the barn with appellant leading the way.After getting into the barn, a man wearing a Halloween type mask and a shaggy black wig, and carrying a long barreled pistol in his hand, jumped out behind Johnson, and ordered him to lie down.Johnson then observed the appellant was carrying a short barreled or snub-nosed pistol in his hand.Johnson lay on the ground, and the man wearing the mask put a pistol to the back of Johnson's head, and demanded his money.Appellant sat on top of Johnson.Appellant took approximately $6,300 from Johnson's pockets, along with his billfold, and removed three rings from his fingers.The two men bound Johnson with hay rope, blindfolded him, and drove away in his truck.The truck was abandoned nearby.

Over the objections of appellant, Richard Jernigan, Chief Criminal Investigator for the Giles County, Tennessee, Sheriff's Department, testified that on April 21, 1982, he was working in an undercover capacity, and as a result of a conversation with the Sheriff of Giles County, he along with some other officers went to a location just north of Athens, Alabama, and met with Johnny Wallace, who was the owner of the Decatur, Alabama, stockyards.As a result of that meeting, Jernigan, Wallace, and another officer went in Wallace's pick-up truck to a roadside park in the community of Elkton, Tennessee, where they parked and waited.Jernigan testified that the appellant, Tommy G. Jones, appeared, but seemed hesitant, and did not approach them, but walked away.Jernigan further testified that on the next day, April 22, 1982, he was contacted by Joe Scott, an investigator with the Livestock Theft Investigation Unit of the Alabama Department of Agriculture and Industries, and he and Scott drove to a rural farm in Giles County in Wallace's automobile.Scott carried $14,000 in cash with him.Jernigan testified that Scott was to pose as a cattle buyer.When they arrived they discovered that the farm was abandoned.They drove into the barn lot.Appellant Jones approached them from the direction of the barn, and, waving, said, "Hello, how are you doing?Glad to see you found it all right."Scott placed his weapon under the car seat, and got out to talk with appellant.Scott and appellant walked to the other side of a hedgerow, and Jernigan heard the appellant say, "Here's the hay I was telling you about."Jernigan heard scuffling beyond the hedgerow, and heard Scott say, "What is this?What's the gun for?Don't shoot me."He observed appellant through the hedgerow holding Scott by the arm, and pointing a pistol at Scott's head.Jernigan then observed another person running toward him in a crouched position from the hedgerow.This person wore a Halloween type mask over his face, and was pointing a "four-inch blue steel revolver" directly at him.Jernigan identified himself, and ordered the man to halt.The man continued to advance on Jernigan, and cocked his pistol, at which time both Jernigan and the masked man opened fire.Two shots were fired by the masked man, one narrowly missing Jernigan, and Jernigan fired four shots, all of which struck the masked man, bringing him down.Jernigan then turned his attention towards the appellant and Scott, identifying himself, and firing two warning shots.Appellant started running toward the barn, and while running raised his pistol, pointing it at Jernigan.Jernigan fired at appellant, wounding him, and appellant fell to the ground.The masked man was identified as Leo Crumley.He died from his wounds.

Immediately after the shooting, Jernigan removed a "wadded up" bundle of rope from appellant's hip pocket, and took from him a short-barreled 3"'-inch blue steel .38 caliber revolver.Jernigan took a 4"'-inch barrel, .38 caliber blue steel revolver from the masked man.The mask was removed from the masked man, and turned over to the local sheriff's office.

Photographs showing a bloody mask, wig, and two pistols were offered into evidence by the State, and admitted without objection.Johnson positively identified the wig and mask shown in the photographs as being the identical ones worn by the masked man that robbed him in Madison County.He also positively identified the 4"'-inch barrel pistol shown in the photographs as the one carried by the masked man during the Madison County robbery, and testified that the short barrel pistol was the same type which the appellant carried.Johnson identified appellant as one of the men that robbed him.He was positive in his identification.He testified that appellant was the one without the mask, and he got a good look at him, "looking him right square in the face".

Jernigan testified that the mask shown in the photographs was the identical mask worn by the masked man, Leo Crumley, during the incident in Tennessee.Jernigan also positively identified the 4"'-inch barrel pistol shown in the photographs as the one carried by the masked man during the incident in Tennessee, and the short barrel pistol as the one carried by appellant in Tennessee.

Appellant testified that he did not participate in the robbery of Johnson, and had no knowledge of it.He claimed that Johnson was mistaken in identifying him as a participant in the robbery.He attempted through witnesses to establish an alibi defense.As to the incident in Tennessee, he admitted going to Tennessee with Leo Crumley, but when questioned about details of the incident in Tennessee, he invoked the Fifth Amendment.He admitted knowing Leo Crumley, who had lived near him, and testified he had known him about eight months prior to the incident.

Appellant contends that the trial court erred "in allowing hearsay testimony to be used to prove two crimes were committed in a novel and peculiar manner, therefore, making evidence of the later crime admissible in the trial of the first alleged crime".He specifically refers to that part of the record where, during an examination of Jernigan out of the hearing of the jury, the trial court stated, inter alia, that both incidents involved a telephone invitation for a person to meet at some rural location to conduct some sort of business transaction.Appellant also states in his brief that the testimony concerning the negotiations in Tennessee was obviously hearsay.The hearsay testimony involving the invitations to deal and the preliminary negotiations in Tennessee came from Jernigan when he was being questioned on voir dire out of the presence and hearing of the jury.The questions which elicited this testimony were never asked of Jernigan when he was testifying before the jury, and the hearsay evidence complained of was never offered for the jury's consideration.Therefore, appellant's contention in this regard is without merit.Appellant also contends that when the hearsay is excluded there is no evidence that the two transactions were similar.We do not...