Kelsoe v. State
| Decision Date | 21 February 1978 |
| Docket Number | 3 Div. 619 |
| Citation | 356 So.2d 735 |
| Parties | Carson KELSOE v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Charles Tom Payne, Montgomery, for appellant.
William J. Baxley, Atty. Gen., and Jack M. Curtis, Asst. Atty. Gen., for appellee.
Appellant was convicted of robbery and the jury fixed his punishment at fifteen years in the penitentiary. At arraignment, in the presence of counsel, he entered a plea of not guilty and not guilty by reason of insanity. After sentence was imposed he gave notice of appeal. He was found to be indigent and a free transcript was furnished him. New counsel was appointed to represent him on appeal.
The evidence presented by the State tended to show that on June 6, 1973, the Pak-A-Sak store located on Narrow Lane Road, just south of the Southern By-Pass, was robbed and about eighty-three dollars was taken. The robbery occurred between 1:00 p. m. and 1:20 p. m. on that date. Three young white men were subsequently arrested and charged with this robbery. They were the appellant, Michael Hall and Paul Schoffield. Schoffield pleaded guilty and testified for the State. Michael Hall was convicted for this robbery but he testified for appellant claiming that appellant did not have anything to do with the robbery.
According to Schoffield's testimony he and Hall met with appellant at his trailer home on Monday before the robbery on Wednesday and appellant made the suggestion that they rob this store. The plan was for Hall to actually rob the store while appellant and Schoffield waited in the getaway car less than a block away.
According to the testimony of Mrs. Maxine Henderson, the manager of the store, appellant came into the store a few minutes before the robbery and asked her for a nickel in exchange for five pennies so that he could make a telephone call. She took the pennies and gave him a nickel and appellant stood around in the store for ten to fifteen minutes before leaving. He did not use the telephone in the store while he was there.
Lavirt Henderson, Jr., the husband of Maxine Henderson, testified that he was stationed at Maxwell Air Force Base in Montgomery but worked part time for the Pak-A-Sak Company. He arrived at the store that was robbed around noon on that date and was working the cash register. He stated that a white man entered the store and came directly to him at the cash register about 1:20 p. m. on June 6, 1973, and pulled a pistol, cocked it, pointed it at him, handed him a paper sack, and told him to empty the register; and that he (Henderson) obeyed the order. Henderson stated the man attempted to disguise his features by wearing a blond wig with a green headband around the wig. He further described the man as wearing sunglasses, a red and white striped shirt with an orange tank shirt over it and a gray coat covering the two shirts. After the robbery the man left the store and walked south on Narrow Lane Road.
Mr. Henderson's young son was in the store at the time of the robbery, and, when the bandit left, Mr. Henderson and his son got in a van truck and followed him. They saw the bandit get in a green Chevrolet Nova and leave at a high rate of speed. There were two men in the front seat of this car and the robber got in the back seat. As the Nova was fleeing through a residential section and Mr. Henderson was in close pursuit the man who had just robbed the store stuck a pistol out of the car and pointed it directly at Mr. Henderson. Mr. Henderson slowed his truck but kept following the fleeing car until they got back on Narrow Lane Road. At the end of Narrow Lane Road, Mr. Henderson stopped his van and called the Police Department, and when the officers arrived they took over the chase. Mr. Henderson testified that appellant was not the man who came in the store, pulled the pistol and took the money.
Paul Schoffield testified that he was a friend of the appellant and that appellant planned the robbery of the Pak-A-Sak store. He further stated that he was sixteen years of age on the day of the robbery and that Michael Hall was involved in the same robbery. He said the plan was for Hall to rob the store while he and appellant waited in the car. He said that appellant went into the store about thirty minutes before the robbery to get some change. He stated that Hall had a .22 revolver which he had gotten from appellant and that Hall put the wig, shirt, sunglasses and pants on in the car just before the robbery.
After the robbery and while being chased by the van Schoffield said Hall took off the wig, shirt, sunglasses and pants and put them in a bag which he gave appellant; that appellant took all of these items with him when he left the car at his sister's home. Shortly after appellant left the car Schoffield and Hall continued to drive until the car ran into a ditch because of muddy conditions on the roadway, and they left the car. They started walking and were later picked up by the officers.
Oscar Wright testified that on June 3, 1973, he was working at the Tenneco Station at the intersection of Fairview Avenue and Gaston Street; that between 12:00 Noon and 1:00 p. m. on that date he saw appellant and three other white men when they drove to the service station and bought a dollar's worth of gas and a six-pack of beer. They were in a green Chevrolet Nova. He stated that he knew appellant from waiting on him at the service station on previous occasions. He further stated that one of the men in the car was wearing a wig. He said that appellant was driving the car.
Sergeant L. D. Cox of the Montgomery Police Department testified that on June 6, 1973, he was on routine patrol when he received a radio dispatch about a robbery at the Pak-A-Sak store on Narrow Lane Road. He proceeded down Narrow Lane Road and found a green Nova automobile with a 5- tag on it and it had run into a mud hole and into a ditch. The car had been abandoned. He further stated that later that same day he participated in a lineup and Mrs. Maxine Henderson viewed the lineup and identified the appellant as the man who came in the store and asked her for a nickel in exchange for five pennies just shortly before the store was robbed. He further stated that Mrs. Henderson identified Michael Hall in a lineup as the man who robbed the store with a pistol.
Mrs. Maxine Henderson testified that she was the manager of the Pak-A-Sak store on Narrow Lane Road and that her hours of employment were from 7:00 a. m. until 3:00 p. m. She said that her husband and young son, David, were helping her in the store at the time of the robbery. Her husband was working the cash register on the day that appellant came into the store and asked her for a nickel change. She gave him a nickel for five pennies and the time was about 1:10 p. m. on June 6, 1973. She testified that after she made the change appellant stood around in the store for five to ten minutes. She stated that about 20 minutes later she heard a noise and when she looked up she saw a man with a pistol at the cash register and the man turned toward her and said, "Freeze." The man got the money from the cash register and left the store. Her husband and son gave chase but did not catch the bandit.
Mrs. Henderson further testified that between 7:00 p. m. and 7:30 p. m. that same date, she attended a lineup where she viewed six or seven men and without hesitation or suggestions from anyone she identified appellant as the man to whom she gave a nickel for five pennies about 20 minutes before the store was robbed. She also made a positive in-court identification of appellant. She also identified Michael Hall in a lineup as the man who actually robbed the store.
Over appellant's objections the trial court allowed the testimony of Lawrence Eggers, given under oath and cross-examination, to be read to the jury. The proper predicate was laid before this testimony was allowed into evidence.
It was established by the testimony of Mark Rouleau, an investigator for the District Attorney's Office, that he had made a diligent search in his efforts to locate Lawrence Eggers. Rouleau stated,
He further stated that he checked with the water company and the telephone company and they did not have any listing for Eggers. He checked the City Directory and the telephone book all to no avail.
The Court ruled that the State had made a diligent effort to locate the witness and bring him to Court but that he could not be located and he would permit Eggers' previous testimony to be read to the jury.
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Smelley v. State
...evidence will support a conviction as strongly as direct evidence provided it points to the guilt of the accused. Kelsoe v. State, Ala.Cr.App., 356 So.2d 735 (1978)." We find that the State established sufficient evidence for the petit jury to reasonably and fairly infer that the appellant ......
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