Ledbetter v. State

• Decision Date: 25 November 1980
• Docket Number: 8 Div. 323
• Citation: 404 So.2d 720
• Parties: David Edwin LEDBETTER v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 720

404 So.2d 720

David Edwin LEDBETTER v. STATE.

8 Div. 323.

Court of Criminal Appeals of Alabama.

Nov. 25, 1980.

Rehearing Denied Jan. 20, 1981.

Dan F. Nelson of Brewer, Lentz, Nelson & Whitmire, Decatur, for appellant.

Charles A. Graddick, Atty. Gen., and Sandra M. Solowiej, Asst. Atty. Gen., for appellee.

CLARK, Retired Circuit Judge.

A jury found appellant-defendant guilty under an indictment charging him with robbery of Robert Hogan. The property allegedly taken was lawful currency of the United States of America of an aggregate value of $320.00. The court fixed defendant's punishment at imprisonment for life and sentenced him accordingly.

The statement of facts in appellant's brief is adopted by appellee as substantially correct. We treat it accordingly. The only eyewitnesses to the alleged robbery were the defendant, the victim and a man by the name of Brashers, who according to the undisputed evidence was killed by a dutiful law enforcement officer soon after the robbery. The only eyewitnesses who testified as to the robbery were defendant and the victim.

According to the testimony of the victim, Robert Hogan, he was the manager of Sandy Motors, a used-car lot on Highway 31 South in Decatur on September 13, 1979, when defendant and Brashers came to Sandy Motors and inquired about a 280Z Datsun automobile. They came on two occasions that day, first about 3:00 P.M. and the other about 3:15 P.M. Only Brashers talked to Hogan about purchasing the Datsun. During the interval they were gone from the lot, Mr. Hogan received a telephone call from a person who said he was the young man who had just looked at the Datsun and that he was returning to discuss purchasing the car. Upon the return of Brashers and defendant, Hogan and Brashers again talked about the automobile. During the discussion, Brashers ordered Hogan to get up from his desk and told him he was being held up. Hogan stood up from the desk, and the defendant stuck a pistol to his back. Hogan was tied, gagged and placed on the bathroom floor, and the money was taken from him. Hogan did not know whether Brashers or defendant took the money; he did not know if defendant said anything after Brashers told Mr. Hogan that he was being robbed. Mr. Hogan remained tied up in the bathroom for approximately ten or fifteen minutes before untying himself. Brashers was bearded and wore a straw cowboy type hat. Hogan did not recall seeing a knife on Brashers.

Defendant testified that on September 13, 1979, he lived in Huntsville with his wife and child, that Brashers came by his home that day and asked him to ride with him to Decatur to pick up an automobile. He got in the car Brashers was driving, which belonged to Brashers' girl friend, and Brashers drove it to Decatur, after stopping at Krogers in Huntsville to cash a check and putting some gas in the car. They stopped at Sandy Motors on two occasions, and Brashers talked with Mr. Hogan about purchasing the Datsun. After Brashers stopped at the car lot the second time, he drove to a telephone booth in a shopping center and made a phone call while defendant remained in the car. When Brashers returned to the automobile, he told defendant he was going to steal the Datsun 280Z.

According to further testimony of the defendant, he told Brashers he did not "want any part of stealing anything," and Brashers told him that if he did not help him steal the car, he would kill the defendant and the defendant's wife and child. Brashers then removed a pistol from a brief case, told defendant it was unloaded and handed the pistol to defendant. While in the automobile, Brashers obtained another pistol from under the driver's seat. He told defendant that the pistol he handed him was to be used by defendant and for defendant to get behind Hogan with the pistol. Defendant also said that during the time he was with Brashers, Brashers had a "factory made knife" in a "brown pouch or holster on his side."

As to what happened while defendant and Brashers were together in the room or office of Mr. Hogan and upon Mr. Hogan's return to the room after talking a short time with a prospective customer, the defendant testified:

"While we were in there; Woody (Brashers) and I, Woody kept asking me if I was going to do it, if I was going to do it, and if I was afraid to do it, and that made me that much more frightened of him because I didn't want to do it. I knew that if I didn't he would kill me and kill my family. Okay, Mr. Hogan and his customer came back in from the outside lot and went into a front office and sat down. I was standing by the wall and Woody was still in the front room with me. He went up and asked Mr. Hogan if he could use the phone and call his mother. Woody went back in then and used the phone on the front desk in the front office and he made a phone call and I guess he was acting like he was talking to his mother. Then he hung up and then Mr. Hogan's customer left and Mr. Hogan came back into the room where we were. As I said, I was afraid of Woody and what he had told me and I was trying to put it off for as long as I could and he was always watching me everywhere I went. Everywhere I stood his eyes was on me and he was right there beside me. Mr. Hogan came back in and sat down and Woody was still sitting in front of the desk. They were talking for a few minutes and I was standing over by the wall and then Woody looked at me and kind of nodded his head a little bit and that scared me even that much more because I didn't want to do it even though he had told me he would kill me. I had to gather all the courage I could to do what he had said. I walked over to the window, stood in front of the window for a few moments and turned around and walked behind Mr. Hogan and put the gun to Mr. Hogan's back. When I put the gun to Mr. Hogan's back he raises up and Woody jumps up and he takes some black straps from his pocket and "

According to further testimony of the defendant, when Hogan stood up, defendant took the gun from his back "and let it fall to my side." Brashers then tied Hogan, put him in the bathroom, and took his money and money clip. Thereupon, Brashers took the keys for the Datsun off the keyboard, pitched them to defendant, told defendant he was going to get gas for the car, and ordered defendant to drive in front of him. Defendant drove the vehicle Brashers had been driving that day, and Brashers drove the stolen 280Z Datsun to a gas station where Brashers purchased gas. Defendant then drove out highway No. 67 toward Interstate 65. He had placed the pistol he had been handed by Brashers under the driver's seat. While on Highway No. 67, Brashers directed him by use of his blinker lights to pull over. According to the witness, the following then occurred:

"I pulled into that restaurant, sir, and he pulled in on my left side. He come to the passenger's side of the car on the far side and opens the door and grabs his brief case and reaches under the seat and pulled out the long pistol and told me that we were going to Huntsville. To get on the Interstate. With that he shut the door. I waited for traffic to clear and pulled out."

His long testimony ended with testimony to the effect that he proceeded north on highway I-65 to the Huntsville exit (Highway 20 exit) where he and Brashers turned off in the respective automobiles they were driving. There is no evidence that they were in company, observation, or conversation with one another thereafter. Details as to what happened to Brashers after he turned off to go in the direction of Huntsville are not shown by the evidence presented to the jury, but we state for the purpose of a better understanding of one or more issues discussed hereafter that in proceedings on the trial out of the presence of the jury, it was shown that law enforcement personnel of Morgan, Limestone and Madison County had been alerted as to the robbery, that they were on the lookout for the robbers and that there was a confrontation thereafter between Brashers and an officer, in which the officer was shot by Brashers, but that as badly wounded as the officer was, he returned fire and succeeded in killing Brashers.

It is to be observed from the foregoing summary of the testimony of the defendant and the victim of the robbery that there is little conflict in the evidence. The parties are in agreement that the issue of defendant's guilt turns on whether his participation in the robbery of Mr. Hogan was the result of coercion or duress exerted upon him by Brashers. The issue was presented to the jury, which resolved it against the defendant. Its verdict is supported by the evidence, and there is no contention to the contrary.

In the process of qualifying and selecting the jurors for the trial of the case, counsel for the defendant asked the members of the panel from which the jury was to be selected the following questions:

"Have any of you ever yourselves been the victim of a crime of violence of any sort, such as being shot at, shot, stabbed, robbed, burglarized?

"Any of you have any close members of your family; those are the same folks that I just mentioned to you, that has ever been victims of a crime just like we have talked about? Close friends or family?

"Anyone else that has had a good friend or family or yourselves that has been a victim of any sort of criminal activity?"

In a motion for a new trial, defendant asserts in each of three grounds thereof that a member of the jury, one who became the foreman of the jury, "failed to truthfully answer" one of the above questions. It is without dispute that the particular juror did not respond to any of the questions. It is uncontroverted that only an affirmative answer, if true, was required.

On the hearing of the motion for a new trial, the particular juror was called as a witness by the movant. No other witness testified on the hearing. The juror was intensively interrogated by each party. That part of his testimony that ...