Lee v. State

• Decision Date: 29 March 1977
• Docket Number: 7 Div. 527
• Citation: 346 So.2d 31
• Parties: Kenneth Ray LEE v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 31

346 So.2d 31

Kenneth Ray LEE v. STATE.

7 Div. 527.

Court of Criminal Appeals of Alabama.

March 29, 1977.

Rehearing Denied May 3, 1977.

No Brief for appellant.

William J. Baxley, Atty. Gen., and James S. Ward, Asst. Atty. Gen., for the State.

HARRIS, Judge.

Appellant was convicted of robbery and sentenced to ten years in the penitentiary. At arraignment and trial appellant was represented by court-appointed counsel. He pleaded not guilty. After sentence was imposed, appellant gave notice of appeal. He was furnished a free transcript and trial counsel was appointed to represent him on appeal. Appellant's counsel did not see fit to file a brief on appeal.

The evidence in this case is in sharp conflict. The evidence presented by the State shows an aggravated case of robbery was perpetuated upon the victim. Appellant and a co-indictee testified that no robbery was committed at all.

The Attorney General through his able Assistant Attorney General, Mr. Ward, has summarized the evidence in this case in his usual and expert manner and we here adopt the statement of facts set forth in his excellent brief.

The first witness for the State, the victim of the robbery, stated that he saw the appellant at the Lakeside Lounge in Brompton, Alabama, around 9:00 at night on May 8, 1976. The witness stated that Brompton, Alabama, was in St. Clair County, Alabama.

The witness stated that the appellant, along with a boy and a girl later identified to him as Charles Ray Owens and Marilyn Myrick, were already at the Lakeside Lounge when he arrived. He stated that the appellant asked him if he would give him a ride home to Prescott, Alabama. The witness stated that he told the appellant he would take him home. The witness continued by stating that after about 45 minutes he left the Lounge with the appellant, Charles Ray Owens, and Lois Myrick. He stated that they left the Lounge in his 1973 Chevrolet Monte Carlo with him driving. He stated that the appellant was in the front seat while Charles Ray Owens and Lois Myrick were in the back seat. He stated that his purpose in taking them in his car was to give them a ride to Prescott, Alabama.

The witness stated that while traveling towards Prescott, Alabama, his passengers told him to turn on Winnataska Road. He stated that he turned on this road and stopped. The witness stated that when he stopped he was beaten up and after he was beaten up, the passengers, with the appellant driving, drove him to Brashier Hill to Charles Ray Owens' mother's house. He stated that they got him out of the car and took him into Owens' mother's home. He stated while there Owens and his mother got into an argument and while they were arguing he ran away and went up to a neighbor's house and called the police. The witness said that Winnataska Road is in the southern division of St. Clair County.

In a little more detail, the witness stated that when he stopped the car on the Winnataska Road the Owens boy grabbed him from behind and then the appellant started hitting him. He stated that when they left Winnataska Road and drove to Brashier Hill the appellant was driving the car. He stated the appellant drove the car a little further down Winnataska Road and they stopped again. He stated they asked him how much money he had and he told them he did not have any money. He stated they responded by telling him that he was lying and they kept on beating him.

The witness stated that he did not have any money but that he had a checkbook and a billfold with him. He stated that when he took out his billfold to show them that he didn't have any money the Owens boy took it. He stated he also had a check for $20.00 which the Owens boy also took.

The witness stated that the value of the 1973 Chevrolet Monte Carlo was $3700.00. He stated the check was for $20.00. He finally stated that the aggregate or total value of the items taken from him was $3730.00.

The witness continued by stating that after they stopped and took his billfold and the $20.00 check on the Winnataska Road, they put a shirt on his head and drove him to Brashier Hill. The witness stated that when they got to Brashier Hill they took him out of the car and carried him inside of the house. He stated that he knew it was Brashier Hill because he had been there before.

He stated that he stayed inside the house for a few minutes and then ran and called the police. He stated that the house he ran from was Charles Ray Owens' mother's house. He stated that he ran to the next house up the road which was owned by Mamie Brashier. The witness stated that Mamie Brashier was there at the time and that she is the one who called the police for him. He stated she called Leeds Police Department who responded to the call by coming over to Mamie Brashier's house and talking with him.

Additionally, the witness stated that after Mamie Brashier called the Leeds Police Department, he called them back to give them a description of his car. He stated that an Officer Harding from the Leeds Police Department came to Mamie Brashier's house. He stated Officer Harding carried him to the Emergency Room at Leeds Clinic.

The witness stated the next time he saw the appellant was in the Leeds Jail the following Monday. The witness stated that the appellant was one of the people striking him on the Winnataska Road when they stopped the car. He stated that Owens was also hitting and striking him.

On cross-examination, Mr. McKelvey stated that he drank two or three beers while he was at the Lakeside Lounge. He also stated that the appellant, Owens, and the Myrick girl were drinking beer and whiskey; however, they did not seem like they were drunk.

Mr. McKelvey stated that the reason he initially stopped on the Winnataska Road was because the appellant and his friend stated that that is where they lived. He stated that he stopped the car in front of a house and after that they started beating him. The witness stated that the appellant and his friends did not have any weapons, that they just hit him with their hands. The witness stated that after being hit by the appellant and his friend he was bleeding.

He stated that both the appellant and Charles Ray Owens asked him if he had any money. He stated that the girl, Mrs. Myrick, did not ask him whether he had any money and did not participate in hitting him. The witness stated that when they took him to Charles Ray Owens' mother's house they forced him inside by walking on each side of him and holding his arms.

The witness stated that the $20.00 check was signed by him in the car. He stated that the appellant and his friends forced him to write the check when they discovered he had no money. The witness stated that he gave the check to Charles Ray Owens.

The witness continued by stating that when he ran from Owens' mother's house to the Brashier home that the appellant chased him.

On redirect examination, the witness stated that the appellant chased him all the way from Owens' mother's house to the Brashier home. The witness stated that when he got near the Brashier home the appellant turned around and went back. Finally, the witness stated that he got his automobile back the following morning from the Leeds Police Department, that being a Sunday morning.

On recross-examination, the witness stated that the appellant chased him up to the Brashier home; that the appellant grabbed him at the Brashier home; and that after he grabbed him he let go and left.

James Harding testified that he was employed by the Leeds Police Department and was working in such capacity on May 8, 1976. He stated on that day he was working the three to eleven shift, that being the evening shift.

Officer Harding stated that on the evening of May 8, 1976, the Leeds Police Department received a call from Mrs. Brashier. He stated that the dispatcher told him that Mrs. Brashier called and said someone was outside her house yelling "Help. Help." Officer Harding said that this call was received at five minutes after ten the night of May 8, 1976. He stated that after receiving the call he went to the Brashier home which is located in the southern division of St. Clair County.

Officer Harding stated that when he got to the Brashier home he saw Mr. McKelvey. Officer Harding stated that it appeared that Mr. McKelvey had been beaten about the head and that he was bloody. According to Officer Harding, Mr. McKelvey told him that he had picked up some people on the side of the road and they had beaten him up and taken his car and money and left.

Officer Harding stated that he then transported Mr. McKelvey to the Leeds Emergency Room. He stated that when Mr. McKelvey made the complaint to him about the robbery he did not mention the appellant, Kenneth Ray Lee, by name, but rather used the nickname of Jap. Officer Harding stated that he knew the appellant by the nickname of Jap.

Further, Officer Harding stated that when Mr. McKelvey made the complaint to him about the robbery he also mentioned Charles Ray Owens and a woman.

Officer Harding stated that he saw the appellant, Owens, and the woman later that night at the Leeds Jail.

Additionally, Officer Harding stated that when he was en route to the Brashier home from the Leeds Police Department he received another call from the dispatcher saying that Mr. McKelvey had called to report that his car had been taken and had given a description of that car. Officer Harding stated that when he arrived at the Brashier home and talked with Mr. McKelvey, Mr. McKelvey verified that his car had been taken and also that his wallet and a check had been taken from him.

On cross-examination, Officer Harding stated that when he first saw Mr. McKelvey his eye was swollen and he was bleeding from his mouth and nose and he also had some small cuts on his face. Officer Harding stated that when he observed Mr. McKelvey at the Brashier home he was groggy. He explained this to mean that Mr. McKelvey was weaving on his feet;...