Lomax v. State

• Decision Date: 21 February 1978
• Docket Number: 6 Div. 397
• Citation: 359 So.2d 832
• Parties: Curtis Leon LOMAX v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 832

359 So.2d 832

Curtis Leon LOMAX v. STATE.

6 Div. 397.

Court of Criminal Appeals of Alabama.

Feb. 21, 1978.

Rehearing Denied April 18, 1978.

J. Wilson Dinsmore, Birmingham, for appellant.

William J. Baxley, Atty. Gen. and Barry V. Hutner, Asst. Atty. Gen., for the State.

TYSON, Judge.

Curtis Leon Lomax was charged with the robbery of Jack McGee Sellers by taking $1,700.00 in currency from his person. The jury found the appellant "guilty as charged" and fixed punishment at ten years imprisonment. The trial court set sentence in accordance with this verdict.

Jack Sellers testified that on July 14, 1975, he was employed by Ed Braswell Furniture Company, 3106 North Twenty-Seventh Street, Birmingham, Alabama. On this date, shortly after 2:00 p. m., Sellers stated he was waiting on a customer in the rear of the building. Sellers related that someone struck him from the rear on his head with a blunt instrument, knocking him to the floor. Sellers indicated that when he regained his feet he saw a black male place a gun in Mrs. Marie Braswell's back and tell her not to turn around or else he would shoot. Then this black male pulled the chair in which Ida Williams was sitting away from the desk and told Mrs. Williams and Mrs. Braswell to get on the floor. Sellers stated that the blunt instrument with which he was struck caused a cut on his scalp but did not affect his vision or cause him any dizziness. Sellers indicated that he observed the black male face to face approximately five to ten seconds after which he was told to lie on the floor. Although there were two black males participating in the robbery, he only got a good look at one of them. Sellers described this black male as being tall, slender, wearing a straw hat and sunglasses, a flowered shirt and blue pants, and having a goatee. Sellers related that the appellant put all of the cash from the cash register in the utility change box, then had him open the vault where the appellant obtained all the cash proceeds. It was during this time that he observed appellant's face. The appellant then had everyone in the store, including two customers, go to the back room where they remained until the two black males had left the premises. While in this back room, Sellers indicated that he heard a gunshot and children screaming. Sellers testified that he found a straw hat on the floor in the front room after the robbery. Sellers stated the two robbers took somewhere between $1,700.00 and $1,800.00 in currency.

Sellers testified that a day or two after the robbery Birmingham Detective Coleman brought him between six and eight photographs from which he selected appellant's picture as the man who had robbed him. Sellers stated that he also attended two lineups at the city jail but could not identify anyone in either lineup. Sellers stated that he also saw the appellant in the hallway just outside the courtroom before the preliminary hearing. The appellant was not handcuffed or in the custody of a law enforcement officer when he saw him walk by in the hall. Sellers positively identified the appellant at trial as one of the two men who had robbed him on July 14, 1975, at Braswell Furniture Company and stated that his identification was based on his observation of appellant during the robbery on this date.

Detective Sergeant LaVaughn Coleman testified that he was given the Braswell Furniture Store robbery case on July 15, 1975. Coleman indicated that he received a straw hat which was found at the scene of the robbery from Officer John Fisher. Coleman stated the hat was given to appellant's father. Coleman testified that a day or two after the robbery Sellers picked the appellant from a group of pictures as one of the two men who robbed him.

Mrs. Marie Braswell picked the appellant out of a lineup on Saturday, July 19, 1975, as one of the two men who resembled the men involved in the robbery. She could not positively identify Lomax.

Officer Coleman stated that Mr. Sellers was never asked to select anyone from a lineup in his presence.

Mrs. Marie Braswell testified that she was employed at Braswell Furniture Company on July 14, 1975. She stated she was working in the vicinity of the cash register near the back of the store shortly after 2:00 o'clock in the afternoon. She stated that a gun was suddenly stuck in her back and she was told not to turn around. She was instructed by the gunman to get on the floor, which she did. Mrs. Braswell testified that one of the gunmen told Mr. Sellers to go with him to the vault and open it, which he did. After this, the two gunmen took Mrs. Braswell, Mrs. Williams, Mr. Sellers, and two customers to the back room. While in this room, a gunshot was heard after which some children screamed. Mrs. Braswell described one of the gunmen as being tall and slender, wearing sunglasses and a straw hat. Mrs. Braswell indicated that she attended a lineup consisting of several black males from which she saw only one man who resembled the build and height of the appellant. She stated that her identification of the appellant at the lineup as one of the robbers was not positive. Likewise, she could not positively make an in-court identification. Mrs. Braswell selected the appellant at the lineup based primarily upon his height and build because she never actually got a good look at the man's face during the robbery. She also said the appellant was the man she saw at the lineup.

Mrs. Ida Williams testified that she was employed by Braswell Furniture Company on July 14, 1975. She indicated that between 2:00 and 2:30 p. m. on this date a man jerked her chair around and told her to "hit the floor." Mrs. Williams never saw the man's face. In a few minutes the gunmen placed everyone in the back room where they remained until the two gunmen left the store. While in the back room a shot was fired. When she came out of the back room she noticed a straw hat on the floor of the store.

Mrs. Reaver Daniels testified that on July 14, 1975, around 2:00 p. m., she was in Braswell Furniture Company talking with Mr. Sellers about her account with the store. At this time a black man hit Mr. Sellers over the head with a pistol and said, "This is a stickup" (R. p. 123). Mrs. Daniels testified that the two gunmen instructed them to go to the back room and while they were back there "two shots" were fired. Mrs. Daniels stated she could not identify either of the two black males as she was very nervous and upset.

The appellant's motion to exclude was overruled.

Curtis Leon Lomax testified that on July 14, 1975, he was employed by Lomax & Lomax Construction Company. He stated he was working in Fairfield, Alabama, on that date repairing a roof for a Mr. Paul Caruso. Lomax stated that he...