Lopez v. State

Decision Date23 March 1982
Docket Number7 Div. 892
Citation415 So.2d 1204
PartiesRobert LOPEZ, alias v. STATE.
CourtAlabama Court of Criminal Appeals

H. Keith Pitts of Hawkins & Pitts, Gadsen, for appellant.

Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.

HARRIS, Presiding Judge.

The appellant was indicted and convicted of first degree robbery in violation of Alabama Code § 13A-8-41 (Supp.1977). It being ascertained at appellant's sentencing hearing that he had been convicted of felony offenses on three or more prior occasions, the trial court, in accordance with Alabama's Habitual Offender Act, fixed punishment at life without parole in the state penitentiary. At arraignment, in the presence of counsel, appellant pleaded not guilty to the charges. Appellant is represented on this appeal by court-appointed counsel and has been furnished with a free transcript.

The state's evidence, which included the accounts of two eyewitnesses to the crime, was sufficient to prove appellant's guilt beyond any reasonable doubt. Mr. Everette "Sonny" Helms, one of the eyewitnesses to the crime and the victim named in the indictment, testified that he was the owner of H & B Jewelers in Gadsden. Mr. Helms first noticed appellant drive very slowly by his store in a large dark automobile around 1:00 p. m. on February 23, 1981. Appellant was sitting on the passenger side of the car.

Later that afternoon, around 3:00 p. m., Mr. Helms purchased a television set and as he walked back to his jewelry store carrying the set he saw appellant "coming down the block towards me." Mr. Helms stated that, after he had entered the store and had walked a short distance inside, he heard the door open. He turned around and saw appellant holding a pistol "pointed towards me." Mr. Helms described the revolver as having a blue gun barrel. "I would guess it was a 38, but I am not sure of the caliber."

Appellant ordered Mr. Helms and Miss Dawn Phillips, a store employee and the other eyewitnesses to the crime, "to get on the floor." Mr. Helms lay face down on the floor and as Miss Phillips started to do the same, appellant ordered her to lock the front door and "start clearing the jewelry case." While Miss Phillips was complying with these demands, under threat of being shot or killed, appellant knelt beside Mr. Helms, placed a knee in his back and held the pistol against the back of his head. Appellant further ordered Mr. Helms to take off his rings. Appellant placed these rings, valued at approximately $9,000, in his pocket. The jewelry Miss Phillips had gathered from the showcase and had placed in a trash bag was valued at approximately $32,000. During the time appellant was collecting the jewelry and was holding his pistol to the back of Mr. Helms's head, appellant conversed with Mr. Helms about Mr. Helms's former business partner, Joe Bearden, and Bearden's brother, Phillip. Mr. Helms testified that as appellant was ordering Miss Phillips to "start down the hall towards the back," he told me "that when he found Phil that I would get my jewelry back." Appellant then struck Mr. Helms across the head with the pistol. Mr. Helms stated that the blow "cut my head open" and required several stitches.

Miss Phillips testified that, after appellant told her "to go back and unlock the back door", she heard appellant hit Mr. Helms in the back of the head. "I started running to the back door and he yelled at me to slow down or he'd kill me." Miss Phillips stated that she "tried to slow down" and was able to unlock the back door. "He had come up behind me and he hit me on the back of the head, and I fell to the ground."

Mr. Helms testified that, after appellant and Miss Phillips started down the hall, he waited until he heard the first door in the back of the shop open. Mr. Helms fired four shots at appellant as he made his escape. "I believed that I did hit him." Appellant dropped the bag of jewelry in the back doorway, but fled with Mr. Helms's rings. Miss Phillips notified the police department.

Mrs. Dorothy Singleton testified that, around 3:15 or 3:30 p. m. on the date in question, she saw appellant running "from the building, and he jumped into a car." Appellant got in the passenger side. The car's motor was running and it took off very quickly. Mrs. Singleton identified the car as a green Pontiac, memorized the tag number and called the police.

Captain Jerry Bone of the Gadsden Police Department testified that the vehicle Mrs. Singleton had described was located at the intersection of Highway 227 and Highway 11 in Reese City a short time after the robbery was reported. Captain Bone saw blood inside the car on the passenger side of the front seat. Around 4:00 p. m., appellant approached the group of officers gathered at the vehicle and made the following spontaneous exclamation to Captain Bone: "I am the fellow you are looking for.... I have been shot. I need to go to the hospital." Appellant received a standard pat down before he was taken to the hospital. Mr. Helms's rings were discovered in appellant's windbreaker jacket.

There can be no question from the foregoing facts that the jury's verdict was well supported. Every element necessary to prove a prima facie case of first degree robbery was firmly established. Alabama Code § 13A-8-41 (Supp.1977). See Marvin v. State, Ala.Cr.App., 407 So.2d 576 (1981). The testimony of an eyewitness, standing alone, is sufficient to support a defendant's conviction for robbery. Williamson v. State, 384 So.2d 1224 (Ala.Cr.App.); Williams v. State, 367 So.2d 990 (Ala.Cr.App.); Arnold v. State, 348 So.2d 1092 (Ala.Cr.App.), cert. denied, 348 So.2d 1097 (Ala.).

It cannot be seriously contended that appellant did not intend to "deprive" Mr. Helms of his property. Appellant's bare statement that Mr. Helms would get his jewelry back as soon as he found Phil in no way negates the fact that a robbery occurred. Such argument is wholly without merit. Mr. Helms assuredly was "deprived" of his property within the meaning of the applicable statutes. Alabama Code §§ 13A-8-41, 13A-8-43, 13A-8-2 (Supp.1977) and Alabama Code § 13A-8-1(2) (Supp.1981).

Appellant's motion for change of venue was properly denied by the trial court. The trial court conducted a pretrial hearing relative to appellant's motion and it was ascertained that pretrial publicity had been broadcast in the Gadsden area by newspaper and radio concerning the robbery. Radio broadcasts were aired on four separate days and the Gadsden Times carried front page reports about the crime on February 24 and 25, 1981. Both the newspaper accounts and the radio transmissions mentioned appellant by name. We have carefully reviewed this evidence and find no error in the trial court's ruling. Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966).

The granting of an accused's motion for change of venue rests within the sound discretion of the trial court and its ruling thereon will not be disturbed except for gross abuse. Cobern v. State, 273 Ala. 547, 142 So.2d 869 (1962); Burnett v. State, 350 So.2d 718 (Ala.Cr.App.1977). As this court stated in Anderson v. State, 362 So.2d 1296, 1298-1299 (Ala.Cr.App.1978):

"Section 15-2-20, Code of Alabama 1975, authorizes a defendant to have his trial removed to another county if he cannot receive a fair and impartial trial in the county in which the indictment is found. Gilliland v. State, 291 Ala. 89, 277 So.2d 901 (1973). However the existence of widespread publicity alone does not indicate that a defendant will not get a fair trial. The law focuses on the impartiality of the trial jury. Turk v. State, 348 So.2d 878 (Ala.Cr.App.1977); Mathis v. State, 52 Ala.App. 668, 296 So.2d 755, cert. quashed, 292 Ala. 732, 296 So.2d 764 (1973); cert. denied, 419 U.S. 1106, 95 S.Ct. 777, 42 L.Ed.2d 802 (1975). Actual prejudice directed toward the accused resulting from the extensive publicity must be shown. Botsford v. State, 54 Ala.App. 482, 309 So.2d 835 (1974), cert. denied, 293 Ala. 745, 309 So.2d 844 (1975); Annotation, 33 A.L.R.3d 17 (1970).

"On motion for a change of venue in a criminal case, the defendant has the burden of showing, to the reasonable satisfaction of the court, that a fair and impartial trial cannot be had and an unbiased verdict cannot reasonably be expected. Boutwell v. State, 279 Ala. 176, 183 So.2d 774 (1966); Godau v. State, 179 Ala. 27, 60 So. 908 (1913).

"Newspaper articles, without more, are not evidence on a motion for change of venue; their effect must be shown. Beddow v. State, 39 Ala.App. 29, 96 So.2d 175 (1956), cert. denied, 266 Ala. 694, 96 So.2d 178 (1957), 355 U.S. 930, 78 S.Ct. 412, 2 L.Ed.2d 414 (1958).

"Except in the situation where there is a showing of 'inherently prejudicial publicity which has so saturated the community, as to have a probable impact upon the prospective jurors', the trial court's primary responsibility in dealing with allegedly prejudicial pretrial publicity is whether, as a result of such publicity, it is reasonably unlikely that the defendant can secure a fair and impartial trial. Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965); Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963); United States v. Jones, 542 F.2d 186 (4th Cir. 1976); McWilliams v. United States, 394 F.2d 41 (8th Cir. 1968).

"In Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 2036, 44 L.Ed.2d 589 (1975), the United States Supreme Court recognized that:

" 'Qualified jurors need not, however, be totally ignorant of the facts and issues involved.

" ' "To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be...

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  • Arthur v. State, 8 Div. 873
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    • Alabama Court of Criminal Appeals
    • April 10, 1984
    ...such a venue determination by a trial court will not be disturbed on appeal. Magwood, supra; Botsford, supra; Lopez v. State, 415 So.2d 1204 (Ala.Cr.App.1982); Nelson v. State, 440 So.2d 1130 (Ala.Cr.App.1983). There was no abuse of discretion in this case, and, therefore, no error by the t......
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