Mallory v. State
| Decision Date | 01 March 1983 |
| Docket Number | 3 Div. 510 |
| Parties | Arthur D. MALLORY v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Richard A. Lawrence, Montgomery, for appellant.
Charles A. Graddick, Atty. Gen., and Richard L. Owens, Asst. Atty. Gen., for appellee.
Arthur D. Mallory was charged and convicted of robbery in the first degree in the Circuit Court of Montgomery County and was sentenced as a habitual offender to life without parole. This appeal follows.
In early August of 1981, appellant approached one Ray Stanford, the assistant manager of a Montgomery jewelry store, and proposed buying some jewelry from him "under the counter without a written receipt." About two weeks later, appellant returned to the jewelry store accompanied by Willie James DeBruce, both of whom attempted to persuade Stanford "to meet them later on." DeBruce exhibited "three to four thousand dollars" in hundred dollar bills to Stanford. Appellant and DeBruce looked at the most expensive diamonds, inquiring of Stanford the quantity of such diamonds on hand and the closing hours of the store. The two left the store after Stanford "would not sell illegal, steal any of it," and they told Stanford they would contact him later.
Due to the actions and demeanor of appellant and DeBruce while they were in the store, Stanford became suspicious that they "might want to rob the place." After his manager arrived at the store, Stanford informed the manager of the incident and of his suspicions. They then called the Montgomery Police Department and relayed the information to them.
Later that day, either appellant or DeBruce called Stanford, setting up a meeting with Stanford at 7 p.m. at the parking lot of a Montgomery motel. According to Stanford, "they sounded very forceful."
After coordinating the scheduled meeting with the Montgomery Police Department, Stanford met appellant and DeBruce. They invited Stanford to their motel room and offered him "a large amount of drugs." Stanford refused in both instances and, instead, invited DeBruce, who was standing with appellant, to join him in Stanford's car, parked near the swimming pool. Appellant remained outside of the car, DeBruce got in on the passenger side, and Stanford entered on the driver's side. Appellant then walked over to the corner of the motel building, about thirty or forty feet from the car, "acting as a lookout." Just as Stanford closed the car door, DeBruce requested to see "the merchandise." As Stanford reached into his pocket for the bag containing the jewelry, he looked up and saw DeBruce pointing a pistol at him. DeBruce also demanded, and received, two diamond rings which Stanford was wearing.
Stanford then engaged the car's starter with the car in gear; as the car lunged forward, Stanford was able to open the door and make his exit. As he ran, he yelled "[h]e's got a gun." As DeBruce (who had the jewelry) got about twenty feet away from the car, he was stopped and arrested by Officer Strope of the Montgomery Police Department who, by prearrangement, was on a stakeout at the motel's swimming pool.
The value of the store's jewelry was estimated at "more than ten thousand dollars," and the value of Stanford's personal rings was estimated to be three thousand dollars.
Appellant questions the sufficiency of the evidence for a conviction of robbery in the first degree, urging that the trial court erred in the denial of his motion to exclude the State's evidence and his motion for a new trial. We disagree.
The requisite elements of the charged offense are adequately demonstrated by the evidence; therefore, the only question presented on the motion to exclude is whether there was sufficient evidence at the conclusion of the State's case in chief for the jury to reasonably conclude that appellant was an accomplice and knew that DeBruce had a gun. The fact that appellant himself was unarmed is not fatal.
Section 13A-2-23, Code of Alabama 1975, provides:
Appellant had made the initial contact with Stanford at the jewelry store, and it was he who brought DeBruce to the store to meet Stanford.
Witness Stanford testified, without objection, that based from the actions and demeanor of appellant and DeBruce while they were in the jewelry store earlier that day, he feared they "might want to rob the place." Both Officers Burks and Strope of the Montgomery Police Department, without objection, characterized the action of the appellant during the time of the robbery as that of a lookout. Also, at the time Officer Strope stopped and arrested DeBruce, appellant immediately ran.
When this evidence is considered in the light most favorable to the State, as we are required to do in considering the motion to exclude, there is sufficient basis for the jury to reasonably conclude that appellant did aid and abet DeBruce in the robbery and that appellant knew that DeBruce had a gun. The motion to exclude the State's evidence was, therefore, properly denied.
The only evidence offered by appellant was the testimony of DeBruce, who testified that he and appellant came to Montgomery from Birmingham to buy some jewelry, and that he did not indicate to appellant that he had a gun. However, on cross examination, when the State was attempting to impeach DeBruce's testimony, he testified that he had previously pleaded guilty to the robbery charge in this case, and that at the time of entering his guilty plea, he had told the trial judge accepting the plea that appellant knew about the gun.
The question of whether the State met its burden of proving the necessary elements of appellant's complicity, including his prior knowledge of the gun, and his intent to promote or assist in the commission of the offense, was fairly put to, and resolved by, the jury. We find no error in the trial court's denial of appellant's motion for a new trial.
Appellant urges that the trial court erred to reversal in its failure to grant a mistrial on the basis of a question to one of the State's witnesses by the prosecutor.
The State asked Officer Burks if he knew whether the Pinto (which appellant was driving at the scene when the robbery occurred) was a stolen car. Appellant interposed an objection, which was sustained by the trial court. Appellant also moved for a mistrial on the basis that the question was prejudicial in nature and for a jury instruction that the question be disregarded. The mistrial motion was denied, and the jury instruction motion was granted. The trial court instructed the jury to "totally disregard" the question in that it was "totally improper and doesn't have anything to do with this case."
A motion for a mistrial should not be granted when the prejudicial qualities of a comment can be eradicated by action of the trial court. Further, there is a prima facie presumption against error where the trial judge immediately charges the jury to disregard the remark. See Nix v. State, 370 So.2d 1115 (Ala.Cr.App.), cert. denied, 370 So.2d 1119 (Ala.1979).
The prosecutor's question was not of such magnitude as to be ineradicable, and the trial court immediately charged the jury to disregard the question. We find no error in the trial court's denial of appellant's motion for a mistrial.
Appellant contends that some of the State's questions to DeBruce on cross examination were prejudicial to the extent of being an impermissible denial of his Sixth Amendment right to confront and cross examine his accusers. He further contends a denial of due process under the Fourteenth Amendment on the basis that the State withheld from him the statements DeBruce made at the guilty plea hearing. We find that these contentions are without merit.
DeBruce testified on direct examination that appellant was not aware of the gun. The questions by the State were for the purpose of rebutting and impeaching this testimony.
The pertinent portion of the testimony was:
It is apparently the appellant's position that the form of these questions served to give the jury the impression that the trial judge and the prosecutor were confirming the accuracy of the information being elicited by the questions. We disagree and hold that such questions are clearly permissible on cross examination for impeachment purposes in that the information sought constitutes self-contradiction in the form of prior inconsistent statements. See C. Gamble, McElroy's Alabama Evidence § 155.02(1) (3d ed. 1977).
The prior inconsistent statements of DeBruce used by the State to impeach his credibility are not within the...
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