Marks v. State, No. CR-06-0412 (Ala. Crim. App. 8/31/2007)
| Decision Date | 31 August 2007 |
| Docket Number | No. CR-06-0412.,CR-06-0412. |
| Parties | Garrett Jeremy Marks v. State of Alabama. |
| Court | Alabama Court of Criminal Appeals |
Appeal from Baldwin Circuit Court (CC-05-1853).
Garrett Jeremy Marks was indicted by a Baldwin County grand jury on a charge of robbery in the first degree, a violation of § 13A-8-41(a)(1), Ala. Code 1975, for his involvement in the theft of personal property belonging to Douglas Speese that was taken from Speese at gunpoint. A jury found Marks guilty of that charge. The trial court sentenced Marks, an habitual offender, to 45 years' imprisonment.
On appeal, Marks argues only that the trial court erred when it denied his motions for a judgment of acquittal, made at the close of the State's case and again at the close of all the evidence, because, he says, the evidence was insufficient to sustain his robbery conviction. Specifically, he argues that the State failed to present any evidence to corroborate the testimony of his juvenile accomplices, D.J. and V.R.
The evidence presented at trial indicated the following. On July 22, 2005, Douglas Speese was employed by Pepsi Cola/Buffalo Rock Bottling Company as a member of the nighttime stock crew. Speese arrived to the last stop on his delivery route, a Wal-Mart discount department store in Foley, at approximately midnight, parked his van on the side of the building, and remained in the van while he ate a meal. He was approached by two young black males who appeared to him to be juveniles. Speese testified that one of the juveniles tapped on the window, that he opened the door of the van, and that the juvenile asked him what time it was. Speese turned the key in the ignition so that the clock on the dashboard displayed the time, and he looked over at the clock; as he turned around, he noticed that the juvenile had pulled a gun out and had stuck it in his back. The juvenile grabbed Speese's cellular telephone from his hand and asked for his wallet. Speese took his wallet from his pocket and opened it to remove the cash, but the juvenile told him to give him the entire wallet and then snatched the wallet from Speese's hand. Both of the juveniles then ran away from the building. Speese entered the Wal-Mart store to report the robbery and the police were summoned.
Speese did not see Marks while the robbery was occurring. Speese viewed the video-surveillance tape from the Wal-Mart store and acknowledged that a Chevrolet Malibu automobile was parked in the parking lot before he was robbed, but he could not see the faces of anyone inside the vehicle or the faces of those who got out of the vehicle. He said that the videotape showed that the Malibu was driven away as the two juveniles ran away from the scene. After the robbery, Speese was able to identify D.J. as the juvenile who spoke to him and who held the gun to his back. Speese testified at trial that he recognized V.R. only because he had testified against him earlier at a juvenile proceeding arising out of the incident.
Sergeant Charles Massey of the Foley Police Department testified that the robbery case was assigned to him. He, along with two other officers, Corporal Connie King and Sgt. Tony Fuqua, viewed the surveillance tape, and attempted to identify the vehicle that was passing through the parking lot at the time of the robbery. Sgt. Fuqua identified the vehicle as a Chevrolet Malibu; the officers noticed that the Malibu had a sunroof and that the front end was damaged and the headlight on the right side was not operating. Sgt. Massey testified that he then drove to a community near the Wal-Mart store and began searching for the vehicle. He quickly located a white Chevrolet Malibu parked in front of an apartment and noticed that the front end was damaged. Sgt. Massey telephoned Cpl. King and asked her to meet him at the apartment complex so that she could look at the vehicle; both officers believed that this vehicle might have been the vehicle they saw on the surveillance tape.
Sgt. Massey and other officers then went to the residence. A woman who identified herself as Alana Womack came to the door.1 She said that she lived in the apartment with her boyfriend, Garrett Marks, and that the Malibu belonged to her. When asked if she permitted anyone else to drive the Malibu, she said that Marks sometimes drove it. At that time, the shift supervisor, Sgt. Richard Roper, came to the apartment. Sgt. Massey explained to Sgt. Roper the circumstances of the crime they were investigating, and Sgt. Roper told Sgt. Massey that he had seen Marks driving around in the Malibu with two male juveniles whom he knew. Marks stated that he had been with the two boys, but that he did not know what they were doing and that "[h]e wasn't a part of it." (R. 267.) Sgt. Massey asked Sgt. Roper to bring the juveniles to the police station for questioning.
The police asked Womack if they could search her Malibu and the apartment in which she and Marks resided, and she consented to both searches. During the search of the Malibu, the police found a gun beneath the driver's seat; the gun looked like a pistol that would fire bullets but Sgt. Massey testified that it was a BB gun. No evidence was recovered from the residence.
D.J. and V.R., the juveniles Sgt. Roper had seen with Marks, were brought to the police station and were interviewed separately; their interviews were videotaped. In addition, both juveniles testified at trial. Fourteen-year-old V.R. testified that he had admitted in a juvenile court proceeding that he had participated in the robbery of Speese and that he had been ordered to serve eight weekends at a juvenile detention center and one year on probation. He also agreed to testify against the other participants in the robbery. He stated that on the evening of July 22, 2005, at approximately 10:00 or 10:30 p.m., he and D.J. went with Marks, whom he knew by the nickname "Tear Drop," to the Wal-Mart store in the Malibu. While they were in the parking lot, Marks told V.R. and D.J. that he wanted them to rob the man in the Buffalo Rock van. Marks gave D.J. a gun; D.J. and V.R. got out of the car and, after asking the man what time it was, D.J. pointed the gun at the man and took his cellular telephone and his wallet. After the robbery, they returned to the car and Marks took them back to his residence. V.R. initially stated that the gun recovered from the Malibu was the gun Marks had given to D.J., but he later said that Marks had given D.J. a "real" gun. The videotaped statement V.R. gave to the police was played for the jury. The relevant details V.R. provided in the statement were substantially similar to those he provided in his testimony at trial. V.R. said in his statement that Marks suggested that he and D.J. rob Speese, who was sitting in a Buffalo Rock van in the parking lot of the Wal-Mart store; that Marks gave D.J. a gun; that he and D.J. went to the van and D.J. pointed the gun at the man and took his cellular telephone and his wallet; and that they then returned to Marks's car.
Fifteen-year-old D.J. also testified at trial. He stated that he had admitted in a juvenile court proceeding that he had participated in the robbery, along with V.R. and Marks, whom he knew only as "Tear Drop." He said that he was currently in the custody of the Department of Youth Services, at least in part because of his involvement in the robbery of Speese. He stated that he and V.R. were riding with Marks in the white Malibu and they were talking about getting some money by robbing someone. They rode around the parking lot of the Wal-Mart store and saw Speese in his van and decided to rob him. D.J. testified that Marks gave him a gun and told him to show the gun to the man. He said that he showed the man the gun and asked for his money, and that he took the man's wallet and his cellular telephone. He and V.R. then ran down the street to where Marks had said he would pick them up after the robbery.
D.J.'s videotaped statement to the police was also played for the jury. His statement was substantially the same as his testimony at trial. He said in his statement that he and V.R. were riding through the parking lot of the Wal-Mart store in Marks's white Malibu and Marks asked them if they wanted to rob someone. He said that Marks gave him a pistol, told him to go up to the man in the Buffalo Rock van, "throw it up in his face" and ask for money. (R. 184.) D.J. said he did what Marks told him to do and the man gave him his money and his cellular telephone. He and V.R. then ran down the street to where Marks had driven the Malibu and they left. D.J. said that he gave the gun back to Marks, and that the three of them split the money from the wallet.
Cpl. King of the Foley Police Department testified that Sgt. Massey had asked her to view the surveillance video from the Wal-Mart store that was taken on the night of the robbery and to see if she recognized the type of vehicle the robbers appeared to have been driving. She identified the car as a Malibu and noted it had a sunroof and body damage to the front passenger side, including the headlight. She testified that, after Sgt. Massey located a similar car parked at a residence near the Wal-Mart store, she looked at the car, viewed the surveillance videotape again, and then accompanied Sgt. Massey to the residence to speak to Alana Womack, the owner of the car. Cpl. King testified that she searched the car and found a gun beneath the front seat of the car.
This Court has viewed the surveillance videotape. The videotape shows two people getting out of a white car; the car has damage to the front end and only one working headlight. The two people walked to the driver's side of the Buffalo Rock van as the white car moved away. The videotape next shows the two people running from the van in the direction the white car had been driven, out of the range of the camera.
Marks presented Alana Womack as a defense witness. She testified that, on...
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