Matthews v. State

• Citation: 401 So.2d 241
• Decision Date: 21 April 1981
• Docket Number: 6 Div. 445
• Parties: Walter Ray MATTHEWS v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

Page 241

401 So.2d 241

Walter Ray MATTHEWS v. STATE of Alabama.

6 Div. 445.

Court of Criminal Appeals of Alabama.

April 21, 1981.

Rehearing Denied May 26, 1981.

Orson L. Johnson, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for the State.

TYSON, Judge.

Walter Ray Matthews was indicted for the February 28, 1980, first degree robbery of Mrs. Debra Perkins. The jury found the appellant "guilty as charged". Pursuant to the Temporary Rules of Alabama Criminal Procedure, a sentencing hearing was held, and the trial court set the appellant's punishment at twenty years' imprisonment. From the conviction, he now appeals, in forma pauperis.

During the afternoon and evening of February 27-28, 1980, Mr. and Mrs. William Perkins, Jr. attended the Southeastern Conference Basketball tournament being held at the Birmingham-Jefferson Civic Center. They left between 10:15 and 10:30 p. m. and had dinner at a local restaurant located in Homewood and three or four minutes from their motel, the Rodeway Inn. Around midnight, they left the restaurant and drove to their motel. As they drove into the parking lot, they noticed a car containing three or four people closely following them. Mrs. Perkins described the car as a big, heavy, light colored, older model with large headlights.

Mrs. Perkins testified that after they had parked their car, a 1979 two-door Oldsmobile Cutlass, the car following them sped around the motel corner. She could not identify the vehicle and never saw it again. While exiting from their car, two armed black males assaulted the couple and threatened to shoot them if they did not give them their money. Mrs. Perkins stated that one of the robbers grabbed her purse, containing.$7.00 and some credit cards, held her arm, and pushed her into the motel wall. She saw his partner hit her husband on the jaw, breaking it, and take his billfold and car keys. The robbers then made the couple "stoop over" next to the motel as they fled in the car. The purse and billfold were subsequently returned.

Mrs. Perkins testified that the robbery was consummated within three or four minutes and that the area was well lit. She stated that she got a good look at her assailant and described him as a young black male in his late teens or early twenties with brown eyes, black hair, but without facial hair, wearing army colored fatigue pants and cap and a red-orange coat. She stated that she watched him and his gun because he appeared nervous and was shaking it.

The couple went inside the motel wherein they reported the robbery to two Jefferson County Deputy Sheriffs. Within five minutes Homewood Police Officer Phillip Dodd arrived and questioned them. Within thirty minutes of the robbery, the Perkinses were taken to another location in Birmingham where they identified their car and Mrs. Perkins identified one of two suspects in custody as her assailant. He was wearing the same clothing as when the robbery occurred. Mrs. Perkins testified that while being driven to their car, the police told her that they wanted them to identify their car and look at some individuals who had been fleeing from the car although they might not be their assailants. She made an in-court identification of the appellant as being the same person she had previously identified. After their car was processed for fingerprints, the Perkinses were taken to a local hospital where Mr. Perkins received medical treatment. Surgery was subsequently performed on his jaw.

Mr. Perkins testified to the events of the robbery in substantially the same manner as his wife. He stated that he could not describe or identify his wife's assailant. He stated that while being transported to their car, Officer Dodd told them that they had apprehended a couple of suspects that they wanted them to view.

Birmingham Police Officer Michael Crawford testified that on February 27, he was working the 11:00 p. m. 7:00 a. m. shift. Around 12:12 a. m. on February 28, 1980, he was on routine patrol and saw two cars parked in the parking lot at George Ward Park in Birmingham. He knew that the park closed at 11:00 p. m. Officer Crawford had not received any radio dispatch concerning the robbery. When he drove toward them, the two cars hastily exited the park. Officer Crawford met the cars as the left the park and identified them as a Chevrolet Impala and an Oldsmobile Cutlass each containing two occupants. His description of the passenger of the Cutlass was similar to that given by Mrs. Perkins of her assailant. He described the driver of the Chevrolet as a black male wearing a red shirt and a brown colored jacket.

Officer Crawford pursued the vehicles and found them abandoned on a street with their engines running, lights on, and doors open. During the chase he placed a bulletin on the radio concerning the vehicles, the driver of the Chevrolet, and the passenger in the Cutlass. He secured the scene and heard a dispatch concerning the Cutlass. Officer Crawford called for an evidence technician to process the vehicles. Officer Bobby Zeanah responded to the call and upon his arrival, Officer Crawford's partner, Officer Ben Herron, turned over a .22 caliber pistol he had found in front of the Cutlass. About five to seven minutes after the chase, Officer Crawford saw the passenger from the Cutlass in the back of another patrol car. Officer Crawford identified the appellant as the passenger. Officer Crawford witnessed the Perkinses' identification of the robbers as well as their car.

Birmingham Police Officer Bert Bowlin testified that in the early morning hours of February 28, he heard the bulletin placed on the radio by Officer Crawford and went to the scene of the abandoned cars. After talking to Officer Crawford, he began to search the area. Not more than ten minutes from the time he had heard the bulletin and within three or four blocks of the abandoned cars, he saw two black males, one wearing an orange colored jacket. He stopped and frisked them and transported them to the scene, telling the suspects that he was taking them to let someone look at them. When he returned to the scene, Officer Bowlin testified that Officer Crawford identified one of the suspects. Afterwards, Officer Bowlin arrested the suspects, gave them their Miranda rights, and transported them to jail.

Birmingham Police Officer Larry McDonald testified as to his fingerprinting of the appellant at the city jail and identified a copy of them. He stated that they were made in the regular course of business and that with the exception of some numbers on the fingerprint card, it was in the same condition today as when he had made it.

Homewood Police Officer Phillip Dodd testified to his February 28, 1980 interview with the Perkinses. He transported them to identify their car and the suspects.

Birmingham Evidence Technician Robert Zeanah testified to his February 28, 1980, processing of the two abandoned vehicles. He lifted several latent fingerprints from both cars. He received the pistol found by Officer Herron but could not lift any fingerprints from it. He separated the latent fingerprint lifts, placed them in separate envelopes, and on the same day placed them in a locked box located at the ID Bureau at City Hall. After examining the lifts, Officer Zeanah stated that with the exception of some writing on the lift cards, they were in the same condition as when he had made them.

Birmingham Fingerprint Technician Sandy Triplett testified that she was in charge of the ID unit of the Birmingham Police Department. After testifying on her qualifications, Mrs. Triplett stated that she made the copy of the appellant's fingerprint card which is submitted, as all fingerprint cards made at the city jail to her unit, as a matter of routine business. She stated that she had seen the latent fingerprint lifts made by Officer Zeanah and that they had been under her unit's custody and control since February 28, 1980.

Mrs. Triplett testified that with an employee in her unit she made independent comparisons of the submitted fingerprints. She stated that several prints found on the Cutlass and one found on a beer bottle found in the Chevrolet were made by the appellant.

Mrs. Triplett's testimony concluded the State's presentation of its case.

The appellant moved to exclude the state's evidence, which the trial court overruled.

I

Appellant contends that the trial court erred in overruling his motion to exclude the state's evidence and denying his motion for a new trial on the ground that the state failed to prove a prima facie case of first degree robbery.

After a careful review of the state's evidence, we find the evidence sufficient for the jury to have found the appellant guilty of the charged crime. Consequently, the trial court properly overruled both motions, §§ 13A-8-41, -43 Code of Alabama 1975 (Supp.1977); See generally Warren v. State, 261 Ark. 173, 547 S.W.2d 392 (1977).

II

Appellant asserts that the trial court erred in overruling his demurrer to the indictment, contending that it is vague and confusing.

Omitting the formal parts, the indictment reads: (R. 207)

"... WALTER RAY MATTHEWS, whose name is otherwise unknown to the Grand Jury, did, in the course of committing a theft of one lady's purse and Seven Dollars of the lawful currency of the United States of America, a more particular description and denomination of which is to the Grand Jury otherwise unknown, the property of Debra Virginia Bell Perkins, used force against the person of Debra Virginia Bell Perkins, or against the person of another present, with intent to overcome her physical resistance or physical power of resistance, while the said WALTER RAY MATTHEWS was armed with a deadly weapon, a pistol, in violation of § 13A-8-41 of the Alabama Criminal Code...."

Section 13A-8-41(a)(1) Code of Alabama 1975 (Supp.1977), states:

"A person commits the crime of robbery in the first degree if he...