Mayes v. State

• Decision Date: 03 May 1977
• Docket Number: 6 Div. 179
• Citation: 350 So.2d 339
• Parties: Henry Leslie MAYES, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 339

350 So.2d 339

Henry Leslie MAYES, alias v. STATE.

6 Div. 179.

Court of Criminal Appeals of Alabama.

May 3, 1977.

Rehearing Denied June 7, 1977.

Michael Crespi, Headland, for appellant.

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

BOOKOUT, Judge.

Robbery; sentence: thirty years imprisonment.

On the evening of May 28, 1975, around 8:30 P.M., three masked gunmen burglarized the Mountain Brook home of Dr. Melvin Bruce Sullivan. The three men entered the room where Dr. Sullivan was entertaining relatives, ordered all present to lay on the floor, and threatened to blow their heads off if they did not do as ordered. The robbers then took Dr. Sullivan's $3,000.00 watch; a $4,000.00 silver service; around $300.00 in cash; an assortment of rings, watches and jewelry from those present, and; on departing, left in one of Dr. Sullivan's cars, a two-door blue Buick.

Positive in-court identification of appellant as one of the robbers was made by Dr. Sullivan, his wife and two daughters. A more detailed account of the facts are set out in a companion case of one of the other robbers, Smith v. State, Ala.Cr.App., 346 So.2d 500 (1977).

I

Appellant contends that the "one-for-one" system of striking a jury in Jefferson County is a violation of the equal protection clause of the Fourteenth Amendment to the United States Constitution, in that defendants in counties of less than 400,000 population get two strikes for every one strike allowed the State. The "one-for-one" strike system is authorized by § 714, Vol. 14, Appendix, Code of Alabama 1940, Recompiled 1958.

This issue was conclusively settled in Liptroth v. State, Ala.Cr.App., 355 So.2d 683 (1976), cert. denied, Ala., 335 So.2d 688, wherein we said:

"We hold, as we have consistently held for the past forty years that § 714, Vol. 14, Appendix, Code of Alabama 1940, Recompiled 1958, does not violate the United States Constitution. Colston v. State, 57 Ala.App. 4, 325 So.2d 520 (1975), cert. denied 295 Ala. 398, 325 So.2d 531; Mallory v. State, 55 Ala.App. 82, 313 So.2d 203 (1975) . . . Dixon v. State, 27 Ala.App. 64, 167 So. 340, cert. denied, 232 Ala. 150, 167 So. 349 (1936)."

II

Appellant contends that the trial court erred by refusing to grant his request for a writ of habeas corpus ad testificandum to return a prisoner to Alabama to testify in his behalf.

The record reveals that the appellant failed to follow the procedure set out in Title 45, § 61, Code of Alabama 1940, to obtain such a witness. That section requires the party seeking such witness to (1) file a sworn petition with the trial court, (2) showing facts known by the convict witness which would be beneficial to the petitioner, (3) which must be filed in sufficient time to allow authorities to produce the witness (the writ must be served on authorities at least one week before the witness is to testify). Appellant failed to comply with the above requirements by failing to file a sworn petition and by failing to show facts known by the witness which would be beneficial to him. Thus no error resulted in the trial court's ruling. Baker v. State, 44 Ala.App. 409, 210 So.2d 855 (1968); Magee v. State, 43 Ala.App. 218, 187 So.2d 274 (1966).

III

Appellant contends that the trial court committed reversible error in refusing to grant a continuance due to his absence from the state for some two months just prior to trial. He also contends that he should have been given additional time in which to obtain interrogatories from the convict witness, Frank Black, whose testimony he merely alleged was "vital to the defendant's case." There was no showing in the record as to what facts the convict witness would testify.

The motion for continuance was heard immediately prior to trial on January 12, 1976. Appellant testified that he was arrested on May 28, 1975, and was confined until October 28, when he was taken from the Jefferson County Jail and transported to Ashville, North Carolina, to appear in another court. He was returned to Jefferson County on January 8 and his trial commenced on January 12. The record discloses that his present counsel was appointed to represent him on August 15, 1975. The record also discloses that counsel for appellant was aware of the trial date as early as December 29, 1975, when he filed his petition for writ of habeas corpus ad testificandum.

The ruling on a motion for a continuance is largely within the discretion of the trial judge, and we will not reverse his decision in the absence of a showing of gross abuse of discretion. Smith v. State, 282 Ala. 268, 210 So.2d 826 (1968); Pounders v. State, 55 Ala.App. 204, 314 So.2d 123 (1975).

Here, the appellant had counsel for almost two and one half months prior to being taken to North Carolina. He likewise had at least three days to confer with his counsel after his return to Jefferson County, prior to the trial date. The record indicates that trial preparation between he and his attorney was being conducted as early as December 11, 1975. We find no abuse of discretion on the part of the trial court for refusing a continuance under those circumstances. We distinguish the instant situation from that in either Mars v. State, Ala.Cr.App., 339 So.2d 104, cert. denied, Ala., 339 So.2d 110 (1976) or Browning v. State, 57 Ala.App. 217, 326 So.2d 778, cert. denied 295 Ala. 392, 326 So.2d 783 (1975), wherein the defendants were given only a few minutes to consult with counsel prior to trial.

IV

Appellant attacks the validity of a warrant issued for the search of the premises where he and his companions were arrested. He contends there was an insufficient basis established before the issuing magistrate to show the officer's confidential informant had a record of reliability.

Appellant attempted to question Officer Richard Watkins, the affiant, concerning specific details of information given on prior occasions by his informant. The officer testified that he had received information on two prior occasions which proved to be correct. The first occasion concerned some burglaries in 1973 or 1974, and the latest was in an automobile theft case in late 1974. The appellant then asked what the nature of the information was on those two occasions. The court sustained the following objection by the State:

"Judge, I object to that. He is slowly but surely getting to the identity factor. If he has enough information, he can prove the identity of the informant."

The search warrant and supporting affidavits are not in the record. This, in itself, precludes our review of the trial court's ruling on either the sufficiency of the underlying circumstances supporting the search warrant, or the limits of the search which may be conducted pursuant to the warrant. This...