Means v. State

• Decision Date: 28 April 1987
• Docket Number: 2 Div. 385
• Citation: 545 So.2d 100
• Parties: Clay MEANS, Claude Jackson, and Charles Dorsey v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 100

545 So.2d 100

Clay MEANS, Claude Jackson, and Charles Dorsey v. STATE.

2 Div. 385.

Court of Criminal Appeals of Alabama.

April 28, 1987.

Rehearing Denied Sept. 20, 1988.

William Dowsing Davis III, Birmingham, for appellant Clay Means.

Charles M. Purvis, Birmingham, for appellant Claude Jackson.

Thomas B. Woodard, Reform, for appellant Charles Dorsey.

Charles A. Graddick, Atty. Gen., and James Prude, Asst. Atty. Gen., for appellee.

LEIGH M. CLARK, Retired Circuit Judge.

A jury found each of these three appellants guilty on a consolidated trial of said defendants-appellants on an indictment against each of said named defendants that charged in pertinent part that said defendant, naming him, did knowingly obtain unauthorized control over U.S. currency and checks, the property of Vicco Oil Company of the value of an amount in excess of $1,000.00, with the intent to deprive the owner of said property in violation of Section 13A-8-3 of the Code of Alabama, which by subsection (c) of said Code section is classified as a Class B felony, and which by Section 13A-5-6(a)(2) is punishable by imprisonment for "not more than 20 years or less than 2 years." It having been shown at a sentencing hearing after due notice that each of the defendants was a recidivist with three or more previous felony convictions, each was sentenced to imprisonment for life.

The first witness for the State was Thomas E. Hixon, who testified that he "had been running the Vicco Service Station" for approximately 19 years and was present there on December 31, 1982, on the occasion of the alleged theft. He identified the three defendants, in part as follows:

"I was about to leave the station to go to the bank with the money bag in my hand when I noticed my wife was real busy and I turned around and walked back and three colored boys followed me in and my counter, I've got an old register sitting here and underneath the counter is open where I keep cigarettes. I merely pitched the bag up under the counter. They said they wanted some cigarettes. They got the cigarettes."

Mr. Hixon further testified that he was in the process of leaving the service station to go to the bank, as the motor vehicle in which the three defendants were riding was being serviced and then as they were driving away in the motor vehicle; that he heard his daughter say, "Mother, one of them stooped down and got something out from under the counter"; and that his wife came out screaming and hollering, "We've been robbed." The witness then testified that he then ran and jumped in his pickup and "taken out down the highway, but, by the time I could get in the truck, they was a couple blocks down the highway," so he returned to the service station.

Deputy Sheriff John R. Steels, of Tuscaloosa County, testified as a witness for the State that he was on duty that day and that while on duty he received a message from the Tuscaloosa sheriff's office describing the motor vehicle in which the three defendants were riding and advising him to be on the lookout for it, and advising him that they were to be apprehended for the theft at the Vicco Oil Company. He said that he saw a motor vehicle approaching from the direction of Pickens County that was similar to the vehicle that had been described to him as the one containing the persons who had left from the Vicco Oil Company, and that he stopped the vehicle and its three occupants at approximately 1:00 or 1:30 and that the three defendants were in the automobile. We quote from his testimony as follows:

"Q. Are you certain that--this (indicating) is Mr. Means you pointed out. Are you certain he was driving?

"A. Yes, he was.

"Q. You don't know where the tall fellow was sitting; do you?

"A. I can't recall.

"Q. You said, I believe, you don't know where this other fellow, Mr. Dorsey, was sitting?

"A. No, I don't.

"Q. What happened when you stopped the car, Officer?

"A. I stopped the car and the driver got out and he asked me what was the problem. I told him the problem.

"Q. What did you say to him?

"A. I told him that a car answering his description was reported to us that it was involved in a robbery or whatever from our S.O. and I shook them down searched them down.

"....

"Q. What did you find, if anything, on the individuals?

"A. I didn't find no weapons. The subject here with the beige and crimson had $45.00 on him.

"Q. Can you talk a little louder?

"A. The subject here, Mr. Means I think, the subject here, he had $45.00 on him. The other subject, Jackson, he had $45.00 on him. The other subject had small amount of change on him. The subjects stood there. I kept them there where I could watch them for a while. Then Sergeant Lake dispatched and said he was bringing Sheriff Coleman over with some people to identify them or whatever and see whether they were the subjects that took the money over here. Meanwhile, they was out, so I searched them again, placed them in the patrol car.

"Q. You searched all three of them again?

"A. Absolutely.

"Q. And, placed them in your car?

"A. Yes, sir.

"Q. And what part of the car did you place them?

"A. I put them in the back seat, all three of them.

"Q. Were they restrained in any way, handcuffed?

"A. No.

"....

"Q. Now, all the money that you found, you didn't find anything else on the individuals?

"A. No, I didn't. No more than just personal like maybe cigarette lighters and stuff like that.

"Q. You found--did you say--

"A. $445.00.

"Q. On Mr. Means?

"A. Right.

"Q. $45.00 on Mr. Jackson?

"A. Yes, sir.

"Q. Now, did I understand you to say that Sheriff Coleman came over there?

"A. Yes, he did.

"Q. How long after you stopped and searched them and placed them in the vehicle was it before Sheriff Coleman got there?

"A. I'd say 45 minutes to an hour, in that bracket.

"Q. Now, after Sheriff Coleman got there, what did you do then?

"A. Sergeant Lake he took over the suspects and Sheriff Coleman said that he had some people he wanted to look at the people and we got them out and he looked at them and the lady identified them, you know.

"Q. And, this was, you say, between one and one thirty in the afternoon when you first stopped them?

"A. Yes.

"Q. And, then what happened to the fellows after that?

"A. It was turned over to Sheriff Coleman.

"Q. And, what did you do with the personal effects and money that you found?

"A. I turned them over to Sheriff Coleman."

There was no contention on the trial and no contention on appeal by any one of the three defendants-appellants that he was not one of the three men who were in the automobile that came to the Vicco service station on December 31, 1982, and no denial that one of them while inside the office of the service station stole the money and checks described in the indictment against each of the defendants and which soon thereafter were found in an automobile in which they had been riding. None of the defendants was a witness on the trial of the case. Each appellant is represented on appeal by at least one lawyer who represented the defendant at trial, and each appellant's counsel has filed a brief in which he argues that his client's conviction and sentence should be reversed and the case remanded. However, it should be observed that there is a lack of uniformity as to all of the issues presented in the three separate briefs of counsel for appellants. Nevertheless, there is some conformity in all three briefs as to two issues presented, which issues we shall now discuss under an appropriate caption.

THE FIRST OF THE TWO ISSUES PRESENTED BY ALL THREE APPELLANTS

In the brief of counsel for each appellant are the following two issues, although they are stated somewhat differently in said briefs. One of said two issues is to the effect that the appellant was denied his constitutional right to a fair trial by reason of the claimed insufficiency of the transcript presented by the court reporter to protect the appellant's constitutional right to a fair trial or to a fair appeal.

Although this particular contention is not emphasized to the same extent by the briefs on appeal by attorneys for the three appellants, it seems that the contention of each appellant is addressed to the apparent failure of the court reporter to report the opening argument of counsel for the State in the cases and each urges that as a result thereof the appellants are unable to show on appeal that their objections to the closing argument of State's counsel, overruled by the trial judge, were well taken and should have been sustained by the trial court. Reliance is based upon opinions by courts of the United States, including United States v. Upshaw, 448 F.2d 1218 (5th Cir.1971), cert. denied, Upshaw v. United States, 405 U.S. 934, 92 S.Ct. 970, 30 L.Ed.2d 810 (1971). Although the language of the three briefs of counsel for appellants are not entirely uniform as to the proposition now under consideration, we believe that the following quotation from the brief of one of said counsel represents fairly the view stated in all of said briefs:

"Even though this Court is no longer required to search the record for error in cases other than death penalty review, it is still apparent that when an error occurs that is so flagrant and prejudicial to a Defendant's rights, this Court is called upon to act. However, when the entire argument is not presented for review, the Court does not have the full and complete record from which to review the case. Had the Appellant been financially able to have an entire transcript provided, he would have done so; however, when the State ordered a free transcript, a complete transcript was not included. A reconstruction of the record is not a viable substitute for an accurate and verbatim transcript."

Without agreeing with appellants as to the last sentence quoted above, for the reason that we think that an effort could have probably been successfully made at trial court by each of the defendants to have shown and have reported by the court reporter the...