Merchant v. State, 6 Div. 943

• Decision Date: 26 February 1980
• Docket Number: 6 Div. 943
• Citation: 384 So.2d 627
• Parties: Ricky Ray MERCHANT v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 627

384 So.2d 627

Ricky Ray MERCHANT v. STATE.

6 Div. 943.

Court of Criminal Appeals of Alabama.

Feb. 26, 1980.

Rehearing Denied March 18, 1980.

Larry P. Knopf, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., Jean Williams Brown, Asst. Atty. Gen., for appellee.

TYSON, Judge.

Ricky Ray Merchant was charged with the robbery of Anna Jo Jenkins by taking some $1234.00 from her person and against her will by putting her in fear, etc. The jury found the appellant "guilty of robbery" as charged in the indictment and fixed punishment at ten years imprisonment. The trial judge set sentence in accordance with this verdict.

From the overruling of the appellant's pretrial motion to suppress, the State's identification testimony, and the overruling of the appellant's motion to exclude the State's evidence, the appellant prosecutes this appeal.

Anna Jo Jenkins testified she was a cashier at the Winn-Dixie store located at 2415 Avenue E, Ensley, Alabama, on Sunday, March 6, 1977. Ms. Jenkins indicated that she was working at the cash register nearest the office toward the front of the store and had noticed the appellant come in with another black male and walk around in the produce department. She stated that he was wearing a red toboggan cap and a short black coat. She noticed him picking up produce and watched him closely. She said she later saw him leaving the store with his companion without purchasing anything. Ms. Jenkins stated she commented to Mr. Pruitt, the store's manager, about the two boys, and he mentioned that he also had noticed them. Ms. Jenkins indicated that, later that afternoon, the appellant returned to the store and came to her check-out counter where the following occurred (R. pp. 68-69):

"Q. Tell the ladies and gentlemen of the jury about what time this was.

"A. It was between four and four thirty that afternoon.

"Q. O.K. Where did you see him?

"A. He came up to the side of the register in between the registers, hit me on the leg and said, 'Don't move.' I had checked a customer out and the drawer was still open, and he said, 'Don't move.' Well, I didn't and I was real close to him and I kept looking at him.

"Q. All right. How close was he to you?

"A. I would say as close as this lady here.

"Q. Mrs. White, the court reporter?

"A. Yes, sir.

"Q. Were you face to face?

"A. He had his side view to me.

"Q. Did you ever get a chance to look him straight in the face?

"A. Straight in the face, yes, sir, because when he hit me I turned and looked at him.

"Q. Explain to the jury where his hands were when he hit you.

"A. It was in his pocket, coat pocket.

"Q. All right. Was the coat kind of like this?

"A. A little longer.

"Q. Do you know which hand he had in his pocket?

"A. He would have his left hand.

"Q. In his pocket?

"A. Yes, sir.

"Q. Now how did he hit you?

"A. He hit me on the side.

"Q. Like this?

"A. Yes, sir. Said, 'Don't move.'

"Q. When he hit you did you feel anything hit your leg?

"A. Yes, I did it hurt.

"Q. What did it feel like to you?

"A. Well, like something hard in his pocket.

"Q. Did you have any bruises or anything to your leg?

"A. I had a blue mark on my leg.

"Q. Cash register drawer was open?

"A. Yes, sir.

"Q. Did he have anything in his hands after he hit you, did he take anything?

"A. He had a sack in his hand after he hit me, he had a sack in one hand and then he pulled his hand out of his pocket and started taking the money out of the drawer.

"Q. Did he ever touch anything in the drawer or anything in the cash register with his hands?

"A. No sir, I'm positive he did not.

"Q. Now how much in your judgment, approximately, how much money did he take?

"A. It was around twelve hundred dollars, a little over."

Ms. Jenkins indicated that, as she stood there, she called in a low voice for Eddie Herrtin, the grocery sack boy, who was standing nearby. She stated that the appellant, Merchant, after grabbing the money from the cash register, placed it in a paper bag, then dropped it, and had to scoop the money from the floor before running from the store. Ms. Jenkins indicated that the appellant was wearing a red toboggan cap, black pants and coat, was about six feet tall and weighed between 160 and 170 pounds. She stated that he was growing a mustache, and that she gave this description to the police officers, who were telephoned shortly after the appellant ran from the store.

Ms. Jenkins indicated that, some three or four days following the robbery in question, the appellant returned to the store with three companions. She stated that on this occasion she went to another cash register and attempted to sack up some groceries for another cashier so that she could get a good look at the appellant. She stated that in about five minutes the appellant and his companions returned to the front of the store and came to her cash register. She stated that she got a good look at them, and they were giggling and laughing, and they had picked up some candy. She stated that on this occasion the appellant bought some shrimp, paid for it and left with his companions. Ms. Jenkins reported this second visit of the appellant to Mr. Pruitt, the store manager, and also to Police Detective Sergeant Felts, who investigated the robbery.

On cross-examination, Ms. Jenkins stated that the cashier, whom she assisted on the occasion of the appellant's coming back to the store with three companions, was Mrs. Kathleen Thompson, and that she asked Mrs. Thompson to watch her counter while she followed the boys to the frozen food department where they picked up the frozen shrimp. She said she wanted to be positive that this was the same boy who had robbed her three or four days earlier. She stated that on this occasion the appellant and his companions were in the store from five to ten minutes.

Ms. Jenkins indicated that Sergeant Felts showed her two different groups of black and white photographs of black males of similar size, and the photographs were of similar detail and clarity. She stated that no suggestion was made to her on either occasion when she examined the photographs. She stated that she could not pick out anyone on the first occasion, which was about one week after the robbery, but on the second occasion when the photographs were shown to her she picked out the photograph of the appellant without hesitation. No police lineup was involved in this case.

Ms. Jenkins made a positive in-court identification of the appellant as the person who had robbed her on Sunday afternoon, March 6, 1977, at the Winn-Dixie store.

Edward Patrick Herrtin stated he was employed as a grocery "stock and sack man" at the Winn-Dixie store located at 2415 Avenue E, Ensley, Alabama, on March 6, 1977. He stated that he remembered the appellant coming into the store on this date, and that he was sacking groceries in the line next to the cash register where Ms. Jenkins was working on Sunday afternoon between 4:30 and 5:00. He stated that he was only two or three feet from the appellant and noticed him wearing a red toboggan cap and a black coat. He heard Ms. Jenkins call his name. He looked up and observed Merchant, the appellant, taking money from the cash register. He stated that he saw Merchant drop the bag of money as he started out of the store, that Merchant picked up the money and the bag hurriedly, then ran from the store.

Mr. Herrtin made a positive in-court identification of the appellant.

On cross-examination, Herrtin indicated that he did not see a weapon as the appellant was taking the money from the cash register, nor did he see Merchant strike Ms. Jenkins on the leg. He stated that the appellant was bent over somewhat, reaching for the money, when he heard Ms. Jenkins call his name, and that he viewed him for about thirty seconds on this occasion. He stated that he was not shown any photographs following the robbery, nor did he participate in a police lineup. Mr. Herrtin indicated that he told Detective Felts he could identify the robber and had given him a description of the robber, indicating that he was approximately six feet tall, weighed about 170 pounds, was wearing a red toboggan cap, a dark blue coat, blue jeans, and had a "slight mustache."

Herrtin also indicated he had talked with the appellant's attorney, Larry Knopf, about ten days before trial, by telephone, and told him that he wanted to be sure of the identity of the appellant, but then he was sure when he saw him in court.

A motion to exclude Herrtin's in-court identification was overruled.

Mr. John Pruitt stated he was store manager of Winn-Dixie located at 2415 Avenue E, Ensley, on Sunday, March 6, 1977. Pruitt indicated Ms. Jenkins worked at the first cash register nearest the office, and that Eddie Herrtin was employed as a stock and grocery sacker on that date. Pruitt indicated that he examined Ms. Jenkins's cash register immediately after she reported the robbery, which occurred between 4:30 and 5:00 p. m. He stated that he discovered $1234.00 was missing from her register. Pruitt indicated that he did not get a good look at the appellant at the time of the robbery, but judged him to be about six feet tall, weighing about 175 pounds, wearing a red toboggan cap and a dark blue coat. He stated that he had been in the back of the store momentarily when Ms. Jenkins called for him to come up front. He made an in-court identification of the appellant because he had seen him in the store earlier that same morning and remembered Ms. Jenkins talking with him concerning the behavior of the appellant. He stated that Ms. Jenkins told him the appellant was picking up merchandise and laughing and giggling.

Birmingham Detective Sergeant Howard Felts testified that he was with the robbery detail and investigated an incident which occurred March 6, 1977, at the Winn-Dixie store on Avenue E in Ensley. Felts stated that he talked with Ms. Jenkins, a cashier, and also with Edward Herrtin, a sack boy. He stated that they described the...