Merriweather v. State

• Decision Date: 25 July 1978
• Docket Number: 6 Div. 510
• Citation: 364 So.2d 374
• Parties: George MERRIWEATHER v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 374

364 So.2d 374

George MERRIWEATHER v. STATE.

6 Div. 510.

Court of Criminal Appeals of Alabama.

July 25, 1978.

Rehearing Denied Aug. 29, 1978.

Joel R. Chandler, Tuscaloosa, for appellant.

William J. Baxley, Atty. Gen. and Milton E. Belcher, Asst. Atty. Gen. for the State, appellee.

LEIGH M. CLARK, Retired Circuit Judge.

A jury found appellant-defendant guilty of robbery and fixed his punishment at imprisonment for ten years. He was sentenced accordingly.

The undisputed evidence is that defendant was one of two stocking-masked men who, at about 10:00 P.M. on the night of March 22, 1976, robbed Verna Bradley, then in charge of the C & C Pit Barbecue in Tuscaloosa, and took from the cash register approximately forty dollars and from under a counter a revolver. In accomplishing the robbery, one of the men was armed with a pistol and the other with a sawed-off twenty-two rifle.

The only eyewitness identifying appellant-defendant as one of the robbers was the other robber, Donald R. Little, who testified in detail as to the plan made between him and appellant-defendant for the robbery, the consummation thereof, and the subsequent division of the loot.

Appellant premises one of his two asserted grounds for a reversal on the necessity for corroboration of the testimony of an accomplice to sustain a conviction for a felony. Code of Ala.1975, § 12-21-222 .

In addition to the testimony of the accomplice, the prosecution presented testimony that after the robbery, fingerprints or a palm print of defendant were found on the top of a drink box or beer cooler inside a portion of the premises enclosed by a counter and swinging door that separated the section occupied generally, if not exclusively, by employees from the part usually occupied by customers.

Appellant assails the testimony as to the fingerprints or the palm print as insufficient corroborative evidence on two principal grounds:

(1) The witness testifying as an expert examiner of fingerprints was not sufficiently qualified to testify as such an expert and

(2) There was some evidence to the effect that defendant's fingerprints or palm print could have been placed on the drink box or beer cooler by him at some time previous to the robbery while he was lawfully behind the counter in the process of getting beer from the cooler.

As to the qualification of Ron Smith, employee of the Alabama Bureau of Investigation, as a latent fingerprint examiner, who testified emphatically and positively that his examination of the fingerprints or palm print that another witness had testified had been lifted from the top of the drink box after the robbery, matched a known fingerprint card of defendant, had had approximately five years experience in latent fingerprint work. He was a graduate of the FBI Advanced Latent Fingerprint School. He had attended seminars on the subject and crime scene photography schools held in Montgomery. He had taken courses while attending college that aided him in latent fingerprint work.

The question of the competency of a particular witness to testify as an expert is addressed primarily to the trial court. In the absence of abuse of discretion vested in the trial court, we cannot supplant its judgment by our own, even if it were otherwise. Byars v. Mixon, 292 Ala. 661, 299 So.2d 262 (1974); Hagler v. Gilliland, 292 Ala. 262, 292 So.2d 647 (1974); Hunter v. State, Ala.Cr.App., 338 So.2d 513 (1976); Chafin v. State, Ala.Cr.App., 333 So.2d 599, cert. denied 333 So.2d 609 (1976). The trial court was not in error on admitting the testimony of the particular witness.

Furthermore, relative to the qualification of the witness as an expert, we should note that it appears to us that he demonstrated by his testimony a high degree of expertness in the field of fingerprint identification.

There was some evidence, though of a weak and inconclusive nature, that defendant had been behind the counter of C & C Pit Barbecue on occasions prior to the robbery and conceivably could have been there a short while before the robbery. On the other hand, there was evidence to the effect that every night before the close of business, the top of the drink box or beer cooler was cleaned with a dish rag or dish towel.

In order for testimony to be sufficiently corroborative of that of an accomplice to meet the statutory requirement, it is not necessary that it be direct and conclusive. Circumstantial evidence from which guilt of defendant can be reasonably inferred is sufficient. As quoted in Goodman v. State, 52 Ala.App. 265, 291 So.2d 358, 363 (1974):

"Any circumstantial evidence is sufficient to corroborate if it proves that accused was connected with the criminal act, or tends to connect him with the commission thereof, or if such connection may reasonably or clearly be inferred from the corroborative evidence; and where the accomplice is strongly corroborated by facts and circumstances connecting accused with the crime, a conviction will be sustained. 23 C.J.S., Criminal Law, § 812(3), page 109."

Able counsel for appellant have rendered noteworthy dedicated service in their thorough analysis of the law and evidence and in emphasizing in their argument the possibility that the evidence, separate and apart from the testimony of the accomplice, fails to show that appellant was one of the robbers. Notwithstanding such a possibility, we do not think the evidence in this respect lacked substance or strength. Evidence, other than that of the accomplice, was to the effect...