Miles v. State

• Court: Alabama Court of Criminal Appeals
• Writing for the Court: TYSON
• Citation: Miles v. State, 366 So.2d 346 (Ala. Crim. App. 1978)
• Decision Date: 19 December 1978
• Docket Number: 6 Div. 312
• Parties: Danny Ray MILES, alias v. STATE.

Page 346

366 So.2d 346

Danny Ray MILES, alias v. STATE.

6 Div. 312.

Court of Criminal Appeals of Alabama.

Dec. 19, 1978.

Rehearing Denied Jan. 16, 1979.

James Gordon Stevens of Wilder & Stevens, Birmingham, for appellant.

William J. Baxley, Atty. Gen. and Eugenia D. B. Hofammann, Asst. Atty. Gen., for the State.

TYSON, Judge.

The appellant was indicted for the robbery of one Clarise Knabe by taking some $261.85 in currency from her person and by putting her in fear, etc. The jury found the appellant guilty as charged and fixed punishment at eighteen years imprisonment. The trial judge set sentence in accordance with the verdict, ruling that the sentence be served concurrently with a life sentence for murder, which grew out of the same incident. See Miles v. State, Ala.Cr.App., 343 So.2d 801 (1977), cert. denied, Ala., 343 So.2d 806 (1977).

To the indictment the appellant filed a plea of autrefois convict. In support thereof, counsel argued that the same evidence used in the prior murder conviction would be used in the robbery prosecution. The trial judge rejected the plea ruling that the intent to rob and the intent to murder are sufficiently distinct to support separate prosecutions and separate convictions. No issue is made of the trial judge's ruling in this matter. See generally, Clift v. State, Ala., 352 So.2d 838 (1977).

Gus Constance, owner of the Twenty-Ten Lounge in Birmingham, testified that, on the night of November 3, 1975, he returned to the bar about 11:15 p. m. to assist his employee, Clarise Knabe, in closing the bar for the night. Upon arriving, Mr. Constance found the front door to the bar locked from the inside. Peering through the window, Mr. Constance could see that the television set and game machines were still operating. Mr. Constance's shouts demanding to be admitted went unanswered. Mr. Constance gained entrance to the bar through the back door, which he found open. Upon entering, Mr. Constance noted that two wallets were on top of the bar, that Ms. Knabe's purse was on the floor behind the bar along with several cartons of cigarettes, and that the contents of the cash register had been substantially depleted. Mr. Constance then contacted the police.

Alma Vest testified that she was at the Twenty-Ten Lounge in Birmingham on November 3, 1975, from approximately 9:15 p. m. until 11:00 p. m. Ms. Vest recalled seeing the appellant and a person she later came to know as Samuel Yarber talking to one Ronnie White, whom she had known previously. Ms. Vest stated that Mr. White arrived about 10:15 p. m. The appellant and Mr. Yarber arrived shortly thereafter. Ms. Vest recalled that a football game was being shown on the large television set for the patrons of the bar. At the conclusion of the football game, Ms. Vest and her companion left the bar. The remaining people in the bar were the appellant, Mr. Yarber, Mr. White, and Ms. Knabe.

Birmingham Police Evidence Technician Darnell Guyer testified that he arrived at the Twenty-Ten Lounge on the night in question at approximately 11:55 p. m. During the course of his investigation, Officer Guyer made several fingerprint lifts various surfaces in the bar and recorded the date, time, and location of the original fingerprints. The proper predicate having been laid, the trial judge admitted two fingerprint lifts taken from the same drinking glass found on the bar at the Twenty-Ten Lounge.

Officer Guyer testified that his investigation also uncovered a spent .38 caliber bullet retrieved from the wall over the bar. Officer Guyer identified the bullet from the markings that he made on its sealed container when he recovered the bullet from the wall. Officer Guyer delivered the spent bullet in its container to Birmingham Police Sergeant Higgins. The trial judge admitted this bullet into evidence.

Through the testimony of County Jailer Dan Prater, the State introduced a complete set of the appellant's fingerprints taken when he was admitted to the Jefferson County Jail after his arrest. The trial judge admitted this exhibit into evidence.

Sandra Triplett testified that she was employed as a fingerprint technician with the Birmingham Police Department. Ms. Triplett was shown to possess the requisite qualifications and expertise to express her opinion as to latent fingerprint comparison and identification. Ms. Triplett stated that she examined the fingerprint lifts in evidence and compared them with the known fingerprints of the appellant. Based on her examination and her experience, the fingerprint lifts taken from the drinking glass found on the bar by Officer Guyer matched the known fingerprints of the appellant (R. p. 62). On cross-examination Ms. Triplett testified that none of the latent fingerprint lifts that she examined matched the known fingerprints of Samuel Yarber.

James Howell, evidence technician with the Jefferson County Sheriff's Department, testified that, on the morning of November 4, 1975, he and Sergeant Jones went to an area near Bessemer via Highway 150 to assist in the investigation of a crime scene where the bodies of Clarise Knabe and Ronald White had been discovered. During the course of his investigation, Officer Howell took several photographs, made diagrams showing the bodies' location, and recovered five spent bullets from the ground underneath the place where the bodies had lain. Officer Howell delivered the spent bullets in substantially the same condition in which they were found to Sergeant David Higgins of the Birmingham Police Department. Officer Howell stated that the bodies were found approximately 200 feet from Highway 150 and were visible to passers-by.

Sergeant David Higgins testified that he was employed in the Scientific Investigation Bureau of the Birmingham Police Department. Sergeant Higgins was properly qualified as an expert in the field of firearms identification. Sergeant Higgins participated in the investigation on November 4, 1975, of the discovery of two dead bodies off Highway 150 near Bessemer. Sergeant Higgins was present during the performance of an autopsy by Jay Glass on the two bodies at Cooper Green Hospital later the same day. During the autopsy, Sergeant Higgins received several spent bullets removed from the victims' bodies. Sergeant Higgins compared the bullets removed from the victims' bodies with the bullet recovered by Officer Guyer from the wall of the Twenty-Ten Lounge and concluded that they were fired from the same .38 caliber weapon (R. p. 88).

Sergeant Higgins also identified a .38 caliber pistol given to him by Officer Howell. Based upon testfirings conducted on this weapon, Sergeant Higgins concluded that the pistol marked as State's Exhibit Fourteen fired the bullets recovered from the victims' bodies and from the wall of the Twenty-Ten Lounge (R. p. 91).

Samuel Yarber, the appellant's alleged accomplice, was called to the stand for the State. Mr. Yarber was represented in court by Mr. Fred Erben who explained that Mr. Yarber at that time had two appeals pending from convictions arising out of the same incident as the instant prosecution. In a statement made prior to Mr. Yarber's taking the stand, Mr. Erben stated that his client desired to say nothing in court, thus exercising his Fifth Amendment privilege (R. p. 95).

The State moved to have Mr. Yarber declared unavailable for purposes of admission of a transcript of testimony he gave at a prior proceeding. After hearing argument from both appellant's counsel and Mr. Yarber's counsel, the trial judge granted the State's motion and admitted the testimony over objection from the defense. The issues on this appeal concern whether or not the trial judge's admission into evidence of Yarber's preliminary hearing testimony was proper. For purposes of brevity, we do not herein re-state the gruesome facts of the episode as garnered from Yarber's testimony. For these details, see Miles v. State, supra. Suffice it to say that Yarber, in the transcript of his preliminary hearing testimony, and the appellant, in his testimony from the stand, each accused the other of primary responsibility for the acts committed on November 3, 1975. The appellant's account of the facts was the only testimony presented by the defense. There was no motion to exclude the State's evidence nor was there a request for the affirmative charge.

I

The appellant asserts that his right to confront the witnesses against him, guaranteed to him by the Sixth Amendment to the United States Constitution, was violated by the trial judge's admission into evidence at trial of Yarber's preliminary hearing testimony. However, the appellant's contention lacks support, both from the applicable law and from the facts of the case.

The appellant relies on two cases involving the admission at trial of a transcript of testimony given at a prior preliminary hearing. In Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), the United States Supreme Court held that the right to confront adverse witnesses, guaranteed by the Sixth...