Mitchell v. State

• Decision Date: 17 February 1976
• Docket Number: 6 Div. 53
• Citation: 57 Ala.App. 601,329 So.2d 658
• Parties: Donald MITCHELL v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 658

329 So.2d 658

57 Ala.App. 601

Donald MITCHELL v. STATE.

6 Div. 53.

Court of Criminal Appeals of Alabama.

Feb. 17, 1976.

Rehearing Denied March 16, 1976.

J. Mark White, Birmingham, for appellant.

William J. Baxley, Atty. Gen., and Randolph P. Reaves, Asst. Atty. Gen., for the State.

HARRIS, Judge.

Mitchell was convicted or robbery, and the jury fixed his punishment at fifteen years in the penitentiary. He was represented at arraignment and trial by court-appointed counsel. He pleaded not guilty. At the time sentence was imposed, he gave notice of appeal. He was furnished a free transcript and trial counsel was appointed to represent him on appeal.

Omitting the formal parts the indictment reads as follows:

'The grand jury of said county charge that, before the finding of this indictment, DONALD MITCHELL, whose name is to the Grand Jury otherwise unknown, feloniously took FIVE THOUSAND DOLLARS of the lawful currency of the United States of America, a more particular description and denomination of which is otherwise unknown to the Grand Jury, and one four door Chevrolet automobile of the value of FIVE THOUSAND DOLLARS, the personal property of Helen Marie Baker, from her person and against her will, by violence to her person or by putting her in such fear as unwillingly to part with the same, against the peace and dignity of the State of Alabama.'

On December 11, 1974, Ireland's Restaurant located in the Brookwood Shopping Center in Homewood, Jefferson County, Alabama, was robbed by two black men, one of them carrying a pistol.

Miss Helen Marie Baker testified that she was Assistant Manager of the restaurant and that it was her job to open the restaurant every morning; that on the morning of the robbery she drove her car to the restaurant arriving at 6:40 A.M. She cut on all the lights and made a pot of coffee as breakfast was served at 7:00 A.M. The cook was with her when she opened the restaurant and went directly to the kitchen area. At approximately 6:50, a waitress named Cindy Johnson arrived. Miss Baker checked the dining room to see if it was presentable for customers and then went to the office and opened the floor safe to get out enough money to be used in the dining room and the bar for the day.

Miss Baker testified that she was sitting in a chair with her back to the office door which was locked. She heard the doorknob to the locked office door rattling. She stated that someone began shaking and kicking the door; that she jumped up from the chair and about this time a shot was fired through the door and it went through the back of the chair that she had vacated a second before and lodged in the seat of the chair. That she opened the office door and two black males came charging in and one had a pistol pointed in her face and said, 'Give me all the money you have.' The man without the pistol backed into the office in a squatting position and reached his hands in the safe and started getting the money out and Miss Baker testified that she recognized this man as appellant. She stated that appellant had previously worked for the restaurant as a busboy but had not worked there for several months.

The witness further testified that both men had on toboggans and the man with the pistol had his face completely covered with a nylon stocking mask with holes cut out in the eye area. She stated that appellant had on a nylon stocking mask, with eye holes but it only covered his face from the nose up. That both men had on bluejeans and appellant wore white looking tennis shoes. That appellant's entire mouth area was exposed and she recognized him immediately as he had a very unusual mouth with big lips. She said appellant turned his face to her when he was getting the money from the same and she got a good look at his mouth area. They asked for a box to put the money in and she supplied them with a box. That as the robbers started to leave appellant looked her directly in the face and demanded the keys to the car she drove to the restaurant in, and she got another good look at him. That appellant reached over and took her car keys out of her hand, and they ran out of the restaurant. She stated that when appellant worked there, he had been in the office with her many times and that when he backed in the office, he put his hand on the floor safe and started taking the money out.

Miss Baker further testified the robbery was completed in about three minutes and the amount of money they took was $5,000.00, and that they took her Impala, four-door Chevrolet, which she had only a week and which was worth about $5,000.00. Her automobile was later found and returned to her.

On cross-examination Miss Baker repeated her description of the way the robbers were dressed. She stated she could and did recognize Donald Mitchell from the area of his face that was not covered since she had seen him many times. She made a positive in-court identification of appellant as one of the robbers. Though Miss Baker was subjected to a vigorous cross-examination, her identification of appellant as one of the robbers was not shaken in the least.

She stated that after the robbery she locked the office door and called the Police Department and reported the robbery. She then went to check on her car and it was gone.

Miss Cindy Johnson testified that she was a waitress at Ireland's Restaurant on December 11, 1974. She stated that she arrived at 6:55 A.M. and went to the kitchen and had returned to the game room when she saw a black man standing at the office door. That she observed him kicking the office door and then saw a gun in his hand. She turned and ran to the kitchen and as she was running, she heard a shot. She remained in the kitchen with the cook until Miss Baker came back to let them know she was all right. She said she only saw one man and he had a gun, but she did not get close enough to recognize him.

Mr. Roy Olney was employed by the Homewood Police Department on December 11, 1974. He testified that he received a call to investigate a robbery at Ireland's Restaurant and that during the investigation he found what he thought was a .22 caliber bullet lodged in a chair in the office of the restaurant. He removed the bullet and kept it in his possession until it was placed in possession of Sergeant James A. Barker. It was introduced in evidence but not as a .22 caliber bullet because Olney could not say positively that it was a .22 caliber bullet.

On cross-examination this witness stated that he could not say positively when the bullet was fired into the chair.

Sergeant James A. Barker testified that he was employed by the Homewood Police Department and that on December 11, 1974, he went to Ireland's Restaurant following a robbery call. He stated he talked to Miss Baker and received a bullet from Officer Olney which he sealed in an evidence envelope and placed in the evidence file. This bullet was offered and admitted in evidence with the Court instructing the jury there was only an opinion as to its caliber.

Sergeant Barker further testified that he had occasion to later see an automobile at the City Hall in Homewood which was identified as belonging to Miss Baker and the car was later returned to her. He stated that in the car, in plain view, he found a stocking hose, two nickels, and a lady's ring. He placed these items in an evidence envelope and put it in the evidence safe where the items remained until he brought the envelope to Court during appellant's trial. During trial the envelope was opened and he identified the items which he had put in the envelope. The stocking, nickels and ring were offered and admitted in evidence.

Mr. James A. Atkinson was employed by the Homewood Police Department on December 11, 1974. He testified that on December 12, 1974, he had occasion to see a car identified as belonging to Miss Baker. He processed the car for fingerprints and did not find any, but that the three items testified to by Sergeant Barker were in the car.

The State rested at this point and the defense moved for a directed verdict on the grounds that there was a fatal variance between the allegations in the indictment and the proof, and no evidence was presented linking the defendant to the crime. Specifically, the defense contended the variance was predicated on the fact that the indictment alleged the money was the property of Miss Baker while the proof showed the money was the property of the restaurant and further the indictment charged that Miss Baker was robbed of her automobile while the proof showed she was only robbed of the key to her automobile. The motion was overruled.

Appellant did not testify but offered alibi testimony. Hazel Jones testified that she was the common law wife of the defendant and that she had lived with him for 13 months and was living with him on December 11, 1974. She stated that she was in his presence on the morning of December 11, 1974, when a cousin picked him up at the house at either 8:45 or 9:00 A.M. and that he was dressed in his work clothes. She said that when he returned from work she could tell he had been working by the tar on his clothes. She further stated that appellant had a scar on his lip and nose and he had these scars as long as she had known him.

On cross-examination she...