Moseley v. State

• Decision Date: 07 March 1978
• Docket Number: 6 Div. 545
• Citation: 357 So.2d 390
• Parties: Charles MOSELEY, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 390

357 So.2d 390

Charles MOSELEY, alias v. STATE.

6 Div. 545.

Court of Criminal Appeals of Alabama.

March 7, 1978.

Rehearing Denied April 4, 1978.

Joel L. Sogol, Asst. Public Defender, Tuscaloosa, for appellant.

William J. Baxley, Atty. Gen. and Jack M. Curtis, Asst. Atty. Gen., for the State.

HARRIS, Presiding Judge.

Appellant was convicted of robbery and the jury fixed his punishment at ninety-nine years in the penitentiary. Appellant was indigent and the Court appointed members of the Public Defender's Office. At arraignment, in the presence of appointed counsel he pleaded not guilty. After sentence was imposed, he gave notice of appeal and was furnished a free transcript. Trial counsel was appointed to represent him on appeal.

The evidence in this case consisted solely of that introduced by the State. Appellant did not testify, nor did he offer any evidence in his behalf.

Appellant was put to trial upon a five-count indictment charging, inter alia, robbery, assault with intent to murder the security guard, assault with intent to murder the manager of the grocery store where the robbery occurred, and assault upon a police officer with a deadly weapon while such officer was engaged in the active discharge of his lawful duties. At the close of the State's case the prosecution dismissed all counts in the indictment except the two robbery counts.

Omitting the formal parts the two counts submitted to the jury are as follows "I. The Grand Jury of said county charge that before the finding of this indictment Charles Moseley, alias Charles Mosely, alias William Napier, alias Charlamagna Moseley, alias Melvin Mosley, alias Calvin T. Holder, alias Milton George Moseley, alias Charles Mange Mosley, whose name is otherwise unknown to the Grand Jury, feloniously took and carried away one (1) Colt brand Python .357 Magnum pistol, a better description of which is unknown to the Grand Jury, of the value of, to-wit: Three Hundred Twenty-five and no/100 ($325.00) Dollars, the property of Bank Sims from his person, or in his presence, and against his will by violence to his person or by putting him in such fear as unwillingly to part with the same,

"IV. The Grand Jury of said County further charge that before the finding of this Indictment, Charles Moseley, alias Charles Mosely, alias William Napier, alias Charlemagna Moseley, alias Melvin Mosley, alias Calvin T. Holder, alias Milton George Moseley, alias Charles Mange Mosley, whose name is otherwise unknown to the Grand Jury, feloniously took and carried away a sum of money, to-wit: Four Hundred Forty Six and no/100 ($446.00) Dollars, lawful cash, currency or coin of the United States of America, a better description of which is unknown to the Grand Jury, the property of Warehouse Grocery of Tuscaloosa, Inc., a corporation, but in the lawful possession of Randall L. Russell, from his person or in his presence, and against his will by violence to his person or by putting him in such fear as unwillingly to part with the same, against the peace and dignity of the State of Alabama."

Mrs. Glenda Blaich testified that on the night of February 16, 1977, she, her husband and their two children, a boy three years old and a girl two years of age, drove to the Warehouse Groceries to shop around 9 o'clock. She and her daughter waited in the car while her husband and son went inside the store.

Mrs. Blaich noticed a vehicle drive up. There were three black males in the car. All three got out of that car and entered the store. Two of them were wearing long dark coats and the third was wearing a short dark coat. Mrs. Blaich further testified that she attended a lineup on February 28, 1977. She stated she did not identify appellant. After these men entered the store, Mrs. Blaich heard sounds "like firecrackers." She looked into the store and saw a black man wearing a long coat standing at the manager's desk. There "was a commotion going on," Mrs. Blaich testified. Thereafter, Mrs. Blaich heard screams, and saw the three men run from the store.

Allen Blaich testified that he, his wife Glenda, and his two children went to Warehouse Groceries on the night of February 16, 1977. He stated that they arrived at the store at 9 o'clock. While he and his son were in the store, Blaich heard gunshots. He looked towards the manager's office and saw a black man "scuffling" with the night manager. Blaich then heard another gunshot. The manager ducked down in the office. Then Blaich saw the black man jump up on the check cashing counter on his knees and shoot down into the manager's office. The manager kicked open the office door and ran out. The black man then fired at the manager again. Blaich testified that, while he was inside the store, he saw a uniformed police officer.

Randall Russell testified that he was night manager for Warehouse Groceries on February 16, 1977. Approximately 9:15 that night, Russell was working in the office. While he was counting money from one of the store's registers, Russell was shot in the arm and shoulder. Russell turned and saw a gun pointed at his face. He grabbed the weapon, turning it away from him. Russell struck his assailant, ducked down and kicked open the office door. Another gunshot grazed his back. Then Russell ran down an aisle in the store. As he ran he felt another bullet whiz by. Russell subsequently returned to the office and pushed the alarm button. The money from the register was gone. Russell did not identify appellant as being in the store that night. His assailant was another man.

Carol Henderson testified that on February 16, 1977, she was head cashier at Warehouse Groceries. She worked the 7:00 a. m. to 3:00 p. m. shift. One of her duties was verifying the amounts of cash in the registers at the store. Ms. Henderson ran a check on February 17, 1977 of the register till Russell had been counting at the time he was shot. She found a shortage of $466.92. She stated that this money, which was missing, was the property of Warehouse Groceries.

Phyllis Davis testified that she was employed as a cashier at Warehouse Groceries on February 16, 1977. On that night, Davis saw Randall Russell "read down" a cash register and take the till from that register to the office. Shortly thereafter, she heard two gunshots and turned towards the office. She saw Russell leaning over the customer window of the office. There was blood on his shirt. She then ducked underneath the counter. She testified that, "When I stuck my head out from under the counter, I heard someone just say to me, get back where you were and stay on the floor, and I looked up and there stood a black man." This man was holding a gun. Subsequently, she saw two men leave the store. She saw an empty register till in the office and called the police.

George Whitley testified that he was shopping at Warehouse Groceries on the night of February 16, 1977. As he was standing at the check-out counter Whitley saw a black male fire a pistol at the night manager. Another black male was standing nearby. He had a small .25 caliber pistol. This man told Whitley not to move. Whitley leaned down over his eleven year old daughter, and then heard two more gunshots. Everything got quiet, Whitley testified, and then there was a gunshot outside. Whitley stated that the two men he saw were wearing long dark coats and toboggan hats.

Pat Bush testified that she and Brenda Faye Jones went shopping at Warehouse Groceries on the night of February 16, 1977. She noticed two men in the store wearing long dark coats. Subsequently, when Pat Bush was ready to check out, she saw a police officer and appellant, one of the men she had noticed earlier. At that time she heard what sounded like firecrackers. This sound came from the manager's office. Ms. Bush saw the manager struggling with a man who had a gun. Then she heard another "bang" from the rear of the store. She turned and saw appellant holding a gun and standing over the police officer who was lying on the floor.

Brenda Faye Jones testified that she was shopping with Pat Bush on the evening of February 16, 1977, at Warehouse Groceries. She noticed two men wearing big coats back at the meat counter. Subsequently, Ms. Jones saw appellant walking down an aisle with a police officer. When Jones and Bush were moving toward the check-out counter, Jones heard "firecrackers." She saw appellant holding a gun, standing over the police officer.

Banks Allen Sims testified that he was a police officer for the City of Tuscaloosa. He also stated that he was employed as a security guard for Warehouse Groceries on the night of February 16, 1977. Sims was standing in the front of the store when he was approached by appellant. Appellant asked Sims, "Could you help me a minute." Sims told appellant he would, and followed appellant around some shelves of soft drinks. From that place, Sims could not see the manager's office.

Appellant asked Sims if he knew how much the drinks were. At that time Sims heard a gunshot. He immediately turned, drew his service revolver and ran towards the front of the store. Sims testified, ". . . I heard a shot and I went down."

From the record:

"A. I fell face down on my left side with my left arm under me, and I couldn't get my left arm out from under me, I looked up and I still had my service revolver in my right hand, I pulled my right hand down by my side. I began to push myself up and I heard somebody first I felt a metal object, it felt like a gun placed at the back of my head, and I heard what sounded like a colored male's voice saying, Lay it down or turn it loose, I believe he said, Turn it loose, the best I can remember, and I did at this time.

"Q. That was your gun?

"A. Yes, it was.

"Q. All right.

"A. That's about all I can tell you except that other than the fact that he took my gun, I didn't see him anymore after that."

Glenda Blaich was then recalled. She testified she saw the same three men exit the store. She stopped a...