Oliver v. State, 8 Div. 355

• Decision Date: 17 June 1980
• Docket Number: 8 Div. 355
• Citation: 385 So.2d 69
• Parties: Robert Earl OLIVER v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 69

385 So.2d 69

Robert Earl OLIVER v. STATE.

8 Div. 355.

Court of Criminal Appeals of Alabama.

June 17, 1980.

Macon L. Weaver, Huntsville, for appellant.

Charles A. Graddick, Atty. Gen., Samuel J. Clenney, III, Asst. Atty. Gen., for appellee.

TYSON, Judge.

Robert Earl Oliver was charged by indictment with having a pistol in his possession or control after having been convicted of a crime of violence, to-wit, grand larceny. The jury found the appellant "guilty as charged," and the trial court set sentence at four years imprisonment in the penitentiary. It is from the overruling of the appellant's motion to exclude the State's evidence made during trial and his motion for new trial, each asserting that there was no probable cause for believing that the appellant was about to commit a felony, nor did he commit a misdemeanor in the officers' presence, therefore, there was no basis for stopping the appellant, patting him down and searching his person, that the appellant prosecutes this appeal.

Prior to trial the appellant filed a motion to suppress, asserting that the appellant had not committed a misdemeanor in the presence of the officers, nor was there probable cause to believe that the appellant was about to commit a felony, therefore, the stopping of the appellant by Huntsville Police Officer Steven Rousseau, patting him down, and searching his person on May 21, 1978, at 4223 Keith Street in Huntsville, was unlawful.

In support of this motion, Robert Earl Oliver testified that he had gone to the home of his friend, Leonard Parker, at 4223 Keith Street in Huntsville, to obtain a ride to his place of employment at the Diamond S Ranch at Lacey Springs in Morgan County where he worked on a farm. Upon arrival at the Parkers' residence, he stated a number of people had already gathered there, there were two police cars and several police officers, and he walked up to the house and asked one of the officers if he could go inside. Oliver stated he went inside and observed his friend, Leonard Parker, who had been wounded in the arm and was lying on the floor, and a woman had been shot. He walked back outside and saw three black and white police cars. Oliver indicated he was wearing a pair of blue jeans and had on a jersey. He stated that his right hand was bandaged, and in a sling, because he had been thrown from a horse and injured his right hand a few days earlier. Oliver indicated that, as he came back outside the house, he heard some woman yell and suddenly Huntsville Police Officer Steve Rousseau stopped him, pushed him against the trunk of Mrs. Humphrey's car, put his hand in Oliver's pocket, and pulled out a pistol, then put handcuffs on him. Oliver stated he was then placed in a police car and taken downtown, then told he was under arrest, and later was told that he was charged with carrying a concealed weapon after a crime of violence. Oliver indicated that Officer Rousseau never showed him a search or arrest warrant, and he had not been involved in any way with the shooting inside the house at Keith Street, but had arrived on the scene after the officers had the premises secured. Oliver testified that he was not loud or boisterous and had not committed any offense whatever in the presence of the officers, nor did they have any reason to stop and search him.

On cross-examination, Oliver stated, "The only reason he said he came to me was I was standing alone and looked excited." Oliver stated that he had not pulled his pistol out of his pocket or told anyone that he had a pistol with him. Oliver indicated that he was carrying a twenty-five caliber Beretta in his right front pocket which he had borrowed that morning to use in his work.

John Henry Powell stated he went to the home of his friend, Leonard Parker, on the afternoon of May 21, 1978, and recalled that Stella Parker had shot her husband and a woman who was inside the house. He stated that Stella Parker had been brought outside and put in a police car before Robert Earl Oliver arrived at the Parkers' home on Keith Street. Powell stated that he did not see Oliver inside the house, but saw him standing in the yard and saw two or three officers go over and grab him, then search him, and that Oliver was just standing there and had not done anything at the time he was seized by the officers. He stated that he did not see the appellant pull out a gun, but someone had yelled something about a gun, and that he did not know who it was that yelled.

On cross-examination, Powell indicated that he did hear someone yell something about a gun before the officers went over to Oliver and searched him, but insisted that Oliver had a "big Ace bandage on his right hand."

The appellant's wife, Dorothy Jean Oliver, stated that she went to the residence of Leonard Parker on Keith Street on the afternoon of May 21, 1978, and that there "must have been thirty or forty people standing at or near the yard" when she arrived. She said several police cars were there and she saw her husband walk up and ask her, "What happened?" She said she told him, "I think Stella has shot a girl inside the house," and her husband replied, "What?" She said, "Yes, and I think she has shot Leonard Parker too." She stated that she later saw her husband go inside the house and come back out. She said that her husband's right hand was swollen, being injured while working with a horse on the farm. She said he had to go to the hospital, and his hand was bandaged. She stated that she saw the police grab her husband because he looked excited and that he did not have a gun in his hand. Mrs. Oliver admitted, however, that she heard Mrs. Washington yell, "he has got a gun, and he is fixing to shoot Stella." She said that her husband had been walking toward the police car where Stella Parker was seated. Mrs. Oliver stated that she never did see her husband pull the gun out of his pocket. She said the officers threw him against Mrs. Humphrey's car and searched him, then took a pistol out of his pocket. Mrs. Oliver indicated that her husband could not have pulled a pistol out of his pocket because his right hand was bandaged.

On cross-examination, Mrs. Oliver stated that she and Mrs. Washington went to the same church, and that her husband had asked Mrs. Washington's daughter to give her a ride home from the Keith Street residence. She stated that she had known Mrs. Washington "all her life." She admitted that Mrs. Washington did point at Robert Earl and yell, "He has a gun."

Margaret Washington testified that, on May 21, 1978, she was present at 4223 Keith Street in Huntsville following a shooting inside the home of the Parkers. She stated that she first saw Robert Earl Oliver that afternoon standing in the door of Mrs. Lula Mae Humphrey's home next door to the Parkers, and later saw Oliver's wife walk up. She said that Oliver asked her daughter, Margaret, to take his wife, Dorothy Jean, home, and her daughter stated that she could not do this, so Robert Earl walked away. She said that, later that evening, Robert Earl Oliver walked near where she was standing and she saw her daughter look at Oliver and scream. She asked her daughter what was wrong and her daughter said, "He's got a gun." Mrs. Washington then screamed for the police, and she heard Oliver state, "I am going to kill that bitch," then he started walking toward the police car where Stella Parker was seated inside. Mrs. Washington said she saw the barrel part of the pistol as she screamed for the police and saw two or three officers grab the appellant and push him against Mrs. Humphrey's car to search him. She stated this occurred about 7:30 on the evening of May 21, 1978.

On cross-examination, Mrs. Washington stated that Stella Parker was seated on the right side of the front seat of the police car and a police officer was seated on the left side under the steering wheel when Robert Earl Oliver started toward the car and she yelled. She stated that later she found out the officer who first grabbed Oliver was Steve Rousseau and that later two other officers helped him. She said that the pistol was in Oliver's front pocket and the officers searched him and pulled it out, but that she did not see any search warrant. Mrs. Washington stated that she did not see a bandage on Oliver's right hand.

Huntsville Police Officer Robert Steven Rousseau testified that he answered the call to go to the scene of a shooting at 4223 Keith Street in the City of Huntsville on May 21, 1978. He stated that he was in the yard, helping secure the scene when, shortly before 8:00 p. m., he heard a woman shout, "He has got a gun," and saw a black male walk away toward a police car. Rousseau told the man, whom he identified in court as Robert Earl Oliver, to stop, and that he began to pat him down and Oliver resisted and began to wrestle with him. Two other officers came up and assisted him so that they placed Oliver against a parked car, patted him down and found a pistol in his right front pocket. Oliver was charged with carrying a concealed weapon and was taken to police headquarters for investigation where he later was charged with carrying a concealed weapon after commission of a crime of violence.

The trial court overruled the appellant's motion to suppress and trial commenced.

The State presented the testimony of Billy Harbin, Clerk of the Circuit Court of Madison County, who identified a minute entry showing that the appellant had been convicted of grand larceny and sentenced to six years imprisonment on October 18, 1972. This minute entry was admitted into evidence.

Huntsville Police Sergeant Fred Collie stated he went to 4223 Keith Street on May 21, 1978, to investigate a shooting. He stated that, while there, he received a twenty-five caliber pistol from Huntsville Police Officer Steve Rousseau, which pistol contained three live rounds, and that he had had this pistol in his care and possession since receiving it from Officer Rousseau in...