Owens v. State
| Decision Date | 12 June 1973 |
| Docket Number | 8 Div. 314 |
| Citation | 51 Ala.App. 50,282 So.2d 402 |
| Parties | Norman OWENS v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Robert Straub and Ralph E. Slate, Decatur, for appellant.
William J. Baxley, Atty. Gen., Montgomery, James G. Lee, II, Sp. Asst. Atty. Gen., Tuscaloosa, for appellee.
Appellant was convicted of burglary in the second degree and received a sentence of seven (7) years in the penitentiary.
On April 2, 1969, between 7:00 and 7:30 P.M., the Diamond Jewelry Company building located at 206 Johnston Street in downtown Decatur, Alabama, was broken into. Located next door to the jewelry store was Hines Barber Shop, owned and operated by Joe Hines. April 2, 1969, fell on a Wednesday when most of the stores and shops in Decatur closed at noon. Joe Hines testified that he closed his shop at 12:00 noon on that date, but that he returned to his shop that night in company with his mother for the purpose of cutting and washing her hair. He frequently did this on Wednesday nights. When Hines drove up in front of his shop on this particular night, he saw two men in front of the jewelry store. When he opened the door of his car to get out, he heard the burglar alarm system of the jewelry store go off. At this time, he saw only one man in front of the jewelry store and heard someone say, 'let's go.' He then saw a man come out of the jewelry store putting something in his pockets, join his companion, and observed both run by his car and on down the street. He had his pistol with him and gave chase. After running after them a short distance, he shouted, 'halt' and fired his pistol one time in the air. Both men paused momentarily and one threw up his hands and then both men separated, one went down an alley and the other ran north toward Moulton Street, and Hines gave up the chase. He went to a nearby drugstore and had someone call the police, stating, 'I was so give out, I couldn't call them.' He testified that one man was six feet or more tall and weighed around 210 to 215 pounds and had a flat top type hair style. He described the other one as being about 5 feet 9 inches tall and weighing about 180 pounds and that his hair was longer on the sides and roughed up like a pompadour with a wave on top. He said they appeared to be well dressed, wearing coats and ties. He did not see anything in the hands of either.
The police operator put out an alert on the radio and a Decatur police officer, David Reed, was driving south on Sixth Avenue and turned onto Moulton Street when he picked up the dispatch on his car radio. The dispatch did not say whether the suspects were white or black, nor was there a further description of the men as to dress or appearance. As he turned on Moulton, he observed two colored men running across Highway 31 or Sixth Avenue, and go into a washette. He parked near a service station on Moulton Street to keep a look-out. This point was less than two blocks from the jewelry store. While parked he got a second communication on the radio from the Decatur Police Department giving a more specific description of the burglary suspects. He did not testify as to the more specific description of the suspects he allegedly received in the second communication over the police radio. About this time he heard someone shout, 'hey' or something and immediately saw a man run in front of his car as close as eight to ten feet and a Cadillac automobile came to an abrupt halt on Moulton Street and he saw this man get in the Cadillac on the passenger side and the car sped away going north on Sixth Avenue. This police officer turned around and gave chase at a speed of 60 miles per hour and he could not overtake the Cadillac but got close enough to write down the tag number. The last time he saw the Cadillac, it was turning west on Lafayette Street. He called headquarters on the radio and gave a description of the car and the tag number, but not the occupants.
Officer Reed testified the man who ran in front of his car and entered the Cadillac was black headed with rather long hair, about 5 feet 10 inches tall, and was wearing a white dress shirt and dark trousers. He did not get to see the face of the driver of the Cadillac but observed the back of his head. He said he had short hair--between a flat top and crew cut.
This officer further testified that this Cadillac had a Missouri tag and the number was B7G652, and that the car was headed west on Lafayette Street, which is in the direction of Town Creek, Alabama, on Highway 20. According to this officer, he next saw the Cadillac parked at the Decatur Police Department between eight and nine o'clock the same night and observed the two suspects. He recognized the one identified as Miller, as the man that ran in front of his car and entered the Cadillac and the one identified as Owens (appellant) as the driver of the Cadillac that he chased.
A photograph of appellant and Miller was taken at the Decatur jail with David Smith, a city detective. This photograph was shown officer Reed and he identified appellant as the driver of the Cadillac that he could not overtake and identified Miller as the man who ran in front of his car on Moulton Street earlier that night and enter the Cadillac. Reed then made an in-court identification of appellant.
After officer Reed lost the Cadillac on Lafayette Street and radioed headquarters, an all points bulletin (A.P.B.) was put out by the operator. A state trooper, E. D. Smith, picked up the radio message at Town Creek, about 20 to 25 miles from Decatur, at the intersection of Alabama 101 and Highway 20. The Chief of Police of Town Creek drove to this intersection and got in the trooper's car. Fifteen minutes later they observed a 1969 Cadillac, tan in color with black vinyl top, with a Missouri license plate, approach this intersection. The trooper stopped the car and told the driver that he had received a dispatch on his radio and that the description of the car fit the one he was driving. He further told the driver:
This officer further testified that the patrol station stated that the Cadillac had a Missouri tag number and that he wrote the number down in a notebook he carries in the patrol car and the number was B7G652. He found a half pint of whiskey in the Cadillac and arrested the driver (appellant) for violating the prohibition law and appellant and his companion were carried to Town Creek City Hall and put in jail.
The Decatur Police Department was notified that the two suspects were in custody in Town Creek and three police officers were sent to get the suspects and the car and return to Decatur. Officer Carlton Haley was one of the three officers who returned the suspects to Decatur. He was asked how they were dressed and testified,
When the Decatur officers arrived, a search warrant issued by the Town Creek City Judge was produced and the trunk of the car was opened and the contents noted. The trunk was closed and the Cadillac and two suspects were carried to Decatur. At trial, the search warrant issued by the City Judge of Town Creek was not produced and its whereabouts is still a secret.
Another search warrant was applied for and issued by Judge Newton B. Powell, Judge of the Circuit Court of Morgan County. The affidavit and warrant are as follows:
'Before me, the undersigned Circuit Judge in and for said State and County aforesaid, this day, personally appeared David Smith, who being known to me and who being first duly sworn to speak the truth disposes and says as follows:
'My name is David Smith, I am a Detective for the City Police Department in Decatur, Alabama.
'On the Second day of April, 1969, Diamond Jewelry Store located on Johnston Street, in Decatur, Alabama, was burglarized. At approximately 7:30 P.M., on said date and at said place, the burglary alarm at Diamond Jewelry was activated. Mr. Joe Hines arrived in his automobile, at said place and at said time, just as the aforesaid burglary alarm was activated, whereupon Mr. Hines saw two white males inside the aforesaid Jewelry Store. Mr. Hines chased these two white subjects from Diamond Jewelry to Moulton Street--which is parallel to Johnston Street in Decatur, Alabama. Mr. Hines lost sight of these two subjects when they disappeared in an alley located between Moulton Street and Holly Street in Decatur, Alabama. Mr. Hines immediately telephoned the City Police Department in Decatur, Alabama, whereupon a radio depatch (sic) was sent out by the police department to be on the look out for these two white subjects. Approximately five minutes (seven-thirty six p.m.) (sic) Earl J. Miller was observed by Officer David Reed leaving the aforesaid alley between Holly Street and Moulton Street--whereupon the said Earl J. Miller ran to an automobile, being driven by Norman Owens in an easternly direction on Moulton Street. Officer David Reed, of the Decatur Police Department, was notified vila (sic) radio to be on the lookout for two white subjects in the Moulton Street area about one minute before he observed Earl J. Miller entering said automobile driven by Norman Owens. Officer Reed attempted to overtake the automobile driven by Owens, but the said automobile outran Officer Reed on Sixth Avenue in Decatur,...
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