Pelmer v. State

• Decision Date: 07 October 1980
• Docket Number: 6 Div. 295
• Citation: 389 So.2d 584
• Parties: Jerome PELMER v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 584

389 So.2d 584

Jerome PELMER v. STATE.

6 Div. 295.

Court of Criminal Appeals of Alabama.

Oct. 7, 1980.

Robert R. Bryan, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for appellee.

TYSON, Judge.

Jerome Pelmer was indicted and tried on one count of grand larceny, § 13-3-50, Code of Alabama 1975, and one count of buying, receiving or concealing stolen property, § 13-3-55, Code of Alabama 1975, stemming from a purse snatching incident in Birmingham, Alabama. The trial court, pursuant to Pelmer's motion to exclude State's evidence made at the close of the State's case, granted the motion as to the latter count but submitted the determination of the larceny count to the jury, which found Pelmer "guilty as charged." He was sentenced by the trial court to five years imprisonment.

Mary Rutledge, called on behalf of the State, testified that, between 12:30 and 1:30 p. m. on May 23, 1979, she had been running some errands at the Century Plaza shopping center in Birmingham, and was returning to her car when "I saw this car pull up. I could sense it over my left shoulder. I thought it was stopping to let someone out" (R. 18). Instead, she stated, a person "ran to me and said, 'Get me that purse,' and snatched my purse and we started struggling" (R. 18). Mrs. Rutledge described the car as a white Ford Torino, and the person who grabbed at her purse as a black male, about six feet tall, with plaited hair. After a period of two of three minutes, the black male was able to wrest the purse from Mrs. Rutledge and then return to the Torino, which contained several other black persons. Mrs. Rutledge stated that her purse was worth about $30.00, and that it had contained her eyeglasses worth $135.00, her husband's watch, which she had taken to be repaired, and $3.00 in cash.

She further testified that, as the Torino drove off, she screamed for someone to stop it, and that another vehicle blocked the Torino, forcing it to turn around and proceed on another route. She noted the license plate number of the car to be ECG-999, and she furnished the police with this information. Mrs. Rutledge identified appellant as the person who had grabbed her purse and stated that she had seen him later on that same day, some three hours after the incident at the police station. She testified that she recovered her purse and checkbook, and that her husband's watch was later returned to her by the police.

On cross-examination, Mrs. Rutledge denied that she had earlier told the prosecutor and the police that she was not sure of the identity of appellant as the one who took the purse, but did acknowledge that appellant's hair had been arranged differently.

Pauline Posey testified that, on May 23, 1980, she was also present at the Century Plaza shopping center when she saw a man "coming toward me. He came from just out of nowhere" (R. 34). She stated that she saw the man "grab this lady and sling her down" (R. 35), and that she commenced to scream and run toward the two. By the time she arrived at the spot where the attack had occurred, the man had fled to a car containing two other persons. Ms. Posey stated that she wrote down the tag number of this car and gave it to a by-stander to phone in to the police. The witness identified appellant as the man who had taken the purse from the other woman.

On cross-examination, Ms. Posey testified that she had noticed that the assailant's hair was "twisted up" and that he had been wearing a "dingy white looking" cover-all, but that she was not certain as to whether he had had facial hair. She further stated that she had first identified appellant as the assailant on the day before the trial while he was in the courtroom, but admitted that he had been the only black person in the room at the time. Ms. Posey also stated that she had told Mrs. Rutledge that she had identified appellant as Mrs. Rutledge's assailant.

John Harold Jones, a patrolman with the Birmingham Police Department, testified that he was working on May 23, 1980, on the day shift when around 2:00 p. m. he observed appellant in a 1974 Ford Torino with the license plate number ECG-999. Officer Jones stated that he had heard over his radio that this vehicle had been involved in a purse snatching at Century Plaza shopping center, and that it was registered to a James Lewis, residing on 44th Place North. The officer stated that he proceeded to the vicinity of that location to keep a watch out for the Torino and that he found the car parked there. As he passed the vehicle it began to move away from the curb, and Officer Jones stopped it. The officer stated that he removed three black males from this car and ordered them to "spread" on the vehicle, at which point one broke and ran into a crowd which had gathered. Officer Jones testified that he then subdued the remaining two and placed them in his police car until the arrival of another police car, at which time the two were separated. Officer Jones further stated that he searched the Torino and found a child, which he released to the custody of relatives, and a purse.

Officer Jones stated on cross-examination that appellant told him that Jimmy Gregg had run from the scene, but that he (the officer) did not know whether Gregg was ever apprehended. He further stated that he found the purse on the back floorboard, and that it was of a composition that did not lend itself to fingerprint examination.

On re-direct, the witness testified that he remembered that appellant had plaited hair at the time of arrest and that he was unplaiting the hair during the drive to the police station.

George Hayes, a detective sergeant with the same department, testified that he conducted the follow-up investigation of the purse snatching at Century Plaza on May 23, and that he had talked to Mary Rutledge on the afternoon of that day at the police station during the course of that investigation. He also stated that he saw appellant that day as well at the station, and had occasion to talk with him after advising him of his Miranda rights from a printed card. Appellant, upon being asked if he understood his rights, said, "I do" (R. 62), and further agreed to talk to him and Officer Jones, who was also present. Sergeant Hayes further stated that appellant was not promised anything and that he was not given any reward or hope of reward, nor was he threatened, intimidated, or coerced. According to Sergeant Hayes, appellant stated that, though he had been present when Mrs. Rutledge's purse was snatched, Jimmy Gregg had actually taken the purse and that a watch from the purse had later been sold at a local business establishment. The rest of the purse's contents was discarded on Interstate 59 near the Tallapoosa Street exit. Sergeant Hayes testified that his search at that location proved negative, but that he did recover the watch at the establishment named by appellant. According to the witness, appellant had, at the time of his arrest, plaited hair. He further stated that James Lewis was arrested with appellant, but that Jimmy Gregg had never been apprehended. Mrs. Rutledge, when shown appellant and Lewis, made no positive identification, according to Sergeant Hayes.

At this point the State rested, and appellant's motion to exclude was granted as to the buying, receiving, or concealing count of the indictment.

Appellant did not present any witnesses nor did he testify at trial.

I

Appellant's sole contention on this appeal is that he was penalized for exercising his right to a trial by jury by receiving a five year sentence when, if he had pled guilty the day before, as he desired, he would have only been sentenced to two years by virtue of a plea-bargaining arrangement with the prosecutor.

It appears from the record that the prosecutor, counsel for appellant and appellant had all agreed that, if appellant would plead guilty to the buying, receiving or concealing count of the indictment, a sentence of two years would be recommended to the court. It is evident that the trial court was indeed made aware of the existence of this agreement, and confirmed its terms with appellant, although it is by no means clear that the court intended to abide by the agreement, or in fact accept appellant's guilty plea. Pursuant to the expressed desire of appellant to so plead, however, the court proceeded to examine him concerning the voluntariness of the proposed plea as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and it additionally appears that appellant executed some type of "Ireland " form, Ireland v. State, 47 Ala.App. 65, 250 So.2d 602 (1971), though the form was omitted from the record. See R. 5, 101-105 (we need not quote the colloquy between the trial court and appellant, as it is evident that the voluntariness of the proposed guilty plea is not in issue here). After the Boykin colloquy, but before formally accepting or rejecting a plea from appellant, the court further questioned him as to the ramifications of a guilty plea in light of the provisions of the Habitual Offender statute, § 13A-5-9, Code of Alabama 1975 (Acts 1977, No. 607, p. 812, § 1235; Acts 1979, No. 471, § 1; Acts 1979, No. 79-664, § 1):

"THE COURT: * * * How do you plead to the charge of buying, receiving and concealing of stolen property? I might also say this: This is something else I really ought to tell you. You know about it because your lawyer and you were talking about it. You understand under the new code it has a habitual offender statute. Do you know what I mean when I say that? If you have another trial, that occurred after January 1, where the offense occurred after January 1, the way the courts are construing this at the moment, all prior felonies can be placed against you. As I recall, three is life imprisonment, is it not?

"MR. BARBER: With three priors, the fourth conviction of a Class A felony.

"THE COURT: In any event, I'm trying to...