Presley v. State

• Decision Date: 01 October 1999
• Citation: 770 So.2d 104
• Parties: Marcus PRESLEY v. STATE.
• Court: Alabama Court of Criminal Appeals

770 So.2d 104

Marcus PRESLEY v. STATE.

CR-98-0853.

Court of Criminal Appeals of Alabama.

October 1, 1999.

Rehearing Denied November 12, 1999.

Franklin W. Neumann III, Birmingham, for appellant.

Bill Pryor, atty. gen., and A. Vernon Barnett IV, asst. atty. gen., for appellee.

LONG, Presiding Judge.

The appellant, Marcus Presley, was convicted of the capital offense of murder committed during a robbery in the first degree. See § 13A-5-40(a)(2), Ala.Code 1975. The jury, by a vote of 12-0, recommended that Presley be sentenced to death. The trial court accepted the jury's recommendation and sentenced Presley to death by electrocution.

The State's evidence tended to show the following. At approximately 9:00 p.m. on May 18, 1996, Presley entered the Citgo gasoline service station and convenience store on Jefferson Avenue in Birmingham. Marvin Smith, the clerk at the convenience store, was working behind the counter, operating the cash register, when Presley entered. Smith was the only store employee working that night, and there was one customer in the store. A surveillance camera inside the store captured the ensuing events on videotape.¹ The videotape showed Presley enter the store, get a soft drink out of a cooler, and place the drink on the counter. Presley then walked to the front door of the store and looked outside, before opening the door, stepping outside, and looking around. Presley then came back inside the store and waited in line behind the other customer, who was making a purchase at the counter. When the customer left the store, Presley stepped up to the counter and pointed to a merchandise display behind the counter. In response, Smith turned to get the item (a package of Tylenol pain medicine), which he then placed on the counter for Presley. Presley gave Smith a five-dollar bill, and Smith rang up the purchase on the cash register. As Smith was giving Presley his change, Presley pointed at Smith and then pulled out a pistol. Smith began to run, and Presley leaned over the counter and shot Smith once in the back. Presley then left the store. Smith was able to make it outside of the store before collapsing. He was taken to the hospital, where, shortly after arriving, he died from the gunshot wound. Testimony revealed that no money was missing from the store after the incident.

The State presented evidence that on August 28, 1996, Presley gave a statement to police in which he admitted that he had entered the Citgo convenience store with a.44 caliber pistol and had told Smith to give him the money from the cash register. Presley stated that when Smith then ran, he shot Smith in the back. In this interview, Presley told the police that he did not know Smith. He also told the police that an individual he knew only as "Chris" had been with him on the night of the incident and had waited outside while he went inside to commit the robbery.

Testimony indicated that nearly a year and a half later, in November 1997, police showed Presley a photographic lineup for the purpose of having him identify "Chris." While being shown the lineup, Presley told the police, contrary to his statement in August 1996, that he had not intended to rob Smith, but instead had entered the store intending to shoot Smith because, he said, he and Smith "had gotten into it" on another occasion. (R. 382.)

The State presented evidence that from April 1996 to June 1996, Presley had committed several other robberies and that those robberies were similar to the Citgo robbery in which Smith was killed. The State offered the testimony of six robbery victims, all of whom testified that Presley had robbed them at gunpoint at the stores where they worked.

State's witness James Pinkston, the owner of J & S Produce Company in Birmingham, testified that on June 21, 1996, at approximately 3:00 p.m., Presley and an accomplice, Lasamuel Gamble, came into his store. According to Pinkston, Presley picked up a soft drink and a watermelon and set them on the counter. Presley then pulled out a gun, pointed it at Pinkston's face, and said, "This is a hold-up." Pinkston testified that when he put his hands up, Presley saw that he had a gun and told Gamble to take the gun from Pinkston. Presley then ordered Pinkston to open the cash register and to give him the money inside. After getting the money, Presley told Pinkston to lie facedown on the floor. Presley then fired a shot at Pinkston's leg, but the bullet missed Pinkston. After Presley and Gamble left the store, Pinkston discovered that they had left a gun on the counter, and that the gun was not Pinkston's. Ballistics tests performed on this gun, a .44 caliber pistol, revealed that it was the same gun that had been used one month earlier during the Citgo robbery to kill Smith. (In his August 1996 statement to police, Presley admitted that he and Gamble had robbed Pinkston's store and that Gamble had left his gun on the counter at the store.)

State's witness Jerry Cushing, the manager of Grant's Food Mart in Birmingham, testified that at approximately 11:00 a.m. on April 19, 1996, he was working alone at the store when Presley came into the store, asked him a question about food stamps, and then left. Cushing testified that 10 to 15 minutes later, after the store had cleared of customers, Presley returned, walked around the store, and came to the counter. Presley then pointed a gun at Cushing, and told Cushing to give him all the money in the cash register. Cushing gave Presley the money, then a customer came inside the store and Presley left.

State's witness Wayne Perry testified that on June 19, 1996, at approximately 10:00 p.m., he was working alone at Crazy Bill's Fireworks in Birmingham, when two young black males came into the store. Perry testified that one of the men, whom he identified as Presley, stood beside the front door, while the other man went to the back of the store. According to Perry, Presley pulled a gun on him and made him lie facedown on the floor. When Presley was unable to open the cash register, he made Perry get up and open the register. Presley then made Perry lie back down on the floor and pointed the gun at the back of Perry's head. Perry testified that, before leaving, the two men argued about whether to shoot Perry. After taking the money from the cash register, Perry's wallet, and some fireworks, Presley and the other man left the store.

State's witness Jean Duke testified that on June 26, 1996, she was the only employee working at the ABC (Alabama Beverage Control) Board store in Clanton, when, at around 2:30 p.m., two young black males, one of whom she identified as Presley, entered the store and asked her if they could use the restroom. When Duke told the two men that the restroom was not for the public, Presley pulled out a gun, pointed it at her head, and told her that he wanted the money from the store's safe and cash register. Duke then gave Presley the money in the cash register and, with Presley holding his gun to her back, led the two men to the back of the store to the safe. After Duke gave the men the money in the safe, Presley pushed Duke into the restroom and closed the door. Duke testified that she could hear Presley outside the door fumbling with his gun. Presley then opened the door and made Duke lie facedown on the floor. Presley and his accomplice, whom Duke identified as Lasamuel Gamble, then left the store.

State's witness Cindy Thomas testified that on June 29, 1996, she was working alone at the City Limit Package Store in Clanton, when, at approximately 2:45 p.m., Presley came inside the store and asked her if the store sold soft drinks. Thomas testified that she had seen Presley in the store the previous week. Presley brought a drink and some chips to the counter, set them down, and then quickly pulled out a gun and pointed it at Thomas's head. Thomas gave Presley all of the money in the cash register and some money in a bank bag in a filing cabinet. Presley then ordered Thomas to lie facedown on the floor. Thomas testified that when she had trouble getting down on the floor behind the counter, Presley said to her, "Are you stupid?" (R. 431.) Presley then shot Thomas in the back and left the store.

State's witness Geraldine Motley testified that on June 30, 1996, at approximately 2:30 p.m., she was working alone at Curt's Package Store in Birmingham, when two young men, whom she identified as Presley and Gamble, came into the store and bought some juice. Motley stated that the men then left, but hung around outside the store for a short time. Motley testified that the two men came back inside the store, and Presley pulled out a gun and ordered her to open the cash register; he threatened to kill her if she did not. After Motley gave Presley the money from the register, Presley told her that he wanted the money from the store's safe. Motley first told Presley that she did not have the keys to the safe. As Presley held the gun to her head and threatened to kill her, Motley got the keys, opened the safe, and gave Presley the money inside it. When she opened the safe, an old gun was visible inside, and Presley, angry upon seeing the gun, told Motley that she had planned to kill him. Presley then ordered Motley to lie facedown on the floor. Motley testified that she was hysterical and could not keep still. Presley then shot Motley in the leg. The bullet entered Motley's thigh, exited, and then entered and lodged in her other thigh.

Presley did not testify at trial.

I.

On appeal, Presley contends that the trial court erred by allowing into evidence testimony relating to collateral crimes. Specifically, Presley argues that the testimony of State's witnesses Cushing, Perry, Duke, Thomas, and Motley concerning the other robberies Presley allegedly committed before and after the Citgo robbery should not have been admitted because, he says, their testimony was not probative of any issue in the case, and it was offered solely to show...