Preyer v. State

• Decision Date: 17 April 1979
• Docket Number: 6 Div. 474,6 Div. 480
• Citation: 369 So.2d 901
• Parties: James Orlando PREYER v. STATE. &
• Court: Alabama Court of Criminal Appeals

Page 901

369 So.2d 901

James Orlando PREYER v. STATE.

6 Div. 474 & 6 Div. 480.

Court of Criminal Appeals of Alabama.

April 17, 1979.

Samuel Johnston, Carol Millican, Birmingham, for appellant.

William J. Baxley, Atty. Gen. and James L. O'Kelley, Asst. Atty. Gen., for State.

DeCARLO, Judge.

These are two appeals by an indigent from convictions by a Jefferson County, Alabama, jury. 6 Div. 474, is a case in which appellant was found guilty of violating the Alabama Controlled Substances Act. In 6 Div. 480, a second jury in a separate trial found the appellant guilty of forgery, and sentenced him to five years imprisonment.

The facts involved in the two prosecutions arise from the same transaction, and we have granted the appellant's request that these two appeals be considered together.

In order to maintain an orderly sequence in the recitation of the facts involved we will begin with the prosecution for forgery. The facts presented by the State at trial are as follows:

John L. Stewart, an employee of Alabama Power Company, was a timekeeper and materialman assigned to construction site No. 36 in Jefferson County, Alabama. Among his duties was the preparation of payroll checks. During the trial he testified that, upon returning to work on December 29, 1975, he discovered various items missing from the construction office, including a check book belonging to Alabama Power Company. He identified five checks introduced in evidence which, he said, were among those taken from the office. The missing checks were numbered from about 2632 to 2904.

Mr. Stewart testified that the missing checks were blank Alabama Power Company checks, and that he had not given anyone authority to sign his name to the checks. He also stated that the checks which he identified in court were blank at the time they were taken from the construction office, and that he had not signed them.

Birmingham Police Officer James L. Stegall, testified that, on September 20, 1976, he and some other officers were conducting a surveillance of a residence located at 6514 6th Avenue, South, in Birmingham. Stegall testified that, on that date, he saw a red and white Buick Riviera in front of the residence and that he observed a person, later identified as the appellant, get into the car. The car later returned to the same address and the appellant re-entered the house only to leave a second time.

This time, Officer Stegall followed the appellant and the driver of the automobile to a grocery store, "at the 1300 block of 6th Avenue, South." Stegall stated that he observed the defendant and the driver enter the grocery and followed them into the store. The officer positioned himself directly behind the appellant and testified that he saw the appellant hand the cashier an Alabama Power Company check, along with some identification.

The police officer stated that, at that time, he recognized the check as one of the stolen checks. According to Stegall, the check bore the name of one "Isaac Core." After the appellant presented the check, Stegall testified that he arrested and searched him. In the appellant's socks were four Alabama Power Company checks.

Stegall stated that these checks were shown to Mr. Thomas D. Baker of the Alabama Power Company security office, who was brought to the store by other police officers. Stegall testified that the check which appellant had presented to the cashier and those found in his socks were turned over to Sgt. Maddux of the Birmingham Police Department.

Thomas David Baker, the assistant supervisor of security for Alabama Power Company, had prepared a record pertaining to the burglary of the construction site in December of 1975. Baker testified that some 271 Alabama Power Company checks had been taken, bearing the numbers in sequence from 2633 through 2904.

Baker stated that, on September 20, 1976, he had occasion to accompany some officers of the Birmingham Police Department to a residence located on 6th Avenue, South. He testified that he and Sgt. Trimm of the Birmingham Police Department observed a Buick Riviera in front of the residence, and that the appellant was a passenger in the car.

According to Baker, he and the police officers followed the car to a grocery on 6th Avenue, South. Baker stated that he observed Officers Stegall and Norris enter the store and that he also went into the store.

There the officers showed him an Alabama Power Company check, No. 2846, which he identified as one of the checks stolen from the construction site office. He also identified four other checks which he stated were among those taken during the burglary on December 29, 1975.

Detective Sgt. John Maddux testified that he instructed Officers Norris, Stegall, and Trimm to assist him in the surveillance of a residence at 6514 6th Avenue, South.

Maddux stated that, during the surveillance, he observed the appellant get into a late model Buick outside the residence, and that the occupants of the car later went to a grocery store on 6th Avenue, South. He also testified that he received some checks and other articles of identification from Officer Stegall at the grocery, which were taken during the appellant's arrest and the search of the car in which he had been riding.

Theresa Bailey, a cashier at the grocery on September 20, 1976, identified appellant as the man who presented the Alabama Power Company check to be cashed. She stated that the appellant also showed her an identification card, and she turned this item over to Officer Stegall, along with the check.

At the conclusion of Bailey's testimony, the State rested its case and the defense made a motion to exclude the evidence on the grounds that the State had failed to make out a prima facie case. The motion was overruled and the defense presented its evidence.

Sgt. Maddux was re-called and testified that there were two individuals in the Buick, the appellant and George Acey, the driver, and that the car was registered to Acey. Further, Maddux testified that Acey had stated "that he did not know anything about Mr. Preyer's activities and he was merely a person who was going to give him (appellant) a ride to that scene."

The appellant testified that, on September 20, 1976, he lived at 6514 6th Avenue, South, and that, on that date, he had gone to the grocery on 6th Avenue and 13th Street with George Acey.

He stated that, when they arrived, Acey had told him to get a check okayed. Preyer stated that, before the cashier could actually cash the check, the officer was standing directly behind him and placed him under arrest.

Preyer denied that any stolen checks had been found in his socks and stated that he "wasn't even wearing any socks that day." Further, in his statement to police appellant said that George Acey had given him the check and that he had received it immediately prior to his arrest.

Sgt. Donald Trimm testified that he examined the automobile in which appellant had been riding and found an envelope containing "some identification in it and some checks and other types of identification." Trimm stated that he turned these items over to Police Sgt. Maddux, who testified that the envelope contained Alabama Power Company checks made out to Israel Core, a driver's license, and other identification belonging to James Orlando Preyer, the appellant.

The events inside the grocery, together with the envelope containing the stolen checks recovered from the car in which appellant had been riding, were the basis for a search warrant issued the following day, directing a search of appellant's residence.

Following the appellant's arrest, and a search of the automobile in the parking lot, the surveillance of appellant's residence was resumed and a search warrant was obtained the following morning based on information received from an informant as well as the items found in the search of the vehicle. The facts given in the following affidavit in support of the search warrant are substantiated in the testimony recorded in the transcript of evidence. The affidavit reads, in pertinent part, as follows:

"In December, 1975, over 200 checks were stolen in a burglary at an Alabama Power Company construction site.

"On September 20, 1976 Sgt. John M. Maddox of the Birmingham Police Department received information from an informant that James Preyer of 6514-6th Ave. S. in Birmingham, had in his possession and secreted about 6514-6th Ave. S. a large number of checks stolen from Alabama Power Company in December, 1975.

"This informant further stated that James Preyer was in the process of attempting to cash these checks and that if Preyer was followed by the police officers they would see him cashing these checks. A surveillance was begun on September 20, 1976 at 6514-6th Ave. South at 5:15 P.M. Preyer was observed leaving 6514-6th Ave. S. and entering a Buick Riviera driven by a Black Male later identified as George Acey. This vehicle was followed to Bruno's grocery store at 12th Street and 6th Avenue South where Preyer was observed entering Bruno's Supermarket Store # 11 and approached the Cashier where he was observed presenting a check payable to the order of Isreal Core. The Check # 2 as 2846. He was arrested and placed in custody. A search of Preyer incident to this arrest at the scene revealed Four (4) more stolen checks in his possession and altered drivers license belonging or issued to Isreal Core.

"(A) search of the Buick vehicle parked at Bruno's that Preyer and Acey arrived in, revealed a white envelope with Physicians Mutual Insurance Company on the outside of the envelope. Inside were three (3) stolen Alabama Power Company checks and a plastic picture holder which contained Preyer's drivers license, Social Security card, Armed Forces DD-214, and other miscellaneous papers and pictures with Preyer's name on them. These items of identification all listed his home address 6514-6th Ave. S.

"Based on the above information from the informant and the corroborating...