Robinson v. State, 7 Div. 480

• Decision Date: 05 October 1976
• Docket Number: 7 Div. 480
• Citation: 337 So.2d 1382
• Parties: Theodis ROBINSON, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1382

337 So.2d 1382

Theodis ROBINSON, alias v. STATE.

7 Div. 480.

Court of Criminal Appeals of Alabama.

Oct. 5, 1976.

William Roy Willard, Jr., Gadsden, for appellant.

William J. Baxley, Atty. Gen., and Milton C. Davis, Asst. Atty. Gen., for the State.

HARRIS, Judge.

Appellant was convicted of robbery and the jury fixed his punishment at 20 years imprisonment in the penitentiary. Prior to arraignment he was found to be indigent, and the Court appointed two experienced lawyers of the Gadsden Bar to represent him and they were appointed two weeks before the trial. At arraignment he pleaded not guilty and not guilty by reason of insanity. After sentence was imposed, he gave notice of appeal and his sentence was suspended pending appeal. This counsel was appointed to represent him on appeal.

Omitting the formal parts the indictment reads as follows:

'The Grand Jury of said County charges that before the finding of this Indictment Theodis Robinson, alias Theotis Robinson, alias Theortis Robinson, whose name to the Grand Jury is otherwise unknown than as stated, feloniously took one (1) ten-dollar bill, lawful United States currency, of the value of $10.00; and ten (10) one-dollar bills, lawful United States currency, of the value of $10.00, all of the aggregate value of $20.00, the property of Shirley Hammond, from her person or in her presence, and against her will, by violence to her person, or by putting her in such fear as unwillingly to part with the same, contrary to law and against the peace and dignity of the State of Alabama.'

As a preliminary matter counsel for appellant made a motion for a continuance until the next term of court on the ground that on the very day the case was called for trial, appellant informed them that at one time he had been in a mental in institution in the State of Louisiana and counsel wanted more time to investigate the question of his sanity at the time of the commission of the offense, as well as his competency to stand trial and assist his counsel in his defense. The motion was made at the insistence of appellant.

The record reflects quite a colloquy between the Court appellant and his attorneys. Appellant told the Court that he had a 'mental block' and had no recollection whatsoever of the alleged crime. Based upon appellant's statement the Court was in a quandary as to whether he was competent to stand trial. Out of an abundance of precaution and in order to protect appellant's constitutional rights to a fair and impartial trial the Court questioned appellant's counsel on their judgment as to his competency to stand trial. Counsel told the Court that appellant 'speaks intelligently and lucidly in discussing the case but he had no recollection of what occurred at the time the alleged offense was committed.' Appellant's counsel further told the Court that appellant was capable of understanding the charge against him but because of his 'mental block' he was unable to assist counsel with his defense.

Thereupon, the Court told counsel for the State and the defense that a jury trial would be had for the limited purpose of determining if appellant was competent to stand trial. The jury was qualified and each side was furnished a strike list. The Court adjourned for lunch and counsel for appellant conferred at length with him on the issue to be decided by the jury, viz., his present competency to stand trial.

When Court reconvened, counsel made known to the Court they had a matter to take up out of the presence and hearing of the jury. Counsel for both sides and appellant went to the Judge's Chambers.

From the record:

'THE COURT: All right, do you have something to take up with the Court at this time?

'MR. BURNS: Yes, sir. Comes now the Defendant Theodis Robinson, whatever the style of the case is, and I would like to make his formal request to withdraw his prior request for a sanity hearing. Said sanity hearing was for the purpose of determining his present ability to stand trial, and at this time after discussing it with his two Court appointed attorneys he wishes now to withdraw the said request and--I guess we could introduce his testimony into the record. I don't think he has ever been sworn, Judge.

'THE COURT: Well, I don't think he has to be sworn for arraignment. You said you wanted to plead incompetent to stand trial. Do you want to withdraw that plea?

'THE DEFENDANT: Yes, sir.

'THE COURT: Do you think you are competent to stand trial at the present time?

'THE DEFENDANT: I think I am competent. I don't think an untrained jury is competent enough to determine whether I am insane or not. So I had rather just go ahead on and get through the trial.

'MR. BURNS: Well, based on that, Judge, what he has told you, at this time we would like to withdraw the formal request for a sanity hearing to determine his present competency and go into the subsitive (sic) trial of the facts.

'THE COURT: In other words, you just want to plead insanity at the time of the offense? Is that your plea?

'THE DEFENDANT: Well, I would like to--

'Well, I don't know whether I was insane or not. That is why I want to see a psychiatrist. All I can say is I don't remember what happened.

'THE COURT: Are you able to talk to your attorneys and communicate with your attorneys now?

'THE DEFENDANT: Yes, I can communicate with my attorneys to a certain degree. As far as offering them defense information that would help me in my trial, I'm not able to do it.

'THE COURT: You don't remember what happened back then?

'THE DEFENDANT: No, sir.

'THE COURT: Do you understand what this charge is against you?

'THE DEFENDANT: Yes, sir.

'THE COURT: And you are able to talk to your attorneys now, but you just don't remember what happened back then? Is that what you are telling the Court?

'THE DEFENDANT: Right.

'THE COURT: You feel like that you understand what is going on right now?

'THE DEFENDANT: Yes, sir.

'THE COURT: All right, then you want to withdraw that plea of incompetency?

'THE DEFENDANT: Yes, sir.'

Appellant filed a motion to suppress the State's evidence on the question of the identification of appellant and considerable testimony was taken on this issue out of the presence and hearing of the jury.

On the motion to suppress Detective M. J. Naler of the Gadsden Police Department testified that he had been with the Department almost nine years. That during that period of time he had conducted many lineups in which defendants were identified. He stated that on March 3, 1976, a lineup was held in which appellant was identified by the victim of the robbery. He stated there were four other black males in the lineup of the approximately age and size of appellant. He said the lineup was actually gotten up by Captain Richard Moore of the Gadsden Police Department, and that prior to viewing the lineup no suggestions were made to the victim, Mrs. Shirley Hammond. That when Mrs. Hammond viewed the lineup, she immediately made a positive identification of appellant as the man who robbed and kidnapped her in Gadsden, Alabama, on April 9, 1975.

On cross-examination Detective Naler testified that he was one of the officers assigned to investigate the robbery of Mrs. Hammond and they got the name and description of appellant from persons in the neighborhood where the robbery occurred and from the people that he rented from. That they talked to appellant's aunt who lived at 1004 Mimosa Street in Gadsden and she told the officers that she had not seen appellant since the robbery but she knew he had been in trouble before in Baton Rouge, Louisiana. The officers communicated with the Police Department in Baton Rouge and they sent a photograph of appellant to the officers in Gadsden. The officers took this photograph along with ten or twelve other photographs to Mr. Hammond and from this display of photographs she picked out the photograph of appellant as the man who robbed her. These photographs were shown to Mrs. Hammond on April 19, 1975, ten days after the robbery.

Detective Naler further testified that they entered appellant's name, date of birth, social security number, and the charge pending against him in the N.C.I.C. (National Crime Information Center) and they received a teletype from the Puma County Police Department in Tucson, Arizona, that they had the suspect in custody. He was subsequently extradited to Alabama, and the lineup was held the day after appellant was brought back to Alabama.

Mrs. Shirley Hammond was called as a witness for the defense on the motion to suppress. She testified that on the morning the lineup was held she walked into the room and immediately identified appellant as the robber. That the officers did not tell her who she was going to view and did not mention the names of any people in the lineup. She further stated that she was not shown any photographs just prior to entering the room to view the people in the lineup.

The Court overruled the motion to suppress and the trial got under way before the jury.

Mrs. Hammond testified that she was employed as a package car driver for United Parcel Service on April 9, 1975, and that on that date around 2:00 p.m., she was delivering a package to 909 Tuscaloosa Avenue in Gadsden, Alabama. That she parked the delivery van and picked up the package and walked across the street but she made a mistake and went to the wrong house. Two black men were standing nearby talking and one of them told her the house was next door. She went next door and delivered the package and she walked back across the street to the van. As she stepped up into the package car, a black man jumped her from the back. She told him to get out and he pulled a pistol and pointed it at her and said, '_ _, drive.' Mrs. Hammond started screaming and the man told her if she didn't shut her _ _ mouth, he would blow her head off and he had the pistol pointed directly at her head.

Mrs. Hammond cranked the van and started driving down Ninth Street and the man said, 'Give...