Robinson v. State

• Decision Date: 22 August 1997
• Citation: 728 So.2d 650
• Parties: Fredrico ROBINSON, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

728 So.2d 650

Fredrico ROBINSON, alias v. STATE.

CR-96-0384.

Court of Criminal Appeals of Alabama.

August 22, 1997.

Robert C. Davis, Gadsden, for appellant.

Bill Pryor, atty. gen., and James B. Prude, asst. atty. gen., for appellee.

LONG, Presiding Judge.

The appellant, Fredrico Robinson, was indicted on two counts of capital murder. Count I charged the appellant with the capital offense of murder committed during the course of a robbery. § 13A-5-40(a)(2), Ala. Code 1975. Count II charged the appellant with the capital offense of murder committed by use of a deadly weapon while the victim was in a vehicle. § 13A-5-40(a)(17), Ala. Code 1975. The jury acquitted the appellant as to Count I and found him guilty of felony murder, a lesser included offense of the capital murder charge in Count II. See § 13A-6-2(a)(3), Ala.Code 1975. The appellant was sentenced to life in prison.

The evidence tended to show that on the evening of December 29, 1993, Tony Williams went to the home of his friend, Misty Dawn Loggins, in Gadsden. Later, Williams and Loggins left the house in Loggins's automobile, and drove to East Gadsden to purchase drugs. Loggins was driving and Williams was in the passenger seat. Williams testified that while they were driving on East Broad Street, they passed two black males who were walking. He stated that both men made a hand motion, which, to him, indicated that they had drugs. Loggins turned the car around and drove up to the two men. The men came over to the passenger-side window. Williams stated that he spoke with one of the men, whom he described as a large, heavy black male with a dark complexion, who was the shorter of the two men and who was wearing blue jeans and a hooded sweatshirt. Williams later identified this man as the appellant; the other man was identified as Derrick Woods. Williams asked the appellant if he was "holding." The appellant replied, "Yes, give me a second." Williams stated that the appellant also asked Williams for a ride, which Williams declined to give. The appellant then reached inside his pants, pulled out a gun, put it to Williams's neck, and stated, "This is a robbery. Give me all your money and your jewelry." (R. 688.) Williams testified that as he began to comply, he told Loggins that they were being robbed. Loggins began to drive away. According to Williams, the other man standing by the appellant stated, "Shoot the bitch driving the car." (R. 689.) Williams testified that when he "glanced" back to see if the men were running after them, he saw the appellant, who was holding a gun, point it at the car. Williams ducked and heard two shots. The car began to go off the side of the road. Williams looked over at Loggins, who was bleeding, and engaged the emergency brake. He got out of the car, and as he was placing Loggins in the passenger seat to take her to a hospital, a police officer arrived. The officer requested assistance and an ambulance. Loggins was transported to the hospital and died several days later from a gunshot wound to her head.

Williams was taken to the Gadsden Police Department for questioning. While there, he described both men, and the police made a composite sketch. The following day, the police received information from a confidential informant identifying the appellant and Derrick Woods as the two men involved in the attempted robbery and shooting. Based on this information, the police showed Williams a photographic lineup, but he was unable to identify anyone as the men he had seen. He was shown a second photographic lineup, and, this time, he identified the appellant as the heavyset man who had held the gun on him before the shooting and whom he had seen pointing his gun at the car just before he heard the gunshots.

On January 3, 1994, Derrick Woods was taken into custody as a suspect. Approximately two months later, the appellant was located in Donora, Pennsylvania. He was arrested, extradited to Gadsden, and charged with two counts of capital murder.

At trial, the appellant testified on his own behalf. While admitting that he had been present during the shooting, he offered a different version of the events than that given by Williams. The appellant testified that Woods was the person who had shot the driver of the vehicle. He maintained that he and Woods were walking along East Broad Street when the vehicle drove up beside them. He testified that, contrary to Williams's testimony, Woods spoke with Williams and that the appellant began to walk away. Shortly thereafter, the appellant said, the car began to leave, spraying gravel. He testified that he turned around and heard Woods say, "they got him," meaning that they had taken his cocaine. He testified that Woods pulled his gun and started shooting. The appellant testified that he did not know until later that night or early the next morning that someone in the car had been shot. The appellant testified that he went to Pennsylvania two days later to see his son, who was ill, and because he was afraid he would be prosecuted for the shooting.

Although we have determined that we must remand this cause to the trial court with regard to an issue raised by the appellant, we will, in the interest of judicial economy, address all issues raised by the appellant, reserving for last the issue that requires the remand.

I

The appellant first contends that the trial court erred in refusing to grant him youthful offender status. Specifically, he contends that he was improperly denied youthful offender status solely on the basis of the nature of the criminal charge against him.

In determining whether to treat a defendant as a youthful offender, the trial court has nearly absolute discretion. Reese v. State, 677 So.2d 1239 (Ala.Cr.App.1995). There is no set method for considering a motion requesting such treatment. Id. However, the Youthful Offender Act, § 15-19-1, et seq., Ala.Code 1975, requires that the court conduct a factual investigation into the defendant's background. Generally, the trial court considers the nature of the crime charged, any prior convictions, the defendant's age, and any other matters the court deems relevant. Reese, 677 So.2d 1239. Moreover, the trial court need not articulate on the record its reasons for denying youthful offender status. Id.

The appellant cites Ex parte Farrell, 591 So.2d 444 (Ala.1991), which holds that a criminal charge, in and of itself, cannot be the sole basis for denying a petition for youthful offender status. However, the record contains a transcript of the hearing on the appellant's application, and it is clear that the trial court did not base its decision solely on the nature of the criminal charge, but based its decision on numerous other factors in addition to the nature of the crime charged. There is nothing in the record to support the appellant's contention that he was denied youthful offender status solely because of the nature of the crime charged.

II

The appellant also contends that the evidence was insufficient to support his conviction. The jury acquitted the appellant of capital murder committed during the course of a robbery under Count I and found him guilty of felony murder, a lesser included offense of the capital murder charge under Count II. Thus, we will address only that portion of the appellant's insufficiency of the evidence argument that pertains to felony murder.

"`When there is legal evidence from which the jury could, by fair inference, find the defendant guilty, the trial court should submit it to the jury, and in such a case, this court will not disturb the trial court's decision.' Ward v. State, 557 So.2d 848, 850 (Ala.Cr.App.1990). `In determining the sufficiency of the evidence, this Court must accept as true the evidence introduced by the State, must make all legitimate inferences from that evidence and must consider such evidence in the light most favorable to the State.' Daniel v. State, 623 So.2d 438, 441 (Ala.Cr.App. 1993)."

Turner v. State, 674 So.2d 1371, 1376 (Ala.Cr. App.1995).

Felony murder is committed when a person commits any felony "clearly dangerous to human life and, in the course of furtherance of the crime that he is committing or attempting to commit, or in immediate flight therefrom, he, or another participant if there be any, causes the death of any person." § 13A-6-2(a)(3), Ala.Code 1975. (Emphasis added.) "`In the typical felonymurder, there is no malice in "fact," express or implied; the malice is an unintended homicide.'" Johnson v. State, 620 So.2d 679, 701 (Ala.Cr.App.1992), rev'd on other grounds, 620 So.2d 709 (Ala.1993), on remand, 620 So.2d 714 (Ala.Cr.App.1993), cert. denied, 510 U.S. 905, 114 S.Ct. 285, 126 L.Ed.2d 235 (1993) (quoting Ex parte Bates, 461 So.2d 5, 7 (Ala.1984)) (emphasis in Bates).

Here, the underlying felony is discharging a firearm into an occupied vehicle. The statute prohibiting discharging a firearm into an occupied vehicle states: "No other person shall shoot or discharge a firearm, explosive, or other weapon which discharges a dangerous projectile into any occupied ... automobile... in this state." § 13A-11-61(a), Ala. Code 1975. Discharging a firearm into an occupied vehicle is a Class B felony. § 13A-11-61(b), Ala.Code 1975. Firing gunshots into an occupied vehicle is clearly dangerous to human life. The undisputed evidence in this case is that gunshots were fired into the vehicle occupied by Misty Loggins and Tony Williams and that Loggins was killed as a result.

The appellant contends that the evidence that he shot Loggins is circumstantial, and that the evidence reflects that it was Derrick Woods, not he, who shot Loggins.

"`A person is legally accountable for the behavior of another constituting a criminal offense if, with the intent to promote or assist the commission of the offense ... [h]e aids or abets such other person in committing the offense ...' 13A-2-23(2), Code of Alabama 1975. `"`Aid and abet "comprehend all assistance

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