Scott v. State
Decision Date | 23 July 1985 |
Docket Number | 1 Div. 890 |
Citation | 479 So.2d 1343 |
Parties | Roy A. SCOTT v. STATE. |
Court | Alabama Court of Criminal Appeals |
Paul D. Brown, Mobile, for appellant.
Charles A. Graddick, Atty. Gen., and Jane LeCroy Brannan, Asst. Atty. Gen., for appellee.
A jury found this appellant guilty on a trial on an indictment which charged in pertinent part the following:
"ROY ALLEN SCOTT ... did in the course of committing a theft of lawful currency of the United States of America, the specific denomination(s) of said currency being unknown to the Grand Jury, of the approximate aggregate value of One Thousand Six Hundred Fifty Four and 35/100 dollars ($1,654.35), the property of Grand Pak, Incorporated, doing business as Grand Pak number one, use or threatened the imminent use of force against the person of Manon Boggs, with the intent to overcome her physical resistance or physical power of resistance, while the said ROY ALLEN SCOTT was armed with a deadly weapon, to-wit: a gun, in violation of § 13A-8-41 of the Code of Alabama...."
The cited Section of the Code denominates the particular crime as Robbery in the First Degree and classifies it as a Class A felony. Section 13A-5-9(c), provides:
In accordance with the applicable statutory law as quoted, the court sentenced the defendant-appellant to imprisonment for life without parole.
The first issue presented by appellant is thus captioned in the brief of his counsel, the same attorney who represented him on the trial of the case:
"THE COURT ERRED TO REVERSAL IN DENYING THE DEFENDANT'S MOTION FOR A NEW TRIAL BASED UPON THE STATE'S PURPOSEFUL, DELIBERATE AND SYSTEMATIC USE OF PEREMPTORY CHALLENGES TO STRIKE THE TRIAL JURY TO EXCLUDE YOUNG MALE MEMBERS OF THE BLACK MINORITY RACE, IN VIOLATION OF THE DEFENDANT'S CONSTITUTIONAL GUARANTEE OF TRIAL BY AN IMPARTIAL JURY."
Testimony was presented by each of the parties on the hearing for the motion for a new trial, some of the witnesses testifying to the effect that counsel for the State exercised its peremptory challenges usually, if not invariably, so as to provide for a jury without any black persons thereon. The Assistant District Attorney who represented the State in the trial of the case sub judice testified that he had made it a practice by the exercise of his peremptory challenges not to challenge a juror on the panel of jurors from which the jury was selected by the method of striking solely because he or she was not a black person. We are of the opinion that the issue now under consideration is without merit, and we follow precisely what was said by Presiding Judge Bowen in the relatively recent case of Walker v. State, Ala.Cr.App., 428 So.2d 139, 141-142, cert. denied, Ala., 428 So.2d 139 (1983) as follows:
"The defendant's rights were not violated when the State used its peremptory strikes to exclude blacks from the jury. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 524, 13 L.Ed.2d 759 (1965); Flowers v. State, 402 So.2d 1088, 1093 (Ala.Cr.App.), cert. denied, 402 So.2d 1094 (Ala.1981). The Constitution does not require 'an examination of the prosecutor's reason for the exercise of his challenge in any given case.' Swain, 380 U.S. at 221, 85 S.Ct. at 836. The fact that a district attorney used all of his strikes to exclude blacks from the jury venire does not constitute proof that there was a systematic exclusion of blacks. McCray v. State, 395 So.2d 1057, 1059-60 (Ala.Cr.App.1980, cert. denied, 395 So.2d 1062 (Ala.1981); Carpenter v. State, 404 So.2d 89, 95 (Ala.Cr.App.), cert. quashed, 404 So.2d 100 (Ala.1980); Watts v. State, 53 Ala.App. 518, 301 So.2d 280 (1975). A presumption exists that the prosecutor is using his challenges to obtain a fair and impartial jury. This presumption is not overcome merely by showing that he uses all of his strikes to remove blacks from the jury. Swain, supra."
By his second issue, counsel for appellant briefly contends in his brief that the punishment of imprisonment for life without parole imposed upon "this young appellant" constitutes cruel and unusual punishment in violation of the Eighth Amendment to the Constitution of the United States. Appellant cites Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), in support of this issue. There is some similarity between the punishment in Solem v. Helm and the punishment in the instant case, the punishment in Solem v. Helm being for life imprisonment without the possibility of parole, but their similarity ends there. All of the felonies in Solem v. Helm, a total of seven, were nonviolent felonies. The conviction from which the instant appeal was taken was for a robbery in the first degree, which, without the benefit of any recidivist statute, permitted a maximum punishment that was at least the equivalent of imprisonment for life. The judgment of sentence in this case is not in conflict of anything that was said or held in Solem v. Helm.
By his next issue, appellant's attorney contends that "There was insufficient corroboration of the testimony of the accomplice to sustain the conviction of the appellant." The accomplice referred to is Charles Williams, who testified, according to the Statement of Facts in the brief of counsel for appellant, as follows:
We find that the testimony of Ms. Manon Boggs, a witness called by the State, constituted direct evidence that defendant committed robbery in the first degree as alleged in the indictment. We summarize her testimony as stated in the brief of counsel for appellant:
We are confident that the testimony of Ms. Boggs constituted ample corroboration of the testimony of Charles Williams to meet the requirements of Code of Alabama 1975, § 12-21-222, which provides:
"A conviction of felony cannot be had on the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense and such corroborative evidence, if it merely shows the commission of the offense or the circumstances thereof, is not sufficient."
By the last issue presented in the brief of counsel for appellant, it is contended that, "THE COURT ERRED TO REVERSAL IN DENYING THE APPELLANT'S MOTION TO SUPPRESS THE OUT OF COURT SHOW-UP IDENTIFICATION." The issue is directed at the testimony of Ms. Boggs, which we have discussed under the heading of Issue III, particularly as to her having taken some nitroglycerine tablets. The following constitutes the argument of appellant's counsel in its entirety as to the fourth issue:
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