Scott v. State, 3 Div. 764

• Decision Date: 04 October 1977
• Docket Number: 3 Div. 764
• Citation: 353 So.2d 36
• Parties: Joe SCOTT, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 36

353 So.2d 36

Joe SCOTT, alias v. STATE.

3 Div. 764.

Court of Criminal Appeals of Alabama.

Oct. 4, 1977.

Rehearing Denied Oct. 25, 1977.

George W. Cameron, Jr., Montgomery, for appellant.

William J. Baxley, Atty. Gen., and Linda C. Breland, Asst. Atty. Gen., for the State.

TYSON, Presiding Judge.

The indictment charged the appellant with the robbery of Thomas Northington by taking $30.00 in lawful currency from his person. The jury found the appellant "guilty as charged" and fixed his punishment at fifteen years in the penitentiary. The trial judge entered judgment in accordance with the jury's verdict. Appellant's motion for new trial was overruled.

Thomas Northington testified that on November 13, 1976, he and his sister-in-law, Sheila Northington, were employed at the Western Oil Company station located on West Fairview Avenue in Montgomery. He stated that just before 10:00 PM that evening, he and Sheila were inside the station preparing to close for the day when appellant appeared on the premises. Thomas stated that upon seeing the appellant, he walked outside and asked if he could help, and that appellant told him he would like a six pack of beer. Thomas testified he then went over to the walk-in cooler located on the outside of the station and that appellant followed. Thomas stated that when he walked inside the cooler, appellant shut the door, then immediately re-opened it and stepped inside armed with a .410 sawed-off shotgun. Thomas testified that appellant held the gun in "pistol fashion" and stated, "Give me your money and don't look at me", and that he gave appellant "about thirty or thirty-five dollars . . . (of) the store's money." Thomas stated that appellant then "backed out" of the cooler and closed the door, locking him inside. He testified that before the cooler door closed, he saw a white automobile pull into the station. Thomas stated that he identified the appellant in a line up conducted a week after the incident in question, and he also made a positive in-court identification of the appellant and the weapon appellant used to perpetrate the robbery.

The State then offered the testimony of Sheila Northington who testified that she was inside the station sitting at her desk doing paper work and counting money during the robbery of her brother-in-law, but added that at the time, she was unaware that a robbery was taking place. She stated that she first noticed the appellant when he and another black male (subsequently identified as Archie Perdue, alias Gniskioski Thompkins) came inside the station. Mrs. Northington stated that Perdue asked for a pack of "Kool" cigarettes, and that when she turned around to hand them to him, she saw appellant hand Perdue a sawed-off shotgun. The witness testified that Perdue pointed the gun at her and told her to "give him all her money" and that she replied "Man, you've got to be kidding" to which appellant responded, "No, I'm not." Mrs. Northington stated that Perdue reached inside of her coat pockets to see if she had any money then pushed her into the stockroom which was located at the rear of the station. The witness stated that she then started screaming and that Perdue instructed her to "shut-up or else he would kill (her)." Mrs. Northington testified that she was unable to subdue her emotional outburst, and that because of this, Perdue struck her over the head with the butt of the shotgun. Mrs. Northington stated the shotgun fired when Perdue hit her and that she fell to the floor and "went blank for a little bit." She stated that when she regained consciousness, appellant and Perdue had fled, and that she then activated the station's security alarm system. Mrs. Northington testified she went outside to telephone her employer and there heard her brother-in-law inside the cooler "bamming on the door hollering 'Let me out.' " Mrs. Northington testified that she subsequently discovered that approximately two hundred and seventy three dollars were taken from the station's cash drawer. She stated that she later identified appellant in a line up conducted at the police station, and also positively identified the appellant in court as one of the men who robbed her. Mrs. Northington also identified a .12 gauge sawed-off shotgun as the gun utilized by Perdue and the appellant.

Over appellant's objection, the State offered the testimony of Mrs. Becky Roberson who testified she operated Wiggins Grocery located on Woodley Road in Montgomery. Mrs. Roberson stated that on November 18, 1976 (five days subsequent to the incident in question), two black males entered her store, and in response to her saying "Can I help you?", one of them pulled out a twelve gauge sawed-off shotgun and said, "Yes you can, give me your money." Mrs. Roberson stated that when she opened the cash register, "one of them" came around the counter and removed the cash from the drawer and instructed her to put the change in a sack. Mrs. Roberson testified that the man "that didn't have the gun" asked her if she had a weapon and where her telephone was located. She stated that, when she told him that she didn't have a gun or telephone, he went in the back part of the store and looked around then came back and picked up fourteen packs of "Kool" cigarettes. Mrs. Roberson testified that the two men started for the door then "the one with the gun" turned around and stated, "We will be back, . . . (b)y God, you better have more money." The witness stated that as the two men were leaving, another black male, whom she positively identified as appellant, entered the store, walked over to the cooler, removed a six pack of beer, then instructed her to place the beer in a sack. Mrs. Roberson testified that the three men then went outside and drove away in a white automobile with blue doors. She further testified that as they were leaving the store "one of them" turned and said, "Don't stick your head out the door. I'll blow it off. You're not going to get the tag number." The witness stated that after the three men had left she locked the door and called her "bossman" and the police. She added that $114.80, fourteen packs of cigarettes, and a six pack of beer were taken during the robbery.

Officer John Pressley of the Montgomery Police Department testified that he was on patrol around 3:00 PM the day of November 18, 1976, and received a radio dispatch to be on the look-out for a late model Plymouth with blue or black doors. Officer Pressley stated he spotted an automobile on Virginia Loop Road near the Troy Highway which fitted that description and that three black males were riding therein. Officer Pressley testified that he stopped the car, removed the suspects, and looked inside the vehicle where he observed a large quantity of cigarettes, several beers, and "what appeared to be a barrel sticking out from under the passenger side of the vehicle." Officer Pressley stated that he retrieved two shotguns from beneath the seat, a .410 sawed-off shotgun and a double barrel twelve gauge sawed-off shotgun. He further stated that the occupants of the automobile were identified as the appellant, Archie Perdue, and Roosevelt Turner.

Appellant did not offer any evidence in his behalf.

I

On this appeal, appellant urges that the trial court erred in allowing the State to introduce evidence of a separate, distinct, and independent offense which occurred five days subsequent to the offense for which he was charged in the indictment.

It is an elementary rule of law that in a criminal prosecution proof of collateral offenses cannot be used as substantive evidence to establish the guilt of the accused as to the crime for which he stands charged in the indictment. However, this well-established principle of criminal evidence is subject to several equally well-established exceptions. Wilkins v. State, 29 Ala.App. 349, 197 So. 75; Mason v. State, 259 Ala. 438, 66 So.2d 557. These recognized exceptions have developed into general categories, and are listed in Wharton's Criminal Evidence, Section 31, as follows:

"These exceptions fall under the following general divisions: (1) Relevancy as part of res gestae. (2) Relevancy to prove identity of person or of crime. (3) Relevancy to prove scienter, or guilty knowledge. (4) Relevancy to prove intent. (5) Relevancy to show motive. (6) Relevancy to prove system. (7) Relevancy to prove malice. (8) Relevancy to rebut special defenses. (9) Relevancy in various particular crimes. It is recognized that in many instances the line of demarcation is not clear, but the discretion vested in the trial...