Simmons v. State

• Decision Date: 04 October 1977
• Docket Number: 6 Div. 405
• Citation: 353 So.2d 11
• Parties: Jessie Lee SIMMONS, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 11

353 So.2d 11

Jessie Lee SIMMONS, alias v. STATE.

6 Div. 405.

Court of Criminal Appeals of Alabama.

Oct. 4, 1977.

Rehearing Denied Oct. 25, 1977.

Jack G. Lowther, Tuscaloosa, for appellant.

William J. Baxley, Atty. Gen., and C. Lawson Little, Asst. Atty. Gen., for the State.

HARRIS, Judge.

Appellant was convicted of assault with intent to rob and sentenced to 15 years imprisonment in the penitentiary. Following the verdict and sentence, appellant gave oral notice of appeal. The Court, finding appellant indigent, appointed counsel of record to represent appellant on appeal.

Subsequently, appellant, stating numerous grounds, moved for a new trial. In part, appellant contended that the verdict was contrary to the evidence adduced at trial. The trial court denied this motion.

The evidence shows that around midnight on Friday, August 27, 1976, two young black males, Danny Harris and Jessie McGee, approached the self-service Shell Station on the corner of 13th Street and McFarland Boulevard. Miss Carol Brown was the attendant on duty. Daniel Harris purchased a pack of Kool cigarettes from her. At that time Jessie McGee pushed a pistol through the cashier's window, told Miss Brown that this was a holdup, and demanded that she place all the money in a bag. While gathering up the money from the cash drawer, before giving any money to these assailants, Miss Brown was shot by McGee.

Immediately before McGee shot Miss Brown, two Alabama State Troopers, Buddy Knight and Jerry Elliot, stopped at a red light at the intersection of 13th Street and McFarland Boulevard. Buddy Knight saw McGee and Harris "standing shoulder to shoulder pushed up real close to the pay window."

The troopers drove into the station lot just as McGee shot Carol Brown. Knight jumped out of his car, shouting at McGee and Harris to "Freeze." McGee raised his pistol and Knight fired several shots, one of which struck McGee in his leg. Harris ran and Elliot chased him, losing him in a wooded area nearby.

Knight recovered the pistol used by McGee and turned it over to Don Lake, a detective on the homicide squad. Lake recovered a spent projectile inside the cashier's booth. Both the gun and the projectile were turned over to Jim Britton, a State Toxicologist. Britton conducted ballistics examinations, subsequently, concluding that the projectile was fired from the weapon used by McGee.

Leigh McGee testified that she was the mother of Jessie McGee. Mrs. McGee had known appellant approximately two years prior to this incident. Appellant and McGee were close friends. On the evening of the robbery, Mrs. McGee testified, appellant came to her home on three occasions.

At approximately 8:30 p. m. on Friday, appellant came over to the McGee home with Jessie McGee and Daniel Harris. Appellant asked Mrs. McGee to cook them a frozen pizza which he had brought with him. Appellant, McGee and Harris then left.

Mrs. McGee stated that at approximately 10 o'clock, appellant, her son and Harris came back and ate the pizza. After eating the pizza these three left again. They did not tell Mrs. McGee where they were going.

Mrs. McGee left her house shortly afterwards on an errand. When she returned home, her son and Daniel Harris were there. About 11 o'clock p. m., Mrs. McGee stated, appellant drove up to her house and honked the horn in his car. Her son and Daniel Harris went out to the car. Mrs. McGee heard appellant say, "Are you all ready?" Her son answered, "Yeah." Appellant and the two boys then drove off.

Approximately at 12:30 a. m., Saturday morning, appellant returned alone to Mrs. McGee's house and asked her if her son and Daniel had "made it home." When she told appellant they had not, he replied that he had dropped them off at Brother's Lounge.

Subsequently, Don Lake and Sergeant Billy Bigham of the Tuscaloosa Police Department arrived at Mrs. McGee's home. After talking with Mrs. McGee, the officers spoke to Jessie McGee's wife. Following this conversation the officers went to an apartment on 25th Avenue and spoke with appellant.

Billy Estes, also a Tuscaloosa Police Officer, was with Lake and Bigham at this time. He informed appellant of his Miranda rights. Appellant stated that he understood these rights and said he would talk to them. The police officers informed appellant of the attempted robbery at the Shell Station.

Appellant at that time said that some time after 11:00 p. m., he had gone by Jessie McGee's residence and asked if he and Danny wanted to go get a pizza with him.

Lake then asked if appellant would come down to the police station to give a formal statement. Appellant agreed. He and the officers then left in Lake's patrol car.

In the patrol car, appellant said he "wanted to come clean of everything that he knew about the case," and wanted to show where he dropped off McGee and Harris. Appellant took them to the entrance to Delaware Jackson Apartments, telling them that McGee and Harris told him that they were going to a party. Appellant then said he went to his nephew's house down on the Eutaw Highway.

Lake, the other officers, and appellant then went to the police station. Lake again advised appellant of his Miranda rights. Appellant executed a Miranda waiver form. Appellant then gave another statement.

Appellant said that he was on his way to get a pizza and on his way picked up McGee and Harris. McGee and Harris were talking about "pulling a job." McGee and Harris wanted him to wait while they committed the robbery. Appellant said he "felt like they were going to hit the station at Thirteenth and McFarland because there wasn't anything else open around there in the vicinity." Appellant stated that he let McGee and Harris out at the West Alabama Rehabilitation Center.

Appellant said that Tuesday he had seen a gun over at Jessie McGee's. Appellant further stated that it had been in his car. Appellant saw the imprint of a gun in McGee's pants leg on the night of the robbery.

After appellant let McGee and Harris out of the car he stated that he did go over to Mrs. McGee's house. When asked by Lake when he finally got home, appellant gave no answer.

Appellant told Lake that McGee had been saying he needed money because he was going to Germany in the Army. This conversation, appellant said, started a couple of days prior to the attempted robbery. "I knew they were going to do something a day or so days or so. Junior was worrying me about needing some money . . ."

As soon as McGee and Harris got in the car at McGee's residence, appellant said, they started talking about a robbery. McGee reached under the seat of the automobile when he got in.

Appellant said he had handled the gun before but he didn't know how long it had been in the car. McGee had told him that he had got it from a "young dude" known as Preacher.

Billy Estes testified that he had a conversation with appellant later on the morning of August 28, 1976. Estes also advised appellant of his rights again. Appellant wanted to make another statement.

At 11:00 p. m. appellant said, he picked up his wife from work and carried her home. Appellant's wife wanted to know what he had for supper and he told her a pizza. He left to go get his wife a pizza because she wanted one. Appellant went by McGee's house, blew the horn, and saw McGee and Harris come out. They wanted to go with him appellant said.

Appellant told Estes that Tuesday McGee had got a gun from "Preacher." This gun was "rusty and nasty." Appellant said McGee cleaned up the gun and asked if he could leave it in his car. Appellant agreed.

Then when appellant picked Harris and McGee up, he said he needed some gas. He drove down McFarland Boulevard and turned left on 13th Street. "I knew something was coming down. I didn't know what, when or where."

Appellant said McGee got the gun and tucked it in his belt. McGee said, "Look, it's a black girl, this is my place." McGee and Harris said to wait on them. Appellant said he "put them out at some apartments on the left and they walked back, and I took off."

Later appellant went over to Mrs. McGee's and asked her if "they had made it back . . . I told her that I dropped them off at Jim's Lounge . . . I told Junior's mother a lie about putting them off at Jim's Lounge."

At trial, over appellant's objection, the testimony of Bobby Hunter who testified at a preliminary hearing for this case was admitted into evidence. Hunter was unavailable to testify, since he was stationed out of state with the Army, undergoing basic training.

At the preliminary hearing, Hunter testified that appellant was his uncle. He stated that a few days prior he had given appellant a gun to sell for him. Appellant said he didn't want it; but he took it and placed it in his car. Hunter said the pistol had belonged to Jerome Guyton, who was known as "Preacher." Hunter found the pistol in a playground under a merry-go-round. Hunter identified a weapon shown him at the preliminary hearing to be the same as the pistol which he gave to appellant.

Counsel for appellant stipulated at trial that the pistol exhibited at the preliminary hearing was the same as that pistol offered in evidence by the State at trial.

Appellant took the stand in his own defense. Among other things he stated he had picked his child up at 8:30 p. m. and gone directly home. He said he had had a pizza earlier at McGee's. But he didn't see McGee or Harris until after 11 o'clock p. m., when he picked them up on his way to get a pizza for his wife.

Appellant testified he drove down McFarland Boulevard to get some cheap gas. Harris said, "It's a black girl over there, and she is by herself." McGee told him, "Jabbo, stop the car. This looks like a good place to set up. This looks like a good place to rip off." When asked to wait when McGee and Harris got out of the car, appellant said, "Well, like, I am going to get my wife. You know how she is."

Appellant denied having any knowledge beforehand that McGee was...