Simms v. State, 4 Div. 313
| Decision Date | 01 October 1975 |
| Docket Number | 4 Div. 313 |
| Parties | John Ellington SIMMS v. STATE. |
| Court | Alabama Court of Criminal Appeals |
J. Huntley Johnson, Dothan, for appellant.
William J. Baxley, Atty. Gen., and Sarah M. Greenhaw, Asst. Atty. Gen., for the State, appellee.
Appellant was convicted of robbery and sentenced to twenty years in the penitentiary. At arraignment, attended by counsel, he pleaded not guilty. After conviction he was found to be indigent and a free transcript was furnished him, and trial counsel represents him on this appeal by appointment of the court.
The victim of this alleged robbery was Mr. Lon Wright who lived three miles east of Cottonwood, Houston County, Alabama, on Highway 53, leading from Dothan to Malone and Marianna, Florida. On the day of the robbery the victim was a seventy-five year old retired man and lived with his brother in a five room house.
On April 30, 1974, two white men came to Mr. Wright's home around 8:00 o'clock a.m. He was alone at the time. His brother had gone to have some work done on his car. The men were subsequently identified as appellant and one Ollie Maguire. They asked Mr. Wright if he had any moonshine whiskey and he told them he didn't mess with it. The men left and returned in about thirty minutes. They walked in the house and found Mr. Wright in the kitchen. Maguire pulled a pistol on him and said, 'Let's go,' and they carried Mr. Wright into his brother's room. Maguire held the pistol on Mr. Wright and told him to put both of his hands on top of his head and told appellant to search him. They took his billfold out of his pocket and spread the money out on the bed and according to Mr. Wright there was between $143.00 and $150.00. They took the money and the billfold. Maguire then snatched the phone out and carried Mr. Wright into the living room. They made him lie on the floor with his arms behind him and Maguire told appellant to tape his arms and legs. Appellant went to the car and returned with some tape and taped Mr. Wright's hands and legs while Maguire held the pistol on him. After he was securely bound, Maguire told him if he called the law, he was going to come back and kill him. They walked out of the house and Mr. Wright heard the car leaving.
After the robbers left, Mr. Wright got off the floor and went out front to try and stop someone to call the officers and tell them he had been robbed. He stopped a man from Malone, Florida, who reported the robbery to Officer Don Smith who in turn called the Sheriff's Department. Officer Don Smith and Deputy Sheriff Hunter came to Mr. Wright's home to investigate the robbery.
Mr. Wright gave the Deputy a description of the men who robbed him and he knew one of the men as he had been to his house before. He could not recall his first name but his last name was Simms. He said Simms had long hair way down to his shoulders and had a mustache. He was not certain as to the car they were driving but thought it was a Pontiac and was black. He made a positive in-court identification of appellant as one of the men who robbed him on the morning of April 30, 1974. He further testified that both appellant and his wife had been to his house prior to the date of the robbery.
On cross-examination he admitted that on June 3, 1968, he was convicted for violating the prohibition law but that he quit bootlegging after that conviction. He further stated that his brother was the bootlegger.
From the record:
'Q Mr. Wright, let me ask you something now. Is there any mistake in your mind that the man that came there and robbed you is this young man?
A That's him right there.
Q There's no doubt whatsoever?
A No, sir, no doubt.
Q You have seen him how many times before?
A I had never counted them.
Q Would you say you seen him more than one time?
A Well, it had to be.
Q Are you sure about it?
A I know him.
Q But you didn't know his name until somebody told you, is that right?
A I didn't know his first name, but I knowed his last name.'
Mr. Donnie Smith, Chief of Police of Cottonwood, testified for the state. He stated that he was on duty on April 30, 1974, when a Mr. Everrett Pelham on Malone, Florida, contacted him and reported that Mr. Lon Wright had been robbed. He followed Mr. Pelham back to Mr. Wright's house and found him sitting on his front porch with his hands bandaged up and he told the Chief he had been robbed.
The Chief further testified that Mr. Wright called him later and told him that he knew one of the men who had robbed him and that he was 'Tink' Jacob's son-in-law. The Chief knew Jacob's son-in-law to be John Simms and he had known him a year or two. He stated that about a month before April 30, 1974, he saw him at a family reunion dinner given by Simms' sister-in-law and on that occasion he had long hair and wore a mustache. The hair was shoulder length. He made an in-court identification of appellant as John Simms.
Deputy Sheriff Buddy Hunter testified that he worked as an investigator for the Sheriff of Houston County. He stated he investigated the robbery of Mr. Wright and got a description of the two men involved. Mr. Wright told him one of the men was about six feet tall, weighed about 170--180 pounds, had shoulder-length dark hair and a mustache. That he was wearing blue clothes, with writing on the left shirt pocket. That Mr. Wright told him the other robber was about five-six or five-eight inches tall, and weighed about 140 to 150 pounds, and that he had blond hair and it was a regular hair cut. That he was wearing gray pants with a white shirt with brown stripes in it.
Mr. Hunter further testified that the next time he saw John Simms was on May 6, 1974, in the Marianna County Jail. Simms waived extradition and was brought to the Houston County Jail where the jailer took his picture. Mr. Hunter identified this photograph as a picture of John Ellington Simms and it was received in evidence without objection.
On cross-examination Mr. Hunter stated that appellant told him he came to Dothan on the morning of April 30, 1974, in an automobile with Ollie Maguire to see if they could find jobs. He claimed they went to a number of places seeking jobs, viz., Atlas Truck Line; Sunnyland Packing Company; Allied Truck Lines; Metcalf and Shivers; Swift and Company; R. C. Cola Bottling Company; and Couch Construction Company. He stated he checked out these places to see if Simms or Maguire had been there and was told they did not remember.
On re-direct examination Mr. Hunter stated he gave Simms his Constitutional rights before asking him any questions by reading him his rights from a Miranda card. Simms told Mr. Hunter that he had been working with law enforcement and he understood his rights.
From the record:
'A Then I read them to him: He answered, 'Yes.' 'Having these rights in mind, do you wish to talk to us now?' His answer was 'Yes.'
Q All right, did he sign anything at that time?
A Yes, sir. I read the waiver to him: This he signed.
Q At that time, did you offer him any reward to get him to make a statement?
A No, sir.
Q Did you promise him anything?
A No, sir.
Q Did you offer him any other inducement to get him to make a statement?
A No, sir.
Q Did he make a voluntary statement at that time?
A Yes, sir.
Q Do you have the statement there?
A Yes, sir.
Q Did you reduce the statement to writing?
A Yes, sir, I did.
Q Did he sign it?
A Yes, sir.
Q Is the one typed been compared by you and is a true and correct copy of the one he signed?
A Yes, sir.
When Mr. Hunter first interviewed appellant, he denied that he was involved in the robbery of Mr. Wright and he offered to take a lie detector test. This was on May 9, 1974, but the operator of the Polygraph machine could not be located that day. He located the operator the next day or the day after and Simms told him that his attorney advised him not to take the lie detector test.
Appellant offered the testimony of Johnny McDaniel, a Captain with the Jackson County Sheriff's Department from Marianna, Florida. He stated that he had known Simms all of his life and he worked for him as an undercover agent in making drug buys. He said that in working narcotics and working the streets, such as Simms was doing, he has to wear his hair long, in the fashion of a hippie-type individual, and hang out at places where drug users would go. He further stated that Simms worked in this capacity from February 27th until April 20th of ,1974, and his job was terminated on April 20, 1974, because he went to a local tavern and got drunk and there was a disturbance.
Appellant testified in his behalf and denied any connection with the robbery of Mr. Wright. He admitted coming to Dothan on the morning of April 30, 1974, with Ollie Maguire in search of employment. He said he went to the places mentioned above but they were not hiring people at the time; that he got back home about eleven-thirty, ate lunch and went fishing with members of his...
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