Smith v. State, 6 Div. 265

• Decision Date: 19 April 1977
• Docket Number: 6 Div. 265
• Citation: Smith v. State, 346 So.2d 500 (Ala. Crim. App. 1977)
• Parties: Richard Louis SMITH v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 500

346 So.2d 500

Richard Louis SMITH v. STATE.

6 Div. 265.

Court of Criminal Appeals of Alabama.

April 19, 1977.

James S. Garrett for Parker & Garrett, Birmingham, for appellant.

William J. Baxley, Atty. Gen., and Elizabeth N. Petree, Asst. Atty. Gen., for the State, appellee.

HARRIS, Judge.

Appellant was convicted of robbery and the jury fixed his punishment at fifteen years in the penitentiary. Appellant was formally arraigned on August 15, 1975, in the presence of his Court-appointed lawyer, and pleaded not guilty. His case was set for trial on September 9, 1975, and was passed from time to time to May 10, 1976, for trial. After sentence was imposed notice of appeal was given but there was no request that the sentence be suspended pending appeal. He was furnished a free transcript and his trial counsel was appointed to represent him on appeal.

Omitting the formal parts the indictment is as follows:

"The grand jury of said county charge that, before the finding of this indictment, RICHARD LOUIS SMITH alias LEWIS RICHARD SMITH alias LARRY JOE WILLIAMS, whose name is to the Grand Jury otherwise unknown, feloniously took ONE HUNDRED FIFTEEN DOLLARS of the lawful currency of the United States of America, a more particular description and denomination of which is otherwise unknown to the Grand Jury, one man's watch of the value of THREE THOUSAND DOLLARS, one two door Buick automobile of the value of ONE THOUSAND TWO HUNDRED DOLLARS, and one silver service of the value of FOUR THOUSAND DOLLARS, the personal property of Melvin Bruce Sullivan, from his person and against his will, by violence to his person or by putting him in such fear as unwillingly to part with the same, against the peace and dignity of the State of Alabama."

The evidence presented by the State made out a clearcut case of aggravated robbery. Appellant offered alibi evidence.

Between the hours of 8:00 and 8:30 on the night of May 28, 1975, the home of Dr. Melvin Bruce Sullivan, 4308 Corinth Drive, Mountain Brook, Jefferson County, Alabama, was burglarized by three white males armed with pistols. In the sitting or garden room at the time the men entered the house were Dr. Sullivan, his wife, mother, sister, brother-in-law, and one of his three daughters, Barbara. The bandits told them, "This is a holdup, get on the floor, face down, and if you aren't good we are going to blow your heads off." All of the persons in the garden room got on the floor on their stomachs and the bandits tied their hands behind them and tied their feet together with Dr. Sullivan's neckties. The bandits asked if there was anyone else in the house and were told by Dr. Sullivan that his other two daughters were upstairs in their respective bedrooms. Two of the robbers went upstairs and, at gunpoint, forced the two girls to go to the room where the other members of the family were tied up. The bandits tied these two girls in the same manner as the others were tied.

The bandits then started ransacking the entire house. They removed the rings and watches from the arms and fingers of the helpless victims. They took Dr. Sullivan's wallet containing $115.00 and his fishing license. They also took a silver service and a Buick automobile and other items of personal property.

According to the testimony of the victims, two of the bandits were masked. One had on a black curly wig and a purple piece of cloth that practically covered his face and left exposed a part of his nose and forehead. His eyes were not covered. The second bandit had a stocking over his head and face. None of the robbery victims saw the third robber because of the positions in which they were lying on the floor and bound.

Only one of the victims, Barbara, testified that she could identify appellant. She stated that she identified him by his eyes and voice at a lineup that was conducted two days after the robbery. She also made an in-court identification of appellant as one of the bandits.

All of the property taken in the robbery was subsequently recovered, identified by the respective owners and admitted into evidence. The Buick automobile was recovered subsequent to the robbery by another police officer and returned to the owner.

George Hannah testified that he lived at 210 Vetavia Street in Irondale, in Jefferson County, Alabama. He stated that he had lived at this address for eight years and that on May 27, 1975, appellant, Henry Mays and Frank Black came to his house and that Henry Mays was the only one of the trio that he personally knew. He said these men arrived at his house in a 1968 Dodge automobile which broke down at his house. He further testified that Mays returned to his home the next day, May 28, 1975, around 1:00 p.m. and he was driving a green Ford; that he ate lunch and returned home at 4:30 p.m. and appellant, Mays and Black were in his driveway working on the green Ford. He stated that between 7:30 and 8:00 p.m. this trio left in the green Ford and returned to his house around 11:00 p.m. that same night and they all came in his house carrying jewelry, silver, rings and watches. He said the three men made several trips to the green Ford and brought different items in his house. He further stated that he saw them with folding money.

Hannah further testified that he asked appellant, Mays and Black where they got all the items they brought in his home and their response was that "they said they hit a bargain somewhere." Hannah stated he did not ask the men to leave his home that night because they were all armed, and he saw five pistols. He said the only people in his home on the night of the robbery besides the trio were his uncle, Lewis Clark, his niece and her two...