Staton v. State

• Decision Date: 20 January 1981
• Docket Number: 7 Div. 720
• Citation: 397 So.2d 227
• Parties: Charles STATON, Jr. v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 227

397 So.2d 227

Charles STATON, Jr. v. STATE.

7 Div. 720.

Court of Criminal Appeals of Alabama.

Jan. 20, 1981.

Rehearing Denied Feb. 24, 1981.

Mary Lil Owens and A. W. Bolt, II of Wilson, Bolt, Isom, Jackson, Bailey & Owens, Anniston, for appellant.

Charles A. Graddick, Atty. Gen., and J. T. Simonetti, Jr. and J. Michael Horsley, Asst. Attys. Gen., for appellee.

BOWEN, Judge.

The defendant was indicted and convicted for the robbery of Ruth Gilliam. Sentence was twelve years' imprisonment.

I

Initially it is argued that the evidence is insufficient to support the verdict because the conviction rests on the uncorroborated testimony of an accomplice contrary to the provisions of Alabama Code 1975, Section 12-21-222.

Four witnesses testified for the State. The defense did not present any evidence.

Mrs. Ruth Gilliam testified that around 8:00 on the evening of June 26, 1979, a black man knocked on her door, said that he had run out of gas and asked to use the telephone. Mrs. Gilliam allowed the man to use her telephone, which she testified that he "pretended" to use. The man grabbed Mrs. Gilliam and held a knife to her throat. In struggling with the intruder, Mrs. Gilliam was forced to the floor. A second individual appeared and the first intruder placed a towel over Mrs. Gilliam's face and mouth. She never saw this second intruder and "never heard him open his mouth." The two individuals took "around $35.00 worth of money", her billfold, checkbook, balance books and a clock and also her "master savings book." The robbers fled after tying Mrs. Gilliam's hands and feet.

Mrs. Gilliam identified the knife and the towel her assailants had used in the robbery.

On cross examination Mrs. Gilliam testified that she let the first individual stand on her porch for four or five minutes before she let him in and that the porch light was on.

Mrs. Gilliam stated that she could not identify her attackers the next day at a lineup because she was "in shock." Defense counsel then inquired:

"Q. And you had seen this person who came in your house for four or five minutes and the very next morning you couldn't identify him in the lineup?

"A. No, because he had his hair ."

"Q. Mrs. Gilliam, have you ever at any point identified Mr. Staton as the man who entered your house that night and robbed you? Isn't it a fact that you have never identified him?

"A. I couldn't swear to it. They didn't ask me."

On redirect, the prosecution pursued this line of questioning:

"Q. ... Why couldn't you identify him?

"A. Because when I was in When they had him in the lineup, the night he came to my house he had an afro hairdo, when I went to the lineup he had his hair slicked down."

Mrs. Gilliam testified that she had known Gweneva Miller since she was a small child and that Mrs. Miller's grandmother had "been with" her for fifteen years. Mrs. Gilliam had last seen Mrs. Miller on the Thursday before the robbery which was on Tuesday night.

On re-cross examination of Mrs. Gilliam, defense counsel elicited the following:

"Q. But the light, the entire time that you talked to the Defendant, was off in the hallway and on the front porch?

"A. No, it was not on in the hallway. It was on on the porch.

"Q. And that's where you saw him for four or five minutes?

"A. Yes, that's the only time I saw him except for his back.

"Q. ... You did not identify Mr. Staton in the lineup the day after the crime; is that right?

"A. No, I did not.

"Q. You did not identify him at the preliminary hearing. And isn't it true that even today sitting right here you cannot say for sure one hundred percent certain that this man walked into your house that night and robbed you; is that correct?

"A. No, I couldn't ." (Emphasis added)

Mrs. Gilliam was then excused as a witness without further testimony.

Jerry Chandler is a Deputy Sheriff of Calhoun County. He investigated the robbery of Ruth Gilliam. He noticed a wrecker "hooking up" a car "right down from Mrs. Gilliam's house ... about a hundred foot." On the front seat of the car he found a towel and a pocket knife which Mrs. Gilliam later identified as having been used by her assailants.

In the back seat of the car, Deputy Chandler found a power bill or delinquency notice from the power company addressed to Gregory O'Neal Clay at 1800 McElroy Avenue. Shortly after this, Clay was arrested at this residence.

Chandler recovered some of the stolen merchandise at the Bynum Post Office two days after the robbery.

Deputy Chandler was unable to get any fingerprints off the knife or from anywhere in Mrs. Gilliam's house.

Under cross examination, he testified that he had "no way of tying this car with the Defendant at all."

Henrietta Boozer lived in Pine's Motel Apartment number two. She is the defendant's first cousin. On June 26 she saw the defendant and Gregory Clay at the Pine's Motel between 9:00 and 9:30 P.M.

When she saw the defendant Gweneva Miller was with her. Mrs. Miller had called Mrs. Boozer and told her that "Charles said come pick them up." * * * "Pick them up, and I said who are they. She said me and him (defendant) and Greg." Mrs. Boozer picked Mrs. Miller up at "Jerry's Super Valu over in Bynum" between 9:00 and 9:30 P.M. When Mrs. Boozer picked up Mrs. Miller, Mrs. Miller was carrying a brown shoulder bag. When Mrs. Boozer returned with Mrs. Miller from Bynum, the defendant and Clay were standing in the driveway of the motel by one of Mrs. Boozer's mother's cars.

When Mrs. Boozer arrived they all went inside and she started folding clothes while Mrs. Miller, Greg and the defendant were "sitting talking among each other." Mrs. Miller poured the contents of the bag on the floor, and the three of them looked at the contents. According to Mrs. Boozer the contents included "jewelry and papers". Included was a driver's license with the first name of "Ruth" on it. There was about.$9.00 showing and Mrs. Miller "showed Charles and Greg where the other money was, it was about $20.00. She said that was where the money was kept." This money was "in a pouch of some kind, a little green pouch."

Mrs. Miller telephoned her brother-in-law, Walter Rutledge, and he arrived about 10 or 15 minutes later and they (Mrs. Miller, Greg, the defendant and Rutledge) all left together.

Mrs. Boozer didn't know Mrs. Miller until Mrs. Miller started going with the defendant two or three years ago. Mrs. Boozer never saw the defendant with the bag.

Gregory Clay, the accomplice, testified that he first saw the defendant on June 26th around 7:00 or 8:00 that evening at the defendant's house. Present with the defendant was Gweneva Miller. The defendant said that "he knew a place in Bynum we could go to and get some money."

"He told me that He was telling me about how to do it and everything and we He told me to go in and he was going to knock on the door and for the woman to let him when he rang the doorbell, and he was going to grab her and for me to come in and find the money."

"(H)e told me that Gwen (Mrs. Miller) was going to drive the car while we She was going to drive the car and when we come out of the house and everything."

Clay, Mrs. Miller and the defendant drove straight to the house in Bynum. Clay then related how the defendant gained entrance to the house by telling the woman that he was out of gas and how together they robbed the woman. His version of the way the robbery occurred is substantially identical to Mrs. Gilliam's testimony.

Both Clay and the defendant ran to the car where Mrs. Miller was waiting. In trying to free the key which was stuck upside down in the ignition, the defendant broke the key. They all started running towards the Super Valu Store. At the store, Mrs. Miller made a telephone call while the defendant and Clay ran up a hill, "and she was supposed to have come along in the car." Clay and the defendant went up the hill and over to Pine's Motel and waited outside until Mrs. Boozer and Mrs. Miller drove up.

They all went in Mrs. Boozer's apartment and the defendant got the bag from Mrs. Miller and "he spread the stuff out and we was looking through it."

Clay, Mrs. Miller and the defendant remained at Mrs. Boozer's apartment for approximately thirty minutes before they left with Walter Rutledge.

Clay testified that the defendant was wearing his hair "in an afro" that night. He stated that the knife used by the defendant during the robbery belonged to Mrs. Miller.

Clay also testified that after they got the money they went to Gadsden and bought some heroin. This was about 11:00 or 12:00 that night.

Before making his decision, the trial judge had the following testimony of Mrs. Gilliam read into the record:

"Q. You mentioned that you were faced downward in a dark room. What room was that?

"A. The front bedroom.

"Q. The light was off in there?

"A. Yes.

"Q. Okay.

"A. My guest bedroom.

"Q. The lights the entire time you talked to the defendant was on in the hallway and on the front porch?

"A. Not in the hallway.

"Q. Okay. It was on the front porch. That's where you saw him four or five minutes?

"A. That's the only time I saw him except for his back.

Defense counsel argued that the reference to the "Defendant" in her cross examination of Mrs. Gilliam "was a slip of the tongue due to (her) inexpertise." Defense counsel argued: "I am sure Mr. Hubbard (Assistant District Attorney) wouldn't contend that a Defendant's lawyer can by his or her phrasing of the question and plea the Defendant guilty."

At trial, the State, in arguing against the defendant's motion to exclude, did not contend that the victim, Mrs. Gilliam, had identified the defendant.

In denying the defendant's motion to exclude the trial judge made the following remarks:

"Certainly I think the vast majority of the victim's testimony would define (sic) the tryer of fact that they could determine, in fact, that she (Mrs. Gilliam) did not identify the accused, or rather I think the purposes of this examination, the question is is there...