Stewart v. State

• Decision Date: 24 February 1981
• Docket Number: 3 Div. 242
• Citation: 398 So.2d 369
• Parties: Gregory Neal STEWART v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 369

398 So.2d 369

Gregory Neal STEWART v. STATE.

3 Div. 242.

Court of Criminal Appeals of Alabama.

Feb. 24, 1981.

Rehearing Denied March 17, 1981.

Frank L. Thiemonge, III, Montgomery, for appellant.

Charles A. Graddick, Atty. Gen., and Elizabeth Ann Evans, Asst. Atty. Gen., for appellee.

DeCARLO, Judge.

The appellant was convicted of embezzlement and sentenced to two years. Omitting the formal parts, the indictment charged:

"GREGORY NEAL STEWART, alias .... whose name is to the Grand Jury otherwise unknown, the officer, agent, clerk, employee or servant of Spartan Food Systems, Inc., a corporation did embezzle or fraudulently convert to his own use, or to the use of another, or did fraudulently secrete with intent to convert to his own use, or the use of another, money to about the amount of $2,100.00 and, of that value, which had come into his possession by virtue of his office, agency, employment or apprenticeship, against the peace and dignity of the State of Alabama."

On April 24, 1979, the appellant was employed by Spartan Food Systems, Inc., as an assistant manager of Hardee's in Montgomery, Alabama. Appellant's duties included operating the store, closing the business at night, and making a bank deposit at the close of his shift. On April 24, 1979, the deposit was unusually large due to the fact that Steve Graham, the assistant manager of the previous shift, had been unable to make a deposit. During the trial Graham testified that he was unable to make a deposit because the appellant, who was supposed to have prepared the deposit, was in the process of repairing a piece of equipment. Therefore, the proceeds that were to be deposited that night amounted to receipts from two shifts instead of just one. Graham recalled that the equipment appellant attempted to repair would not have prevented Hardee's operation if it had not been fixed that day.

Appellant stated that after closing the business that night, he entered his truck with the bank deposit, and someone stuck a gun in his face and told him to slide over in the truck. As appellant slid over to the passenger's side, the person drove him to a nearby area, blindfolded him, took the bank deposit and left. Minutes afterwards, the appellant allegedly drove back to Hardee's and called the police.

Montgomery Police Officers Ricky Mobley, J. T. Hankins and J. M. Duncan investigated the reported robbery. Mobley testified that, after appellant recounted the events of the robbery, he (Mobley) examined the truck and found that the cab was filled with an excessive amount of debris and personal items. Mobley stated that the position of the debris and other items on the seat was inconsistent with appellant's explanation of having slid across the seat. Appellant informed Mobley that the interior of the truck was then in the same condition as when he was robbed. A photograph of the truck's interior was properly admitted into evidence.

Mobley also obtained a written statement from the appellant, including the details of the alleged robbery and a description of the robber. Appellant stated, in pertinent part, that the alleged robber was white and wore black clothing with a black mask. Appellant said that after the robber left he did not hear a vehicle drive away. Mobley testified that the appellant did not name William McDaniel as the robber or give any indication of who he thought the robber was.

Detective Hankins testified that the appellant told him that the robber had used a towel to blindfold him. Hankins later removed a towel with a torn strip from the truck. Appellant did not state to Hankins that he suspected William McDaniel as the robber.

Detective Duncan stated that he talked to the appellant two days after the alleged robbery. At that time the appellant did not indicate who robbed him or mention the name of William McDaniel. The next day, Friday, April 27, the appellant came to see Detective Duncan and mentioned McDaniel's name then. After his conversation with the appellant on April 27, Duncan had a conversation with Detective Faye Henderson, and, as a result of that conversation, he again talked to the appellant. The appellant then revealed he had gone to McDaniel's home and talked to McDaniel about the robbery. The appellant said that McDaniel had taken him to a secluded area around Gunter Park to show him where the money taken during the robbery was buried. According to Duncan, he and the appellant then went to a heavily wooded area near Gunter Park and the appellant indicated a spot where McDaniel supposedly buried the money. Duncan did not observe any evidence of digging at the spot.

Faye Henderson, an investigator with the Montgomery Police Department, testified that she talked with the appellant on April 30, 1979, in the polygraph room. The appellant told her that, two or three days after the robbery, he went to William McDaniel's home and talked to him about the robbery. The appellant stated to Henderson that McDaniel had taken him to a wooded area on a dirt road where the money was supposedly buried.

Frank Head testified that on April 24, he was the manager of Hardee's where appellant was employed. On April 24, 1979, Mr. Head had two telephone conversations with the appellant, one prior to the alleged robbery and one after it occurred. During the first discussion, the appellant told Head that he had lost or misplaced the keys to the business, and that the afternoon deposit had not been made. Mr. Head told the appellant to place the deposit in a safe and he (Head) would take the deposit to the bank the following morning. Head explained that, without the keys to the business, the building could not be locked, and the night bank deposit box could not be opened. He testified that company policy required the manager making the night deposit to leave by way of the front door.

In the second conversation, the appellant informed Head of the alleged robbery. At that time the appellant told Mr. Head that he (appellant) had gone out the back door with the deposit and, in reply to Mr. Head's question concerning the loss of appellant's keys, the appellant stated that he had found them. After he arrived at Hardee's, Head determined that approximately $2,200.00 had been taken. He explained that it was company policy to make two deposits daily. The $2,200.00 deposit was about $1,500.00 or $1,600.00 more than it would have been had the earlier deposit been made.

Mr. Head recalled that, on the night of the alleged robbery, he told the appellant that Steve Graham, the day manager, would probably lose his job because he had failed to make the afternoon deposit. At that point, the appellant responded, "It's a shame, Steve will lose his job, I know where I can lay my hands on around two thousand dollars and maybe I can help Steve out."

Steve Graham testified that, as a result of his failure to make the deposit at Hardee's that day, he lost his job. At no time did the appellant ever offer to repay the money that Hardee's lost as a result of the alleged robbery.

Alice McDaniel, a sister of William McDaniel, was a part-time employee of Hardee's during the time of the alleged robbery. She testified that early one morning, two or three days after the robbery, the appellant came to her house and said he wanted to talk to her brother about opening a pinball business. Appellant talked to her brother and, after that conversation, the appellant and William McDaniel left the house and subsequently returned.

During cross-examination, she testified that she thought everyone in her family owned a black ski mask. She acknowledged that her brother had won some money in a poker game, and that he had been charged with an offense relating to the robbery at Hardee's.

Mike Vance testified that he was appellant's former roommate. On the morning after the alleged robbery at Hardee's he had a conversation with the appellant. At that time, the appellant told Vance that two men robbed him blindfolded him, and drove him in his truck to the old Selma Highway. The appellant said that an hour later he returned to Hardee's and called the police.

Vance recalled a second conversation wherein the appellant stated to Vance that Billy McDaniel owed the appellant a thousand dollars. The appellant said he had loaned McDaniel money for a pinball venture.

Vance had a third conversation with the appellant in which the appellant told Vance that if he (Vance) did not help him "cover up what he has done or just totally be quiet, that I (Vance) will be hurt." Vance stated that, on December 25, he was stabbed in the hand by a person whom he had seen before, but whom he did not know by name. At the time Vance was stabbed, the person told him that he "wanted to get me back for what I did for Greg Stewart, to Greg Stewart in Montgomery."

Victor Vance was the father of Mike Vance. He stated that, about a week after the alleged robbery, the appellant told him that two men robbed, bound, and then drove him outside of town.

At the completion of Mr. Vance's testimony, the State rested its case and the appellant made a motion to exclude the evidence based on the fact that the State had failed to present sufficient evidence. The motion was denied and the appellant took the stand in his own behalf.

Appellant testified that, on April 24, 1979, he had been employed at Hardee's for about five months. He stated that, when he closed the business at 10:00 P.M. he was robbed by a person dressed in black and wearing a black mask. Further, he said that, after the robbery, he was driven to a housing section known as Carol Villa, blindfolded and left in his truck. After the robbery he immediately drove back to Hardee's to call the police.

The appellant said he suspected William McDaniel of the alleged robbery. He testified that he learned from Alice McDaniel that her brother, William, had borrowed a ski mask from a younger brother, and that he had recently paid several debts. According to the...