Strickland v. State

• Decision Date: 24 May 1977
• Docket Number: 3 Div. 710
• Citation: 348 So.2d 1105
• Parties: Namon STRICKLAND v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1105

348 So.2d 1105

Namon STRICKLAND v. STATE.

3 Div. 710.

Court of Criminal Appeals of Alabama.

May 24, 1977.

Rehearing Denied June 28, 1977.

R. Howell Dean, Montgomery, for appellant.

William J. Baxley, Atty. Gen., and Eugenia D. B. Hofammann, Asst. Atty. Gen., for the State.

BOOKOUT, Judge.

Robbery; sentence: ten years imprisonment.

Fannie Thomas testified that around 2:45 A.M. on August 4, 1976, Arvil Strickland, the appellant's brother, entered the Majik Market on Highland Avenue in Montgomery where she worked as a cashier. She stated that Arvil Strickland robbed her at gunpoint, taking "a little over $300." The witness recognized the robber even though he was wearing a stocking mask. She said that he was the same man who had robbed her a few weeks earlier. Likewise, she identified Arvil Strickland at a police lineup held a few days after the robbery.

Betty McLain, a neighbor of the appellant, testified that the appellant was at her apartment until around 3:00 A.M., but she could not be absolutely certain of the time since she had no clock. She stated that the appellant left and then returned around 4:00 or 4:30 A.M. and asked if he could stay at her apartment the rest of the night. The next morning, Mike Martiss came by the apartment, and the appellant asked Martiss to go to the appellant's apartment and get his clothes. She said Martiss and the appellant then left together.

Russell Harris testified that he was a taxi driver on the night in question. He stated that at 3:53 A.M., he received a call to pick up someone at the Holiday Inn Midtown in Montgomery. He stated that he picked up the appellant around 4:00 A.M. and took him to the address of Betty McLain. He said the appellant was barefooted and breathing heavily, but he could not say whether the appellant was intoxicated.

The State called Officer G. E. Murphy to testify, however, the appellant moved to suppress the testimony of Officer Murphy as it would relate to identification. He filed a written motion to suppress the testimony setting out the following grounds:

"1. That the said G. E. Murphy was a police officer employed by the City of Montgomery, and he participated in the investigation of a robbery which occurred on or about August 4, 1976, at the Magic (sic) Market at 2710 Highland Avenue in Montgomery, Alabama

"2. That the circumstances under which this witness identified this defendant were impermissibly suggestive.

"3. That this witness did not have opportunity to view the defendant at the scene of the crime so as to later make identification based on independent origin.

"4. That to permit this witness to make an in-court identification of the defendant would be a violation of due process of law.

"5. That to permit any testimony concerning pre-trial identification would be a violation of the Fifth, Sixth, and Fourteenth Amendments to the Constitution of the United States."

The trial court overruled the motion and Officer Murphy was allowed to testify. He stated that he and his partner were patrolling past the scene of the crime on the date and time of the robbery and saw a man come out of the store with a gun and a bag in his hand. He said the robber pointed the gun at the officers, but it did not fire, and he dropped it and ran toward a fence adjacent to the store. The robber apparently picked the gun up and pointed it a second time, but it did not fire. He then pulled off a stocking mask and a wig, jumped the fence, and ran behind the building. The witness fired four shots at him. Moments later, a Chevrolet automobile came out from behind the building and sped away.

Officer Murphy said the appellant was seated in the right rear seat of the automobile. He got a clear view of the appellant, though only for a few seconds. Murphy said his partner shot at the car as it passed them and that they chased it for some blocks in their patrol car. The car stopped and the occupants got out and ran. None of the occupants of the car were arrested at the scene.

Officer Murphy was subjected to extensive and searching cross-examination on his identity of the appellant and on his opportunity to view and recognize the appellant at the scene of the crime. He positively identified the appellant without any equivocation.

Detective Cecil Humphrey testified that the appellant was arrested between 4:00 and 5:00 P.M. the same day. He was found hiding in a bedroom closet in the Martiss home. A pistol found in the closet at that time was introduced into evidence over objection. Fannie Thomas had previously identified the pistol as being similar to the one used by the robber. A paper sack with assorted change was also found on a dresser in the same bedroom where appellant was arrested. Appellant's brother, Arvil Strickland, who was in the house at that time, had what appeared to be a fresh gunshot wound in his neck.

The State rested its case in chief at which time the appellant moved to exclude the State's evidence on the grounds that (1) the State failed to make a prima facie case, (2) the State failed to connect the appellant with the crime, and (3) no evidence showed that the appellant was either involved in planning or executing the crime. The trial court overruled the motion to exclude, and the defense presented its evidence.

The appellant testified that on the date in question, there was a birthday party for him at Betty McLain's apartment. He left there around 8:00 or 9:00 P.M. and returned around midnight. Leroy Smoke and the appellant's brother, Arvil Strickland, came by and all three left in Smoke's car to buy some beer. Appellant said he went to sleep in the back seat of the car and awoke when gunfire erupted and knocked the back window out of the car. He said that he raised up to try to pull his brother down, that the car stopped and that he ran from the scene, ending up at the Holiday Inn Midtown where he called a taxi. He stated that he had no prior knowledge of the robbery and did not participate in it.

Officer Murphy was recalled and stated that the back window of the automobile was not shot out. Detective Humphrey of the Montgomery Police Department testified in contradiction of part of the appellant's testimony. He stated that shortly after the appellant's arrest, the appellant stated to him that he was at Betty McLain's apartment all night and knew nothing about the robbery.

The case was submitted to the jury and after lengthy deliberation, the jury announced that it was deadlocked. The trial court then instructed the jury, in pertinent part as follows:

"Now, ladies and gentlemen of the jury, by authority of the Supreme Court of Alabama, which has been affirmed by the United States Court of Civil Appeals, I'm authorized to say this to you; and I want you to listen, please. I'm privileged to say this to you under those authorities.

"It is desirable and important that you agree upon a verdict, and you are urged to make every effort to do so consistent with your conscience. You are advised to lay aside mere pride of judgment and not to adhere to an opinion regardless of what the other jurors may say merely through contumacies, but you should examine any existing differences in a spirit of fairness and candor and to reason together and to talk over such differences and harmonize them if this is possible.

"You are further urged as reason for reaching a verdict to consider the time and expense involved in this trial. The taxpayers have an interest in this. You should not and will not be censored for not agreeing with the majority. If you can reach a verdict without any sacrifice of principle or conviction, the court and the taxpayers would be very glad for you to do so.

"Now, do you want to deliberate anymore this afternoon? If not, I'm going to let you go until in the morning at 9:00 o'clock. Be back at 9:00 o'clock, please. . . ."

The jury returned the next morning and were instructed to go into the jury room but not deliberate until told by the court to do so. Then outside the presence of the jury, counsel for appellant stated, "Your Honor, at this time the Defendant would like to object respectfully, of course, to the charge that the court gave to the jury yesterday afternoon." The trial judge informed the appellant's counsel that he should have objected at the time so that the court could have corrected the instruction if it was wrong. Counsel for appellant pointed out that the jury had not begun its deliberations yet that morning and that he objected to the court giving the "Allen charge." The trial court refused to recall the jury and instruct them further, and the appellant took an exception.

I

Appellant's motion to exclude the State's evidence on the ground that it failed to make out a prima facie case of robbery against the appellant was properly overruled. The testimony of Fannie Thomas, Officer Murphy and Detective Humphrey was sufficient to establish a prima facie case against the appellant and to prove the three essential elements of common-law robbery: (1) felonious intent, (2) force, or putting in fear as a means of effectuating the intent, and (3) by that means, taking and carrying away the personal property of another from his person or in his presence, all elements concurring in point of time. Moore v. State, Ala.Cr.App., 331 So.2d 422 (1976).

The appellant's presence at the scene of the crime in the get-away car; his flight from the police; his hiding in the closet where a gun similar to that used by the robber was likewise hidden; and his subsequent arrest with the person identified as the actual robber in the bedroom where some of the fruits of the crime were found, are all circumstances from which the jury could reasonably infer that the appellant was an accomplice in the robbery. As an accomplice, his guilt would therefore be the same as if he had actually held the gun on the victim and had taken the money. Title 14, § 14, Code of Alabama 1940.

II

Appellant's motion to suppress Officer Murphy's...