Summers v. State

• Decision Date: 24 May 1977
• Docket Number: 8 Div. 943
• Parties: Oliver Paul SUMMERS, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1126

348 So.2d 1126

Oliver Paul SUMMERS, alias v. STATE.

8 Div. 943.

Court of Criminal Appeals of Alabama.

May 24, 1977.

Rehearing Denied June 28, 1977.

J. Louis Wilkinson, Birmingham, Joe G. Burnett, Clanton, for appellant.

William J. Baxley, Atty. Gen., and John A. Yung, IV, and George W. Royer, Jr., Asst. Attys. Gen., for the State.

HARRIS, Judge.

Appellant was convicted of robbery and the jury fixed his punishment at 15 years in the penitentiary. He was arraigned in the presence of his retained counsel and interposed a plea of not guilty. After conviction and sentence appellant gave notice of appeal.

Omitting the formal parts the indictment reads as follows "The Grand Jury of said County charge that before the finding of this indictment Oliver Paul Summers, alias Paul Summers, alias Frank Summers, whose name to the Grand Jury is otherwise unknown, feloniously took, to-wit: Five Thousand Five Hundred Fifty Nine Dollars in lawful paper currency of the United States of America, the exact denominations of the bills being unknown to the Grand Jury, the property of Marjorie Cherry, from Joseph Cherry and Marjorie Cherry, against their will, by violence to their persons, or by putting them in such fear as unwillingly to part with the same, against the peace and dignity of the State of Alabama."

This case was tried on the evidence adduced by the State. Appellant did not testify nor did he offer any evidence in his behalf. When the State rested, appellant made a motion to exclude the State's evidence on the ground the State's case was based upon the uncorroborated testimony of accomplices. This motion was overruled and denied.

Mrs. Marjorie Cherry testified that she and her husband lived on the Kilpatrick Highway in Boaz, Alabama, and that she and her husband owned and operated the Sand Mountain Auto Auction located on Highway 431 near Boaz, Marshall County, Alabama. She stated they conducted an automobile auction every Wednesday and at times took in large sums of money. They had an auction on Wednesday, August 20, 1975, and she carried the proceeds from the auction sales to her home and hid the money in a clothes hamper in the bathroom and was going to make a bank deposit the next day.

Mrs. Cherry further testified that she and her husband were in their home on the evening of August 20, 1975. She stated that at approximately 7:30 p. m. she was in the kitchen and heard the doorbell ring. Her husband went to the door and she heard him say, "I'll get my wife." A few minutes later her husband walked in the kitchen followed by a man holding a pistol in his hand. The man with the pistol said, "This is a holdup. I am a professional; I'm not working alone. If you do exactly as I say, you'll not be hurt."

The man with the gun ordered Mr. and Mrs. Cherry to go into the bedroom and lie face down on the bed. Mrs. Cherry protested that she recently had surgery and could not lie face down and the man said, "That's all right, Mrs. Cherry, lie on your back." The man with the pistol ordered Mr. Cherry to lie face down on the bed and he told the man that he had a heart condition and the man told him to lie on his side. The man placed a pillow over Mrs. Cherry's face and a small rug over Mr. Cherry's face. He then taped their hands and ankles together.

Mrs. Cherry further stated that besides the man with the gun another man also entered the house and while the man with the gun stood guard over them, she heard the other robber going through the house opening doors and drawers. The robber with the gun kept asking, "Where is the safe?" Mrs. Cherry told him there was no safe in the house. The man then asked about their coin collection and Mrs. Cherry told him it was in the bank. The robbers found two shoe boxes full of coins in one of the closets and took them.

The robbers asked Mrs. Cherry where the money was and she told them she did not bring the money home that day but had given it to her brother to deposit. The man with the gun told her he did not believe that she had given the money to her brother to deposit and that the money was somewhere in the house. The bandit with the gun told Mr. Cherry, "If you don't make her tell me where the money is, I'm going to have to start working on you." Mr. Cherry told his wife to please tell the men where the money was and she told the robbers that the money was in the bathroom in the clothes hamper. The bandits found the money in the hamper. This money was the proceeds from the auction sale that day and the amount of it was $5,559.00.

The bandits then took Mr. Cherry's billfold and watch and they removed all the jewelry Mrs. Cherry was wearing. They also took a jewelry case containing watches diamond rings, diamond pins, wedding band and other items of jewelry. The bandits were in the Cherry home a total of about 45 minutes and as they were leaving they took the keys to both automobiles but drove away in only one of the cars.

Mrs. Cherry further testified that she had a burglar alarm system installed in her house. She tried to activate the alarm system when she first saw the bandit with the pistol, but the system had been turned off earlier when Mr. Cherry had gone to the back porch. Mr. Cherry stated that in April, 1974, the telephone lines leading to the house had been cut, setting off the burglar alarm and at that time no burglary was committed.

Mrs. Cherry identified an envelope, marked State's Exhibit 1, containing seven items of jewelry as being a part of the jewelry the bandits took the night of the robbery at the same time they took the money aggregating $5,559.00. State's Exhibit 1 was admitted into evidence without objection. Mrs. Cherry specifically identified this jewelry as a yellow-gold pin with rhinestones and matching gold earrings, spiral earrings with pearls, a wedding band with a quarter carat solitaire and an engagement ring.

Donald Nissen testified that he had previously entered a plea of guilty to the robbery of Mr. and Mrs. Cherry and had received a sentence of 15 years.

Nissen testified that the robbery had been planned at the home of the defendant Paul Summers in Clanton, Alabama. Nissen testified that present at the time were Danny McClellan, Danny Register and Bull Poe. Nissen testified that Danny McClellan is presently doing a natural life sentence in the Florida State Penitentiary. He testified that Bull Poe is currently serving two life sentences in Alabama. And he said that Danny Register is currently in jail waiting to go to the penitentiary. Nissen testified that the discussion concerning robbing the Cherrys took place approximately six weeks to two months before the robbery occurred.

At this meeting at Summers's house, Summers told the group that he had been up to the Cherrys' house in Marshall County and "looked at it with the intention of burglarizing the house to rob a safe with someone else." Summers said that due to the fact there was a burglar alarm on the house they were not able to enter the house and that he wanted the group to go up there and look at the house with him with the thought of robbing Mrs. Cherry at gunpoint. Summers said that there would be no one there but Mrs. Cherry herself.

A few days after this meeting Nissen, Poe, Register, McClellan and the defendant Summers drove to Boaz to rob Mrs. Cherry. When they arrived they found that Mrs. Cherry had remarried and, because they were uncertain as to who her new husband was, and how many people might now be living in the house, plans to rob the house and its inhabitants were postponed.

Nissen testified that some five or six weeks later in August of 1975 a group consisting of himself, Danny McClellan, Bull Poe, Paul Summers, Jimmy Thomas and Rusty Zinghan left for Boaz from the defendant's car lot in Clanton early in the morning. McClellan, Poe and Summers were traveling in Summers's Lincoln Continental. Zinghan, Thomas and Nissen were traveling in a black 1965 Oldsmobile which they got from the defendant Summers's car lot in Clanton.

On the way to Boaz they stopped just south of Birmingham in the town of Hoover and robbed a family in that community around midmorning. Following this robbery the group traveled to Boaz and arrived there approximately two hours before dusk.

The group assembled in the Holiday Inn parking lot in Boaz and traveled in one car to the Cherrys' house. The house was pointed out to the group by the defendant Summers. They all then returned to the Holiday Inn. At that time Zinghan, Thomas and Nissen got in the black 1965 Oldsmobile and drove around waiting for nightfall. McClellan, Poe and Summers waited behind for them at the Holiday Inn in Summers's Lincoln Continental.

After nightfall Nissen, Zinghan and Thomas drove to the Cherry residence and Nissen and Thomas went to the front door. Zinghan waited in the car. After gaining entrance to the house on the ruse that they had some cars to sell, Nissen and Thomas proceeded to tie up and rob Mr. and Mrs. Cherry.

After entering the house Nissen returned to the front door and notified Zinghan, who was waiting outside in the car, to leave. Following the robbery Nissen and Thomas left in one of the Cherrys' cars. They drove to the Holiday Inn parking lot where they met McClellan, Poe and the defendant Summers.

Nissen had a suitcase he had taken from the Cherrys' house in which he had placed the guns used in the robbery and the money and jewelry obtained during the robbery he put in an attache case. Nissen gave this suitcase and the other case to Paul Summers. Summers took both cases and threw them in the back of his Lincoln Continental. After hiding the Cherrys' Oldsmobile in a field, Nissen, Zinghan, Thomas and Poe met with McClellan and the defendant Summers at a truck stop. At that time McClellan counted out $500 each from the proceeds of the robbery to Thomas and Zinghan. Following this, Poe and Nissen took Zinghan and Thomas to Birmingham where Zinghan and Thomas boarded a plane to...