Taylor v. State

• Decision Date: 27 May 1975
• Docket Number: 8 Div. 533
• Citation: 55 Ala.App. 184,314 So.2d 104
• Parties: Terry Ray TAYLOR v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 104

314 So.2d 104

55 Ala.App. 184

Terry Ray TAYLOR v. STATE.

8 Div. 533.

Court of Criminal Appeals of Alabama.

May 27, 1975.

J. Douglas Evans, Florence, for appellant.

Terry Ray Taylor, pro se.

William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.

HARRIS, Judge.

Appellant was convicted of robbery and sentenced to twelve years in the penitentiary. He was represented at all stages of his trial by a court-appointed counsel, who also represents him on this appeal. He pleaded not guilty at arraignment and also pleaded not guilty by reason of insanity.

Omitting the formal parts, the indictment reads as follows:

'The Grand Jury of said County charge that before the finding of the Indictment Terry Ray Taylor and Charles David Moore, whose names are to the Grand Jury otherwise unknown, than as stated, feloniously took and carried away Five Hundred Three Dollars and Ninety-five Cents ($503.95), in lawful currency and lawful coined money of the United States of America, the exact denomination and description is otherwise unknown, the property of Nancy Killen from her person, and against her will, by violence to her person or by putting her in such fear as unwillingly to part with the same, against the peace and dignity of the State of Alabama.'

On September 21, 1973, a lone bandit carrying a shotgun entered the Shop-Rite Super Market, located at 4404 Huntsville Road in Florence, Alabama, between the hours of 5:30 or 6:00 P.M. He approached the first cash register and raised the shotgun saying 'Don't anybody move or I'll kill you.'

Mrs. Gevena Evans was operating cash register number 2, and Mrs. Nancy Killen was operating cash register number 1. There were some fifteen or twenty customers in the store at this time.

Mrs. Evans was asked if the man said anything else and she replied:

'Yes, he said different things, not altogether to me, but warned the man--he said, 'Don't anybody move, I mean don't move.' There was a man at the candy rack and he said to him, 'You at the candy rack, I said don't move, and if you move again, I'm going to shoot.' He was pointing back behind me, had the gun raised kinda more or less on me or over my shoulder and he said, 'You tell that woman there if she wants that girl alive, she better get her out of the aisle and make he stand still because I mean I'll shoot.' And he also told me at one time, 'You're thinking about calling the police.' I said no. And he said, 'I wouldn't do it if I were you, somebody is liable to get hurt.' And I said, 'Don't worry, I'm not."

It was the first cash register operated by Mrs. Nancy Killen that was robbed. The bandit told Mrs. Killen, to open the cash register. He was pointing the gun at her at this time. She opened the cash register and he told her to get out in the aisle with the rest of them. The bandit reached into the open cash register with his right hand and got all the money and put it in his pockets. He then told everyone in the store 'to hit the floor face down and not look up. I mean your nose on the floor.' The cash register operated by Mrs. Killen was the only one robbed. The other two were not touched.

Mrs. Killen testified that she recognized appellant when he entered the store with the shotgun. She said he went to school at Rogers and that she went to the same school though they didn't go at the same time, but she knew him as she visited some of her friends at the school at the same time he was a student there. She further testified that Mrs. Evans came to her register to get a check cashed given to her by a customer and she and Mrs. Evans were standing side by side when appellant came to her register with the shotgun in his left hand pointed downward. She and Mrs. Evans were face to face with the robber when he raised the gun and ordered her to open the cash register and get out of the way. She said appellant had a funny or weird expression on his face, but she recognized him immediately.

She further testified that a deputy sheriff brought three photographs to see if the robber was in any of the photographs. She said appellant was wearing a mustache in the photograph but was not wearing a mustache at the time of the robbery, but she saw his face when he walked in the store and she immediately recognized him and knew his name. She testified his name was Terry Ray Taylor. She said she could not be mistaken as to the identity of appellant.

Both Mrs. Evans and Mrs. Killen made positive in-court identification of appellant as the man that robbed the store on September 21, 1973.

Appellant did not testify at this trial.

Charles David Moore testified in behalf of appellant. He said he had known him for about fifteen years. He further testified that he was with appellant on the afternoon before the robbery. They were at a trailer at Happy Hollow where a gambling game was going on; that appellant left the trailer around 2:30 P.M. saying he was going to hitch-hike to Nashville, Tennessee, and he left the trailer walking but he did not know the direction appellant went. He saw appellant the next morning but did not see him with any money.

On cross-examination Moore was asked if he had been convicted of burglary in the second degree in Lauderdale County on October 20, 1969, and he replied, 'yes, sir.' He was further asked if his companion in that burglary was Terry Ray Taylor and he replied, 'That's right.'

Appellant claims that his constitutional rights were violated when he was refused a preliminary hearing with counsel representing him.

Appellant was indicted on January 18, 1974. On March 25, 1974, appellant's attorney filed a motion to dismiss the indictment against him on the ground he had been denied a preliminary hearing. There was no ruling by the trial court on this motion, and there was no request for a ruling.

There was some testimony during the trial of this case referring to a preliminary hearing In this particular case, but the record does not reflect the date of such hearing. Furthermore, when this case was called for trial both sides announced ready.

It is interesting to note that when the court was qualifying the jury he asked the jury panel if anyone was related by blood or marriage to the defendant and one juror stood up. This juror told the court that the defendant was his brother. The court asked the state if there was a challenge to this juror and the state prosecutor said, 'No, sir, we don't challenge him.' Appellant's counsel said, 'Yes, sir, we do.' Appellant's brother was then removed from the strike list.

Prior to arraignment the trial judge asked appellant if he had a preliminary hearing before Judge Duska (Judge of the Lauderdale County Court) and appellant replied, 'No, sir.' The trial judge examined the trial sheet and said to appellant:

'The lower court appointed Mr. Douglas Evans as your attorney to represent you and the court reaffirms that appointment and does appoint Mr. Evans. Now, in case no. 15010, Mr. Evans, as his attorney, is the defendant ready for arraignment?'

Mr. Evans said,

'Yes, sir, he is, your Honor.'

Appellant did not object to the appointment of Mr. Evans as his trial counsel. After his conviction the court appointed Mr. Evans to represent him on appeal. This did not please appellant and he wrote the trial judge to dismiss Mr. Evans as his attorney and to furnish him a free transcript of the record and that he was going to file a 'pro se' brief. The trial court had the clerk send appellant a free transcript, but refused to relieve Mr. Evans from representing appellant on appeal. Mr. Evans filed a brief and appellant filed a 'pro se' brief. Appellant also wrote a letter to Mr. Evans dismissing him as his attorney on appeal.

Appellant in his 'pro se' brief attached several 'exhibits' that were not introduced in evidence during the trial in chief. Under the law of this state, we cannot consider these exhibits.

In Edwards v. State, 287 Ala. 588, 253 So.2d 513, it is said:

'The rule is that argument in brief...