Thomas v. State

• Decision Date: 31 January 1984
• Docket Number: 3 Div. 774.
• Citation: 447 So.2d 203
• Parties: Willie James THOMAS v. STATE.
• Court: Alabama Court of Criminal Appeals

447 So.2d 203

Willie James THOMAS v. STATE.

3 Div. 774.

Court of Criminal Appeals of Alabama.

January 31, 1984.

John L. Capell, III, Montgomery, for appellant.

Charles A. Graddick, Atty. Gen., and Jane LeCroy Brannan, Asst. Atty. Gen., for appellee.

LEIGH M. CLARK, Retired Circuit Judge.

A jury found this appellant guilty under an indictment that charged, inter alia, that he did the following:

"... In the course of committing a theft of $15.00 in lawful currency ... of the value of $15.00, the property of Winston Sachar, used force against the person of ... Winston Sachar, with the intent to overcome his physical resistance or physical power of resistance, or threatened the imminent use of force against the person of the owner or any person present, Winston Sachar, with the intent to compel acquiescence to the taking of or escaping with the property, while the said Willie Thomas alias Willie James Thomas was armed with a deadly weapon or dangerous instrument, to-wit: pistol, in violation of Section 13A-8-41 of the Code of Alabama...."

At a sentence hearing after due notice that the State would invoke the Habitual Felony Offenders Act and upon proof of defendant's having been previously convicted of two felonies, the court fixed his punishment and sentenced him to imprisonment for life in accordance with Alabama Criminal Code, § 13A-5-9(b)(3).

Except for the contested issue as to the identity of the alleged robber, there is little difference, if any, between the parties on appeal as to the time, place and circumstances of the robbery. In the first part of the Statement of Facts in appellant's brief, it is stated:

"On the night of September 15, 1982, at approximately 9:00 p.m., an individual attempted to rob the Cloverdale A & P in Montgomery, Alabama. The robber was a black male, wearing green clothing and with a stocking mask over his face. He was unsuccessful in robbing the A & P but took the wallet of the assistant manager of the store which contained a total of $14.

"Appellant, Willie James Thomas, is the owner and manager of Thomas Janitorial Service in Montgomery which has customers throughout Montgomery to whom it provides janitorial services. The customers have included the Eastdale Mall and the Cloverdale A & P. On the night of the robbery, at approximately 10:45 p.m., the Montgomery City Police entered the HCB Building in downtown Montgomery where appellant was waxing the floor, and arrested him for the alleged commission of the robbery...."

In the first part of appellee's Statement of Facts is the following:

"Around ten minutes until 9:00 at night on September 15, 1982, as Winston Sachar, the Assistant Manager of the Cloverdale A & P, and Freddy Hamilton, a clerk, were closing the grocery store for the night, they saw a black male dressed in green clothes and wearing a stocking mask walk across the parking lot. The man was carrying a gun. The man ordered Sachar inside the store and took Hamilton to the office where the safe was located. The man's mask fell off and he said, `Don't look at me.' ... Hamilton ran and the robber shot his pistol in Hamilton's direction. The robber asked Sachar for his wallet as he left the store and Sachar gave him fifteen dollars."

We consider the issues raised by appellant in the order presented in appellant's brief.

I.

The first issue presented by appellant is thus captioned in his brief:

"The Admission of Appellant's Confession Into Evidence Constitutes Reversible Error."

During the testimony of Investigator James Hamner of the Montgomery Police Department for the State on direct examination as to an oral statement made to the witness by the defendant, the following occurred:

"MR. MASSEY Defendant's attorney: Your Honor, we would like at this point to take the witness on voir dire outside of the presence of the jury.

"THE COURT: Will the jury please step outside in the hall. It will be a little more comfortable.

"(Whereupon, the following was heard out of the presence of the jury:)

"VOIR DIRE EXAMINATION

"BY MR. MASSEY:

"Q. Detective Hamner, what time was it when Mr. Thomas signed the waiver of rights form?

"A. I believe it was around 11:25.

"Q. 11:25?

"A. Yes, sir.

"Q. And after he signed that form, did you personally check with Sonitrol personell of a building security system by that name?

"A. As far as I know, my partner did.

"Q. Do you know whether that was done by telephone or whether that was done physically?

"A. I am sure it was done by telephone.

"A. Approximately at what time was it when you learned that according to Sonitrol Mr. Thomas had not checked in under his code number?

"A. I am not sure exactly what time it was. I think it was some time after 11:25.

". . .

"Q. Were you wearing cowboy boots that night?

"A. I don't remember. I could have been.

". . .

"Q. Did you threaten Mr. Thomas at that time?

"A. No, sir, I did not.

"Q. Did you use force against his person to make him give you an oral statement?

"A. No, sir, I did not.

"Q. Do you have any signed statement or any written statement that you prepared to have Mr. Thomas sign?

"A. No, sir.

"Q. So there was nothing ever typed up?

"A. No, sir.

"Q. For Mr. Thomas to sign?

"A. No, sir.

"Q. Do you deny kicking Mr. Thomas in the stomach and in the groin with your cowboy boots?

"A. I never did, no, sir.

"Q. Were you a party or did you witness any other police officer with the Montgomery Police Department use force against Mr. Thomas?

"A. No, sir.

". . .

"Q. What time did Mr. Thomas make these alleged admissions to you? What time was it when he made those?

"A. I don't know exactly what time it was. It was after midnight.

"Q. Did you keep Mr. Thomas up all night that night of September 15, 1982?

"A. He was up there a while. I don't know if it was all night long.

". . .

"Q. Detective Hamner, didn't you'all handcuff Mr. Thomas to a chair?

"A. Yes, sir.

"Q. And isn't there some point during that interrogation there that night at the police station that Mr. Thomas had occasion to throw a chair at you?

"A. I don't remember him throwing a chair, no, sir.

"Q. Didn't you-all beat him with a telephone book?

"A. No, sir. I stated earlier that no one beat him or hit him or threatened him.

"Q. Didn't you-all handcuff him to the chair?

"A. He had one arm handcuffed to the chair. That is the way we do all of our suspects.

"Q. Didn't you-all pin him to the chair and tell him not to get back up?

"A. No, sir.

"Q. Isn't it a fact that you kept him up? After getting him some time near midnight that night, you kept him up until about 5:00 that morning?

"A. Like I told you earlier, I don't know how long it was. It was on into the morning, but I don't think it was all night long.

"Q. How long into the morning was it, then, Detective Hamner, that you got this voluntary statement from Mr. Thomas?

"A. It was after 12:00. I would say it was probably 2:00.

". . .

"Q. So it took you from 12:00 then to about 3:00 or 3:30 to get a voluntary statement from Mr. Thomas? Why did it take you three hours after you had Mr. Thomas in custody to get a voluntary statement, Detective Hamner?

"A. From the time we started, after the rights form, we have some other forms we fill out with the information, name, address, and such as that.

". . .

"Q. What time did you pick Mr. Thomas up or was he picked up at the HBC?

"A. I don't know. I did not go.

"Q. 11:25, 11:30?

"A. I read him his rights at 11:25.

"Q. So you agree with me that you talked with Mr. Thomas at least from 11:25 P.M. until some time around 3:00 or 3:30 A.M.; isn't that correct?

"THE COURT: Okay. I agree with you. Bring the jury back in and we will tell them to go to lunch."

The transcript further shows clearly that defendant signed the printed "rights form" acknowledging that he had been informed as to his Constitutional rights, including a right to an attorney, that he understood his rights. Thereafter, according to Officer Hamner, defendant made oral statements, which at first were in denial of any participation in or knowledge of the robbery and contained assertions that he was at the HCB Building at the time of the alleged robbery. Officer Hamner further testified that when defendant was confronted with information that the Police Department had checked with "Sonitrol" that operated the security system for the HCB Building and had learned that defendant "had not called in to Sonitrol that night" before the time of the robbery, the following occurred:

"A. From that point, we went through his story again and broke it down. He said that—with me and my partner there, he wanted to go ahead and tell us what really happened.

"Q. Your partner being who?

"A. Investigator Brown.

"Q. Go ahead.

"A. He said that he did not want anything in writing. That he would just talk to us, and we told him okay. He said that a man named Leonard came by in a green car and picked him up. They went riding around, and Leonard gave him a gun and said let's go rob the A & P. We need money. From that point, they went there. Willie said that he went in and approached them as they were coming out. He went inside and tried to hold the place up. He said that he went to try to get into the safe, and he could not. The manager would not let him in the safe. From that point, he said that he noticed the boy standing there, and that's when he shot at him. Then he took the money that the manager had, which was a ten dollar bill and four ones and left. He gave Leonard the four dollars and he kept the ten dollar bill.

"Q. Did he tell you how many shots were fired?

"A. He just said he shot.

"Q. And he told you he had fourteen dollars from the robbery?

"A. Right.

"Q. Ten for him and four for Leonard?

"A. Yes.

"Q. Okay. Now, did he tell you anything about a wallet that was taken in the robbery?

"A. He further said that he took the wallet and threw it out of the vehicle somewhere on Carter Hill Road down on one of the side streets. I don't know if he meant on Carter Hill Road or one of the side streets.

"Q. Do you

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