Thomas v. State

• Court: Alabama Court of Criminal Appeals
• Writing for the Court: JOSEPH J. MULLINS; All the Judges concur, except BOWEN; BOWEN
• Citation: Thomas v. State, 435 So.2d 1319 (Ala. Crim. App. 1981)
• Decision Date: 04 August 1981
• Docket Number: 7 Div. 837
• Parties: Rickey Joe THOMAS v. STATE.

Page 1319

435 So.2d 1319

Rickey Joe THOMAS v. STATE.

7 Div. 837.

Court of Criminal Appeals of Alabama.

Aug. 4, 1981.

Rehearing Denied Oct. 6, 1981.

Robert G. Wilson of Scruggs, Rains & Wilson, Fort Payne, for appellant.

Charles A. Graddick, Atty. Gen. and J. Anthony McLain and James F. Hampton, Sp. Asst. Atty. Gen., for appellee.

JOSEPH J. MULLINS, Retired Circuit Judge.

The Grand Jury of DeKalb County returned an indictment against the appellant, Rickey Joe Thomas, charging him with burglary in the third degree, a class C felony. When the appellant was called by the court to plea to the indictment, he stood mute. The court entered a plea of not guilty for the appellant. A jury found the appellant guilty. After a presentence hearing the court duly sentenced the appellant to ten years in the State Penitentiary, and he appeals to this Court.

Appellant was represented at all proceedings in the trial court, and in this Court, by the same counsel appointed by the trial court. This appeal was submitted to this Court on briefs.

The appellant states in his brief four reasons why his conviction should be reversed. First, that the trial court erred to his prejudice by considering a prior adjudication as a youthful offender in sentencing the appellant under the Habitual Offender Statute, 1975 Code Of Alabama, Sec. 13A-5-9 (1980 Cumulative Supplement); second, that Sec. 13A-5-9, Code Of Alabama, 1975, (1980 Cumulative Supplement) is unconstitutional in that it violates appellant's right of equal protection and due process of law; third, by refusing to charge the jury on the lesser included offense of criminal trespass in the third degree; fourth, by refusing to give the appellant's requested jury charges 1, 2, 3, and 10.

State's evidence tended to prove that on the 17th day of September, 1980 Mr. Kuykendall, a pharmacist, was manager of Harco Super Drug, Inc., located in a building in DeKalb Plaza Shopping Center between Big K and the Radio Shack, in Fort Payne, DeKalb County, Alabama; that the store was equipped with a silent burglary alarm system; that about 2 A.M. he received a telephone call from the city police, and that he went immediately down to the Harco Super Drugstore where he found several police officers; that he unlocked the front door of the building and let the officers in where they found the appellant and another person in the building; that there was a hole in the dropped ceiling of the drugstore overhead which was not there when Mr. Kuykendall locked the store on the evening of September 16, 1980; that two empty money bags that were kept in the desk drawer had been taken out of the desk drawer, and one was found ten or twelve feet away from the desk; that the contents of the drawer had all been taken out; that the wall between Harco Super Drugstore and the Radio Shack store was made out of a very thin ceiltex, and extended from the floor of the building to the top ceiling of the building; that the Harco Drugstore was equipped with a silent alarm system that would be triggered at the moment anyone reached the floor of the drugstore; that narcotics, cameras, and other articles for sale, were kept in the store; that nothing was found to be gone from the drugstore.

State's evidence further tended to prove that David Kean, a police officer of the City of Fort Payne, was on duty on the 17th day of September, 1980, and was in the radio room at the police station when number 16 of the burglary alarm system went off, at which time he knew it was at Harco Drugs; that immediately Officer Kean and Officer Jimmy Don Thomas got in separate police cars, and headed for Harco Drugstore, and arrived there in about three or four minutes after the alarm went off; that Officer Kean knows the appellant, and positively identified him as one of the two persons he saw, and arrested, inside Harco Drugstore; that when he arrested them, they were standing almost under a hole in the dropped ceiling; that before he arrested them, he observed them placing something on a shelf between baby pamper boxes; that he found a set of gloves, and a money bag with Harco Drugs on it; that the appellant had a big plastic bag stuck under his shirt; that neither the appellant nor the person with him appeared to be drunk, but they both appeared to be nervous.

State's evidence further tended to prove that Jimmy Don Thomas, a police officer of Fort Payne, was on duty on September 17, 1980, and was at the police headquarters when the burglary alarm went off at about 2:00 A.M. o'clock; that he went to the back entrance of Harco Drugstore, and put his partner out to secure the back entrance, and then Officer Thomas attempted to find a way to go to the roof of the building, then he went to the front of the building, and observed that a part of the dropped ceiling in Harco Drugstore had been removed; that Mr. Kuykendall arrived at the store, and unlocked the front door so Captain Kean and Officer Thomas could enter Harco Drugstore; that the officers arrested the appellant and the person with him; that Officer Thomas then went to the roof of the building, and found a hole in the roof large enough for a person to pass through; that the hole in the roof was over that part of the building occupied by the Radio Shack; the hole in the roof had been covered by a piece of metal, and the metal was torn loose and turned back; that Officer Thomas lowered himself into the hole, and looked around, and found three other holes large enough for a man to pass through, one through the dropped ceiling over Radio Shack's store, one through the partition wall between Harco Drugstore and Radio Shack and above the dropped ceiling, and the other hole through the dropped ceiling over Harco Drugstore.

State's evidence further tended to prove that David Walker, a police officer of Fort Payne, was patrolling on September 17, 1980 when he received a radio call to report to Harco Drugstore; that he went on the roof of the building where Officer Thomas had found a hole in the roof; that Officer Thomas lowered himself through the hole, and Officer Walker followed him; that Officer Thomas found a dark colored handbag between the dropped ceiling and the top ceiling of the building and over the Radio Shack and near a large hole through the wall into Harco Drugstore, and handed the handbag to Officer Walker who then handed it to Detective Parker.

State's evidence further tended to prove that Detective Wayne Parker was present at Harco Drugs on September 17, 1980. That when he arrived, Officers Kean, Thomas, and Walker were the only officers on the scene; that he was familiar with the scene of the alleged crime, and went there to investigate an alleged burglary; that State's exhibit number 3 consisted of a pair of work gloves, a pair of sox wrapped around a Fort Payne bank money bag with Harco Drugs written on it; that the gloves were found up on a shelf under the hole through the dropped ceiling over Harco Drugstore, and the sox and Harco money bag were found stuck back in between some boxes near the hole in the dropped ceiling over Harco's Drugstore; that Detective Parker received from Officer Walker that night at the scene a black zipper handbag with a pair of handles connected to it; that the handbag contained a grappling type hook with a thirty-six foot chain with knots tied in the chain attached to the grappling hook, a short piece of rope, one hammer, three screwdrivers, one pair of pliers, a part of a broken saw blade, a swab, a lock washer, a screw, a small price tag, $680.40 in American money, two dollars in Canadian money, one Smith and Wesson 22 Caliber Pistol, one Colt 9 Millimeter Pistol, and a Radio Shack business card in a blue Fort Payne bank money bag; that in the opinion of Detective Parker the appellant was not drunk on the occasion when he was arrested. State rested its case, and appellant moved to exclude state's evidence. Motion was overruled.

The appellant's evidence tended to prove that Norma Hastings was the mother of the appellant; that on September 16, 1980 she had seen the appellant off and on all of the day; that he had been drinking whiskey and beer, and was drunk when he left home right after dark on the day before he was arrested. The appellant offered no other evidence on his behalf.

After the jury returned a verdict finding the defendant guilty, the court postponed sentencing the appellant pending a presentence hearing to be heard on March 5, 1981 at 9:30 A.M. This concluded the trial ending February 9, 1981, at 4:44 P.M.

At the presentencing hearing the state, over the...