Thompson v. State

• Decision Date: 03 October 1978
• Docket Number: 7 Div. 550
• Citation: 374 So.2d 377
• Parties: R. A. THOMPSON, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 377

374 So.2d 377

R. A. THOMPSON, alias v. STATE.

7 Div. 550.

Court of Criminal Appeals of Alabama.

Oct. 3, 1978.

Rehearing Denied Oct. 31, 1978.

Jack W. Torbert and Howard B. Warren of Simmons & Torbert, Gadsden, for appellant.

William J. Baxley, Atty. Gen., and John A. Yung, IV, Asst. Atty. Gen., for the State, appellee.

DeCARLO, Judge.

The appellant, R. A. Thompson, alias Bob Thompson, was jointly indicted with Fred Orgovan on August 22, 1975, by the Etowah County Grand Jury for the second degree burglary of the City Board of Education Building in Gadsden, Alabama.

A motion for severance was granted. After a motion for a change of venue and a motion to dismiss or quash the indictment were denied, the appellant was arraigned on May 17, 1976.

The trial was begun on May 24, 1976, but due to the hospitalization of a juror, it resulted in a mistrial.

On March 24, 1977, the appellant was again placed on trial and was found guilty. He was sentenced to five years imprisonment. A motion for a new trial was filed and after it was denied notice of appeal was given.

The evidence at trial showed that in March, 1973, the Board of Education of Gadsden entered into a cost-plus contract with Thompson Construction Company to rebuild Gadsden High School. The school previously had been seriously damaged by fire. The appellant, R. A. Thompson, was vice president of the construction company and personally signed the contract on behalf of Thompson Construction Company.

In September and October of 1973, with the school approximately three-fourths completed, billings submitted by Thompson Construction Company for work done were questioned as having over-charges for certain items. An audit for the billing records was made in either September, 1973, or early January of 1974, and the Board of Education asked the attorney general's office to investigate the matter.

In the latter part of January, 1974, Ricky Ray Cochran entered the education building in Gadsden and stole all the files pertaining to the rebuilding of the high school by Thompson Construction Company. Just prior to entering the education building, on the same evening, he and another person, named Orgovan, also entered the office of Thompson Construction Company and stole some calculators, money, whiskey, and the files on the Gadsden High School project related to money, billings and payment. No other files were taken.

According to Cochran, the defendant, Thompson, had a conversation with him in Fred Orgovan's house concerning stealing the records from the education building. Cochran stated that Thompson also wanted the Thompson Construction Company's office broken into and ransacked. The payment for each job was to be $250.

Cochran testified that two or three days later he and Orgovan had another conversation with Thompson and, at that time, the defendant asked whether he (Cochran) would rather break in, or have some keys provided. Cochran told Thompson that he had rather have some keys and Thompson said he would do what he could.

Two days later, Thompson came to the auto parts place where Cochran worked, and in the presence of Orgovan, gave Cochran keys. Thompson said that the keys were for the Board of Education Building and told them to file the word, "Eagle", off the keys in case the keys were lost. Cochran stated that he and Orgovan filed the word, "Eagle" off the keys. A day or two later they went to Thompson's office where the appellant drew a diagram of the education building. In the diagram, he marked the doors that the keys would fit and the conference room where the records were kept.

According to Cochran, Thompson showed him and Orgovan the items at the construction company that were to be taken, including money from the drink box, petty cash, and several calculators. Cochran said that the appellant also told them at the time to ransack the desk and throw papers on the floor. He also indicated one calculator that they were not to take.

A day or two later, Thompson came by the auto parts place, picked up Cochran and Orgovan, and drove them to the board of education building. Thompson showed them the building and indicated the front door that one of the keys would fit. Two days later, Cochran and Orgovan met the appellant again and told him that they had decided to do the "two jobs" Saturday night. Cochran stated that the Saturday was sometime in January, 1974, but he did not remember the specific date. Cochran did say that on Saturday night Orgovan came by his house around 9:30 and picked him up. Cochran testified that he carried a flashlight, gloves, and two pillowcases with him when he left the house. Cochran said that the pillowcases were to be used for the records.

According to Cochran, they drove first to Thompson Construction Company in a panel truck and, after entering the back door which Thompson had left unlocked as he promised them, he and Orgovan collected the calculators, broke open the drink box, cleaned out the petty cash drawer, and threw papers from the desk on the floor. Cochran said, in addition to the items Thompson told them to take, they also took a knife, cigarette lighter, a bottle of Seagram's whiskey, and a bottle of Wild Turkey whiskey that they found in the office. Cochran testified the Orgovan took the Wild Turkey and he (Cochran) took the Seagram's whiskey.

All these items were taken back to the auto parts place and placed in the trunk of a junked, black Oldsmobile. According to Cochran, while Orgovan was placing the loot in the trunk of the junked car, he returned to Thompson's Construction Company and broke a window to make it look as if someone had broken into the building.

Cochran stated that he and Orgovan then drove to the board of education building and he (Cochran) got out and entered the building with the keys that Thompson had provided. Cochran testified that he went to the back of the building, opened the conference room door with the other key provided by the appellant, and found the records where the appellant had said they would be.

Cochran recalled that the records were placed in the pillowcases and he left the conference room, leaving the door unlocked. Cochran said he left the building through the front door and locked it behind him. Afterwards, he and Orgovan went back to the auto parts place where the pillowcases, containing the records, were placed in the trunk of another junked car.

According to Cochran, the next morning the appellant drove up to the auto parts place and stopped near the junked auto where the stolen records were deposited. At that time, the records were turned over to Thompson and the appellant paid him the remaining three hundred dollars with two, one-hundred-dollar bills, and the rest in twenty-dollar bills.

Cochran testified that he gave his wife, Clara, the two, one-hundred-dollar bills and some "twenties" and said that one of the calculators taken from Thompson Construction Company had gone to Wesley Kilgore.

During cross-examination, Cochran stated that he had been working part-time for Fred Orgovan at the auto parts place for three or four years. According to Cochran, it was at Orgovan's house, behind the auto parts place, that he first met the appellant, Thompson.

James C. Leftwich was the director of maintenance and purchasing for the City of Gadsden Board of Education in January, 1974. Leftwich stated that the last week of January, 1974, he discovered that records relating to the Gadsden High School rebuilding project were missing from the education building. He testified that these records had been kept in the board room at the rear of the building and that during the investigation, the door to the board room was found open. It was at that time that they discovered the records missing.

According to Leftwich, no other items were taken and other items of value, including typewriters, adding machines, and vending machines, were located in the same building.

Further Leftwich said there were perhaps ten or twelve people who had keys to the front door of the education building, and some four persons had keys to the conference room. He stated that he had one of the keys to the conference room and it was kept in the top, left drawer of his desk. He testified that during the first part of the week of January, 1974, he found his key ring, containing the key to the board room, in the center drawer of his desk. He did not recall placing it there.

Leftwich said he found a scrap of an invoice from Head Construction Company to Thompson Construction Company on the table where the missing records had been stacked. According to Leftwich, two-thirds of the torn document was lying on the table where the records had been and he said that he had made a xerox copy of it before turning the original over to the police. During the trial he produced the xeroxed copy of the torn scrap of the invoice and it was marked for identification.

Benny Fred Connell was a sergeant of detectives for the Gadsden City Police Department. He testified that during the last week of January, 1974, he received a call saying there had been a burglary at the Thompson Construction Company. Connell stated that on his arrival he noticed a back window had been broken out and the building had been ransacked.

According to Connell, R. A. Thompson, the appellant, was there at the time and Thompson gave him a partial list of missing items. Among those items were: $17.00 petty cash, $5.00 from the Coca Cola machine, a check book and an Olivetti calculator. Connell said he was later given information that four other calculators, along with a hunting knife, were also missing.

Connell stated the appellant informed him, at that time, of the possibility that the records of the Gadsden High School project might be missing. Connell said the appellant later confirmed that the records were missing. Connell recalled that there was a desk inside the building, underneath the window that had been broken. The...