Tice v. State

• Decision Date: 26 June 1984
• Docket Number: 3 Div. 874
• Citation: 460 So.2d 273
• Parties: Jack TICE and Donny Ray Sullivan v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 273

460 So.2d 273

Jack TICE and Donny Ray Sullivan v. STATE.

3 Div. 874.

Court of Criminal Appeals of Alabama.

June 26, 1984.

Rehearing Denied Aug. 14, 1984.

Certiorari Denied Nov. 30, 1984

Alabama Supreme Court 83-1328

and 83-1337.

Samuel L. Adams, Dothan, for appellant Sullivan.

Willis E. Isaac, Montgomery, for appellant Tice.

Charles A. Graddick, Atty. Gen. and Michael A. Bownes, Asst. Atty. Gen., for appellee.

PATTERSON, Judge.

Appellants, Jack Tice and Donny Ray Sullivan, were separately indicted for the offense of robbery in the first degree. The indictments were consolidated for trial pursuant to A.R.Crim.P.Temp. 15.4(b). A jury found both defendants guilty as charged. Sullivan was sentenced to fifteen years' imprisonment while Tice was sentenced to life imprisonment as an habitual offender.

The indictments arose out of the March 7, 1982, robbery of the Montgomery Civic Center in which coins valued at more than three-and-a-half million dollars were stolen. After midnight on March 7, two men gained entry into the civic center on the pretext of delivering a package to several collectors of the coin show. After the package was put down, one of the men grabbed the maintenance engineer and pointed a gun at him while the other robber twisted a gun away from the security guard. The intruders ordered the two civic center employees to lie on the floor and then they taped the men's eyes and legs. Additionally, the security guard was bound with handcuffs and his mouth was covered with tape. One of the robbers put a knife to the maintenance engineer's throat and told him that if they made any noise, he would cut their throats. Then one of the intruders said, "Go let the others in."

Two hours later, the maintenance engineer was able to free himself and he called the police. The area where the coins had been displayed was ransacked; most of the display was gone. At trial, both witnesses identified the intruder with the gun as Donny Sullivan.

On the evening of March 8, the Dothan Police Department received an FBI alert to be on the lookout for a JarPool rental truck and a Hertz rental truck. The JarPool truck had been rented in Dothan earlier that day by Donny Sullivan who had been accompanied by two unidentified persons, a woman and a man. The Hertz truck and a hand truck had been rented in Montgomery on the afternoon of March 6 by Jack Tice who had been accompanied by Sherman Casey.

After receiving this information, several officers proceeded to Sullivan's residence at Barstone Apartments and set up surveillance at approximately 11 p.m. The officers observed Sullivan's parked vehicle. They also saw a car bearing a Montgomery County tag enter the parking lot and an individual from the car proceed toward the apartments. This car was later discovered to be registered to Tice. After making these observations, the officers entered the Omelete Shoppe parking lot which is in the vicinity of the apartments and there they observed a JarPool truck and a Hertz truck. After verifying the trucks' numbers and tags, Officer Kenny entered the restaurant and saw Tice, Casey, and Casey's wife. Several minutes later, these three persons along with a fourth individual left the restaurant and got into the two trucks. One person got into the Hertz truck and after he drove the truck out of the parking lot onto the highway, an individual from the JarPool truck got into the Hertz truck. The police attempted to stop the Hertz truck, but it left the parking lot at a high rate of speed and its driver made several attempts to run the pursuing officers off the highway. The driver did not stop the truck until, after trying to shoot out the truck's tires, an officer pointed his weapon at the driver. After the truck was stopped, Casey emerged from the passenger's side and Tice exited from the driver's side.

In the meantime, an officer observed Sullivan and a woman run from the JarPool truck. Cindy Casey was apprehended in the parking lot and Sullivan was apprehended two hours later.

The morning after these arrests, the JarPool truck was searched pursuant to a warrant. The search revealed boxes containing silver, coins, and other similar items which were identified as the property taken from the civic center. In addition, a Montgomery investigator noted that the tread pattern of the rear tires of the Hertz truck appeared to have the same tread pattern as the wet tire print photographed at the civic center hours after the robbery.

Both defendants presented an alibi for the night of the robbery. Tice testified that he rented the Hertz truck for Casey because Casey had told him that he needed the truck to move, but he could not rent it because his driver's license had been suspended. He explained his presence in Dothan by testifying that he had driven Casey's wife there on Sunday night in his car at her request and that he was to take the truck back to Montgomery.

Sullivan testified that he rented the JarPool truck for Casey because he was also told that Casey needed it to move. He denied being at the Omelet Shoppe and fleeing from the police.

On behalf of Tice and Sullivan, Casey testified that neither Tice nor Sullivan knew of the robbery and that he alone switched the stolen coins from the Hertz truck to the JarPool truck.

I

Sullivan contends that, because he was indicted before the effective date of A.R.Crim.P.Temp. 15.4(b), which provides for consolidation of separately indicted defendants for trial, he had the right to elect to be tried separately in accordance with § 15-14-20, Code of Alabama 1975. Section 15-14-20 afforded a separate trial as a matter of right to any defendant jointly indicted with one or more other defendants if he elected in proper time. See Brooks v. City of Birmingham, 401 So.2d 299 (Ala.Crim.App.1981). Sullivan argues that retroactive application of the rule allowing consolidation of defendants is prohibited by the ex post facto clauses of the constitutions of Alabama and the United States.

Initially, we note that the rule applicable to the issue of the separate indictment of two defendants for the same offense and the right of a separate jury trial is expressed in Helums v. State, 23 Ala.App. 401, 126 So. 183 (1930): "Being separately indicted, the defendant is entitled to a separate trial, and a joint trial with another without the consent of the defendant or a waiver of the right by him appearing of record is error and cause for reversal. Martin v. State, 19 Ala.App. 432, 97 So. 768." However, regardless of what law was applicable at the time the offense was committed and at the time Sullivan and Tice were indicted, we find that the application of A.R.Crim.P.Temp. 15.4(b), was not prohibited as being an ex post facto law.

Support for our conclusion is found in Beazell v. Ohio, 269 U.S. 167, 46 S.Ct. 68, 70 L.Ed. 216 (1925). There, the law in effect at the time of the offense provided jointly indicted defendants with separate trials upon their application. Ohio General Code § 13,677. However, prior to indictment and trial of the jointly indicted defendants, this statute was amended (110 Ohio Laws, p. 301) to provide for a consolidated trial unless the trial court, in its discretion, granted a motion to sever. In reaching the holding that the application of this amendment to pending prosecutions for offenses previously committed was not invalid as ex post facto, the Court reasoned:

"[T]he statute of Ohio here drawn in question affects only the manner in which the trial of those jointly accused shall be conducted. It does not deprive the plaintiffs in error of any defense previously available, nor affect the criminal quality of the act charged. Nor does it change the legal definition of the offense or the punishment to be meted out. The quantum and kind of proof required to establish guilt, and all questions which may be considered by the court and jury in determining guilt or innocence, remain the same. ... [I]t is now well settled that statutory changes in the mode of trial or the rules of evidence, which do not deprive the accused of a defense and which operate only in a limited and unsubstantial manner to his disadvantage, are not prohibited.... [T]he constitutional provision was intended to secure substantial personal rights against arbitrary and oppressive legislation ... and not to limit the legislative control of remedies and modes of procedure which do not affect matters of substance ... (citations omitted.) Beazell, 269 U.S. at 170-171 ."

In following the considerations enumerated by the Supreme Court, we observe that A.R.Crim.P.Temp. 15.4(b), merely changes the mode of trial. This court has already held, in a comprehensive and well-reasoned opinion by Presiding Judge Bowen, that the consolidation for trial of separate indictments against separate defendants is a matter of procedure and does not abridge the substantial right of an accused to a jury trial. Holsemback v. State, 443 So.2d 1371, 1374-1377 (Ala.Cr.App.1983). See also Haynes v. State, 424 So.2d 669 (Ala.Cr.App.1982), cert. denied, 425 So.2d 1367 (1983). Hence, we find that A.R.Crim.P.Temp. 15.4(b) does not operate as an ex post facto law in prosecutions for offenses committed before the effective date of this rule.

II

In his final issue, Sullivan argues that the trial court erred in refusing to give his requested written jury instructions on identification; however, at trial, after the court's charge, Sullivan announced, "Satisfied," and the jury began its deliberation. Sullivan failed to comply with A.R.Crim.P.Temp. 14, which requires an objection before the jury retires, stating the matter objected to and supporting grounds. This failure precludes our review of this issue.

III

Tice contends that Officer Smith was erroneously allowed to testify to the comparison between the wet tire print photographed inside the civic center and the tire tread on the Hertz truck rented and driven by Tice; he contends that the...