Twyman v. State

Decision Date23 February 1990
Docket NumberNo. 7,7
Citation565 So.2d 1215
PartiesRobert TWYMAN, Jr. v. STATE. Div. 257.
CourtAlabama Court of Criminal Appeals

Jonathan L. Adams, Talladega, for appellant.

Don Siegelman, Atty. Gen., and Robert E. Lusk, Jr., Asst. Atty. Gen., for appellee.

TYSON, Judge.

Robert Twyman, Jr., was indicted for attempted assault in the first degree, in violation of §§ 13A-6-20 and 13A-4-2, Code of Alabama 1975. The jury found the appellant "guilty as charged in the indictment." The trial judge sentenced the appellant to twenty years and one day in the state penitentiary as a habitual felony offender.

During the early morning hours of April 18, 1988, the appellant telephoned Fred Cook at his home. The appellant told Cook that he wanted some money ($10 or $15) that he claimed Cook owed him. Cook explained that he would pay the appellant "tomorrow," since it was so late. Cook testified that the appellant then began cursing and told him that he wanted his money "now." (R. 13-14.)

After hanging up the phone, the appellant got into his car and proceeded in the direction of Cook's home. He passed by Joe Bob's Food Store in Sylacauga, Alabama, and saw two men, Theotis Williams and Willie Lewis Leonard, standing in front of the store. He stopped to ask them what they were doing there. The two men told the appellant that they came to Sylacauga with a friend and that they were trying to catch a ride back to Alex City, Alabama. The appellant volunteered to take them back to Alex City, but he said he had to make a stop, "because he [was] on a mission." (R. 37.)

With Williams and Leonard in the car, the appellant went to Cook's home. At about 2:00 to 2:30 a.m., Cook heard someone knock on his door. Believing that the appellant Twyman was at the door, he took his Smith & Wesson .44 magnum pistol from underneath his bed and carried it with him. Cook testified that he slid the gun underneath the coffee table.

Cook then went to the front door. He reminded the appellant that he (Cook) had told him on the telephone not to come to his house at such a late hour and that he would pay him the money the next day. Cook claimed that the appellant told him it was time to get paid and said, "You're going to pay somebody if you ain't going to pay me." (R. 16.) Cook then told appellant to leave. The appellant turned and got into his car.

The appellant cranked the car and turned on the headlights. Cook noticed that two other people were in the car with the appellant. The appellant stopped his car and shouted to Cook that he was stuck. The appellant shouted for Cook to come help him. Cook refused and continued to stand inside the doorway of his house.

Cook testified that he saw the appellant reach down in his car, whereby Cook retrieved his gun from underneath the coffee table. In this regard, Cook stated:

"A He slammed it in park, put his lights on bright, and put one foot on the ground and one in the door of the car and went to reaching in the car. I said, 'Man, what are you doing?' I just kept hollering. I said, 'Don't do it. Don't do it.' He just didn't--He just didn't hear me, and he picked up, and I could see it, a rifle. He was bringing it out of his car and I kept hollering shouting, 'Don't do it. Don't do it. Just leave it. Don't do it.'

"Q Then what happened?

"A He got it and wheeled it around to me. When he wheeled it around at me, I wasn't going to look down the barrel, and I just went to shooting--we went to shooting. I hit the floor. I ran out the back, and I don't know what happened. I just know a couple of shots went off. I was outside hiding behind a tree. He was still shooting telling me to come out." (R. 17.)

Within minutes after the shooting began, the police arrived. After talking with both Cook and the appellant, the appellant was placed under arrest. During the process, the appellant became unruly and cursed the officers. He was charged with disorderly conduct. He was later indicted for the attempted assault charge on which he was ultimately convicted and now appeals.


The appellant first contends that he was twice put in jeopardy in violation of Article I, § 9, Constitution of Alabama (1901). As a result, the appellant claims that his conviction should be set aside.

The appellant argued prior to trial and in his motion for a new trial that a jury was struck and sworn in April 1988. Thus, the appellant argues that the dismissal of that jury barred his subsequent trial and conviction in May 1988.

We find no merit in the appellant's argument. As the trial judge stated in his "Order Overruling Motion for a New Trial," the only testimony offered to support the claim that the April jury was sworn was the testimony of the appellant. The State offered overwhelming evidence to the contrary.

The appellant's appointed trial counsel, Bill Denson, raised a pre-trial claim of double jeopardy on behalf of the appellant. Denson stated the appellant's claim, but he explained to the trial judge that he recalled striking a jury before Judge Terry Fielding the prior month. According to Denson and the district attorney, after the jury was struck, it was discovered that two crucial witnesses, Williams and Leonard, could not be located. Both sides wished to call these witnesses. Therefore, the jury, without being sworn, was released until the witnesses could be located.

Additionally, a hearing was held on the appellant's motion for a new trial. At the hearing, the appellant's newly-appointed counsel, Steven Adcock, stated that the appellant requested him to subpoena the members of the April jury. Adcock stated that he spoke with some of these people and decided against calling them to testify, because he discovered that they would not be helpful to his client's position.

Moreover, at the same hearing, Judge Fielding testified that he recalled striking a jury in this cause, but he did not remember swearing in the jury. He recalled that the trial was continued until May at the request of both parties. Also, the court reporter was called to read her transcript from the April hearing. The transcript revealed that the first jury was struck but not sworn.

Therefore, we find no merit to this argument, and thus we find no double jeopardy violation.


The appellant also claims that he was denied his right to a speedy trial in violation of Article I, § 6, Constitution of Alabama (1901), and the Sixth and Fourteenth Amendments of the United States Constitution.

The relevant events occurred as follows:

April 18, 1988 Fred Cook filed a complaint against the appellant. A warrant was issued for the appellant's arrest for attempted assault in the first degree.

The warrant was served on the appellant in the Sylacauga Jail, where he was being held for disorderly conduct.

June 14, 1988 The appellant was declared indigent, and the Honorable William T. Denson was appointed to represent him.

July 11, 1988 The appellant filed a pro se motion for a fast and speedy trial, alleging a violation of the Uniform Mandatory Disposition of Detainers Act (UMDDA). Ala.Code § 15-9-80 et seq. (1975). The motion was filed in response to a detainer placed on this appellant, who was then incarcerated, by the Sylacauga Police Department.

July 19, 1988 The appellant filed a second pro se motion for a speedy trial, alleging a violation of the UMDDA and Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969).

September 9, 1988 The appellant filed a third pro se motion for a speedy trial, moving to expeditiously dissolve the detainer against him.

October 24, 1988 The appellant filed a pro se motion for dismissal, alleging violation of UMDDA.

March 15, 1989 The November 1988 Term of the Talladega County, Alabama, grand jury entered an indictment (true bill) against the appellant for attempted assault in the first degree.

April 24, 1989 The appellant was scheduled to be tried. The case was continued, pending location of two witnesses.

May 17, 1989 The appellant was tried and found guilty of attempted assault in the first degree.

May 18, 1989 The appellant was sentenced to twenty years and one day as an habitual felony offender.

June 8, 1989 The appellant filed a pro se motion for a new trial, alleging, inter alia, that he was denied his right to a speedy trial.

August 1, 1989 A hearing was heard on this appellant's motion for a new trial.

September 12, 1989 The Honorable William C. Sullivan, Circuit Judge, entered a written order, denying the appellant's motion for a new trial.

Sometime between April 18 and June 14, 1988, the appellant pleaded guilty to two counts of felony possession of marijuana, which were unrelated to the case at bar. He was sentenced to two five-year prison terms to run concurrently. He remained incarcerated on these charges during the pendency of the cause sub judice. A detainer was placed on this appellant at some time before June 14, 1988, when he was appointed counsel.

Between July 11, 1988, and October 24, 1988, the appellant filed three motions for a speedy trial and one motion for dismissal, claiming violation of his right to a speedy trial. All four motions claimed a violation of UMDDA. The second motion for a speedy trial, filed on July 19, 1988, additionally claimed that the appellant was denied his right to a speedy trial against the mandates of Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969).

The appellant's claim of a speedy trial violation under UMDDA must fail. This court has previously stated that the UMDDA statute is not applicable to intra state detainers. Rather, the statute is designed to provide protection to prisoners held by one jurisdiction and charged with a crime by another jurisdiction (i.e., between states or between a state and the federal government). Morning v. State, 416 So.2d 780, 781 (Ala.Cr.App.1982).

Contrarily, the appellant's claim that he was unreasonably detained and prejudiced,...

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5 cases
  • Reed v. State
    • United States
    • Alabama Court of Criminal Appeals
    • August 27, 1999
    ...he must prove that the outcome of his trial would have been different but for counsel's deficient performance. See Twyman v. State, 565 So.2d 1215 (Ala.Cr.App.1990). In his first allegation of ineffective assistance of counsel, Reed argues that the circuit court abused its discretion by dis......
  • Westbrook v. State
    • United States
    • Alabama Court of Criminal Appeals
    • March 20, 1998
    ...injury, and the firing of those shots constitute an overt act toward causing such injury. This Court held in Twyman v. State, 565 So.2d 1215, 1221 (Ala.Cr.App.1990), that "intent `may be inferred from the act of using a deadly weapon unless circumstances negate this presumption.'" There do ......
  • Wheeler v. State
    • United States
    • Alabama Court of Criminal Appeals
    • September 21, 1990
    ...that the appellant intended to shoot McClure, we have held that intent may be presumed from the use of a deadly weapon. Twyman v. State, 565 So.2d 1215 (Ala.Cr.App.1990); Chaney v. State, 417 So.2d 625, 627 (Ala.Cr.App.1982); McArdle v. State, 372 So.2d 897 (Ala.Cr.App.), cert. denied, 372 ......
  • Young v. State, CR-02-1258.
    • United States
    • Alabama Court of Criminal Appeals
    • February 27, 2004
    ...waiver of closing arguments, without more, does not constitute ineffective assistance of counsel." Twyman v. State, 565 So.2d 1215, 1223 (Ala.Crim.App.1990). Young does not provide further argument, and he does not explain how he was prejudiced by counsel's waiving closing argument. With a ......
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