Vines v. State

• Decision Date: 16 December 1975
• Docket Number: 6 Div. 896
• Citation: 326 So.2d 307,57 Ala.App. 117
• Parties: Donnie VINES, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 307

326 So.2d 307

57 Ala.App. 117

Donnie VINES, alias v. STATE.

6 Div. 896.

Court of Criminal Appeals of Alabama.

Dec. 16, 1975.

Rehearing Denied Jan. 20, 1976.

James R. Shaw, Bessemer, for appellant.

William J. Baxley, Atty. Gen., and Randolph P. Reaves, Asst. Atty. Gen., Montgomery, for the State.

HARRIS, Judge.

Appellant was put to trial upon a three-count indictment charging, (1) burglary, (2) grand larceny, and (3) buying, receiving, concealing, etc. Omitting the formal parts, the indictment reads as follows:

'1. The Grand Jury of said County, charges that before finding of this indictment Donnie Vines, alias Donald H. Vines, whose name to the Grand Jury is otherwise unknown, did, with intent to steal, break into and enter a shop, store, warehouse, or other building of R. V. Hubbard, Oddie Hubbard, George Wood and Millard McConnell, a partnership, d/b/a Cherry Tree Apartments, in which goods, wares, or merchandise was kept for use, sale or deposit;

2. The Grand Jury of said County further charge that, before the finding of this indictment, Donnie Vines, alias Donald H. Vines, whose name to the Grand Jury is otherwise unknown, feloniously took and carried away 3 rolls of green shag carpet, of the value of $400.00; one roll vinyl floor covering, of the value of $50.00; and one General Electric refrigerator, of the value of $228.00, all in the total value of $678.00, the personal property of R. V. Hubbard, Oddie Hubbard, George Wood and Millard McConnell, a partnership, d/b/a Cherry Tree Apartments;

3. The Grand Jury of said County further charge that, before the finding of this indictment, Donnie Vines, alias Donald H. Vines, whose name to the Grand Jury is otherwise unknown, did buy, receive, conceal, or aid in concealing, 3 rolls of green shag carpet, of the value of $400.00; one roll vinyl floor covering, of the value of $50.00; and one General Electric refrigerator, of the value of $228.00; all of the total value of $678.00, the personal property of R. V. Hubbard, Oddie Hubbard, George Wood and Millard McDonnell, a partnership, d/b/a Cherry Tree Apartments, knowing that they were stolen, or having reasonable grounds for believing they were stolen, and not having the intent to restore them to the owner, against the peace and dignity of the State of Alabama.'

He was represented by retained counsel at arraignment and trial. He pleaded not guilty. Trial counsel represents him on this appeal.

The evidence for the state and appellant is in hopeless conflict. Only a jury could unravel these conflicts and arrive at a verdict. At the conclusion of the state's case the trial court on motion of appellant dismissed the burglary count and submitted the case to the jury on the two remaining counts. The jury returned a verdict in the following language:

'We, the jury, find the defendant guilty of buying, receiving and concealing stolen property as charged in the indictment and fix the value of the stolen property at $700.00. Norris L. Headley, Foreman.'

Appellant was sentenced to six years imprisonment in the penitentiary.

Mr. R. V. Hubbard was the first witness called by the state. He testified that he and three other men formed a partnership and had built the Cherry Tree Apartments located on Cherry Court in Hueytown, Jefferson County, Alabama. He stated that he knew appellant and that they graduated from high school together. He further said that appellant did not have a lease in the apartment complex but indicated he thought he stayed there with a woman sometimes.

Hubbard further testified there was a rather large storage room under one of the apartments for the common use of the tenants. That he was in the business of constructing apartments and with the help of some employees he had stored in the storage room a new General Electric refrigerator (still in the crate), some vinyl flooring and some green shag carpet. That around 7:00 p.m., on April 16, 1974, he received a telephone call and as a result of that call he went to the storage room of the Cherry Tree Apartments and found the above listed items missing. He stated that the refrigerator was valued at $228.00, the green carpet was worth $400.00, and the vinyl floor covering was worth $150.00. He said he had put blue ink circles on the back of the carpet so that he could identify it.

Hubbard further testified that on April 18, 1974, he reported the theft of these items to a Sergeant Nochols of the Hueytown Police Department and that an investigation got under way to try to locate this property. He gave Sergeant Nichols the serial number of the refrigerator and a description of the other missing property. He stated that these missing items of personal property were returned to him on May 25, 1974, and that he got a release for them on that date from the Hueytown Police Department.

On cross-examination Mr. Hubbard testified there were two doors to this storage room and they were kept locked. That there were only two keys to this storage room. That he had one key and the resident manager, Jackie Greer, had the other key. That if any of the tenants wanted to use the storage room, they had to contact the resident manager. That on the night of April 16, 1973, he contacted the resident manager and asked him if saw anyone move this property from the storage basement and he said he did not.

On redirect examination Mr. Hubbard testified that on the night of April 16, 1973, the basement doors were locked as well as the windows. He stated that the top pane next to the door was broke 'so that you could put your hand in and unlock it.' The trial court excluded this last statement from the jury.

On recross examination this witness testified that one Marsha Glover was a tenant at the Cherry Tree Apartments but that according to his records, she moved out on March 30, 1974.

Mr. Michael L. McLaughlin testified that in 1974 he lived at the Cherry Tree Apartments for about five months and was living there during the month of April when appellant came to his apartment and asked him and his roommate, Larry Hanna, to help him move some furniture. He said they went down to the storage room and helped appellant put some carpet, a roll of linoleum and a crated refrigerator on the back of a pickup truck. That appellant paid each of them twenty dollars for their help.

On cross-examination he testified that he was never indebted to appellant. That he thought it was on April 16, 1974, that they helped appellant load the pickup truck and it was after dark. He denied that he took this property and sold it for $200.00, and he denied telling a person by the name of Coston that he took this property and sold it and hung the whole thing on appellant.

On redirect examination he stated that appellant was alone with the pickup truck when he helped him load it.

Gwenda Shope testified that in April of 1974 she lived at 805 Third Avenue, Midfield, Alabama. At that time she was in the market for a refrigerator and carpet and had been shopping all day with one Wayne Coates. That on Saturday, April 13, 1974, she and Coates went to a place called Dan's Tavern on Third Avenue in Central Park. The place was full of people and they sat in a booth with three or four other people. She mentioned that she was interested in buying some carpet and a refrigerator. She was introduced to a man whose nickname was 'Dog man' who told her he thought he could get these items for her. She found out later that 'Dog man' was the appellant. She signed a check in blank and gave it to Wayne Coates to pay for these items. She further stated that a refrigerator, in a crate or box, some green shag carpet, and a roll of vinyl floor covering were delivered to her house. She was not present when these items were delivered to her home. She wanted an 18 foot refrigerator but a 16 foot refrigerator was delivered along with the other items. After the delivery was made, she called appellant's residence and a woman answered the phone and she asked her to have Mr. Vines return her call. She stated that she got appellant's telephone number from Wayne Coates as Mr. Vines' telephone number was not listed in the directory. She stated the purpose in calling Mr. Vines was to tell him she wanted an 18 foot refrigerator. She said she received a telephone call from a man who identified himself as Mr. Vines. The court, upon objection, would not permit her to relate their conversation.

This witness was shown State's Exhibit No. 1, and she identified the exhibit as the check she had signed in blank and given to Wayne Coates. This check had the name 'Gwenda H. Shope' printed in the left upper corner and was signed 'Gwenda H. Shope,' and under her signature was her address and her telephone number in Midfield, Alabama. The check was drawn on her checking account in The First National Bank of Birmingham--Valley Road Branch--and was dated '4/17/1974,' and it was payable to 'Donnie Vines in the amount of $360.00.' The original check is before us and shows that it was endorsed by 'Donnie Vines.' This witness further testified that after signing this check in blank and giving it to Coates, she did not see it again until after it had cleared her bank. She also testified that she sold the refrigerator to a man named 'Letson.'

Sergeant David A. Nichols of the Hueytown Police Department was put in charge of investigating the stolen property. He contacted Mr. R. V. Hubbard who told him the missing property was three rolls of green shag carpet, one roll of vinyl floor covering and one G. E. Refrigerator, gold in color, serial number FP 643547. In the course of his investigation he went to the residence of Gwenda Shope in company with Mr. Hubbard and Sergeant Eddings of the Bessemer Sheriff's Office. He testified that they walked up the driveway to the house and saw three rolls of carpet in the carport. Mr. Hubbard looked at the rolls of carpet and stated it was his carpet. He knocked on the door and had a conversation with Mr....