Ward v. State

• Decision Date: 21 August 1979
• Docket Number: 4 Div. 741
• Citation: 376 So.2d 1112
• Parties: Billy WARD v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1112

376 So.2d 1112

Billy WARD v. STATE.

4 Div. 741.

Court of Criminal Appeals of Alabama.

Aug. 21, 1979.

Rehearing Denied Oct. 2, 1979.

Kenneth L. Funderburk of Phillips, Funderburk & Davis, Phenix City, for appellant.

Charles A. Graddick, Atty. Gen. and Joseph G. L. Marston, III, Asst. Atty. Gen., for the State.

BOWEN, Judge.

The defendant was indicted and convicted for assault with intent to rob Kenneth Bragg. Alabama Code Section 13-1-46 (1975). Initially convicted at his first trial, the defendant's motion for a new trial was granted. The cause was again tried and a second verdict of guilty was returned. Sentence was fixed at twelve years' imprisonment.

I

The primary issue raised on appeal is whether there was sufficient corroboration of the testimony of Henry Mayes, and admitted accomplice, to support the conviction of the defendant.

Mayes testified that he, Billy Chumbley, and the defendant met with Wayne Chapman and discussed the robbery of Kenneth Bragg in Thomaston, Georgia, sometime in late April or early May of 1975. This meeting was arranged by the defendant.

A short time later another meeting was arranged with Chapman; this time at the Crystal in Columbus, Georgia. From there the four men drove to a location directly behind Bragg's home outside Phenix City, Alabama. Mayes, Chumbley, and the defendant got out of the automobile and walked to a place from which they observed Bragg's home which Chapman had previously described to them. After completing additional reconnaissance of the various locations where Bragg might be located and discovering the type of automobile he drove, Mayes, Chumbley, and the defendant returned to Atlanta and apparently had no further contact with Chapman.

On May 4, 1975, Mayes, Chumbley, and the defendant returned to Columbus and checked into a motel. After some difficulty, they located Bragg's house sometime during that night.

On the morning of May 5th, the three were at a truck stop owned by Bragg and watched him arrive for breakfast.

After failing to locate the house of a friend whom Bragg was dating, they decided to rob Bragg at his home. In the parking lot of Howard Brothers' in Phenix City they stole a dark green late model Mercury automobile and then hid Chumbley's vehicle which they had been using.

The trio drove to Bragg's house. They were disguised as policemen. Mayes had on a baseball cap. They all "had guns visible and also handcuffs were visible" in their belts. Mayes observed Bragg's neighbor, Bob Raines, cutting grass and had to move the stolen Mercury in order to let Mrs. Raines out of her driveway.

Deciding it was "risky to use the stolen car any further" they disposed of it. Once again they returned and hid Chumbley's automobile nearby in some trees near Bragg's home. Then under cover of darkness, they walked to Bragg's home.

Although originally planning to spend the night outside Bragg's home, the cold and their hunger compelled them to leave, seek food at a store in Phenix City, and sleep in Chumbley's automobile.

Between four and five on the morning of May 6, 1975, the trio once again returned to Bragg's home. Each man was masked and armed with a pistol. Inside or in a shack just outside the garage they waited for Bragg to leave for work. When Bragg appeared, Mayes told him to "hold it; that it was a robbery". Bragg, himself armed with a pistol, fired twice before Mayes could use his weapon. Then they "stood and emptied our guns at each other".

His pistol empty, Mayes was the first one out of the garage. The three would-be robbers fled the scene, returned to Chumbley's car, and departed, ultimately returning to Atlanta.

Excluding the testimony of accomplice Mayes, the State subtly corroborated his testimony and spun a web of guilt around the accused.

On May 5, 1975, a dark green 1971 Mercury automobile was stolen from the parking lot of Howard Brothers' in Phenix City. On November 11, 1975, the car was discovered by an Alabama State Trooper in a hidden and wooded site near Bragg's house.

On the afternoon of May 5, 1979, Bob Raines was cutting his grass when he noticed three men in a dark green late model Mercury park at the end of a driveway in Mr. Bragg's yard. All three men got out and "started walking and looking around the area". He and his wife took the men for law enforcement officers because of the handcuffs they wore on their belts. Mr. Raines also noted that they wore baseball caps. Mrs. Raines testified that a couple of them had on baseball caps.

Mrs. Raines had to ask the men to move the Mercury so that she could get out of her circular driveway and go to the store. She identified Mayes as the man who moved the Mercury. Both Mr. and Mrs. Raines positively identified the defendant as being one of the three men.

Mr. Bragg gave a similar description of the attempted robbery as that given by Mayes. The three men were masked and, although he only saw them for an instant, he testified that one of the trio was the same size as the defendant.

The defense was alibi, but the defendant also submitted the testimony of Billy D. Chumbley who took an active part in the attempted robbery. Chumbley's testimony was essentially identical to Mayes up to the events of May 4, 1975. He agreed that the defendant had been present and participated in two meetings with Chapman when the robbery was planned. However Chumbley contended that they called off the plan when they discovered that Chapman was an ex-policeman and that later he, Mayes, and another individual, whom Mayes had recruited, decided to continue the plan without involving the defendant. Chumbley stated that the defendant was not with them on the 4th, 5th, and 6th of May 1975, and did not participate in the actual robbery attempt.

While there is a significant amount of additional evidence to corroborate Mayes' account of how the crime occurred and his truthfulness in general, the above facts constitute the corroborating evidence tending to connect the defendant with the charged crime.

At the outset it must be noted that the defendant did not specifically raise the issue of the sufficiency of the corroboration of the testimony of the accomplice at any time prior to appeal.

"The three usual methods to present the law question of lack of corroboration to the trial court is by (1) a written or oral motion to exclude the state's evidence, or (2) by a written request for the affirmative charge, or (3) by a timely filed and presented motion for a new trial asserting the lack of corroboration as a ground of the motion. Leonard v. State, 43 Ala.App. 454, 192 So.2d 461.

"When none of the above methods is invoked, the trial court has not been presented with an opportunity to rule on this question of law, and therefore cannot be cast in error under the circumstances." Alexander v. State, 281 Ala. 457, 458, 204 So.2d 488, 489 (1967).

The defendant filed no motion for new trial upon this conviction. The record contains no written or oral request for the affirmative charge. The trial court did not charge the jury on the issues of accomplices and corroboration and the defendant announced "satisfied" to the oral charge as given. The oral motion to exclude the State's evidence did not specifically raise the question of the lack of corroboration. The defendant moved to exclude the evidence "on the grounds that the State has not made out its case or carried the burden of proof". Consequently, under the objections raised by the defendant, the question of corroboration was simply not in issue.

Whether there is an accomplice witness and whether he has or has not been corroborated must first be put to the trial judge. Clayborne v. State, 49 Ala.App. 35, 268 So.2d 501 (1972). The trial court must be apprised of the basis for the objection with sufficient particularity to allow an informed decision to be made on the legal issue involved. United States v. Greenfield, 554 F.2d 179 (5th Cir. 1977).

Specific objections or motions are generally necessary before the ruling of the trial judge is subject to review, unless the ground is so obvious that the trial court's failure to act constitutes prejudicial error. Slinker v. State, 344 So.2d 1264 (Ala.Cr.App.1977) . If only a general objection is interposed, or only general grounds are assigned in support of the objection, no error results in overruling the objection unless the evidence is illegal for any purpose and cannot be made legal by other evidence, or by supplying additional evidence. Moates v. State, 40 Ala.App. 234, 115 So.2d 277, cert. denied, 115 So.2d 282 (1959). This same rule holds true for a motion to exclude the State's evidence. It is settled that a motion to exclude without stating any grounds therefor is properly overruled. Turner v. State, 266 Ala. 250, 96 So.2d 303 (1957); Freeman v. State, 350 So.2d 768 (Ala.Cr.App.1977); Gross v. State, 56 Ala.App. 387, 321 So.2d 727, cert. denied, 295 Ala. 403, 321 So.2d 729 (1975).

Nevertheless, in the exercise of an abundance of caution, we have carefully examined the evidence and found that the testimony of the accomplice was corroborated. Both parties recognize that this issue is governed by the rule stated in Kimmons v. State, 343 So.2d 542, 547 (Ala.Cr.App.1977).

"(T)he fact that at or about the time of the commission of the offense with which the accused is charged, he and the accomplice were together, in or near the place where the crime was committed, May, in conjunction with other facts and circumstances, sufficiently tend to...