Weaver v. State

• Decision Date: 02 May 1997
• Docket Number: CR-94-1903
• Citation: 710 So.2d 480
• Parties: Ronald WEAVER and Morris Lawson v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 480

710 So.2d 480

Ronald WEAVER and Morris Lawson v. STATE.

CR-94-1903.

Court of Criminal Appeals of Alabama.

May 2, 1997.

Rehearing Denied Aug. 22, 1997.

Certiorari Denied (Weaver) Feb. 13, 1998

Alabama Supreme Court 1962021.

Certiorari Denied (State) Feb. 13, 1998

Alabama Supreme Court 1961991.

James M. Kendrick, Birmingham, for Ronald Weaver.

E. Britton Monroe, Birmingham, for Morris Lawson.

Bill Pryor, atty. gen., and Hense R. Ellis II, deputy atty. gen., for appellee.

LONG, Presiding Judge.

The appellants, Ronald Weaver and Morris Lawson, were convicted of robbery in the first degree. Weaver was sentenced to 20 years' imprisonment, and Lawson was sentenced to 21 years' imprisonment. We address the issues raised by each appellant separately.

ISSUES RAISED BY WEAVER

I.

Weaver first contends that the trial court erred in consolidating his case with Lawson's case. Specifically, Weaver argues that the joint trial prejudiced him and that, therefore, his conviction should be reversed.

Rule 13.3, Ala.R.Crim.P., provides for the consolidation of defendants for trial. Rule 13.3(c) states, in pertinent part:

"If offenses or defendants are charged in separate indictments, informations, or complaints, the court on its own initiative or on motion of either party may order that the charges be tried together or that the defendants be joined for the purposes of trial if the offenses or the defendants, as the case may be, could have been joined in a single indictment, information, or complaint."

Rule 13.3(b), Ala.R.Crim.P., provides, in pertinent part:

"Two or more defendants may be charged in the same indictment, information, or complaint:

"(1) If they are alleged to have participated in the same act or transaction; or

"(2) When the several offenses are part of a common conspiracy, scheme, or plan; or

"(3) When the several offenses are otherwise so closely connected that it would be difficult to separate proof of one from proof of the other."

The test for determining whether a trial court erred in consolidating criminal defendants for trial is whether the defenses presented by one defendant were so "antagonistic that [the defenses] are 'irreconcilable and mutually exclusive' and 'the jury, in order " ' "Even if defendants attempt to cast blame on each other, severance is not necessarily required." ... "The burden is on defendants to show that an antagonistic defense would present a conflict 'so prejudicial that defenses are irreconcilable, and the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty.' " ' "

to believe one defendant, must necessarily disbelieve the other defendant's defenses.' " Hill v. State, 481 So.2d 419, 424 (Ala.Cr.App.1985).

Jones v. State, 672 So.2d 1366, 1370 (Ala.Cr.App.1995) (citations omitted).

The trial court is allowed much discretion in deciding whether to consolidate cases, and this court will not overturn its decision absent an abuse of discretion by the court. Curry v. State, 601 So.2d 157, 160 (Ala.Cr.App.1992); Gladden v. State, 551 So.2d 1141 (Ala.Cr.App.1989). In order to show an abuse of discretion, the appellant must show that consolidation resulted in an unfair trial and that the appellant " 'suffered compelling prejudice against which the trial court was unable to afford protection.' " Curry, 601 So.2d at 160 (quoting United States v. Webster, 734 F.2d 1048, 1052 (5th Cir.), cert. denied sub nom., Hoskins v. United States, 469 U.S. 1073, 105 S.Ct. 565, 83 L.Ed.2d 506 (1984)).

In the instant case, the offenses charged against Weaver and Lawson in the separate indictments arose out of the same incident: the armed robbery of the Subway sandwich restaurant in Birmingham on April 13, 1993. The state's evidence tended to show the following. Lawson entered the restaurant with a gun, pointed the gun at an employee's head, and demanded the restaurant's money. The employee gave Lawson the money. Weaver did not enter the restaurant, but instead drove the getaway car as a part of the planned robbery. Weaver's defense at trial was that, although he was in his car in the area of the robbery when the robbery occurred, he had no knowledge of the robbery or of Lawson's intent to commit the robbery. Lawson's defense was essentially that he was not present near the robbery scene and that he, therefore, was not a participant in the robbery. After reviewing the evidence, we do not believe that the defenses of Weaver and Lawson were "irreconcilable and mutually exclusive" so as to preclude a joint trial.

Donna Thomas testified at trial that at around noon on April 13, 1993, she saw a black male running near the Subway restaurant, carrying a handgun and a clear plastic Subway bag filled with money. Thomas followed the individual for a short distance in her automobile and saw him get in the passenger side of a car being driven by someone else. ¹ The car took off at a high rate of speed, as if, according to Thomas, its occupants were attempting to "get away." Thomas took down the car's tag number and gave it to police. Ownership of the car was traced to Weaver. Weaver's postarrest statement to police, wherein he acknowledged that he was driving his car near the Subway at the time of the robbery, was admitted in evidence at trial. However, Weaver denied in the statement that he had participated in the robbery in any way. Any references to Lawson in Weaver's statement were removed before the statement was allowed to be presented to the jury.

Lawson gave a post-arrest statement to police in which he admitted committing the robbery. Lawson's statement was admitted in evidence at trial over his objection. The statement did not implicate Weaver as a participant in the robbery and, in fact, did not even mention Weaver. At trial, Lawson's counsel, in cross-examining Kim Sullivan, a Subway employee who was in the restaurant during the robbery, elicited evidence that Sullivan had identified Weaver in a police photographic lineup as the gunman who had entered the restaurant during the robbery. In court, Sullivan could not identify Weaver or Lawson as the gunman. A fair reading of the record suggests that evidence of Sullivan's identification of Weaver in the photographic lineup was more valuable to Weaver's defense, then, was not irreconcilable with Lawson's. As the state correctly argues in its brief to this court, the jury could believe that Weaver did not know about the robbery and could also believe that Lawson was not present at the robbery. Weaver has failed to show that he suffered "compelling prejudice" as a result of consolidation. No abuse of discretion is evident in this matter.

Lawson than it was harmful to Weaver, because it was never the state's position that Weaver was present inside the restaurant and Lawson's defense was that he was not a participant in the robbery and that he had not been near the robbery scene. Lawson's counsel never explicitly sought to accuse Weaver of being the actual gunman inside the restaurant, ² and the thrust of counsel's cross-examination of Sullivan concerning the photographic lineup was to exculpate Lawson rather than to accuse Weaver of being the gunman.

II.

Weaver also contends that the trial court erred in allowing a state's witness, Officer Charlie Johnson, a Birmingham police officer and one of the lead investigators in the case, to remain in the courtroom during testimony of other witnesses despite Weaver's requested invocation of "the rule" excluding potential witnesses from the courtroom.

Rule 9.3(a), Ala.R.Crim.P., authorizes the trial court to exclude potential witnesses from the courtroom prior to or during proceedings. The Committee Comments to Rule 9.3(a) state that "[t]he power to exclude and separate witnesses is entirely a matter of discretion with the trial court." The Comments cite Teague v. State, 245 Ala. 339, 16 So.2d 877 (1944); and Beddow v. State, 39 Ala.App. 29, 96 So.2d 175 (1956), cert. denied, 266 Ala. 694, 96 So.2d 178 (1957), cert. denied, 355 U.S. 930, 78 S.Ct. 412, 2 L.Ed.2d 414 (1958). " '[I]nvestigators or police officers commonly are exempted from the rule.' J. Colquitt, Alabama Law of Evidence § 6.15 at 333 (1990). See also C. Gamble, McElroy's Alabama Evidence § 286.01 (4th ed. 1991). See also Rule 9.3, Ala.R.Crim.P." Taylor v. State, 666 So.2d 36, 66 (Ala.Cr.App.1994), aff'd, 666 So.2d 73 (Ala.1995), cert. denied, 516 U.S. 1120, 116 S.Ct. 928, 133 L.Ed.2d 856 (1996). "Alabama appellate courts have time and again refused to hold it an abuse of discretion on the part of a trial court to allow a sheriff, police chief, or similarly situated person who will later testify to remain in the courtroom during trial." Ex parte Lawhorn, 581 So.2d 1179, 1181 (Ala.), cert. denied, 502 U.S. 970, 112 S.Ct. 445, 116 L.Ed.2d 463 (1991) (citing several Alabama cases holding to same effect).

Weaver does not present any convincing argument that the trial court abused its discretion by exempting the law enforcement officer from "the rule" and allowing him to remain in the courtroom during the testimony of other witnesses. We find no reversible error in this regard.

For the reasons stated above, we affirm the judgment of the trial court as to Weaver's conviction.

ISSUES RAISED BY LAWSON

III.

Lawson, who was 16 years old at the time of the offense, contends that his statement to police should have been suppressed because, he says, it was obtained after he requested to see his parents and he was not allowed to see them before making the statement. Rule 11(B), Ala.R.Juv.P., ³ enumerates the rights of a child who is in custody but has not yet been questioned (the so-called "super-Miranda" rights). It provides as follows:

"Before the child is questioned about anything concerning the charge on which the child was arrested, the person asking the questions must inform the child of the following rights:

"(1) That the child has the right to counsel;

"(2) That if the child is unable to pay...