Weeks v. State, 4 Div. 92
| Decision Date | 31 May 1983 |
| Docket Number | 4 Div. 92 |
| Parties | Arthur Lee WEEKS v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Julius H. Hunter, Jr., Phenix City, for appellant.
Charles A. Graddick, Atty. Gen., and Billington M. Garrett, Asst. Atty. Gen., for appellee.
Appellant was indicted by the Russell County Grand Jury for the offense of robbery in the first degree. The jury returned a verdict of guilty and, after a sentencing hearing, appellant was sentenced as a habitual offender to life imprisonment without parole. Appellant does not raise the sufficiency of the evidence as an issue on appeal.
Mr. David Lee, age seventy-one, testified he was robbed at gun point by appellant and one accomplice at his home in Phenix City, Alabama, on April 26, 1982. About 4:00 p.m., appellant and his companion appeared in Mr. Lee's yard and requested some water to drink. Mr. Lee went inside from his porch to get the water, but became suspicious when the men attempted to follow him into the house. He testified he recognized the accomplice, Ivory Alexander, having seen him once before. He had never seen appellant, however, before that afternoon.
Mr. Lee returned to the porch with the water the men had requested. He sat in a porch chair, at which time Alexander grabbed him and jerked him from the chair to the floor, hitting Mr. Lee's head on the door in the process. As Alexander pinned Mr. Lee's shoulders to the floor, appellant held a pistol on him with one hand, while he searched his pockets with the other hand. Mr. Lee testified that appellant took approximately $1,100 in cash from him. The men then released him and fled the scene on foot.
Mr. Lee stated he was able to pick appellant's photograph out of a police photographic array, and, as well, identified appellant in a police lineup on two occasions.
Mr. Homer Lockhart testified he was at his place of business on the afternoon of April 26, 1982, when he heard Mr. Lee yelling for help. After traveling the short distance to Mr. Lee's house on foot, Mr. Lockhart observed two men leave Mr. Lee's porch and very quickly walk away.
Mr. Lockhart identified appellant in court as one of the two men he saw leaving Mr. Lee's. He further stated that he had seen the barrel of a pistol in appellant's hand on the afternoon of the robbery. Mr. Lockhart also stated that he was able to positively identify appellant's photograph from a photographic array in the possession of the police.
Appellant attempted to establish an alibi defense by presenting the testimony of two friends who testified appellant may have been with them on the afternoon of the robbery, although they had trouble recalling the exact date. As well, appellant presented the testimony of Ivory Alexander, who stated that, prior to appellant's trial, he had pled guilty to a charge of attempt to rob which had arisen out of the robbery of Mr. Lee on April 26, 1982. Alexander admitted robbing Mr. Lee on that date with the aid of an accomplice, but denied that appellant was the accomplice.
Finally, appellant took the stand in his own behalf and denied having any involvement in the robbery. He testified he was visiting with his two friends, who testified earlier at trial, on the afternoon the crime was committed.
Appellant contends he was denied effective assistance of counsel because, prior to trial, his counsel filed with the trial court an affidavit signed by the appellant which stated the following:
As well, appellant's counsel accompanied the filing of the affidavit with this oral statement:
"I would further like to indicate for the record that I have had the occasion to interview all the witnesses to be called by the state and all the witnesses that the defendant has in fact requested that I subpoena, and the trial of this matter is contrary to advice of counsel."
Appellant admits that the jury members were not present during this statement, and that they had no knowledge whatsoever of either the affidavit or the oral statement by appellant's counsel. His sole contention is that the attorney's actions in filing the affidavit indicated he believed appellant was guilty, thereby prejudicing the trial judge against appellant. Thus, appellant argues, the trial judge, who set "the tone and mood" of the trial, may have "subconsciously become annoyed" with the appellant for refusing to acknowledge his guilt, in order to save the State the time and expense of a trial.
Appellant's argument of denial of effective assistance of counsel, as based upon the allegation of potential bias on the part of the trial judge, is entirely specious, speculative, and without support in the record. Appellant does not proffer any act or tendency of the trial judge during trial which indicated any bias or prejudice against the appellant. He offers no evidence of, and does not allege in brief, any lack of diligence or commitment by his counsel in his representation of appellant at trial. Our review of the record reveals no evidence of such failure by the trial judge or by appellant's trial counsel.
Appellant has failed to demonstrate that his counsel's actions reduced his trial to a sham or a mockery, or that he was denied reasonably effective assistance of counsel. Sheehan v. State, 411 So.2d 824 (Ala.Cr.App.1981). While appellant's counsel might well have waited until after trial to submit the affidavit, we find no error of constitutional magnitude in his action. While the inference of "presumed guilt" attached to his counsel's actions by appellant might be drawn, the affidavit and statement may equally be viewed as indicating merely the sound advice of his trial counsel, especially in view of that which his client had to lose in the event a guilty verdict was returned by the jury.
Appellant asserts the trial court erred in overruling his objection to the following statement made by the prosecutor during closing argument:
App...
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Kinder v. State
...The comment made by the prosecutor was a legitimate inference drawn from the evidence and, therefore, proper. Weeks v. State, 432 So.2d 528, 530 (Ala.Cr.App.1983); Long v. State, 446 So.2d 658, 661 (Ala.Cr.App.1983); Green v. State, 389 So.2d 537, 541 (Ala.Cr.App.), cert. denied, 389 So.2d ......
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Middleton v. State, 4 Div. 430
...from the evidence which the prosecutor was entitled to make. Henry v. State, 355 So.2d 411 (Ala.Cr.App.1978)." Weeks v. State, 432 So.2d 528, 530 (Ala.Cr.App.1983). Thus, where a prosecutor remarked during his closing argument that " 'he [appellant] was out there selling to teenagers,' " th......
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Hunt v. State
...Accordingly, Hunt's objection was overruled without error. See Emerson v. State, 281 Ala. 29, 198 So.2d 613 (1967); Weeks v. State, 432 So.2d 528 (Ala.Cr.App.1983). Hunt further asserts the impropriety of the prosecutor's comment on the ground the comment was made during the prosecutor's re......