Wesley v. State, 1 Div. 932

• Decision Date: 26 March 1985
• Docket Number: 1 Div. 932
• Citation: 481 So.2d 1155
• Parties: Paul WESLEY v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1155

481 So.2d 1155

Paul WESLEY v. STATE.

1 Div. 932.

Court of Criminal Appeals of Alabama.

March 26, 1985.

Rehearing Denied April 23, 1985.

Paul M. Harden, Monroeville, for appellant.

Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for appellee.

TYSON, Judge.

Paul Wesley was indicted for robbery in the first degree in violation of § 13A-8-41, Code of Alabama 1975. The jury found the appellant "guilty as charged" and the trial court sentenced him to 10 years' imprisonment in the penitentiary.

Ann Broughton testified that her husband, A.G. Broughton, and his brother own and operate a general merchandise store in Perdue Hill, Alabama. On July 15, 1982 she arrived at the store at approximately 7:15 a.m. to begin work. At approximately 8:00 a.m. the appellant entered the store and bought some sweet rolls. At this time her husband was working in the back of the store.

The appellant entered the store a second time that morning and bought a can of brake fluid. Approximately five minutes after the appellant left the store, two men came in the store. When the two men entered the store, one of them walked behind the counter to the point where she was working, grabbed her, and began spraying "mace" on her. Her husband heard the "commotion" in the store, stood up and asked what was going on. At this point one of the men fired a pistol and the men ran out the door. Mrs. Broughton stated that the time of this incident was approximately 9:45 a.m.

Mrs. Broughton stated that she had known the appellant for approximately 10 years and that he had done business at the store during that time. She further stated that she did not see the appellant with the two men who entered the store.

A.G. Broughton testified that on the morning of July 15, 1982, he was in the store's office talking on the telephone when he heard a "commotion" around the cash register. He stood up and asked what was going on and "the Jones boy" shot at him and ran out the door.

Carrie Mae Calhoun testified that she knew the appellant. On the morning the store was robbed, the appellant, Iruby Lee Jones and Floyd English came to her home, arriving between 8:00 and 9:00 a.m. The men arrived in Paul Wesley's car. They came into her home and sat on her porch drinking whiskey for approximately 45 minutes. The men then left in Wesley's vehicle.

Edward Tucker testified that he went to Carrie Mae Calhoun's house on the morning of the robbery. While he was there he saw the appellant, Jones, and English sitting on Calhoun's porch.

Carrie Mae Calhoun was recalled to the stand and stated the afternoon before the day of trial, the appellant came to her house. They talked about the case and the appellant told her to testify that he had not been at her home on the morning of the robbery. He told her to testify that only Jones and English had been at her home that day.

Iruby Lee Jones testified that he is serving time for armed robbery in connection with the incident on July 15, 1982. On the Sunday before the robbery, the appellant went to Atmore and talked with Floyd English. On Monday Jones and English drove to the appellant's home and the three men went to rob the store but there were too many people in the store. Jones and English returned to the appellant's home on Thursday, July 15, 1982 at approximately 6:30 a.m. The appellant arrived at his home that morning around 7:15 a.m. The appellant took the men to the store at that time but they did not rob the store because there were people there. They then drove to Carrie Mae Calhoun's where they sat and drank a bottle of whiskey. After approximately 45 minutes they left Calhoun's and went back to the store. The appellant parked his car near the store and went inside and bought some brake fluid. The appellant returned to the car, drove off a short ways, then told Jones and English "now is the time" to rob the store.

Jones and English got out of the car and went inside the store. English grabbed Mrs. Broughton and sprayed her with mace. Mr. Broughton then came out of the back of the store and Jones fired a pistol. Jones and English then ran out of the store, got in the car with appellant, and went to appellant's house.

Paul Wesley testified that he went to the Broughton's store on two occasions the day of the robbery. He denied that he ever went to Atmore to talk with Floyd English. He denied robbing the store and he denied having been with Jones and English on the morning of the robbery. He said that he went to Carrie Mae Calhoun's house the morning of the robbery, but he was not with Jones and English. He further stated that on the two occasions he went to Broughton's store he was alone.

Appellant then called a number of witnesses who testified that appellant had a good reputation for truth and veracity in the community.

I

The appellant contends that he was convicted on the uncorroborated evidence of an accomplice and as such the trial court erred in failing to exclude the evidence and to grant a motion for judgment of acquittal.

We agree with the appellant that one may not be convicted on the uncorroborated testimony of an accomplice. However, "[s]uch corroborative evidence does not have to be very strong, or even sufficient to support a conviction, but merely must logically tend to link the accused with the offense. Miller v. State, [290 Ala. 248, 275 So.2d 675 (1973) ], supra." Ex parte Scott v. State, 460 So.2d 1371, 1373 (Ala.1984); Jackson v. State, 451 So.2d 435 (Ala.Crim.App.1984). "It is not necessary that such evidence be direct and conclusive; circumstantial evidence from which the guilt of the defendant can reasonably be inferred is sufficient. Merriweather v. State, 364 So.2d 374 (Ala.Crim.App.1978), cert. denied, 364 So.2d 377 (Ala.1978)." McConnell v. State, 429 So.2d 662, 666 (Ala.Crim.App.1983); Craig v. State, 376 So.2d 803 (Ala.Crim.App.), cert. denied, 376 So.2d 807 (Ala.1979); Ware v. State, 409 So.2d 886 (Ala.Crim.App.1981), writ quashed, 409 So.2d 893 (Ala.1982).

" 'Corroborative evidence need not directly confirm any particular fact nor go to every material fact stated by the accomplice. Bridges v. State, 52 Ala.App. 546, 295 So.2d 266 (1974); Dykes v. State, 30 Ala.App. 129, 1 So.2d 754 (1941). Corroborative evidence need not directly connect the accused with the offense but need only tend to do so.... In certain instances, association with the accomplice tending to show the accused's proximity, chronologically and geographically, to the alleged offense may furnish sufficient corroboration.' " (Citations omitted). Ware, supra at 891.

"Sufficient corroboration of testimony of an accomplice may be furnished by a tacit admission by defendant, by suspicious conduct of defendant, and association of defendant with accomplice, or by defendant's proximity and opportunity to commit the crime." Early v. State, 392 So.2d 548 (Ala.Crim.App.1980) cert. denied, 392 So.2d 551 (Ala.1981); Ware, supra; Yarber v. State, 437 So.2d 1319 (Ala.Crim.App.1981), reversed on other grounds, 437 So.2d 1330 (Ala.1983), on remand, 437 So.2d 1337 (Ala.Crim.App.1983). Further, "in determining the sufficiency of corroborative evidence testimony the entire conduct of an accused within reasonable time limits of the date of the offense may be examined." Fuller v. State, 34 Ala.App. 211, 215, 39 So.2d 24, 27, cert. denied, 252 Ala. 20, 39 So.2d 29 (1949); Jacks v. State, 364 So.2d 397 (Ala.Crim.App.), cert. denied, 364 So.2d 406 (Ala.1978).

The testimony in this case reveals that the Broughton store was robbed by Iruby Lee Jones and Floyd English. Jones testified that the appellant was an accomplice in this robbery. Ann Broughton stated that the appellant was in her store two times on the morning of the robbery. The appellant first entered the store at approximately 8:00 a.m. Between 9:30 and 9:45 a.m., the appellant reentered the store and bought a can of brake fluid. Approximately five minutes after appellant left, Jones and another man came into the store and committed the crime.

Carrie Mae Calhoun testified that on the morning of the robbery the appellant, Jones, and English came to her home between 8:00 a.m. and 9:00 a.m. The three men sat on her front porch and drank whiskey for approximately 45 minutes. They then left her home in appellant's car.

Edward Tucker testified that he observed the appellant, Jones, and English sitting on Calhoun's porch the morning of the robbery.

Carrie Mae Calhoun was recalled to testify and she stated that on the day before trial the appellant came to see her. Appellant told Calhoun to testify that only Jones and English had been at her house the morning of the robbery and that he was not there that day.

Iruby Lee Jones testified in detail of appellant's involvement in the robbery. On the morning in question Jones and English met the appellant at his home. The three men left appellant's home and proceeded to the store in order to rob it. Appellant got out of the car and went in the store, only to return saying there were too many people inside. They then drove to Calhoun's house where they sat around and drank whiskey for approximately 45 minutes. They then left Calhoun's home and went back to the store. Appellant went in the store and came back to the car. They drove a short distance and appellant stopped the car and told Jones and English that it was a good time to rob the store. Jones and English went into the store, committed the crime, and came back to appellant's car and they then drove to appellant's house.

Clearly the evidence in this case was sufficient to reasonably infer this appellant's involvement in the crime at issue. The trial judge was not in error and properly submitted the evidence to the jury.

II

Appellant argues that he was tried and convicted for the crime of first degree robbery without a proper indictment. He alleges that the original indictment charging him with first degree robbery had been amended to "attempted...