Wilcox v. State

• Decision Date: 29 July 1980
• Docket Number: 8 Div. 331
• Citation: 401 So.2d 789
• Parties: Eddie Dean WILCOX, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 789

401 So.2d 789

Eddie Dean WILCOX, alias v. STATE.

8 Div. 331.

Court of Criminal Appeals of Alabama.

July 29, 1980.

Rehearing Denied Aug. 19, 1980.

John Mark McDaniel of McDaniel & McDaniel, Huntsville, for appellant.

Charles A. Graddick, Atty. Gen. and Charles M. Allen, II, Asst. Atty. Gen., for the State.

TYSON, Judge.

The grand jury returned a three count indictment against the appellant, Eddie Dean Wilcox, charging him with second degree burglary, grand larceny, and buying, receiving or concealing stolen property in connection with a break-in and theft of certain personal property from the mobile home of one Andrew Roberts. Wilcox pleaded "not guilty" to all counts, and at trial was convicted by a jury on the count for grand larceny. The court, after reviewing the past records of appellant, sentenced him to serve ten years in the penitentiary. Appellant's motion for new trial on the issues here asserted was denied by the trial court; hence, this appeal. Appellant has been represented at all stages by retained counsel.

Andrew Roberts testified that, on June 1, 1979, he and his wife, Kelly, were residing in a mobile home located at 353 Ruth Circle in Huntsville, Alabama. On this night he and his wife left their trailer home at about 9:00 o'clock. Roberts stated that he had secured the trailer by locking the windows and doors, but that upon his return at 4:30 the next morning he found the interior of his trailer in disarray. Further, he discovered that the "back door was bent ... the lock was broken, and the facing where the door-lock bar was, it was broken" (R. 10). Mr. Roberts ascertained his missing property as a Sears nineteen inch color television set, two car stereo speakers, a quantity of jewelry, a J. C. Penney hair dryer, and a bowling ball with bag. The value of these items was approximately $750.00. The authorities were duly notified. Mr. Roberts then testified that a few weeks after this incident he saw a girl at a club where his wife, Kelly Roberts, worked, wearing one of the necklaces which had been taken with the other jewelry. He identified the girl as Donna Pitts, and subsequently identified two State's exhibits as photographs depicting the items of stolen jewelry. Roberts pointed out the necklace that he saw Donna Pitts wearing.

Diane Campbell, eighteen years of age, testified that she knew the appellant, also Andrew Roberts and Kelly Roberts. She stated that, on the night of June 1, 1979, she had been present at an apartment with appellant, Eddie Dean Wilcox, Donna Pitts, Jerry and Ray Campbell, but had left with appellant at around midnight. See testified that Wilcox had told her he was going out to some friends' trailer to get some money, but that he did not identify the friends. Subsequently, the witness drove Wilcox and one Martin out to the trailer park in Martin's car, with appellant giving the directions. Upon reaching the location of the park, the witness, Diane Campbell, was directed to drive back behind the park into a large field and stop near a trailer. She testified that Wilcox and Martin left the car, and that Wilcox instructed her to wait in the car for them. She then witnessed Wilcox and Martin approach a darkened trailer, heard some "banging around," and eventually saw Wilcox return with a television set and other items. Diane Campbell stated that she saw Wilcox enter the trailer and emerge with the items. After Wilcox's return to the car, they all proceeded to Wilcox's brother's home, with Martin driving. When they reached the house, appellant unloaded all of the items except some jewelry into his brother's garage, and returned to the car with some money. Diane Campbell identified Wilcox's brother, and stated that he was present, though he did not help unload the car. The group then returned to the apartment, whereupon appellant distributed necklaces to the witness, Donna Pitts and Ray Campbell. Diane Campbell stated that she no longer had the necklace, having subsequently given it to another girl. She denied knowing anything of appellant's purposes in going to the Roberts' trailer that night.

Jessie Ray Campbell, age nineteen, testified for the State that he was Diane Campbell's brother, that he knew Mr. and Mrs. Roberts, and that he had been at the apartment on the night of June 1, 1979, with Wilcox, Diane Campbell and his girl friend Donna Pitts. He witnessed Wilcox and Diane Campbell leave around midnight, and was present when they returned some time later. Upon his return, Wilcox removed a number of necklaces from his pocket and threw them onto a bed, inviting Donna Pitts to "get her a couple" (R. 39). This Donna Pitts did, and she gave one to him. Jessie Ray Campbell denied knowing the necklace was stolen, and stated that he wore it until several weeks later when he returned the necklace to Kelly Roberts. Campbell identified the necklace from the photographs.

Donna Pitts, sixteen, testified that she, too, was present at the apartment on June 1, 1979, when Wilcox and Diane Campbell left, that appellant, upon his return, laid a "bunch of necklaces" (R. 47) on a bed, and that she then picked two out. Donna Pitts gave one to Jessie Ray Campbell and wore the other until she returned it to Kelly Roberts. Donna Pitts identified the necklaces from the State's photographs.

The final State's witness was Roger Grub, a criminal investigator with the Madison County Sheriff's Department. He testified that he had investigated the break-in at the Roberts' trailer, and had taken the photographs of the recovered necklaces.

At this point the State rested, and appellant moved to exclude the State's evidence and to require the State to elect under which count it would seek a conviction. These motions were overruled. Appellant offered no witnesses, and did not take the stand himself.

I

The appellant initially asserts that the trial court erred in failing to compel an election by the State as to which count of the indictment it was seeking a conviction. The claim that the State is required to elect in instances such as this, where an indictment charges different kindred offenses in the same transaction, is without basis in our law. It has long been held that different offenses of the same character may be properly joined in a single indictment:

"A careful solicitor should always frame the indictment with as many counts as may be necessary to meet the different phases the evidence may assume. Embezzlement and larceny, burglary and larceny, larceny and receiving stolen property, and offenses of like character may properly be joined in separate counts in the same indictment...." Orr v. State, 107 Ala. 35, 18 So. 142 (1895); Rose v. State, 117 Ala. 77, 23 So. 638 (1898); Perry v. State, 25 Ala.App. 224, 143 So. 835, cert. denied, 225 Ala. 441, 143 So. 836 (1932); McDaniel v. State, 30 Ala.App. 447, 7 So.2d 583 (1942).

As noted by our Supreme Court in Deason v. State, 363 So.2d 1001 (Ala.1978), "(T)his is permissible under our statute (§ 15-8-52, Code of Alabama 1975) ... and places no obligation upon the prosecution to elect beforehand which of those offenses it intends to prove." This situation is to be distinguished from one in which the indictment alleges one offense and different instances of that offense are made the subject of proof by the prosecution; in such instances the court should compel election:

" 'The court will not exercise its power to compel an election unless it appears either from the indictment or the evidence that an attempt is made to convict the accused of two or more offenses growing out of separate and distinct transactions. Mayo v. State, 30 Ala. 32; Wooster v. State, 55 Ala. 217.' Butler v. State, 91 Ala. 87, 9 South. 191." Brooms v. State, 197 Ala. 419, 425, 73 So. 35, 37 (1916) (Mayfield, J., concurring); Deason v. State, supra.

In the instant case, the counts of the indictment charged offenses of the same character stemming from a single transaction, i. e., the breaking and entering of the Roberts' trailer and the theft of their property. The State was not required to elect the particular count under which it would seek an indictment, and the trial court was not in error in refusing appellant's motion to compel such election. The decision of this Court in Jones v. State, Ala.Cr.App., 373 So.2d 1221, cert. denied, Ala., 373 So.2d 1225 (1979), relied upon extensively by appellant, is factually inapposite to the case presented here.

II

Appellant next contends that the testimony of Diane Campbell, Donna Pitts and Jessie Ray Campbell should have been excluded because these witnesses were actually accomplices, and their testimony was not corroborated as required by statute, citing § 12-21-222, Code of Alabama 1975. Specifically, appellant argues that the testimony of these witnesses establishes that Diane Campbell was present at the scene of the break-in, and that she, Donna Pitts and Ray Campbell all accepted and wore pieces of stolen jewelry.

It has often been stated by our appellate courts that a witness is to be considered an accomplice for the purposes of the statute if he or she could have been indicted and convicted for the offenses charged, whether as principal or accessory. Miller v. State, 290 Ala. 248, 275 So.2d 675 (1973); Mills v. State, Ala.Cr.App., 367 So.2d 547, cert. denied, Ala., 367 So.2d 550 (1978), cert. denied, 444 U.S. 852, 100 S.Ct. 105, 62 L.Ed.2d 68 (1979). This determination may be one of law for the court or of fact for the jury, dependent upon the circumstances, and where there is some doubt or question as to whether a witness is an accomplice, the issue is for the jury. Yarber v. State, Ala.Cr.App., 375 So.2d 1229 (1978); Jacks v. State, Ala.Cr.App., 364 So.2d 397, cert. denied, Ala., 364 So.2d 406 (1978); Daniels v. State, 50 Ala.App. 88, 277 So.2d 364 (1973); Skumro v. State, 234 Ala. 4, 170 So. 776 (1936).

As to Diane Campbell, we find that the testimony indicates that she drove appellant and another...