Williams v. State, 6 Div. 876
| Decision Date | 17 April 1979 |
| Docket Number | 6 Div. 876 |
| Citation | 369 So.2d 910 |
| Parties | Richard WILLIAMS, alias v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Darryl C. Hardin, Tuscaloosa, Attorney of record, did not file brief.
William J. Baxley, Atty. Gen., and Milton E. Belcher, Asst. Atty. Gen., for the State.
Appellant was convicted of robbery and assault with intent to murder and sentenced to 125 years imprisonment under an indictment consisting of three counts. The case was submitted to the jury on the robbery and the assault with intent to murder charges, both of which grew out of the same transaction. This was the second trial which resulted from the events surrounding the robbery of Warehouse Groceries in Tuscaloosa, Alabama, on February 16, 1977. See Williams v. State, Ala.Cr.App., 359 So.2d 1184, and Mosley v. State, Ala.Cr.App., 357 So.2d 390.
Briefly, the pertinent facts are that, on the above date, Glenda Blaich and her family went to Warehouse Groceries in Tuscaloosa, Alabama. After her husband and son entered the grocery store, she heard a noise that "sounded like firecrackers," which called her attention to the store. She noticed two men moving about the manager's office in the store.
About the same time, a young man, Jack Alexander, approached the store. Mrs. Blaich stopped him and informed him of what was taking place in the store. At that time, Alexander walked to Mrs. Blaich's car and hid himself behind the door. Subsequently, the appellant and two of his companions came to the car, and the appellant placed a gun at Alexander's head and took his wallet.
Almost immediately after the appellant and his companions turned away, Alexander heard a shot which pierced the windshield of the car. He testified that after the shot, he saw the glass from the windshield dispersed over Mrs. Blaich's hair. Mrs. Blaich stated that, after she heard the shot, she felt the "wind" caused by the shot, pass over her back.
Mrs. Blaich and Mr. Alexander each made a positive identification of the appellant as the person who robbed them and fired the shot in Mrs. Blaich's direction.
Officer Fondren the Tuscaloosa Police Department was off duty with another officer in the vicinity of the store and, according to Fondren, he heard a shot in the direction of the grocery. When he arrived at the entrance of the grocery store parking area, he noticed a care leaving the parking lot at a high rate of speed. Fondren testified that he blocked the car's exit, and it went into a ditch and stopped.
The appellant, who was driving the car, was arrested and, in the car, the police officers found an assortment of weapons loaded with "armor-piercing" ammunition. They also found a wallet in a paper sack, which contained an ID card belonging to Jack Alexander.
At trial, the appellant did not make a motion to exclude the State's evidence or for a new trial. On his conviction in this prosecution, the defendant gave oral notice of appeal. This appeal is submitted on brief of appellee and on the merits.
From a close reading of the record, the issues presented for review appear as follows: (1) whether appellant's plea of autrefois convict, filed prior to trial, was properly struck by the trial court, and (2) whether comments by the prosecuting attorney, to the effect that appellant's co-defendant had been convicted, which were objected to by defense counsel, were prejudicial to appellant and constituted grounds for a mistrial.
Christian v. State, 21 Ala.App. 324, 108 So. 86 states:
"In order to sustain a plea of former jeopardy . . . it must appear with certainty that the offense for which the defendant was first tried was identical, to a common intent, with the charge in the second indictment . . . and it would appear essential that the record of the first indictment or charge should be set out in full."
Regarding the appellant's plea of former jeopardy we have examined the indictment in Williams v. State, Ala.Cr.App., 359 So.2d 1184, and found the following: It was a five-count indictment charging robbery, assault with intent to murder Bank Sims, assaulting a law enforcement officer with a weapon, robbery of Randall Russell and assault with intent to murder Randall Russell.
All of the offenses were separate and distinct from those under consideration in the instant appeal. Although these offenses had the same origin as those in present appeal. The facts in the case at bar were not precisely the same.
The basis for appellant's plea was that testimony concerning the offenses charged in this prosecution had been given in the previous trial. The trial judge, who was also the judge at the prior trial, recalled that this was true, but that the testimony was allowed in as part of the res gestae. This contention has been fully met and treated in previous opinions by this court, and the admission of such evidence for this purpose is entirely proper. See Mason and Franklin v. State, 42 Ala. 532; Gardner v. State, 17 Ala.App. 589, 87 So. 885, and authorities cited therein.
Given the above facts, we find that the trial court was correct in granting the State's motion to dismiss appellant's plea.
Defense counsel made a motion for a mistrial in response to the prosecuting attorney's question on re-direct examination, as follows:
Immediately after defense counsel's motion, the court questioned the jury to determine whether there was:
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Whitt v. State, CR-96-0349.
...104 So. 444 (1925) (Prosecutor's comment that, `The other man had pleaded guilty'), in the State's case-in-chief, see Williams v. State, 369 So.2d 910 (Ala.Crim.App.1979) (State's witness asked whether he testified in case when co-defendant was convicted); Lane v. State, 40 Ala.App. 174, 10......
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