Yarber v. State

• Citation: 437 So.2d 1319
• Decision Date: 27 October 1981
• Docket Number: 6 Div. 351
• Parties: Samuel YARBER v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1319

437 So.2d 1319

Samuel YARBER v. STATE.

6 Div. 351.

Court of Criminal Appeals of Alabama.

Oct. 27, 1981.

Rehearing Denied Nov. 24, 1981.

Frederick A. Erben of Beddow, Fullan & Vowell, Birmingham, and H. Powell Lipscomb III of Lipscomb & Lipscomb, Bessemer, for appellant.

Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellee.

BOOKOUT, Judge.

Second degree murder; sentence: twenty years' imprisonment.

This is yet another case in a series of cases arising out of the kidnapping and double murder of Mrs. Clarice Knabe and Ronald Harvey White. The instant appeal is from a conviction resulting from appellant's second trial for the murder of Mrs. Knabe. Appellant's conviction in his first trial for murdering Mrs. Knabe was ultimately reversed because of prosecutorial comments on appellant's failure to testify and because a proper predicate as to a chain of identification to certain evidence was not laid. For an appellate history resulting from appellant's first trial for murdering Mrs. Knabe, see Yarber v. State, 375 So.2d 1212 (Ala.Cr.App.1977), reversed, 375 So.2d 1229 (Ala.1978), on remand, 375 So.2d 1231 (Ala.Cr.App.1978), reversed, 375 So.2d 1231 (Ala.1979), on remand, 375 So.2d 1236, (Ala.Cr.App.1979). See also Yarber v. State, 368 So.2d 868 (Ala.Cr.App.), cert. denied, 368 So.2d 871 (Ala.1978); Miles v. State, 343 So.2d 801 (Ala.Cr.App.), cert. denied, 343 So.2d 806 (Ala.1977).

I

Appellant's first contention of error is that he was convicted on the uncorroborated testimony of an accomplice. Appellant argues that Danny Ray Mylar, alias Miles, was an accomplice and that insufficient evidence was presented by the State to corroborate his testimony. Because of our supreme court's decision in Yarber v. State, 375 So.2d 1229 (Ala.1978), upon this exact issue, we find no merit to this contention.

In the case before us, Mylar took the stand but refused to testify based on the Fifth Amendment. The trial court then properly allowed the State to read into evidence Mylar's prior testimony which he gave at appellant's first trial for murdering Mrs. Knabe. Questions and answers were excluded where defense objections had been sustained in the original trial. See Yarber v. State, 375 So.2d at 1220-21, for the details of Mylar's testimony.

The supreme court on review of appellant's first murder trial held that it could not be said that Mylar was an accomplice as a matter of law because he denied his participation in the offense. The supreme court stated: "[I]t is apparent that whether Miles [Mylar] was or was not an accomplice was a disputed fact." 375 So.2d at 1230. We believe it a fair reading of the supreme court opinion that, when there is a "disputed" fact as to whether a witness is or is not an accomplice, a jury question exists. When such a jury question exists, an appellate court cannot categorize that witness to be an accomplice as a matter of law.

Since, in the instant case, the testimony of Mylar which incriminated appellant consisted solely of his testimony at appellant's first murder trial, it thus becomes readily apparent that Mylar cannot now be considered an accomplice as a matter of law. Yarber, 375 So.2d at 1230. If Mylar was not an accomplice as a matter of law at appellant's first murder trial, he cannot be considered an accomplice now, there being no new incriminating testimony by Mylar offered by the State.

Thus, no corroboration of Mylar's testimony was necessary to sustain appellant's conviction. Through Mylar's eyewitness account of appellant's heinous actions, each element necessary to prove second degree murder was sufficiently established. Any conflicting evidence was for the jury to resolve.

However, the supreme court went further in Yarber and found that even if it was assumed that Mylar was an accomplice his testimony was sufficiently corroborated. 375 So.2d at 1231. We have carefully compared the facts in this case with the facts in appellant's first murder trial. Upon review we find that the facts corroborative of Mylar's testimony are almost identical in pertinent part. Again we find, as the supreme court did, that even if it were assumed that Mylar was an accomplice his testimony was sufficiently corroborated.

Corroborative evidence need not be strong or sufficient of itself to support a conviction, the criterion being that it legitimately tend to connect the accused with the offense. Andrews v. State, 370 So.2d 320 (Ala.Cr.App.), cert. denied, 370 So.2d 323 (Ala.1979); Jacks v. State, 364 So.2d 397 (Ala.Cr.App.), cert. denied, 364 So.2d 406 (Ala.1978). Both circumstantial and direct evidence are competent to connect the defendant independently with the crime about which the accomplice has testified. Jacks, supra. As the supreme court stated in Dolvin v. State, 391 So.2d 133, 137 (Ala.1980), quoting from White v. State, 294 Ala. 265, 314 So.2d 857, cert. denied, 423 U.S. 951, 96 S.Ct. 373, 46 L.Ed.2d 288 (1975):

" 'Circumstantial evidence alone is enough to support a guilty verdict of the most heinous crime, provided the jury believes beyond a reasonable doubt that the accused is guilty. Lowe v. State, 90 Fla. 255, 105 So. 829 (1925). Circumstantial evidence is said to be the inference of a fact in issue which follows as a natural consequence according to reason and common experience from known collateral facts. Lowe, supra.' "

In the instant case Alma Vest left the 2010 Lounge at approximately eleven o'clock on the night of the crime. She testified that Mylar, Yarber and the two victims were the only people in the bar when she left. She had earlier observed Mylar, Yarber and Ronald White seated at the bar. White was seated on the middle stool and Mylar and Yarber were seated on either side of him. Mylar was agitating White in some manner. Ms. Vest said White "seemed to be wanting to be left alone" and that he "was trying to get his mind together to study" for his final examinations in college.

Gus Konstant, owner of the lounge, arrived there at approximately 11:10 p.m. He found the front door locked. On going to the rear door, he entered and found the lounge to be deserted, and it appeared to him that a robbery had taken place. Thus, the time span between Yarber being seen with the victims and their kidnapping was only a few minutes--some ten or fifteen minutes.

The fact that the deceased was last seen in the presence of the accused is a circumstance to consider. Kozlowski v. State, 248 Ala. 304, 27 So.2d 818 (1946); Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1978), cert. denied, 368 So.2d 877 (Ala.1979). See also Hayes v. State, 395 So.2d 127 (Ala.Cr.App.1980), cert. denied, 395 So.2d 150 (Ala.1981), where the deceased was seen dancing with the defendant some fifteen minutes before being last seen alive by her friends. Additionally, sufficient corroboration of the testimony of an accomplice may be furnished by a tacit admission by the accused, by the suspicious conduct of the accused, and the association of the accused with the accomplice, or by the defendant's proximity and opportunity to commit the crime. Jacks v. State, supra. "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 (1948), cert. denied, 252 Ala. 20, 39 So.2d 29 (1949).

The rule is often stated that when an accomplice and an accused are seen together in rather unusual places and times in proximity to the locus of the crime, which occurs at an unreasonable hour, the requirements of corroboration are met. Robinson v. State, 40 Ala.App. 74, 108 So.2d 376 (1958), cert. denied, 268 Ala. 698, 108 So.2d 377 (1959). It may be more properly and correctly said of the rule, as was held in Kimmons v. State, 343 So.2d 542, 547 (Ala.Cr.App.1977):

"[T]he fact that at or about the time of the commission of the offense with which the accused is charged, he and the accomplice were together, in or near the place where the crime was committed, may, in conjunction with other facts and circumstances, sufficiently tend to connect the accused with the commission of the crime to furnish the necessary corroboration of the accomplice...."

See also Dolvin v. State, supra.

II

Appellant next contends that the trial court made an impermissible comment on the effect of certain evidence in charging the jury concerning Alma Vest's testimony. We disagree.

It has been stated numerous times that the court's oral charge should be considered as a whole. Brooks v. State, 353 So.2d 1 (Ala.Cr.App.1977). For the sake of clarity we here set out the entire portion of the oral charge which deals with corroboration of an accomplice's testimony:

"Now, ladies and gentlemen, it is the law of this State that a person charged with a felony such as murder cannot be convicted upon the uncorroborated testimony of an accomplice. That is where two people combine or conspire to commit a crime and they both commit that crime. One cannot be convicted upon the uncorroborated testimony of another. That is uncorroborated means that standing alone with no other evidence tending to connect the other to a crime.

"You heard the testimony of one Danny Ray Mylar. If you believe that he is an accomplice in this case, if you believe that--of course, the testimony--you heard that testimony.

"But, if you believe he is an accomplice in this case you cannot convict this defendant, Samuel Yarber, unless you further believe beyond a reasonable doubt the testimony of Alma Vest in this case. This is the only other evidence in this case which would tend to connect this defendant. That is even if you believe Danny Ray Mylar's testimony, if you believe he is an accomplice, I'm not saying you should or shouldn't, that is up to this jury. If you believe he is an accomplice in this case or participated in this case where he was an active participant you cannot convict ...