415 So. 2d 714 | Ala. Crim. App. | 1982
Charles Ray Clency was indicted for the first degree robbery of Mrs. Imo Chatham. After hearing the evidence and receiving full instructions with reference first and second degree robbery, the jury found Mr. Clency, the appellant, guilty of second degree robbery. In a subsequent sentencing hearing the trial court, pursuant to the Alabama Habitual Felony Offender Act, sentenced appellant to life imprisonment.
Appellant's motion for a new trial was duly denied, and this appeal followed.
The evidence is undisputed that Mrs. Imo Chatham was an employee of the Wasson Drug Company on 10th Avenue North in Birmingham, Alabama, when it was robbed by two men on the morning of October 8, 1980. Shortly after 9:00 a.m. Mrs. Chatham, a clerk-cashier working in the front of the store, assisted one of these men who said he needed some hair coloring. She handed him for his consideration, a box of "Nice and Easy" hair coloring, but he did not make a purchase. Instead, he asked to use the telephone, which Mrs. Chatham retrieved for him from behind the sales counter in the front of the store. He never used the phone, but kept "looking around," especially at the front door. Within a "very few" minutes after this first man had entered, a second man came through the front door in a "stooped" position and proceeded, in that position, to the rear of the store. This second man was wearing a hat and was holding a rag over his face. Mrs. Chatham followed him toward the rear of the store. When he reached the pharmacy counter, he pointed a pistol at Mr. Peden, the pharmacist on duty, and demanded certain drugs.
When Mrs. Chatham realized what was happening she quietly returned to the front of the store and activated the silent alarm. It was at this point that the first man, the one she had helped with the hair coloring and the telephone, stepped behind the sales counter and demanded that she hand over all the money in the cash register. Mrs. Chatham complied with his demands because she was "totally petrified" and "just horrified" and had "never been so scared in her life." (R. 108).
This man in the front of the store then began shouting instructions to the gunman in the rear of the store. He told the gunman to make sure Mr. Peden did not have a gun and he reminded the gunman of several specific "drugs" that he should obtain from the pharmacist. He further instructed him, when the gunman had returned to the front of the store, to remove the money from the other cash register.
The two men then fled together on foot.
When the police arrived to investigate the crime, Mrs. Chatham showed them the box of "Nice and Easy" hair coloring that the man in the front of the store had handled, and both she and Mr. Peden gave them descriptions of both robbers.
Mrs. Chatham later identified from a police "line-up" this appellant, Charles Clency, as the man who handled the box of hair coloring, who asked to use the telephone, who demanded that she hand over money from the cash drawer, and who directed the gunman during the final stages of the robbery. She also made a positive identification of this appellant in court.
The appellant was further identified through the analysis of "latent" fingerprints removed from the box of hair coloring handled during the robbery. An evidence technician "lifted" fingerprints from the box and deposited these "lifts" in a police lock box. (R. 137). These "lifts" were removed from the lock box by the fingerprint technician who subsequently matched these "latent" prints to the "known" fingerprints of thisappellant. (R. 159-161).
The appellant did not take the stand in his defense. His sole defense was that of "alibi". His employer, Ishmel Jones *716 testified that the appellant was at work from 8:00 a.m. to 12:30 p.m. on October 8, 1980. Mr. Jones remembered that day because it was the last day the appellant worked for him. The appellant's wife testified that that day the appellant left for work at 7:30 a.m. (as usual) and returned from work at 4:30 p.m. (also as usual.) She further testified that the appellant also worked for Mr. Jones for several days after October 8 (directly contradicting Mr. Jones' testimony.)
The jury apparently disregarded this "alibi" evidence and concluded that the appellant was indeed guilty of this robbery of Mrs. Chatham.
Contrary to appellant's assertions, however, all of the evidence of the entire incident indicates that the two men were acting in concert. In fact, the man later identified by Mrs. Chatham as this appellant directed the gunman's activities during the final stages of the robbery. Any doubt that the two men were partners was eliminated at that point and confirmed when they fled together on foot.
The appellant offered no evidence that the robbers acted independently. Instead, his defense was that of "alibi".
The evidence of the entire incident as witnessed by Mrs. Chatham and Mr. Peden was, of course, admissible. In our view, this was one continuous transaction.
However, all four charges were properly refused because there was no such evidence of either lesser offense. The charges werenot applicable to the evidence of the case. Taylor v. State,
The trial court's sentence of life imprisonment, in light of this proof of at least three prior felony convictions, was proper under the Alabama Habitual Felony Offender *717
Act. Watson v. State,
Appellant claims that the indictment was misleading because the word "escaping" was spelled "exceping." (Interestingly, in brief the appellant misquotes the misspelling as "excepting".) In any event, whether this was a spelling error or a typographical error (it appears to be the latter), it is not fatal here because it was not prejudicial to the substantial rights of this appellant. Section
Furthermore, this court has recently held that the indictment need not state that sentencing will be pursuant to the Habitual Felony Offender Act. Holley v. State,
Moreover, for aught that appears in the record, the fingerprint card was properly identified as that of this appellant. The officer who made the card identified it in court and stated it had not been altered. The card itself contained the appellant's signature, his date of birth and other vital statistics obtained from the appellant when the card was made (i.e. on the day of his arrest). Cummings v. State,
Copies of the notice served by the state on the day of thetrial are included in the record. (R. 265). For aught that appears this notice was sufficient. Rule 6 (b)(3)(ii), Temporary Rules of Criminal Procedure; Smith v. State,
This case is therefore, due to be and is, hereby, affirmed.
AFFIRMED.
All the Judges concur. *1040