Breedlove v. State
Breedlove v. State
Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 1279
Appellant was indicted and convicted of the offense of first degree robbery. Pursuant to the provisions of the Alabama Habitual Felony Offender Act, the appellant was sentenced to life imprisonment. From said conviction and sentence, this appeal follows. On appeal, the appellant raises the following issues: (1) Was the evidence presented at trial sufficient to sustain the conviction of first degree robbery? (2) Did the trial court commit reversible error when it failed to admonish the jury that they should not consider the unresponsive answer of a witness? (3) Did the trial court erroneously allow testimony from the victim to the effect that he thought the appellant had a gun? (4) Were certain questions from the District Attorney to one of the State's witnesses prejudicial and erroneous? (5) Were certain statements made by the victim prejudicial and inflammatory? (6) Should the trial court have granted appellant's motion for new trial? For the reasons outlined below, these issues are decided against the appellant and the conviction is due to be affirmed.
The State presented evidence which tended to prove that on October 15, 1983, Bobby Joe Thomas, cab driver, went to the Warehouse Grocery in Cullman, Alabama, to pick up a fare. Thomas arrived around 2:00 a.m. and picked up the appellant, as well as two brothers, Jeff and Vernon Brown. Vernon Brown got into the back seat of the cab, while the appellant and Jeff Brown got into the front seat of the cab, with the appellant sitting next to the cab driver. Although, one of the passengers first requested that they be taken to Avenue B, the appellant requested that they be taken instead to Walker's Corner at Berlin, approximately five miles east of Cullman. Before they reached their destination, the appellant told Thomas to "stop the car and pull over." Thomas testified that when he pulled off the road, the appellant "stuck an object in my side" and demanded that he stop the cab. The appellant then grabbed Thomas's right hand and told him "not to try anything," and to get out of the car. The appellant told Thomas that, if he did try something, that he would "blow [Thomas] away." During this time, the appellant continued to hold the object against Thomas's ribs.
Thomas got out of the cab and was told to give the appellant his money and his wallet, which contained $20. The appellant again told Thomas "not to try anything or he would blow me away." At one point, Vernon Brown told the witness that the appellant did not have a gun, but the witness was afraid and did not believe him. The witness testified that he told Vernon Brown that he was "crazy that I wasn't risking my life for $20 or a cab any day." After the appellant had taken the victim's money and wallet, the appellant took the cab and left with Jeff Brown.
On behalf of the State, Vernon Brown testified that on October 15, 1983, he and the appellant "went off together." On that night, the witness, his brother Jeff, and the appellant hired Bobby Joe Thomas to take them by cab to Avenue B and then to Walker's Corner. According to the witness, he got into the back seat of the cab while Jeff and the appellant got into the front seat. The appellant sat next to Thomas, the cab driver. Before they arrived at their destination, the appellant demanded that the cab driver pull over. According to the witness, when the appellant told the taxi driver to get out of the cab, he "had his hand up under his coat and next to [the taxi driver's] ribs." Thomas and the appellant got out of the cab and went to the back of the cab. When the witness followed, he heard the appellant demanding that Thomas give him his billfold or he *Page 1280 would "blow him away." After he got the wallet and the money, the appellant and Jeff left in the cab while the witness remained with Thomas.
The final witness called by the State was Lieutenant Larry Waldrop, Chief Investigator, Sheriff's Department, Cullman, Alabama. According to the witness, on October 15, 1983, at approximately 3:20 a.m., he investigated a reported robbery and recovered a taxi cab which had been abandoned on the highway near Berlin. The witness testified that he searched the cab and discovered a billfold which contained $20. The wallet also contained some personal effects which indicated that it belonged to Bobby Joe Thomas. At a later time, Thomas identified the billfold and it was returned to him. According to the witness, when he went to the appellant's house at approximately 7:10 a.m. on the day in question, the appellant ran from the police officer. The witness had to give chase before he was able to take the appellant into custody.
After the State rested, defense counsel made a motion for directed verdict of acquittal on the grounds that the State had failed to make out a prima facie case against the appellant. After the court denied the motion, the defense called Jeff Brown to the stand. According to the witness, he, along with his brother, Vernon Brown, and the appellant were together on October 15, 1983. The defense recalled Larry Waldrop to the stand, and he again testified that on October 15 he located a stolen cab and recovered a wallet.
When the defense rested, it renewed its motion for a directed verdict of acquittal based on the State's failure to present aprima facie case. After the trial court denied the motion, closing arguments were made to the jury. The Court then charged the jury on the law as it applied to the facts in this case, and the jury retired. When the jury returned its verdict, it found the appellant guilty of first degree robbery. Since the State had filed notice of its intent to proceed under the provisions of the Alabama Habitual Felony Offender Act, a sentencing hearing was scheduled. On October 23, 1984, before the Honorable Fred C. Folsom, Judge, Circuit Court, Cullman County, Alabama, the State proved that the appellant had committed two prior felonies. These felonies were based on separate guilty pleas dated May 7, 1982, and entered to two charges of third degree burglary. Based on these prior felonies, the appellant was sentenced pursuant to §
"(a) A person commits the crime of robbery in the first degree if he violates section
13A-8-43 and he:"(1) Is armed with a deadly weapon or dangerous instrument; or
"(2) Causes serious physical injury to another.
"(b) Possession then and there of an article used or fashioned in a manner to lead any person who is present reasonably to believe it to be a deadly weapon or dangerous instrument, or any verbal or other representation by the defendant that he is then and there so armed, is prima facie evidence under subsection (a) of this section that he is so armed."
The provisions of §
*Page 1281"(1) Uses force against the person of the owner or any person present with intent to overcome his physical resistence or physical power of resistence; or
"(2) Threatens the imminent use of force against the person of the owner or any person present with intent to compel acquiescence to the taking of or escaping with the property."
Applying these statutory requirements to the facts of this case, it is apparent that the State made out a prima facie case of first degree robbery and thus that the question of appellant's guilt was properly submitted to the jury. Thatch v.State,
Appellant, however, argues that the State's case merely proved that appellant's intent was to take the victim's wallet, and not the cash inside, and thus the evidence was insufficient. Under Alabama law, however, there is no requirement that the State prove an actual "taking" of property in order to support a robbery conviction. Grace v. State,
Appellant contends, however, that it was the "mere temperamental timidity" of the victim, and not the presence of any physical force on the part of the appellant which resulted in the victim's giving up his wallet. In order to sustain a conviction for first degree robbery, the test to be applied is a "subjective" one which focuses on the "reaction of the victim to the threats of the robber." State v. Hopson,
"A victim who is threatened with a supposed weapon which is concealed is put in the same degree of fear and feels as strongly compelled to comply with the robber's demands as a victim who is threatened with a weapon which is openly displayed." Id.
The evidence presented in this case indicated that the appellant stuck "something" into the victim's ribs and told him that he would do as he said or the appellant would "blow him away." The mere fact that no gun was displayed would not be fatal to the prosecution of the case. Stewart v. State,
This Court has repeatedly held that the State does not have to prove that the defendant actually had a gun in order to sustain a conviction of first degree robbery. Stewart v. State, supra, at 1363. Additionally, under Alabama law, the mere fact that the victim did not actually see a weapon would not defeat a conviction for first degree robbery. James v. State,
Id. at 73."A conviction of first degree robbery does not require evidence that the accused brandished or displayed any weapon. Indeed, in order to be convicted of first degree robbery an accused need not even be armed with a deadly weapon or dangerous instrument where (1) he possesses any object reasonably believed to be a deadly weapon or dangerous instrument or represents in some manner that he has one and (2) there is no evidence to rebut or refute this reasonable belief or representation. To find as a matter of law that where a gun is not seen a defendant cannot be convicted of first degree robbery would allow all would-be robbers to keep a gun or other dangerous weapon concealed during the crime to be used only if needed. State v. Cooper,
140 N.J. Super. 28 ,354 A.2d 713 (1976).* Under our statute, such an interpretation *Page 1282 would defeat the intent of the legislature and `basic theory' of the statute to `protect the citizen from fear for his or another's health and safety.'"
Here, as in James, the appellant's actions "instilled in the victim the reasonable belief that he was armed with a pistol."Id. Thus, the State carried its burden of proof and established a prima facie case of first degree robbery.
"Q And, state, what, if anything happened at that point?
"A Well, okay. He stuck an object in my side right here which I assumed was a pistol. He told me to shut the car off.
"MS. PASCHAL: I object, Your Honor. What Mr. Thomas thought is not evidence in this case. Calls for a conclusion of the witness. And, I ask you to tell him merely what happened, not what he thought.
"THE COURT: Okay. You are so instructed.
"Q (By Mr. Brooks): All right. At that time you felt an object in your side?
"A Yes, sir."
From the above quoted portion of the record, it is not apparent that an adverse ruling was invoked from the trial court. If anything, it would appear that the trial court merely instructed the witness to do as defense counsel had requested, and thus there was no adverse ruling. Walker v. State,
Although appellant now contends that the response made by the witness went to an ultimate issue in the case, this objection was not made at the trial court level. Since specific grounds of objection waive all grounds not specified, this issue has not been properly preserved for appellate review. Hunt v.State, supra, at 1088.
For the reasons outlined above, the decision of the trial court is due to be, and in all respects is, affirmed.
AFFIRMED.
All the Judges concur.
Reference
- Full Case Name
- Paul Junior Breedlove, Alias Paul Breedlove v. State.
- Cited By
- 30 cases
- Status
- Published