Curtis Dale Brooks, alias v. State of Alabama
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Rel: 03/25/2011 Notice: T h i s o p i n i o n i s s u b j e c t t o formal r e v i s i o n b e f o r e p u b l i c a t i o n i n t h e advance s h e e t s o f Southern R e p o r t e r . R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e R e p o r t e r o f D e c i s i o n s , Alabama A p p e l l a t e C o u r t s , 300 D e x t e r A v e n u e , M o n t g o m e r y , A l a b a m a 3 6 1 0 4 - 3 7 4 1 ((334) 2 2 9 - 0 6 4 9 ) , o f a n y t y p o g r a p h i c a l o r o t h e r e r r o r s , i n o r d e r t h a t c o r r e c t i o n s may b e made b e f o r e t h e o p i n i o n i s p r i n t e d i n Southern R e p o r t e r . ALABAMA COURT OF CRIMINAL APPEALS OCTOBER TERM, 2010-2011 CR-09-1826 C u r t i s Dale Brooks v. S t a t e o f Alabama Appeal WELCH, A from Randolph C i r c u i t (CC-09-14) Presiding Judge. Randolph County Court indictment charging against him with grand C u r t i s Dale three counts 13A-8-41, A l a . Code 1 9 7 5 . jury returned Brooks a on F e b r u a r y three-count 17, 2009, o f f i r s t - d e g r e e robbery. Count 1 charged t h a t , w h i l e § Brooks CR-09-1826 was engaged Freeman, he threatened with in the was the the with of currency with of force i n t e n t to a pistol against overcome belonging her and resistance and White or belonging used f o r c e another or used or belonging Brooks to Ann's armed w i t h was with engaged Flowers a pistol and and force to the the in the compel Gifts used f o r c e or the flower shop, or another person Count 3 of shop, tried before Brooks f i l e d trial, a verdicts The trial jury and was convicted on intent of that guilty were court the evidence beyond contrary denied to a was reasonable the great the motion. 2 doubt weight The trial of counts. or f o r a insufficient and to Brooks a l l a motion f o r a judgment o f a c q u i t t a l arguing finding a use employees overcome h i s r e s i s t a n c e or to compel h i s a c q u i e s c e n c e . was he the threatened the charged currency flower with force overcome o f f o r c e a g a i n s t Tony White and/or M i l d r e d Freeman, of armed of i n t e n t to retail her engaged use theft or person t o T o n y W h i t e , he was r e s i s t a n c e or to compel h i s a c q u i e s c e n c e . while Mildred B r o o k s was threatened person to Freeman or a n o t h e r Count 2 charged t h a t , w h i l e a pistol that, was armed t h e f t of currency against his theft use acquiescence. in the to new support that the the evidence. court sentenced CR-09-1826 Brooks, a habitual imprisonment; felony the court 1 offender, also ordered compensation assessment, court restitution. This to 85 years' Brooks t o pay a v i c t i m ' s follows. Investigator with appeal attorney fees, J a m e s B a i l e y t e s t i f i e d t h a t he was and employed t h e R o a n o k e P o l i c e D e p a r t m e n t a n d t h a t he r e s p o n d e d t o a report of a robbery Gifts, a retail flower White, Mildred Freeman, description patrol officers feet 10 on J u n e could 28, 2008, shop. He and of the robber, was d e s c r i b e d 5 costs, interviewed Ann who fled b e on t h e l o o k o u t tall, with a t h e shop, robber's physical photographic physical lineup with description. s i x men Brooks's who Tony foot, The a so robber approximately dental overbite. on t h e man when he came opportunity characteristics. on male, and obtained f o r him. noticeable s o he h a d t h e b e s t He the scene as a d a r k - c o m p l e c t e d b l a c k inches Flowers witnesses Napier. B a i l e y t e s t i f i e d t h a t White had waited into a t Ann's to observe the Bailey showed matched photograph the was White a suspect's not i n the The trial court sentenced Brooks pursuant to the voluntary sentencing standards. § 12-25-31 e t s e q . , A l a . Code 1975. 1 3 CR-09-1826 lineup. White was unable to identify the robber from those of every photographs. Bailey black male estimated Brooks's was then the p o l i c e there said vacation store to Bailey between 300 was not among identify the robber he that White i n the was day testified but that that he testified Brooks told of the robbery. boss, had Hicks, spoke previously; 500 photographs. photographs. from those later -- White photographs. while Brooks he he at a was on grocery he he processed found no the prints crime of scene for value. f o r e v i d e n c e , s u c h as He clothing, found nothing. Bailey 2008. and identified searched o u t s i d e the b u i l d i n g he arrested those notified had photographs area. fingerprints and with had that -- White department were photograph unable Bailey presented that him He at her spent had Brooks on July 14, n o t b e e n i n R o a n o k e on the s a i d t h a t he h a d b e e n w o r k i n g w i t h h i s a n o t h e r man time w i t h hairdresser's to Gunnells, both interviewed t h a t he Luke G u n n e l l s , and later he one County, of h i s g i r l f r i e n d s , shop. of Brooks's 4 i n Lee Bailey testified girlfriends, and and that Zanetta that he Hicks's CR-09-1826 hairdresser, anything and Brooks none by investigated said see that the witnesses could corroborate had t o l d him. Investigator employed of Jonathan the Caldwell Roanoke Police the robbery he showed W h i t e i f he r e c o g n i z e d while testified that Department Bailey was but White was n o t i f i e d grocery store Roanoke that Police police all i n Lanett, vehicle had seen on Adam Brooks d i d not. but interviewed that on no Brooks' said that again, at a Caldwell 10, 2008. stated with the robber and Brooks at the t h e day o f t h e Luke G u n n e l l s he d i d n o t go t o R o a n o k e t h a t and a r e s i d e n c e 10, July Melton he h a d b e e n w o r k i n g day and t h a t July Chief department. robbery, White He lineups to p h o t o g r a p h was n o t i n a n y o f t h o s e l i n e u p s . C a l d w e l l he he on v a c a t i o n . additional photographic the robber, was that and he i n Dadeville day. Brooks's w h e r e h e was s t a y i n g w e r e s e a r c h e d o n evidence connected to the robbery was recovered. Caldwell testified cellular-telephone that calls none that records of the records i n t h e Roanoke the prosecutor f o r the date indicated that area on 5 that obtained Brooks's of the robbery Brooks date. and h a d made a n y Caldwell also CR-09-1826 testified that Roanoke. The the there call was estimated June located that not determine date of in Brooks was Mildred who whether LaFayette, was Caldwell at the Caldwell Ann Napier, inside the shop t h e y had i d e n t i f i e d said identification that and been i n minutes by unable to determine the the said, 20-30 r e c o r d s , s o he calls i t was possible r o b b e r y was had and he h a d the were the that committed. spoken Rowland, seen Napier could w e r e made on with witnesses robber, Brooks from a photographic Freeman to he Malcolm or had in and said time tower c e l l - p h o n e tower located C a l d w e l l was Brooks c o u n s e l asked C a l d w e l l whether been Caldwell closest t i m e s when B r o o k s ' s robbery. Freeman, had that i n the c e l l u l a r - t e l e p h o n e i n Roanoke Defense The LaFayette the the cellular-transmission 28. automobile from Roanoke. time zone used no records indicated L a n e t t a r e a on Roanoke was not and lineup. sure of and t h a t R o w l a n d had i d e n t i f i e d B r o o k s f r o m an the lineup. Chief Melton investigation White saw Brooks's him of testified the robbery i n Lanett. employer, about and his of participation Brooks's arrest M e l t o n t e s t i f i e d t h a t he L u k e G u n n e l l s , on two 6 in spoke occasions. the after with Gunnells CR-09-1826 first stated robbery, his that b u t he t e l e p h o n e d information been w i t h Robyn Lanett had been h i m on t h a t Barnes 2 and that Barnes t e s t i f i e d she Brooks had been w i t h showed t h e r e c o r d i n June last s t y l e d Hicks's Flowers law, he s a i d . i n Lanett, identified blue jeans she is a had been The b o o k Brooks had not a hairdresser client of o f her c l i e n t s t h a t he w o r k e d f u l l - t i m e at a Kroger on May 17, 2008. t h e owner, that i s h i s mother-in- N a p i e r when a b l a c k came i n t o t h e s t o r e . t-shirt. a t Ann's on t h e m o r n i n g o f J u n e 2 8 , i n t h e shop w i t h as B r o o k s showed a n d t h a t he w o r k e d p a r t - t i m e White t e s t i f i e d and a w h i t e that he The w i t n e s s ' s in the t r a n s c r i p t . 2 hers. Barnes had grandmother had p r e v i o u s l y testified in and t h a t White He was and N a p i e r spent more purchased than five assisted name i s s p e l l e d b o t h 7 i n t h e shop. minutes with man wearing B r o o k s , who s a i d he w a n t e d t o b u y a p i c t u r e f r a m e l i k e his that that Ann N a p i e r , 2 0 0 8 , he was w o r k i n g he that Hicks 2008. hair and G i f t s . and t h a t she k e p t r e c o r d s Tony W h i t e t e s t i f i e d store investigators b o o k t o t h e p o l i c e when t h e y came t o h e r or J u l y grocery incorrect testified that and t o l d o f the date. Zanetta shop later h i m on t h e d a t e t h e one White Brooks "Robyn" a n d " R o b i n " CR-09-1826 while Brooks looked at p i c t u r e frames. had an o v e r b i t e and c r o o k e d t e e t h . He n o t i c e d t h a t Brooks According to White, while he was h e l p i n g B r o o k s , N a p i e r w a i t e d o n a n o t h e r c u s t o m e r , a n d Brooks might register saying have when he seen that wanted her place customer a $100 b i l l paid. Brooks t o ask h i s grandmother into left about the cash the store, the picture minutes later. frame. Brooks White was returned to the store i n the back restroom. Brooks returned to the store, knew s o m e t h i n g coveralls o f the store had changed White or into said. i n the store 15 and N a p i e r White Brooks Brooks t o l d White gun at him and then c l o s e d again and he he h a d p u t on A f t e r White Brooks reached 8 which t o g i v e h i m t h e money, and gave B r o o k s the register. demanded who wrote out and p u l l e d o u t a handgun, opened t h e cash r e g i s t e r drawer that a l o n e s o he w a i t e d o n B r o o k s , into a pocket o f the coveralls the before testified a r e c e i p t f o r the purchase o f a p i c t u r e frame, so W h i t e i n the b u t s a i d he c o u l d n o t l e a v e h i s s a i d he w a n t e d t o b u y a p i c t u r e f r a m e . he p o i n t e d a t W h i t e . was coveralls was g o i n g t o h a p p e n b e c a u s e b e f o r e he r e t u r n e d , mother-in-law 10 t h e money Brooks from the cash i n pointed the beneath the CR-09-1826 drawer. the White $100 b i l l been back the cash r e g i s t e r N a p i e r had r e c e i v e d i n the store White the opened when B r o o k s testified that a g a i n and gave from the customer was f i r s t Brooks then directed I n t h e meantime returned to after demanded that store White give who h a d there. of the store. the Brooks making Mildred a h i m t h e money h i m t o go t o Freeman had delivery. from Brooks h i s wallet and t h a t F r e e m a n g i v e h i m t h e money f r o m h e r p u r s e , a n d he p o i n t e d the gun a t them w h i l e and Freeman gave on the f l o o r he d e m a n d e d money. After i n t h e back room. and t h e y p r a y e d , White gun and t o l d them twice They said. d i d as Brooks they n o t t o g e t up u n t i l he o f t h e shop. he testified soon 9-1-1. the front White on t h e f r o n t o f the store, door told Again that, r i n g when he g o t up a n d c a l l e d He saw B r o o k s p a s s b y t h e f r o n t as Brooks emergency w i n d o w a s he r a n f r o m store. White from on t h e f l o o r . a s he h e a r d t h e b e l l exited the them t o s t a y were pointed the t h e m t o do s o , t h e n he w a l k e d t o t h e f r o n t told White t h e i r money t o B r o o k s , he o r d e r e d t h e m t o l i e instructed, a t them their testified the police that he department looked at a l o t o f photographs but that 9 he was never able to CR-09-1826 identify at the robber. Then, j u s t the Kroger g r o c e r y store the man w a l k i n g next White observed could be the to him Brooks as J u l y 10, was he the walked store White told t h a t he was robbed a coworker 100% Freeman Ann's F l o w e r s man through the store as call Brooks so he exited 9-1-1. c e r t a i n t h a t B r o o k s was testified and G i f t s counter, and case. a gun and that t h a t Ann had none. The her to get she k e p t t h e gun the h i s head. she man she White t h e man who part-time He money at i s her pointed The demanded a t them. returned into the said to the someone b e n t was She over store at looking back in room and and gave White them him was not she and at her purse i n the workroom She and a she told money, the said f o r him. robber sister. w e a r i n g baggy c o v e r a l l s h e r t o l i e on t h e f l o o r . said. works someone came He was robber pointed her saw thought i n her face. on told and she Then something floor, and to making a d e l i v e r y a n d he him. robbed from told that had on t h e S a t u r d a y o f t h e r o b b e r y s h e display noticed who that pointed 2 0 0 8 , he shift him. Mildred front arrived for his certain of his identification, testified had on as he to the already on the move, and he Freeman s a i d she p r a y e d . 10 money, After CR-09-1826 the r o b b e r l e f t , White g o t up t o c a l l 9-1-1. w h e r e N a p i e r was a n d he t o l d h e r t h a t Freeman certainty during testified that that she could not and from the photographs. noticed Ann whether Napier retail that that Freeman t e s t i f i e d that shop. She s a i d that before left, the frames. type the robbery, frame. After left the s t o r e , on t h e b a t h r o o m she return. of the robbery u n t i l door and t o l d h e r . 11 She called a n d t h e m a n , who t o ask h i s grandmother s h e was n o t a w a r e banged White of picture r e s t r o o m ; s h e d i d n o t s e e t h e man that F l o w e r s and A f t e r the customer he n e e d e d he she had mustache. on a c u s t o m e r when a man came i n . for a specific stating identified that she owned Ann's t h e s t o r e , N a p i e r went t o a s s i s t looking 100% she had l o o k e d a t she had n o t t o W h i t e a n d a s k e d h i m t o w a i t on t h e man. was with f o c u s e d on t h e g u n the robber had a beard or a testified flower s h e was w a i t i n g left say B r o o k s was t h e man who h a d r o b b e d h e r b e c a u s e photographic lineups Gifts not t h e r o b b e r y h e r a t t e n t i o n had been anyone White s h e was i n t h e b a t h r o o m . t h a t was p o i n t e d a t h e r . S h e t e s t i f i e d some She a s k e d The about went Napier man one o f into the testified F r e e m a n came a n d CR-09-1826 Napier with testified a p p r o x i m a t e l y $200 Napier at testified the p o l i c e the that does not really personal that she but look at the i n the store man she After a that s h e was a p p e a r a n c e ; r a t h e r , she saw She "reasonable waved of at for a whether the Trammell on f a r as t h e day of to said identify that noticing she their attention that Brooks to was of the r o b b e r y . acquittal testified robbery. She t h e b u s i n e s s , and her. Trammell the Brooks Susan as also c o u l d not t e s t i f y judgment about anything She s a i d , she p a y s argued only cleaning the f r o m t h e f l o w e r s h o p on the that business l o c a t e d across the s t r e e t into unable and doubt." Elizabeth walk day the S t a t e p r e s e n t e d the f o r e g o i n g e v i d e n c e , Brooks motion morning a business looked at photographic l i n e u p s customers wants. starts register. of the p h o t o g r a p h s . what a customer made usually i n the cash department r o b b e r i n any she was Craven cellular-telephone she saw she testified was and him that she saw walk appearance, t h e man store g l a n c e d up testified man's she and out that she was again. He did notice not know day. that man d i d not she saw a black near Ann's 12 working F l o w e r s and G i f t s in on a the CR-09-1826 morning store of the robbery. and asked She s a i d t o have t h e phone out. He w a l k e d could not i d e n t i f y Craven down Brooks that by t h e p o l i c e onto a s t h e man who 1 6 , 2008. p e r s o n who came i n t o t h e s t o r e Craven certain said that that was she had in a r e l a t i o n s h i p with afternoon. that Brooks photographs identified as p o s s i b l y b e i n g the o f f i c e r s that s h e was selected. that she had been B r o o k s on J u n e 2 8 , 2 0 0 8 . Hicks t e s t i f i e d had t a k e n h e r Robyn's that she has s e r i o u s h e r memory. She s a i d i f she t o l d and t h a t done done Hicks those N o n e t h e l e s s , she s t a t e d 13 that on the p o l i c e t o have h e r h a i r medical problems involved her hair d a y , t h a t w o u l d h a v e b e e n a m i s t a k e on h e r p a r t . affected Craven i n the store. She had t o o k h e r t o Abbey S h e a l e y ' s t o have that had shop. on t h e d a y o f t h e r o b b e r y . she d i d n o t t e l l Z a n e t t a Tywan H i c k s t e s t i f i e d that walked t h e man s h e w a i t e d o n was B r o o k s o r t h e o t h e r man whose p h o t o g r a p h Brooks r e s t o r e d , but s h e h a d l o o k e d a t some on J u l y into the t h e c o u n t e r , and B r o o k s a n d a n o t h e r man f r o m t h e p h o t o g r a p h s the came t o a s s i s t h i m , t h e man b e c a m e i n the d i r e c t i o n of the flower acknowledged provided man h i s telephone service when s h e p l a c e d a t e l e p h o n e c a l l a n g r y , slammed a black that stated problems she was CR-09-1826 certain t h a t , on t h e d a y o f t h e r o b b e r y , Shealey's The and then State inconsistencies testimony and between i n court Brooks's Hicks her statement statement to the police. that Brooks left that approximately early ago of 9:30 afternoon. provided out. Brooks 168.) this calendar made a alibi statement to the police that the calendar and p i c k e d also presented h i m an to on J u l y salon h e r up i n the a statement a calendar she had "About at Hicks filled two d a y s g o t t o keep C u r t i s o u t f o r that Saturday." the police and gave (R. the 15, 2008, b u t she a c k n o w l e d g e d included entries 16, 17, a n d 18, 2008. testimony, her to the beauty that y ' a l l to the and t h a t she d i d n o t included the following: and t o g i v e She calender July The S t a t e testimony i n the morning to I n her in-court to the p o l i c e , along with I started jail had taken and h e r I n the statement i n the afternoon o r 1 0 : 0 0 a.m. The s t a t e m e n t her to numerous to the police her early k n o w w h e r e he h a d b e e n i n b e t w e e n . said about and i n c o n s i s t e n c i e s between h e r t o work and r e t u r n e d she took h e r home. cross-examined p o l i c e , she s a i d go he t o o k Brooks Hicks 14 a b o u t h e r h e a l t h s t a t u s on could not account f o r her CR-09-1826 ability the to days make e n t r i e s a f t e r she Luke Gunnells Southern Sanitary B r o o k s had the later i n the Brooks had testified had is the he jeans, on Point, that for that he been his in lesson d i d not believe shop. and had and and he that he on told day, also 15 he and he Brooks he always hat, Gunnells that he knew they t h a t B r o o k s had wanted go said. Brooks had told to that he had him he back to b e l i e v e d B r o o k s and testified that but statement. said him Brooks the p o l i c e for Gunnells; never that current see t h a t Brooks committed the Gunnells and misspoken, Gunnells had operated the not entire had for worked w i t h did a baseball prison. about that stated flower worked and Georgia, he the health police. arrested cross-examination Gunnells he owned initially him a shirt, testified learned why he Brooks r o b b e r y but realized the was that G u n n e l l s had conversations prison. he c o v e r a l l s when he previously long West until with to that in about her the p o l i c e to c o r r e c t h i s i n i t i a l wore b l u e had the worked wore Gunnells calendar testified day. that contacted never Company of calendar testified Gunnells morning the the worked f o r him charges. on gave on that robbery was at with CR-09-1826 Brooks beginning robbery, at approximately and they Abbey had spent Shealey appointment she was a couple testified West P o i n t , G e o r g i a . that Shealey to get her hair i n the salon from o f f f o r the appointment, 1 2 : 3 0 o r 1:00 p.m. to pick up H i c k s that s h e was f i n i s h i n g a minute on J u n e after the appointment. Hicks's not r e c a l l eyebrows, not keep up w i t h who b r o u g h t lasted. dates such her testified on June dropped came i n t o h e r Shealey said redirect as t h e d a t e s Shealey 2008, 16 was d r i v i n g , testified o r how t h a t she does h a d come t o h e r s a l o n whether Shealey's appointment. examination of the Hicks to the appointment but that Hicks 28, t h a t H i c k s came t o a f t e r June 28, 2008, the person d u r i n g t h e summer o f 2 0 0 9 a n d a s k e d reflected a.m. and t h a t Brooks had testified details p i c k e d h e r up, what v e h i c l e long the appointments 9:30 o r two i n t h e s a l o n . subsequent appointments, or or and t h a t S h e s a i d a man t h e s a l o n f o r two a d d i t i o n a l a p p o i n t m e n t s she c o u l d 9:00 and t h a t Brooks On c r o s s - e x a m i n a t i o n S h e a l e y but together. 28, 2008, approximately Hicks to wait of hours she i s a c o s m e t o l o g i s t i n done approximately shop on t h e d a y o f t h e s t a t e d t h a t Z a n e t t a H i c k s h a d an until had 6:30 a.m. that records Shealey Hicks had then "said CR-09-1826 something about she supposedly happened accused and she that he needed was of there, she had f o r June on 28, records after June know brought She reflected date date to 2008, recross-examination. her that needed had the that i f I her." she gave also the because something boyfriend her had (R. had was i t down 213.) The shop long said she d i d not appointments testified a t t h e man robbery, but was know Hicks t h a t he was short he and who, noted that he he realized that was the had viewed a department the but person with photographic that whose he lineup could not photograph he Rowland viewed department the testified that person had he her police he seen had who outside He d i d n o t had committed walked into w e a r i n g what a p p e a r e d e x a m i n a t i o n , however, at on whether i n h i s van later, man t o b o g g a n - s t y l e h a t and a d i n g y s h i r t . he records to Hicks, Shealey said A n n ' s F l o w e r s a n d G i f t s when t h e r o b b e r y o c c u r r e d . the she 28. Malcolm Rowland glance that Rowland prepared identify had examined selected at the flower 17 on Brooks On 14, and 2008. number police as crosshe had Rowland s i x as photograph a that i n court the photographs photograph shop, the selected. July t o be testified by the the number CR-09-1826 six was i d e n t i f i e d could had not say that as C u r t i s B r o o k s . Rowland the person was t h e same p e r s o n he seen a t t h e f l o w e r since i n court stated s h o p b e c a u s e t h e man's f a c e he s a w t h e man t w o y e a r s e a r l i e r . from the sheet lineup were the those person F i n a l l y , on r e d i r e c t for that he was "60 p e r c e n t o f t h e mean he h a d s e e n i n the photograph shop before identified man that s h e was i n A n n ' s F l o w e r s a n d occurred a t t h e same t i m e and t h a t robbed she w a s . she g l a n c e d t h e s t o r e , who She s a i d she had anyone from t h e p h o t o g r a p h i c l i n e u p t h e p o l i c e not state i n court that Brooks was she saw t h a t d a y . of c a l l s t o and from B r o o k s ' s t e l e p h o n e . the records calls, said style. I n v e s t i g a t o r C a l d w e l l examined c e l l u l a r - t e l e p h o n e from the eyes a t t h e s t o r e , a n d he a t t h e man who l a t e r showed h e r , and she c o u l d the sure" h a d t h e same b o d y the robbery a few seconds was i n t h e s t o r e not Brooks's t h e p h o t o g r a p h i c l i n e u p , he h a d i n d i c a t e d o n Mary Rowland t e s t i f i e d that Gifts he had changed e x a m i n a t i o n , R o w l a n d t e s t i f i e d t h a t w h e n he s e l e c t e d photograph that but noted Caldwell said that the time that zone "PDT" that was He c o u l d applied indicated not discern to the on records the various records. he d i d n o t know how many h o u r s ' d i f f e r e n c e 18 CR-09-1826 there was b e t w e e n zone. Investigator authorities telephone At never with trial determined doubt. stated of Gifts work of a c q u i t t a l The trial that he w a n t e d that shop with parking i n Roanoke. Gunnells on J u n e l o t o f a man's to pick for two h o u r s , B r o o k s over Brooks done. up his to that had the c e l l u l a r scrap metal. spent time He a l s o house, Brooks renewed h i s simply, the motion. to reopen he h a d n e v e r the case been t o Ann's He t e s t i f i e d 28, 2008, The after because said, that Flowers he h a d g o n e t o and had w a i t e d he up some c a b i n e t s f r o m her t o Abbey then sister's time testify. i n the and G u n n e l l s t h e man. b u t t h e man were They w a i t e d d i d not a r r i v e . t e l e p h o n e d him and wanted Shealey's G u n n e l l s l e t him go, B r o o k s salon, Brooks denied said that h i s fiancée, Hicks, to take testified and a g a i n argued, court store supposed the whether the evidence testified Brooks him further court p e r m i t t e d the defense Brooks and t h e P a c i f i c him d u r i n g the robbery. f o r a judgment reasonable time zone Caldwell the conclusion motion and the Central salon said, traveling t o have her hair a n d he t o o k H i c k s t o i n t h e a r e a and p i c k i n g stopped a t h i s b r o t h e r ' s house and a t a n d he v i s i t e d w i t h 19 them. After noon, CR-09-1826 Hicks telephoned sitting him and he went to u n d e r t h e h a i r d r y e r when he pick her up. She salon, a r r i v e d at the was he said. Brooks saw him Brooks for robbery scrap and first time d i d n o t own Dadeville, He also s a i d he was on said that He he to Brooks 28, that he had the people who shop mistaken. investigators He had 2008, the on July left there never been to the He never testified that said he been had owned the picking that Gunnells's at in 2 0 0 8 , he flower shop, said camp in a n y t h i n g n o t t o h a v e t o go back had 20 spent been 18 had flower the had he that told he that he 3:00 and i n the up the approximately as t h e p e r s o n acknowledged t h a t he w o u l d do 10, at had him had he jail. committing acknowledged working identified Brooks he that t h a t he had denied certain that made t o t h e p o l i c e and robbery. came and 28. June June to p r i s o n . White hat. s a i d he were when He he spent know Tony W h i t e a p a i r o f c o v e r a l l s and cross-examination statement for d i d not toboggan-style a metal On p.m. he owned c o v e r a l l s . worn had that the s a i d he never or said years convicted of in prison theft of CR-09-1826 property and r e c e i v i n g s t o l e n p r o p e r t y k n o w how many Also Shealey two on felonies had t e s t i f i e d sitting under to 15 m i n u t e s wait The Brooks guilty indictment. guilty Ala. the State convictions Hicks's court said that, when he a r r i v e d although only a minute or e y e b r o w s , he was s u r e dryer charged of three the jury, counts Hicks was a n d t h a t he h a d counts of robbery of the H a b i t u a l The t r i a l presented Felony the j u r y as c h a r g e d the State Offender copies Defense found i n the court adjudged Brooks invoked Act, § court held a sentencing certified of Brooks's. and of robbery, Immediately a f t e r the t r i a l Code 1 9 7 5 . d i d not f o r her. of the three provisions Brooks t h a t he h a d h a d t o w a i t the hair trial he he h a d c o m m i t t e d . cross-examination f o r her to f i n i s h but that of counsel four the 13A-5-9, h e a r i n g and prior felony acknowledged that B r o o k s h a d some p r i o r C l a s s C f e l o n i e s a n d o n e C l a s s B f e l o n y . Brooks was on p a r o l e f o l l o w i n g 18 charge of second-degree robbery, started guilty trial o u t as a c h a r g e to the reduced court sentenced years' imprisonment which the prosecutor of f i r s t - d e g r e e robbery; charge, Brooks the prosecutor t o 85 y e a r s ' 21 on a alleged, Brooks pled stated. The imprisonment. CR-09-1826 I. Brooks the motion the argues f o r a new great weight testimony identify and presumptions trial He of argues Brooks for a argues fallible. He e r r e d when i t d e n i e d b e c a u s e , he s a y s , inability by of that, of new "numerous after that also that (Brooks' eyewitness ignored alibi witnesses" to allowing a l l reasonable the evidence" trial. the j u r y d i s r e g a r d i n g the correctness, the " v e r d i c t the weight remanded court of the evidence the him. against that the t r i a l i s unjust the brief, testimony case at and so must be pp. 7-8.) i s unreliable and argues: "One p o s i t i v e e y e w i t n e s s , f i v e w i t n e s s e s who w e r e u n s u r e o r c o u l d o f f e r no i d e n t i f i c a t i o n a t a l l , a n d no f o r e n s i c e v i d e n c e t i e d B r o o k s t o t h e s c e n e . Yet the j u r y chose to i g n o r e a l le x c u l p a t o r y evidence a n d c o n c e n t r a t e on o n e w i t n e s s a l o n e . This Court s h o u l d remand t h i s case t o t h e t r i a l c o u r t b e c a u s e B r o o k s ' j u r y was u n r e a s o n a b l e a n d i g n o r e d t h e g r e a t weight of the evidence." (Brooks' brief, Brooks proved also a t p. argues t h a t he was facie credibility case of that the c e l l u l a r - t e l e p h o n e records not i n Roanoke a t the time The S t a t e a r g u e s prima 22.) that because at trial, the witnesses 22 robbery. the prosecutor presented the were of the factual matters a questions and f o r the j u r y to CR-09-1826 decide The State verdict to and t h a t contends should the great unjust not with that weight i s conclusive establishes that on appeal. a jury's o n l y when t h a t v e r d i c t i s c o n t r a r y of the evidence and p a l p a b l y wrong or t h e j u r y ' s v e r d i c t s here a r e s u p p o r t e d by t h e Therefore, e r r when verdict caselaw be s e t a s i d e and t h a t evidence. the jury's i t denied the State concludes, the motion the t r i a l f o r a new t r i a l . court d i d We the State. "With respect to the weight of the evidence, i t is w e l l - s e t t l e d that any 'inconsistencies and c o n t r a d i c t i o n s i n the State's evidence, as w e l l as [ a n y ] c o n f l i c t between t h e S t a t e ' s e v i d e n c e and t h a t o f f e r e d by t h e a p p e l l a n t , [ g o ] t o t h e w e i g h t o f t h e evidence and [ c r e a t e a question] o f f a c t t o be r e s o l v e d by t h e j u r y . ' R o w e l l v . S t a t e , 647 S o . 2 d 67, 69-70 (Ala.Crim.App. 1994). '"'[T]he c r e d i b i l i t y of w i t n e s s e s and t h e weight or p r o b a t i v e force of testimony i s f o r t h e j u r y t o judge and determine.'"' J o h n s o n v . S t a t e , 555 S o . 2 d 8 1 8 , 820 ( A l a . C r i m . A p p . 1 9 8 9 ) , q u o t i n g H a r r i s v . S t a t e , 513 So. 2 d 7 9 , 81 ( A l a . C r i m . A p p . 1 9 8 7 ) , q u o t i n g i n t u r n B y r d v . S t a t e , 24 A l a . A p p . 4 5 1 , 4 5 1 , 136 S o . 4 3 1 , 431 ( 1 9 3 1 ) . 'We h a v e r e p e a t e d l y h e l d t h a t i t i s n o t the p r o v i n c e of t h i s court t o reweigh the evidence presented at t r i a l . ' J o h n s o n , 555 So. 2d a t 8 2 0 . '"When t h e j u r y h a s p a s s e d on t h e c r e d i b i l i t y o f evidence tending to e s t a b l i s h the defendant's g u i l t , t h i s Court cannot d i s t u r b i t s f i n d i n g . " ' Rowell, 647 S o . 2 d a t 6 9 , q u o t i n g C o l l i n s v . S t a t e , 412 S o . 2d 8 4 5 , 846 (Ala.Crim.App. 1982). Furthermore, ' " [ t ] h i s C o u r t must v i e w t h e e v i d e n c e i n t h e l i g h t most favorable to the State, and 'draw a l l reasonable i n f e r e n c e s and r e s o l v e a l l c r e d i b i l i t y choices i n favor of the t r i e r of f a c t . ' " ' D.L. v . 23 agree CR-09-1826 S t a t e , 625 So. 2d 1 2 0 1 , 1204 (Ala.Crim.App. 1993), q u o t i n g W o o d b e r r y v . S t a t e , 4 97 So. 2 d 587 , 590 (Ala.Crim.App. 1986). 'Any i s s u e s r e g a r d i n g the weight and credibility of the e v i d e n c e are not r e v i e w a b l e on a p p e a l o n c e t h e s t a t e h a s made a p r i m a f a c i e case.' J o n e s v . S t a t e , 719 S o . 2d [ 2 4 9 ] a t 255 [ ( A l a . C r i m . A p p . 1 9 9 6 ) ] . " Williams v. State, 10 So. 3d 1083, 1087 (Ala. Crim. App. 2008). The the State correctly sufficiency State failed fact, the t h e two cash of the to that Brooks evidence present does not facie evidence that the In case robbery. show to of that Brooks held e m p l o y e e s a t g u n p o i n t w h i l e he t o o k t h e money f r o m register of believe the and believe from robbery. each witnesses, of Brooks the employee, I t i s apparent State's identification The witnesses subjected to thorough thus that and and f o r the and arguments State the jury that presented and the c r o s s - e x a m i n a t i o n , and veracity credibility the 24 not by the were had weaknesses witnesses of the e v i d e n c e were p r o p e r l y l e f t to White's the p a r t i e s of of chose defense t h e r e l a t i v e s t r e n g t h s and The the i t chose the o p p o r t u n i t y to argue evidence. the establishing particularly as t h e r o b b e r , testimony defense. the challenge or otherwise a l l e g e a prima State presented elements to notes and f o r the j u r y the to CR-09-1826 determine, when and t h e t r i a l i tdeclined d i d not abuse i t sd i s c r e t i o n to disturb the jury's v e r d i c t . Brooks argues State's court evidence, that the jury should however, n o t have b e l i e v e d t h e and t h a t " [ t ] h i s C o u r t , t h e n , m u s t a p p l y i t s own s u b j e c t i v e b e l i e f s and e x p e r i e n c e when d e c i d i n g t h i s appeal. Doing so r e q u i r e s this Court to overturn the c o n v i c t i o n r e n d e r e d b y an u n r e a s o n a b l e j u r y that ignored the greater weight o f t h e e v i d e n c e and i m p r o p e r l y r e l i e d on i n s u f f i c i e n t e v i d e n c e t o f i n d Brooks g u i l t y . " (Brooks's reply brief, Brooks's which this is argument a t pp. i s directly has c o n s i s t e n t l y h e l d Court 4-5.) that contrary i t i s not the province to reweigh the evidence presented no d i s p u t e that the State robbery, and t h i s evidence or the c r e d i b i l i t y Brooks Court presented will i s not e n t i t l e d t o Alabama law, at t r i a l . a prima not review of There f a c i e case of the weight of the witnesses. to r e l i e f on t h i s claim Brooks i s not of the of e r r o r . II. Although to relief we have on t h e c l a i m duty to notice determined that he r a i s e d on a p p e a l , jurisdictional defects. 25 this Williams entitled Court has a v. S t a t e , 10 CR-09-1826 So. 3d such 1083 ( A l a . Crim. App. 2008). case presents two defects. A. Brooks was erroneously indictment with robbery the s h o p a n d was flower robbery i s an robbery is offense convicted against person even when the 2006), Brooks while with using another or while using or person while charged Brooks with Flowers and G i f t s , against White various of currency theft and/or a pistol. items armed to being while belonging armed of or State of property or against with a force with belonging 26 a charged Freeman, count or 2 White count or 3 Ann's t o use force while being a single theft person victim or to threatening one a t o Tony W h i t e , pistol; cannot convert to Freeman against a used 1 pistol; belonging of 794 ( A l a . Count force another from 2d to Mildred currency using Freeman The use is So. to However, belongs therein. t o use threatening another armed w i t h cited being charged Brooks with t h e f t while 978 the belonging force State, of the v i c t i m taken of currency threatening person the person; whom 3 offense. v. and c a s e s theft of currency property See, e.g., Abrams Crim. i n Count of that against business. App. charged f o r the theft the threatened, of This into separate CR-09-1826 offenses double because t o do jeopardy; violence (Ala. the App. property from business Therefore, both was the when he wallet convicted i s the act of 893 S o . 2 d 1 2 5 0 fact defendant that and the from separate took the dry-cleaning robbery money took offenses). belonging to Ann's he t h r e a t e n e d t h e u s e o f f o r c e a g a i n s t T o n y d i d so. That Brooks also took money w h i l e he t h r e a t e n e d t h e u s e o f f o r c e d i d not create a separate twice against C r a i g v. S t a t e , two Brooks the p r o h i b i t i o n prosecution clerk create although F l o w e r s and G i f t s , White of 2004)(the d i d not White's unit against the person. Crim. White so v i o l a t e s placed of those in jeopardy two c h a r g e s , crime involving White. count 3, we r e m a n d t h i s incident by case being when Therefore, of robbery. he indicted committed from against Brooks f o r and only one as t o t h e c o n v i c t i o n f o r f o rthe t r i a l court to vacate the conviction. Count separate and 1 charged crime conviction Count the robbery involving do a separate not v i o l a t e 1 and Count 2 were p r o p e r conviction on t h o s e counts of Mildred will 27 victim; Freeman that double-jeopardy charges, remain. and i s a indictment principles. and t h e judgments o f CR-09-1826 B. the We must sentence states in his transcript of sentencing order the each one the fails court whether count, a remains; the and concurrently For the convictions or court. and trial court Brooks imposed three our r e v i e w of the trial only a general Accordingly, must for the trial t o impose the 85-year i f the sentence hold the was a new second the court's Rather, the sentence of t h i s case i s remanded t o directions that imposed sentencing conviction the court: sentence f o r as to only hearing that sentences (1) are and properly to run consecutively. reasons, f o r the offenses the of of Although court imprisonment, hearing i t intended court for clarification trial to have imposed foregoing indictment clarify trial (2) i n d i c a t e whether the count. cause to support that statement. with sentence this the sentence c o n v i c t i o n , and, impose that that imprisonment. trial the o f 85 y e a r s ' court appears clarify by brief terms 85 y e a r s ' remand imposed concurrent trial also i s affirmed. to set aside the judgment charged i n count H o w e v e r , we as to Brooks's 1 and c o u n t 2 o f remand t h e cause t h e j u d g m e n t o f c o n v i c t i o n as On remand, the t r i a l the sentence imposed court to i s f u r t h e r ordered to as t o c o u n t s 28 for 1 a n d 2, as d i r e c t e d CR-09-1826 above. that the c i r c u i t earliest this The t r i a l court shall take a l l necessary a c t i o n t o see c l e r k makes due r e t u r n to this Court at the p o s s i b l e t i m e a n d w i t h i n 28 d a y s a f t e r t h e r e l e a s e o f opinion. new s e n t e n c i n g AFFIRMED The remand s h a l l hearing, a t r a n s c r i p t of the i f one i s r e q u i r e d . I N PART; REMANDED Windom, K e l l u m , include Burke, WITH INSTRUCTIONS. and J o i n e r , 29 J J . , concur.
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