Boston Firefighters Union v. Boston Chapter, NAACP Brief for the City of Detroit Amicus Curiae in Support of Respondents

    R,OBINIiON
1,'. '-:;:

\s irr rltrtl lrrttntl, \\ e lr:rlc s(.;rrr'll(.(l I ir(

rrcord ior crrors affectirrg thc sul;.t;rnti;rl
rr(hts of it[)pell;utt and llxve forrrrrl rrr,rrc.
'l'hc case is dtre to be and is hereby af-
f irmed.

Affirmed.

All the Judges concur.

Jamcs 0ulnton ROBINSON

v.

STATE.

I Dlv. 303.

Court of Ctlruinal Altpoals of Alabrrntl.

t'cb. 20, Ig7B.

Defendant was convictcd in the Circuit
Court, Mobile County, Hubert p. Rol;ert-
son, J., of robbery of a pharmacy, and ap-
pcaled. The Court of Criminat Appeals,
Tyson, J., held that where a prosecution
witness did not t"k" * ,.poffi-iilil,filIf
rta
courtroom immediately before testifying, it
was within the t@'@ar.ti"r.f th";
potf*for inspeetion by #cndan+- Thc

-------Corrrt also held that refusing admissiori'into

v. ;iTA IE
S,' -,1 I\;

\ lrr 187

l. Criminat Law Cr627.U,0,

\\'lrcre prose cutittn rr.itncss did not take
r'(I)ort to. litncss stand u,ith him.but re-
ferred to it orrtsidc courtroom immediately
bcfore testifying, it was within trial court,s
discretion to order or not to order produc-
tion of the report for defendant's inspec-
tion.

2, Crlmlnal Law @404

For demonstrative evidence to be ad-
mitted, it must not only be properly identi-
fied, but it also must tend to corroborate or
clrrcidate material inquiry.

3. Crlmlnal Law e:4(H(4)

In robbery prosecution vvherein de-
fendant was identified as robber by three
witnesses, including pharmacy owner, ad-
mission into evidcnce of two medicine bot-
tlcs allegedly taken by dcfendant to phar-
macy a couple of months after pharmacy
was rol)l)cd was not error lvhere defend-
ant's mothcr was unable to properly iden-
tify thc trvo bottles and rvas not actually
present in pharmacy on occasion tvhen de-
fcndant allcgedly brought the two prescrip-
tion vials in and s'as not identified by any-
onc in the store.

+

John L. Lawler, Mobile, for appetlant.

William J. Baxley, Atty. Gen., and Wil-
liam T. tr{usgrove, Jr., Sp. Asst. Atty. Gen.,
for the State.

TYSON, Judge.

The Grand Jury of Mobile County, Ala-
bama, charged the appellant with robbery.
The Jury's verdict and judgment set sen-
tence at fifty years imprisonment in the
penitentiary.

The State's evidence established that on
November 20, 1970, the Ladas Pharmacy in
Mobile, Alabama, was robbed by two men,
one of whom was later identified as the
appellant.

ltl.rl, .r;. i

: tliscrrsserl,
itrrtt.ct.ror
rlant's srrb-
his day in
nd diligcrrt
e.xpcct arrtl
under drrc

:versal llc-
judgc in

) P.[[. orr
ould con-
late irrto

rugh rr.ith
Alabama

'ning an<t

lry cases.
he court
the triat

rck p. nr.
cotrnst.l."
:he harrl
an rvhat
try past
ren rvait
. \Vith
crds rc-
'red thc
hen the
:ction is
23 ,\la.
tate, -ll
Sers r'.

ant two
trial of
rroceed
t them
nting),
e next
r. Thc

even

:ourt's
unless
ard v.
.::Ienry

318.

evidence of two medicine bottles allegedly
taken by defendant to the pharmacy a cou-
ple of months after the robbery was not
error where defendant's mother was unable
to properly identify the two bottles and was
not actually present in the pharmacy on the
occasion when defendant, who was iden-
tified at the trial by three witnesses in-
cluding the store orvner, allegedty bronght
the two prescription vials in and was not
identified by anyone in the store.

Af firmed.



4.qB .\ I,,

Jlr'...r,rris Ladas, tlr,,r)\.,,;l(! ,,i llr. lrltltr'-
nrir.c'r'. tcsl.ifi('(l thlrt [\\,r ,rrr,l ,rrrt 1t:rlf
nlontlls aftcl tllc rolrl,,:r'-r', hr'h;rtl sl'()ttc(l
thc appellru:t outsirlc of thc \Visc'firc
Company ,n Ilol.rilc, :rrrcl rr.rote dou'n the
liccrrsc numl)er on appclllnt's car. He then
reported the make of the car and the liccnse
nrlrnbcr to thc policc, rvho ran a registration
chcck and fotrnd that thc car belonged to
the appellant.

I)ctectivc Sergeant Iiarl Joslin tcstified
that the follou,ing da1., Ladas and two
other rvitncsses to the robbery separatcly
picked appellant's photograph out of a
group of eight photographs as one of thc
men ,rvho had robbed the l-adas Pharmacy.

-f 
oslin then testificd that the appellant was

arrestcd and takcrr into crrstody. He fur-
ther testificd that cach of the three s'it-
nesses to the rolrllcry, after scparately r.icrv-
ing a lincup, and rvith,trrt conferring rvith
cach other, identificd thc appellant as one
of the trvo men rvho had committed the rob-
lrcrl'. Iiach u'itness also made an indeperrd-
cnt in-court identification of appellant.

I

t1] :\ppcllant contcrrds that the trial
corrrt committed prejrrdicial error in rc-
fusing to allow him to inspect a report or
memorandum rvhich Of ficer Joslin had
made and used to rcfresh his recollcction,
outside the courtroom, just bcforc testi-
fying.

IIr cross-examinaLion the following .cx-
change occurred (R. p.36):

"A Sergeant Joslin, did you refer to a
rcport or memorandum that you made
prior to testifying today ?

"A Yes, I did.

Was that the pink sheet that llr.
Campbell had ?

"r\ Yes, sir.

"lIR. I.AWLER: :\Iay I see it, please?

".\IR. CANIPBELL: No, sir.

'\lli. I-.\\\ l.l.li: I rn()\'c rlrr. 5l.Lrr. 1,r,,
rIttcc tlrc rk>crrrrrttrt t'ir;rt thc rvitrrt.:s rr-.,,i
to rt'flt'sh his rccollr.ctiorr, so I rrriglrt rr.r.
it to cross c.xamirrc.

"lWhcreupon, Nlr. Campbell preserrtt.rl
legal argumcnt to the Court; Mr. Lau,lcr
prcsented lcgal argumcnt to the Court ;

and the following s.as had and dorrc:)

"TI{E COURT: Deny your motion."
I

lnQl9w{ v. State, -16 Ala.App. t7S, ZJs
So.2d 318, this Court, per Almon, J., state<l:

"We understand the larv to be that thc
court's rcfrrsal to permit defense counscl
to see and examine a report qsed_-lly_-rl
rvitttess on the stand tn re{rpsh his mgpl-
oiy rvould constitute reversible error.
\lcMurtrcy v. State, .l{ Ala.App. 658, 2l()
So.2d 414: Benefield v. State, 39 Ala.
,\pp. .102, liX) So.2d .3.14."

Ilere, the rvitncss did not take the rcport
to the u'itness stand s'ith him, lrut rcfcrrctl
to it outsidc thc courtroom immcdiately lrc-
fort' testifying. Under these circumstanccs,
u'e lrelicvc the rule as statcd in Kimbrough
r'. State, 1969 (Fla.,\pp.), 219 So.2d 122,

covcrs this case:

It is clear from the record
before us that the questioned report rvas
not used by the witness in the courtroom
for the purpose of refreshing his menr-
ory while he was testifying. Although
u,e have been unable to find a Florida
case relating to precise facts here in-
volved and none has been called to orlr
attention by either party to this appeal,
rvc believe that the majority vierv as ex-
pressed in the annotation at 82 A.L.R.2d
173 at page 562, rvhich is set out here-
after, is sound and well reasoned and in
our view is controlling in the instant case
on this issue:

"'Notwithstanding authority to the con-
trary, it has been held in many recent
decisions that where a witness has re-
freshed his present recollection prior to
thc time of giving testimony, by the use
of papers or memoranda out of court, he
is not, unless the court in its discretion

I

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t( ss II

tight rr.,

rcscrrtt.r I

.l.as.lcr
: ('ottrt;
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rtion."

175, J.i,r
, stitt(.(l:

hat th,'
cottrrsr.l
'<l lr1' :r

s lll(jnl-
('ff(,r.

r.ill, Jl,r
i()..\1.-r.

f('l){ rrl
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t.t t t r't'..
lrrottglr
kl u_,,

reco rrI
rt \r';ls
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nlcnr

Itotrgh
jlor ttl;r
rt' In

ROBINSON v. STATI;
ilit{.rs !?;} S0.:Il {s7

r,i,.r.,,t5cru'ise, olriiged to produce them \[1s. 'l'11r,:r1,.,,tt, lt,,rt( \'{ t', \\'its ttrtltlrlc trr

lu:rllurr the opposing party to makc an propcrly idcrrtrfl'tltt trvo lrottl,'s, ltrttl, fttr-

lnsPection'' "

Sce also Mahone v. State, 120 Ga.App.

$1, lzt S.E,zd 48; Williams v. !'lorida,

tSE (I.'la.APP.), 208 So.2d 628.

This subject is discussed in 7 A.L.R.3d,

$ Peges 244 and 247-

II

t2,31 r\ppellant further cites, as error,
rhe trial court's action in refusing to allorv

tnto cvidcnce two medicine bottles alleged-

ly taken by the appcllant to the Ladas

l'harmacy a couple of months after the date
ol the robbery to bc refilled. Thc appel-
lant had sought through the testimony of
his mothci, NIrs. Beulah Nlae Thompson, to
est.blish an "alibi" in part in that on an

rlleged subsequent visit to the pharmacy, he

nas not idcntified by any person at thc
rtorc.

211So.2d-)lv2

Alt, 489

ther, she admitted that shc \!'as, not actually
present in thc storc at the timc the appel-
lant allcgcdly lrrought the two prcscription
vials in.

In order for demonstrative evidence to be

admitted, such must not only bc properly
identified, but also must tend to corroborate
or clucidate a material inquiry. Smith v.

State, 2{8 Ala. 363, 27 So.Zd 495. We find
no error in the trial court's ruling,

I.'or a discussion of the admissibility of
thc dcmonstrative evidence generally, see

Volume 22A, C.J.S., Criminal Law, Section
70tt, at pagc 912.

We have carefully reviewed the entire
record in the case at bar, as requircd by
Title 15, Section 389, Code of Alabanra
19-10, and find no error therein. The judg-
nrent is due to be and the same is hereby

,\ f Iirmed.

All the Judges concur.

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