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439 So. 2d 210

Butler v. State

Court of Criminal Appeals of Alabama

Decided October 4, 1983

Court of Criminal Appeals of Alabama · decided 1983-10-04

Key passage — most relied on by later courts

“(i) are of the same or similar character; or (ii) are based on the same conduct or are otherwise connected in their commission; or (iii) are alleged to have been part of a common scheme or plan.”

quoted by 4 later decisions, including Thomas v. State, 568 So. 2d 354 - Williams v. State

“Clearly this was a proper case for joinder. The offenses are the same and are based on the same type of conduct by the same offender.”

quoted by 1 later decision, including Thomas v. State

Relies on 392 So. 2d 1274 - Watson v. State · 392 So. 2d 1280 - Sanders v. State · 394 So. 2d 385 - Hollenquest v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1983-10-04

How this case has been cited

Cited by 14 later decisions — most recently July 2011

14 state decisions

801983199020002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1

¶2Timothy Butler was indicted for robbery in the first degree in violation of § 13A-8-41, Code of Alabama 1975. The jury found the appellant "guilty as charged in the indictment" and the trial judge set sentence at life imprisonment in the penitentiary under the provisions of the Alabama Habitual Offender Act.

¶3On January 31, 1983, John Parrish was robbed at the Seale Bay Gas Station in Russell County. A black male pulled a gun on Parrish and demanded his money. Parrish gave the man approximately $200.00 from the cash register, and his billfold which contained about $10.00. The robber was wearing a white ski mask over his face and had a silver pistol. He also took Parrish's gun.

¶4On February 10, 1983, Laura Bradley was robbed in Lil Mack's Grocery in Russell County. A black male entered the store and demanded the money. She gave him $250.00 or $300.00. The robber wore unusual clothing and carried a silver plated pistol. *211

¶5Officer Herbert Parker of the Russell County Sheriff's Office went to the home of Margaret Sanks Horace with an arrest warrant for the appellant. Parker told her he wished to search the house for the appellant for which she gave her consent. The appellant was found hiding under some clothes behind a couch in one of the bedrooms. Parker found a wallet containing several hundred dollars under the couch and a chrome plated .25 pistol on the couch.

¶6The gun found was identified as similar to the one used in the two robberies and Parrish's gun was also recovered.

¶7Johnny Lee Matthews testified that the appellant was in the area of Lil Mack's Grocery at the time of the robbery and was wearing clothes similar to those that Bradley described to the police officers.

¶8

I
The appellant contends the trial court erred by allowing the State to consolidate the two robberies. Rule 15.3 (a), Temporary Rules of Criminal Procedure allows joinder of two offenses if they (1) are of the same or similar character, (2) are based on the same conduct or are otherwise connected in their commission or (3) are alleged to have been part of a common scheme or plan. Clearly this was a proper case for joinder. The offenses are the same and are based on the same type of conduct by the same offender. Therefore, we hold the trial judge properly granted the State's motion to consolidate the two cases.

¶9

II
The appellant asserts reversible error was committed by the admission of evidence of stolen property which was found in the vicinity of the appellant at the time of his arrest.

¶10Officer Parker had reason to believe the appellant was in Mrs. Horace's home and had a right to enter her home and effectuate the appellant's arrest. Hollenquest v. State,394 So.2d 385 (Ala.Cr.App. 1980) writ denied, Ex Parte Hollenquest,394 So.2d 389 (Ala. 1981).

¶11Furthermore, Officer Parker testified Mrs. Horace consented to the search. Once the arrest was made, Parker certainly acted properly in searching the immediate area around the appellant.

¶12Therefore, we find no error in the admission of the stolen items into evidence at trial.

¶13

III
The appellant's argument that his sentence under the Habitual Offender Act is in violation of the United States Constitution is without merit.

¶14This court has repeatedly held that the Habitual Offender Act is not violative of the United States Constitution and does not constitute cruel and unusual punishment. Watson v. State,392 So.2d 1274 (Ala.Cr.App. 1980), cert. denied, 392 So.2d 1280 (Ala. 1981).

¶15

IV
The appellant contends that allowing testimony concerning the identification line-up is reversible error. We do not agree.

¶16First, defense counsel never made a motion to suppress the identification at issue. Secondly, while there was never a positive identification of the appellant at the trial, or during the line-up, any issue concerning the identification of the appellant was an issue for the jury which they properly resolved.

¶17We have examined the record and find it free of error. Therefore, for the reasons stated above, the judgment of the trial court is due to be and is hereby affirmed.

¶18AFFIRMED.

¶19All the Judges concur. *212

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