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03/24/95 PATRICK JOHNATHAN FISHER v. STATE

March 24, 1995

PATRICK JOHNATHAN FISHER
v.
STATE



Appeal from Jefferson Circuit Court. (CC-92-2103). Alfred Bahakel, TRIAL JUDGE.

Rehearing Denied May 5, 1995. Released For Publication December 12, 1995.

Taylor, Presiding Judge. All The Judges Concur.

The opinion of the court was delivered by: Taylor

TAYLOR, PRESIDING JUDGE

The appellant, Patrick Johnathan Fisher, was convicted of robbery in the first degree, a violation of § 13A-8-41, Code of Alabama 1975. He was sentenced to 20 years in the penitentiary.

The state's evidence tended to show that on December 27, 1991, at 12:25 a.m., the appellant and another man robbed Daniel C. McCullough, Jr., at gunpoint while McCullough was conducting a transaction at a bank automatic teller machine (ATM). McCullough testified that he had gone to the ATM at a bank in Homewood to make three deposits. After he had made two deposits, two men with guns approached him. One was white and the other was black. He testified that one man had a sawed-off shotgun and that the other had a "silvery color" pistol. He testified that they pointed the guns at his head and that one man said, "Give me your money, motherfucker." McCullough said that he gave the men his wallet and the two deposit slips. They then pushed him to the ground and ran in separate directions. As he was running away, the white man dropped some shotgun shells and stopped to pick them up. McCullough went to a restaurant next door where an employee called the police.

Officer J.T. Ross of the Homewood Police Department testified that he responded to the robbery call and that he made out a report. He further testified that at 3:01 a.m the same morning he responded to a disturbance call at a apartment near the bank where the robbery had occurred. He and two other Homewood police officers, Officer Baker and Officer Mark Landrum, entered the apartment building. Ross testified that as they approached the door of the apartment where the noises indicating a disturbance were coming from, he heard loud voices inside. He heard someone state, "Let's go do another one. Let's go rob someone like we just did up the street. Get the gun. Let's go to Krystal [restaurant] and do someone and get some money." At this time, Ross decided to call for more backup. Three to four minutes later three more officers arrived. Four officers continued to wait outside the door of the apartment because the statements Ross heard led him to believe someone was about to leave the apartment. Two officers waited outside behind the apartment building. After about five minutes, the apartment door opened and a black male walked into the hallway. Ross testified that the officers identified themselves and told him to show his hands. The subject ran back into the apartment and shut the door. Ross stated that he and the officers heard noise and commotion inside the apartment. The officers in the back of the apartment building reported to Ross that some people were breaking out the back windows in an attempt to escape. However, burglar bars on the windows prevented them from escaping. Ross testified that about five minutes later, Seargent Costa of the Homewood police asked the residents to open the door. The door opened and three or four men came out into the hall. A few of the officers began to pat these men down for weapons while the rest of the officers entered the apartment. Ross testified that when he entered the apartment he found a credit card and deposit envelopes with the victim's name on them on the floor. The officers also seized McCullough's wallet, a sawed-off shotgun, a .380 semiautomatic pistol, a revolver, and a .25 caliber semiautomatic pistol.

McCullough later identified the appellant in lineups and from photographs taken by the camera at the ATM.

The appellant raises three issues on appeal.

I

The appellant first contends that the trial court erred in denying his motion to suppress a statement he made to Sergeant Edward McKenzie and Officer Mark Landrum of the Homewood Police Department. More specifically, he contends that he was coerced by the police into making the statement in violation of his Fifth Amendment privilege against self-incrimination.

"'All extra-judicial statements are deemed involuntary.' Smith v. State, 623 So. 2d 369, 372 (Ala. Cr. App. 1992). See also Mitchell v. State, 508 So. 2d 1196 (Ala. Cr. App. 1986). Before an accused's inculpatory statement can be received into evidence, the state has to show that the accused was read his Miranda rights, that he understood those rights, and that he waived those rights. Whitlow v. State, 509 So. 2d 252 (Ala. Cr. App. 1987); Malone v. State, 452 So. 2d 1386 (Ala. Cr. App. 1984)."

McCray v. State, 629 So. 2d 729, 731 (Ala. Cr. App. 1993).

In this case, it is undisputed that the appellant was read his Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) rights, and that he waived those rights. Thus, the only ...


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