Appeal
from Jefferson Circuit Court (CC-17-1672; CC-17-1673;
CC-17-1674; and CC-17-1675)
KELLUM, Judge.
Manuel
Ali Towns was convicted of one count of robbery in the first
degree, see § 13A-8-41(a)(1), Ala. Code 1975, one count
of kidnapping in the first degree, see § 13A-6-43(a)(3),
Ala. Code 1975, and two counts of fraudulent use of a credit
or debit card, see § 13A-9-14(b)(1), Ala. Code 1975. He
was sentenced, as a habitual offender with seven prior felony
convictions, to life imprisonment without the possibility of
parole for the robbery conviction and for the kidnapping
conviction and to 15 years' imprisonment for each of the
fraudulent-use-of-a-credit-or-debit-card convictions.
I.
Towns
contends that the trial court erred in denying his motion for
a new trial because, he says, the evidence was insufficient
to sustain his convictions for robbery and kidnapping and
because, he says, the verdicts finding him guilty of those
offenses were against the great weight of the
evidence.[1] Specifically, as to both his sufficiency
and weight-of-the-evidence arguments, Towns contends that the
victim's identification of him as the perpetrator was
unreliable in light of the circumstances of the crimes, her
prior inconsistent statements, and the testimony of his
expert on eyewitness identification.
The
evidence adduced at trial indicated the following. At
approximately 10:00 p.m. the night of March 14, 2017,
Brittany Diggs was walking from her Nissan automobile to her
apartment when she was approached by a man brandishing a gun
who demanded "anything that [she had] that's
valuable." (R. 377.) Diggs said that the man was wearing
jeans and a striped hoodie. In both a pretrial photographic
lineup and at trial, Diggs identified Towns as the man who
accosted her that night. When Diggs informed Towns that the
only thing she had of value was her cellular telephone, Towns
forced Diggs to drive him around Birmingham in her vehicle to
help him rob other people. After two failed robbery attempts,
Towns ordered Diggs to pull over, at which point he forced
Diggs into the trunk of her vehicle. Towns then began
driving. At some point while Diggs was in the trunk, Towns
discovered Diggs's wallet in the passenger compartment of
the vehicle and asked Diggs for the personal identification
number ("PIN") associated with her debit card,
which Diggs gave him.
According
to Diggs, Towns stopped a total of three times while she was
in the trunk, each time getting out of the vehicle and then
returning. After one stop, Towns told her that the PIN number
did not work, and after another stop, Towns told her that he
had obtained $80. Before the third stop, Diggs said, Towns
told her that if the PIN number did not work, he would rape
her and kill her. Diggs testified that the whole time she was
in the trunk, she was trying to find a way to escape, and
that, just before the third stop, she was able to find the
trunk latch using the backlight on her insulin pump. Diggs
waited, and when Towns started driving away after the third
stop, Diggs used the latch and jumped out of the trunk. She
immediately ran inside the gasoline station/convenience store
where they had stopped and informed the clerk, Yosef Alsabah,
that she needed help.
Alsabah
testified that he was working at the gasoline
station/convenience store located at 1800 Bessemer Road the
night of March 14, 2017, when, at approximately 11:30 p.m., a
man entered the store and tried to use the automated teller
machine ("the ATM"). Alsabah positively identified
Towns as the man who had entered the store. Alsabah testified
that he tried to help Towns use the ATM but that Towns was
unable to withdraw any money. According to Alsabah, Towns
left the store briefly but then came back inside the store
and tried to use the ATM a second time, again without
success. As Towns was driving away, Alsabah said, he saw
Diggs jump out of the trunk of the vehicle Towns was driving
and run toward the store. He allowed Diggs into the enclosed
area behind the counter for her safety and telephoned
emergency 911. Diggs spoke with the 911 dispatcher and police
responded to the scene.
The
State introduced into evidence surveillance video from the
store at which Diggs escaped and from another gasoline
station/convenience store located at 2301 Ensley Avenue, as
well as the recording of the 911 call. Testimony from James
Vildibill, a patrol officer with the Birmingham Police
Department, indicated that, the night of the crimes, $102.80
had been withdrawn from Diggs's bank account using an ATM
located at 1801 Avenue V and $82.80 had been withdrawn from
Diggs's bank account using an ATM located at 2301 Ensley
Avenue. The State presented evidence indicating that
Diggs's vehicle was later discovered abandoned and that
Towns's fingerprints were on the trunk and the
driver's door. In addition, the State presented testimony
that, when Towns was apprehended, a striped hoodie was found
in his possession.
Towns's
defense at trial was that he was not the perpetrator of the
crimes, and he attacked Diggs's identification of him. He
vigorously cross-examined Diggs, impeached portions of her
testimony with prior inconsistent statements, and highlighted
her description of the perpetrator. For example, Diggs
testified at trial that she had told police that the
perpetrator was about her height, but testimony indicated
that Diggs is 5 feet 7 inches tall and the State stipulated
that Towns is 5 feet 11 inches tall. Diggs also testified at
trial that the perpetrator was wearing a striped hoodie, but
Towns presented evidence indicating that Diggs had never told
police that. Diggs denied on cross-examination having told
police that Towns was wearing a hat, and Towns impeached her
with footage from the body camera of the police officer who
interviewed Diggs at the scene, which indicates that Diggs
told the officer that Towns was wearing a hat. Surveillance
videos from the store where Diggs escaped and from the store
on Ensley Avenue also showed that Towns was wearing a hat.
Towns also impeached Diggs's testimony that he had
approached her from the front while she was walking to her
apartment with a statement she had made during a media
interview saying that Towns had approached her from behind.
In addition, Diggs testified that she did not recall speaking
with the 911 dispatcher, but she admitted on
cross-examination that she had listened to the recording of
the call and that she had told the 911 dispatcher that she
did not know what the perpetrator looked like.
Towns
also presented testimony from Dr. Jeffrey Neuschatz, a
cognitive psychologist specializing in eyewitness
identification. Dr. Neuschatz testified, essentially, that
eyewitness identifications are generally unreliable because
the events giving rise to the identifications usually happen
quickly in a stressful environment and are usually made long
after the events occurred. In this particular case, Dr.
Neuschatz said, the presence of a weapon, the fact that the
perpetrator was wearing a hat, and the fact that the
photographic lineup was shown to Diggs a week after the
crimes lessened the reliability of Diggs's identification
of Towns. According to Dr. Neuschatz, it is more likely that
Diggs's statement during the 911 call that she did not
know what the perpetrator looked like was accurate and her
subsequent identification of Towns was not. In addition, Dr.
Neuschatz testified that the photographic lineup from which
Diggs identified Towns was biased because Towns was the only
person in the lineup wearing a striped shirt.
"The weight of the evidence is clearly a
different matter from the sufficiency of the
evidence. The sufficiency of the evidence concerns
the question of whether, 'viewing the evidence in the
light most favorable to the prosecution, [a] rational fact
finder could have found the defendant guilty beyond a
reasonable doubt.' Tibbs v. Florida, 457 U.S.
31, 37, 102 S.Ct. 2211, 2216, 72 L.Ed.2d 652 (1982). Accord,
Prantl v. State, 462 So.2d 781, 784 (Ala. Cr. App.
1984)....
"In contrast, '[t]he "weight of the
evidence" refers to "a determination [by] the trier
of fact that a greater amount of credible evidence supports
one side of an issue or cause than the other."'
Tibbs v. Florida, 457 U.S. at 37-38, 102 S.Ct. at
2216 (emphasis added)."
Johnson v. State, 555 So.2d 818, 819-20
(Ala.Crim.App.1989), on return to remand, 576 So.2d 1279
(Ala.Crim.App.1990), rev'd on other grounds, 576 So.2d
1281 (Ala. 1991).
"'"In determining the sufficiency of the
evidence to sustain a conviction, a reviewing court must
accept as true all evidence introduced by the State, accord
the State all legitimate inferences therefrom, and consider
all evidence in a light most favorable to the
prosecution."' Ballenger v. State, 720
So.2d 1033, 1034 (Ala.Crim.App.1998), quoting Faircloth
v. State, 471 So.2d 485, 488 (Ala.Crim.App.1984),
aff'd, 471 So.2d 493 (Ala. 1985). '"The test
used in determining the sufficiency of evidence to sustain a
conviction is whether, viewing the evidence in the light most
favorable to the prosecution, a rational finder of fact could
have found the defendant guilty beyond a reasonable
doubt."' Nunn v. State, 697 So.2d 497, 498
(Ala.Crim.App.1997), quoting O'Neal v. State,
602 So.2d 462, 464 (Ala.Crim.App.1992). '"When there
is legal evidence from which the jury could, by fair
inference, find the defendant guilty, the trial court should
submit [the case] to the jury, and, in such a case, this
court will not disturb the trial court's
decision."' Farrior v. State, 728 So.2d
691, 696 (Ala.Crim.App.1998), quoting Ward v. State,
557 So.2d 848, 850 (Ala.Crim.App.1990). 'The role of
appellate courts is not to say what the facts are. Our role
... is to judge whether the evidence is legally
sufficient to allow submission of an issue for decision [by]
the jury.' Ex parte Bankston, 358 So.2d 1040,
1042 (Ala. 1978)."
Gavin v. State, 891 So.2d 907, 974
(Ala.Crim.App.2003).
Any
"inconsistencies and contradictions in the State's
evidence, as well as [any] conflict between the State's
evidence and that offered by the appellant, [go] to the
weight of the evidence and [create a question] of fact to be
resolved by the jury." Rowell v. State, 647
So.2d 67, 69-70 (Ala.Crim.App.1994). "'"[T]he
credibility of witnesses and the weight or probative force of
testimony is for the jury to judge and
determine."'" Johnson, 555 So.2d at
820 (quoting Harris v. State, 513 So.2d 79, 81
(Ala.Crim.App.1987), quoting in turn Byrd v. State,
24 Ala.App. 451, 451, 136 So. 431, 431 (1931)). More
importantly, "'[t]he question of the victim['s]
credibility [is] one for the jury and not for this
Court." Rowell, 647 So.2d at 69 (quoting
Coats v. State, 615 So.2d 1260, 1260
(Ala.Crim.App.1992)). "We have repeatedly held that it
is not the province of this court to reweigh the evidence
presented at trial." Johnson, 555 So.2d at 820.
"'When the jury has passed on the credibility of
evidence tending to establish the defendant's guilt, this
Court cannot disturb its finding.'" Rowell,
647 So.2d at 69 (quoting Collins v. State, 412 So.2d
845, 846 (Ala.Crim.App.1982)). "Any issues regarding the
weight and credibility of the evidence are not reviewable on
appeal once the state has made a prima facie case."
Jones v. State, 719 So.2d 249, 255
(Ala.Crim.App.1996), aff'd, 719 So.2d 256 (Ala. 1998).
Viewed in the light most favorable to the State, the evidence
here, as set forth above, was more than sufficient to sustain
Towns's convictions for robbery and kidnapping. Not only
did Diggs positively identify Towns as the man who had robbed
and kidnapped her, Alsabah identified Towns as the man he saw
driving the vehicle from ...