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Towns v. State

Alabama Court of Criminal Appeals

May 24, 2019

Manuel Ali Towns
v.
State of Alabama

          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 ...


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