Bishop v. State

1

Anthony Lavaughn Bishop v. State of Alabama

No. CR-20-0976

Alabama Court of Criminal Appeals

September 2, 2022

Appeal from Jefferson Circuit Court (CC-19-4203)

MINOR JUDGE.

A jury convicted Anthony Lavaughn Bishop of third-degree robbery see § 13A-8-43, Ala. Code 1975, and the circuit court sentenced him, as a habitual felony offender, to 20 years' imprisonment; that sentence was split, and he was ordered to serve 5 years' imprisonment followed by 3 years' probation. In this appeal, we consider four issues: (1) whether the circuit court correctly refused to instruct the jury on fourth-degree theft of property as a lesser-included offense of third-degree robbery; (2) whether the circuit court correctly admitted alleged hearsay statements made during Bishop's recorded interview and in police body-camera footage; (3) whether the circuit court correctly gave an Allen^[1] charge; and (4) whether Bishop's split sentence is legal. We affirm Bishop's conviction, but because § 15-18-8(a)(2), Ala. Code 1975, limits the split portion of his sentence to 3 years' imprisonment, we remand this case for the circuit court to impose a split sentence on Bishop's 20-year sentence that conforms with § 15-18-8(a)(2).

In March 2019, Betty Mae Wallace was working as a cashier at a CVS Pharmacy in Birmingham when Bishop walked in and said that he wanted to "load a card." Wallace asked him to give her the card and he never did. Bishop then demanded money from Wallace, who, at first, believed Bishop was joking. Bishop then said, "Bitch, give me your fucking money," and "reach[ed] around" his back. (Supp. R. 257-58.) Because Wallace believed Bishop had a weapon, she took $79 from the register and threw it on the counter.^[2] Wallace testified that she was "afraid" because she believed that Bishop would hurt her if she did not comply with his demands. (Supp. R 258-59.) Video-surveillance footage from the CVS showed the interaction between Bishop and Wallace.

Shortly after the robbery, based on Wallace's description of him, police arrested Bishop.

I. Lesser-Included-Offense Instruction

Bishop argues that the circuit court erred by refusing to instruct the jury on fourth-degree theft of property as a lesser-included offense of third-degree robbery.^[3] Bishop argues that there was a reasonable theory from the State's evidence to support the requested instruction because, he says, no evidence showed that he had weapon or that he threatened to use a weapon or that he used or threatened the use of force.

" '"'A person accused of the greater offense has a right to have the court charge on lesser included offenses when there is a reasonable theory from the evidence supporting those lesser included offenses.' MacEwan v. State, 701 So.2d 66, 69 (Ala.Crim.App.1997). An accused has the right to have the jury charged on '"any material hypothesis which the evidence in his favor tends to establish."' Ex parte Stork, 475 So.2d 623, 624 (Ala. 1985). '[E]very accused is entitled to have charges given, which would not be misleading, which correctly state the law of his case, and which are supported by any evidence, however[ ] weak, insufficient, or doubtful in credibility,' Ex parte Chavers, 361 So.2d 1106, 1107 (Ala. 1978), 'even if the evidence supporting the charge is offered by the State.' Ex parte Myers, 699 So.2d 1285, 1290-91 (Ala. 1997), cert. denied, 522 U.S. 1054, 118 S.Ct. 706, 139 L.Ed.2d 648 (1998). However, '[t]he court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense.' § 13A-1-9(b), Ala. Code 1975. 'The basis of a charge on a lesser-included offense must be derived from the evidence presented at trial and cannot be based on speculation or conjecture.' Broadnax v. State, 825 So.2d 134, 200 (Ala.Crim.App.2000), aff'd, 825 So.2d 233 (Ala. 2001), cert. denied, 536 U.S. 964, 122 S.Ct. 2675, 153 L.Ed.2d 847 (2002). '"A court may properly refuse to charge on a lesser included offense only when (1) it is clear to the judicial mind that there is no evidence tending to bring the offense within the definition of the lesser offense, or (2) the requested charge would have a tendency to mislead or confuse the jury."' Williams v. State, 675 So.2d 537, 540-41 (Ala.Crim.App.1996), quoting Anderson v. State, 507 So.2d 580, 582 (Ala.Crim.App.1987)."

"'Clark v. State, 896 So.2d 584, 641 (Ala.Crim.App.2000) (opinion on return to remand).'

"Harbin v. State, 14 So.3d 898, 909 (Ala.Crim.App.2008)." Williams v. State, [Ms. CR-20-0294, Oct. 8, 2021] __ So.3d __, (Ala.Crim.App.2021).

Section 13A-8-43, Ala. Code 1975, provides:

"(a) A person commits the crime of robbery in the third degree if in the course of committing a theft he:

"(1) Uses force against the person of the owner or any person present with intent to overcome his physical resistance or physical power of resistance; or

"(2) Threatens the imminent use of force against the person of the owner or any person present with intent to compel acquiescence to the taking of or escaping with the property."

Section 13A-8-5, Ala. Code 1975, defines fourth-degree theft of property as "[t]he theft of property which does not exceed five hundred dollars ($500) in value and which is not taken from the person of another."

"Whether a crime constitutes a lesser-included offense is to be viewed on a case-by-case basis, and based on the specific facts of each case." Woods v. State, 845 So.2d 843, 847 (Ala.Crim.App.2002). Surveillance footage from the CVS store showed the interaction between Wallace and Bishop. Wallace testified, "[Bishop] said, 'Bitch, give me your fucking money" and then "[Bishop] moved his hand around to the back, and he insinuated to [Wallace] that he had a weapon." (R. 257-58.)

Wallace also testified that she was "afraid" because she believed that Bishop was going hurt her if she did not comply. No reasonable interpretation of the evidence at trial, including the surveillance video, would have allowed the jury to conclude that Bishop did not threaten the imminent use of force if Wallace did not give him money from the register. See Cook v. State, 582 So.2d 592, 594 (Ala.Crim.App.1991) (recognizing that the proper inquiry is how the victim reacted to and perceived the threat); see also Kimp v. State, 546 N.E.2d 1193, 1194 (Ind. 1989) ("The sole eyewitness to this crime, cashier Vargas, testified that the defendant appeared to be pointing a concealed weapon at her and told her to 'put all the money in a bag or you're dead.' The defendant did not present any evidence. From this we find no serious evidentiary dispute on the element of the use or threat to use force; thus, the defendant's tendered instruction on theft was properly rejected."); Jackson v. State (No. 05-04-01852-CR, Jan. 20, 2006) (Tex. Ct. App. 2006) (not reported in South Western Reporter) ("Appellant argues he was entitled to jury instructions on theft from a person and misdemeanor theft because, he contends, there was some evidence in the record that he merely took the money without threatening the complainant or placing her in fear of imminent bodily injury. … [T]he evidence of how the offense occurred came from the testimony of the complainant and the other clerk. Both stated that appellant got the complainant to give him the store's money by displaying a concealed weapon in his jacket pocket or pretending to have a concealed weapon in his jacket pocket. The women feared appellant was going to hurt or sexually assault them. Their description of the offense necessarily included appellant's threatening the complainant or placing her in fear of imminent bodily injury. Thus, no evidence in the case showed appellant was guilty only of the lesser included offenses of theft from a person or misdemeanor theft.").^[4] Thus, the circuit court properly refused Bishop's request to instruct the jury on fourth-degree theft of properly, and Bishop is due no relief on this issue.

II. Admission of Evidence

Bishop argues that the circuit court erred by admitting alleged hearsay statements made during his recorded interview and police body- camera footage. See State's Exhibits 2 and 3. Bishop argues that the hearsay statements were prejudicial and went to the ultimate issue in his case.^[5]

"The question of admissibility of evidence is generally left to the discretion of the trial court, and the trial court's determination on that question will not be reversed except upon a clear showing of abuse of discretion." Ex parte Loggins, 771 So.2d 1093, 1103 (Ala. 2000). "Hearsay" is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Rule 801(c), Ala. R. Evid. Hearsay is generally not admissible unless it falls within one of the exceptions in Rule 803 or Rule 804, Ala. R. Evid. See Rule 802, Ala. R. Evid.

First, Bishop argues that the State should not have been allowed to play the portion of his recorded interview during which the detective said, "Stop lying to me. I know what happened and you know what happened." (Supp. R. 25-26.) Bishop argued that the statement went to the ultimate issue. The circuit court disagreed, characterizing the detective's statement as "police tactics" and allowed the statement. (Supp. R. 26.)

We agree with the circuit court that the detective's statement, "Stop lying to me. I know what happened and you know what happened," was "not hearsay because it was not offered for the truth of the matter asserted. Instead, the statement was an interrogation tactic used to elicit a confession." Knight v. State, 300 So.3d 76, 105 (Ala.Crim.App.2018). And the detective's statement did not go to the ultimate issue. S...