Judge grants acquittal for defendants after prosecutors apparently listed wrong name of store

04/12/02

By GARY McELROY
Staff Reporter

For a few minutes Wednesday, Tommie Lee Anderson and Steve Robinson were on trial in Mobile County Circuit Court, charged with robbing the Shoe Station on Bel Air Boulevard last October.

Except, it wasn't the Shoe Station that had been robbed, as listed in the indictment against the men. It was the Shoe Show, several blocks north.

That mistake apparently cost the Mobile County district attorney's office any shot at convicting Anderson and Robinson of first-degree robbery in connection with the incident.

In light of the blunder, brought up before Judge Herman Thomas only after the trial was well under way and a jury had been sworn in, the judge granted the defense motion for a directed verdict of acquittal.

The trial got as far as the testimony of the first witness, a cashier at the Shoe Show, at 2962 Springhill Ave.

She told jurors her store was robbed at gunpoint Oct. 19, 2001, and the robbers took money and shoes.

But during cross-examination by the defense, the witness was asked if her business had ever been called the Shoe Station.

Never, the witness said.

In fact, the Shoe Station is a completely different business, located at 450 Bel Air Blvd., and was apparently not robbed on that October day.

Defense attorneys Dom Soto and Jerome Carter immediately asked Thomas for the directed verdict, and he gave it to them.

The decision did not mean the men went free. Their attorneys said the two men are still being held in the Mobile County Metro Jail on charges stemming from two other robberies.

But it did mean they can never be tried again for the crime of robbing the Shoe Show last October, Soto and Carter contend.

Soto said Thursday that once a jury is sworn in to hear a case, a defendant is put in jeopardy of being convicted, and under the Fifth Amendment to the U.S. Constitution, he cannot be tried twice for the same crime -- known as being placed in double jeopardy.

Carter said that before the trial began, the name of the store was questioned, but Thomas got assurances from detectives who worked on the case and from Assistant District Attorney Jackie Brown that it was the same establishment, just with a different name.

Carter said it was not unusual for a misprint or some other kind of mistake to be listed in an indictment, which is relatively easy to amend, but "it is unusual when you go to trial and swear the jury in" and then learn about the mistake "when it's too late to do anything about it."

"It's certainly not the defense's responsibility to enlighten the state if there is a problem," Carter said.

A third man faces a robbery charge in connection with the case, Kenneth Harvey Gaillard, 46, but his case was separated from the other two because his lawyer was tied up with another trial. The directed verdict did not apply to Gaillard, and he will almost certainly be re-indicted under the correct shoe store name.

Assistant District Attorney Brown could not be reached for comment.

But late Thursday, District Attorney John Tyson Jr. took full responsibility for the legal faux pas.

"The buck stops right here, no question about it," Tyson said. "We should have caught it. There should not have been any confusion about the Shoe Station and the Shoe Store, the Shoe Show -- you can't even say it without getting tongue-tied -- but we should have caught it before it got into the courtroom and at the grand jury, too."

Tyson said his office "certainly wished we had not inconvenienced the court, the witnesses or the members of the jury."

But he disagreed with Carter's and Soto's premise that the mistake violated their clients' Fifth Amendment rights. He said his office will re-indict Anderson, 37, and Robinson, 39.

"We will get another indictment, get the words straightened out and be prepared to argue that" double jeopardy does not apply, Tyson said.

Tyson said the two men have not yet been put on trial for robbing the Shoe Show, only the Shoe Station.

When informed of Tyson's intentions, Soto said: "It's not going to work. They can try to fix it, but it's broke."