Dockery v. State

• Decision Date: 25 June 1959
• Docket Number: 8 Div. 971
• Citation: 269 Ala. 564,114 So.2d 394
• Parties: Edwin Ray DOCKERY, alias, v. STATE of Alabama.
• Court: Alabama Supreme Court

Page 394

114 So.2d 394

269 Ala. 564

Edwin Ray DOCKERY, alias, v. STATE of Alabama.

8 Div. 971.

Supreme Court of Alabama.

June 25, 1959.

Rehearing Denied Sept. 17, 1959.

Calvin, Gilchrist & Murphree, Decatur, for appellant.

MacDonald Gallion, Atty. Gen., and Geo. D. Mentz, Asst. Atty. Gen., for the State.

MERRILL, Justice.

Appellant was convicted of murder in the first degree and was sentenced to death by electrocution. His appeal is here under the automatic appeal statute. Act No. 249, approved June 24, 1943, p. 217; Code 1940, Tit. 15, § 382(1), et seq., 1955 Cum. Pocket Part.

Willie Heatherly, age twenty-seven, was last seen alive in Cullman, on the afternoon of August 9, 1958, in his black, 4-door 1958 Chevrolet. He was discovered dead on the afternoon of August 12, his hands tied behind his back with rubber tubing and a leather belt twisted tightly around his neck, in Morgan County about fifty yards north of the Cullman County line. His death was the rusult of strangulation from the belt applied around the neck, which broke the trachea. The body was badly decomposed when found.

There was an abundance of evidence which placed the appellant, who was from Fayette, in the vicinity of where the body was discovered, and put him in the automobile of the deceased after the crime was committed.

The State also showed inculpatory statements or confessions by appellant as follows:

1. Statement to Kathleen Nabors on August 12, 1958, that he had to leave Fayette because he had killed a man and he had to get out of town, that he had tied his hands behind his back, put a belt around his neck and drug him into the woods;

2. Statement to Martha Murphy on August 11 that he had a fight with a man whom he had left on the side of the road with a belt around his neck;

3. Showing Howard D. Morris the article in the Birmingham newspaper regarding death of deceased and appellant later telling him that 'I am the man thak killed him;'

4. Detailed statement to Lt. Richard F. Jordan on August 13 and 14 that he killed the man and looped the belt over his neck and drug him out of the car into the woods face up;

5. Statements to R. W. Godwin on August 15, August 16 and August 17 regarding appellant's connection with the choking and killing of deceased.

Evidence for the State further tended to show that appellant was picked up by a motorist in Warrior around 4:00 P.M. on Saturday, August 9, brought to Cullman and that he was then wearing a white cotton sling with no blood on it.

According to some of his statements to the officers, the deceased later picked him up in Cullman, they rode around a while, then drove off on a dirt road, that after both of them had gotten out of the automobile, the deceased made perverted sexual advances on appellant, whereupon, appellant knocked him down, and in an ensuing fight, appellant chocked him until he was dead. He then removed deceased's belt and shoes, looped the belt around his neck, tied his hands behind his back with a rubber tube, took what money deceased had and left the body in the woods.

It was further shown that appellant drove the automobile of deceased into a filling station as Hartselle at 3:00 A.M., August 10, that the automobile was found in a parking lot in Birmingham on the moring of August 11, that appellant's fingerprints were on the automobile, and that a white cotton sling with blood stains of Type O on it was found in the automobile. It appears that appellant went back to Fayette on Sunday, the 10th, was picked up while hitchhiking west of Birmingham by Sgt. Howard D. Morris on Wednesday, August 13, who was en route from Fort Sill, Oklahoma, to Fort Dix, New Jersey, via Atlanta, Georgia. Appellant was apprehended in or near Atlanta. The record is not clear but the inference from the testimony is that he was taken to a hospital in Atlanta in an ambulance and from the hospital to the jail by Atlanta police.

The appellant did not take the stand but witnesses were introduced in his behalf to show that he was of unsound mind in support of his plea of not guilty by reason of insanity. He was ably represented at the trial and on this appeal by court appointed counsel.

Appellant contends that the court errer in three instances in admitting evidence which tended to prove the commission of other separate crimes or offenses by appellant.

The State called Donald Bullard as a witness. He testified that appellant drove the automobile of the deceased into the filling station where he worked at Hartselle, on August 10 at 3:00 A.M. He made positive identification of appellant. The solicitor asked this question: 'What position were your hands in at the time the defendant left?' The objection was sustained. Appellant contends that this was the solicitor's way of letting the jury know that appellant had robbed the filling station, and that if the answer had been permitted, the witness would have testified that his hands were above his head.

But there is nothing in the record to support this contention and the objection to the question was sustained. An appellate court can only look to the record and not to the briefs to ascertain the facts, Walker v. State, 223 Ala. 294, 135 So. 438, or as stated in Christian v. Reed, 265 Ala. 533, 92 So.2d 881, 885, 'Argument reciting matters not disclosed by record cannot be considered.'

The next instance was in connection with the testimony of Sgt. Howard D. Morris, who testified that after he picked up appellant between Tuscaloosa and Birmingham, appellant asked him three or four times to read a newspaper article about the death of a man in Alabama. (This was the account of Heatherly's death, his body having been discovered on the 12th, the day before.) Being sleepy, Morris allowed appellant to drive and he went to sleep around 8:30 P.M., somewhere between Birmingham and Atlanta. He testified that he later awoke, the car was stopped and when asked where appellant was, he answered that appellant 'was leaning over me with a knife in his hand.' After objection was overruled, the following then occurred:

'Q. What's the first thing he said? A. 'Don't move, you son-of-a-bitch. I will kill you like I did the man in Alabama.'

'Q. Did he say anything about the newspaper? A. He said, 'Don't you remember I tried to get you to read about a man killed in Alabama?' I said, 'Yes.' He said, 'I am the man that killed him.''

Appellant contends that this was evidence of an assault on Morris, a separate and distinct offense. But the statements attibuted to the appellant by the witness were admissible under the rule that the accused's acts, declarations and conduct against interest are competent. Blackwell v. State, 264 Ala. 553, 88 So.2d 347, and cases there cited. We have held that proof of the circumstances attending the narration of inculpatory statements or confessions which establish the voluntary nature of such statements is admissible. Drake v. State, 257 Ala. 205, 57 So.2d 817; Tillison v. State, 248 Ala. 199, 27 So.2d 43. The statements of appellant would hardly have made sense without the explanation of the circumstances under which they were uttered.

'Evidence which is relevant to establish some element of the offense, or material as to some issue in the case, is not rendered inadmissible by the fact that it also tends to show another offense committed by defendant.' Snead v. State, 243 Ala. 23, 8 So.2d 269, 270 and authorities there cited. There was no reversible error in this instance.

The third occasion occurred a few questions later in the questioning of the same witness:

'Q. Don't tell any details of how you got out or what took place before you got out. You didn't leave that spot in your own car?

'Mr. Calvin: Wait a minute.

'A. I don't understand.

'Q. You didn't leave that spot where this defendant stopped and got on you with a knife--you didn't leave that spot in your own car?

'Court: Did you go in some other car?

'Q. How did you leave the spot? A. By foot.

'Q. By foot? A. Yes.

'Q. What happened to your car? A. This man stole it.

'Q. Who left----

'Mr. Calvin: We object and move to exclude that.

'Court: That is out.

'Q. Who drove your car away? A. Edwin Ray Dockery.

'Mr. Calvin: We object, as being incompetent, illegal, irrelevant and immaterial.

'Court: Sustained.

'Mr. Calvin: And ask the--move the court to exclude it and instruct the jury that isn't evidence.

'Court: Don't consider that. Whenever the court----

'Mr. Johnson: We offered it on flight.

'Court:--whenever the court sustains an objection to evidence, that is no longer in the case and not to be considered by you one way or the other.

'Mr. Johnson: We re-offer it on the proposition of flight of the defendant.

'Mr. Calvin: We renew the same objection.

'Court: Sustained.'

Appellant contends that this evidence was admitted to show that appellant stole the automobile belonging to witness Morris. True, the witness testified that appellant stole the car, but the court sustained the objection, excluded the statement and, on motion of appellant, instructed the jury not to consider it. The court ruled with appellant and did everything that appellant asked to be done. Each ruling was favorable to appellant and there is nothing for us to review, except the question, under the automatic appeal statute, of whether this testimony and the court's action pertaining to it 'was seriously prejudicial to the rights of the appellant.'

This instance is similar to that described in Sims v. State, 253 Ala. 666, 46 So.2d 564, 565, where the death penalty was imposed for murder in the first degree. A witness for the State was asked:

'Q. Tell us how you know that to be the known finger prints of Claude B. Sims? A. On four, thirty, forty-seven Claude B. Sims was arrested for burglary and grand larceny.'

The witness later made a reference to the 'first arrest' which was not on the murder charge. Each time the defendant objected and moved for a mistrial. Each time the court excluded the statements and...