Allen v. State
| Decision Date | 17 June 1975 |
| Docket Number | 6 Div. 726 |
| Citation | 317 So.2d 517,55 Ala.App. 549 |
| Parties | Walter Bernard ALLEN, Jr., alias v. STATE. |
| Court | Alabama Court of Criminal Appeals |
William T. Kominos, Birmingham, for appellant.
William J. Baxley, Atty. Gen., Montgomery, David L. Weathers, Asst. Atty. Gen., Birmingham, for the State.
First degree murder: sentence, life imprisonment.
After appellant's arraignment on an indictment for first degree murder, he applied for treatment as a youthful offender pursuant to Act No. 335, Acts of Alabama 1971, 3rd Spec. Session, approved February 10, 1972. The trial court, after a hearing, denied treatment as a youthful offender. On appeal, we found that the judgment entry failed to reflect whether an investigation had been made by a probation officer, and we remanded with directions on May 6, 1975, on authority of Morgan v. State, 291 Ala. 764, 287 So.2d 914; Tarver v. State, 1975, 56 Ala.App. 36, 318 So.2d 775; and Edwards v. State, 1974, 55 Ala.App. 544, 317 So.2d 511.
On May 12, 1975, the trial court filed a supplemental transcript in answer to our order on remandment, making a showing that a probation report was in fact made and inadvertently omitted from the original transcript of the record on appeal. The full report of the probation officer is set out in the supplemental transcript of the record, and this Court will now review the case on its merits.
It should be noted, however, that since the answer to the remandment, the Alabama Supreme Court has modified the effect of Morgan, supra, by holding that referral to a probation officer is no longer mandatory. The trial courts may now make or order such investigation as they deem necessary and then hold an examination and then make a determination whether or not to accord youthful offenders treatment to an accused. Clemmons v. State, 1975, 294 Ala. ---, 321 So.2d 238.
On August 6, 1973, Walter Bernard Allen, Jr., and three companions, Ronald Allison, Willie Jones and Adrian McCall, were driving on Highway 280 approaching the interchange ramp at Highway 31 in Mountain Brook, Jefferson County, Alabama. The appellant was driving a Cadillac which belonged to his employer which he apparently took without permission. He was stopped by Officer Fred Harp of the Mountain Brook Police Department. Officer Harp, upon discovering that the appellant did not have a driver's license, ordered him out of the car where he was then searched and handcuffed with his hands behind him. As Sergeant Harp reached into the car, apparently to remove the keys from the ignition, the appellant grabbed the officer's pistol from his holster.
From here on, the facts are somewhat in dispute as to what exactly happened. However, the appellant, while still handcuffed, somehow fired a shot which sent Sergeant Harp down wounded. After this, the appellant asked the Sergeant for the keys to the handcuffs, and Sergeant Harp stated that they were in the police car. Appellant stated that he only fired one shot and that he gave the pistol to Ronald Allison and then went back to the police car in order to get the keys to the handcuffs, but was unable to find them. The appellant said he then heard another shot. After this, all of the occupants of the car ran across the highway and fled the scene.
The State's evidence presented at trial showed that the death of Officer Harp was caused by a bullet or bullets from his own pistol. His revolver was found by the police in a home near where the appellant was taken into custody. The State called some twenty-one witnesses. The defense called two witnesses, one of which was the appellant himself.
Charles G. Robey testified that he was Deputy Coroner of Jefferson County. His testimony was that he received a call on August 6, 1973, at 11:45 P.M. to the University Hospital. He arrived there at 12:15 A.M. on August 7, 1973. He viewed the deceased, Fred Harp, and stated that he was dead. He also testified that he and Dr. Willis Crawford were together that morning at Mercy Hospital in the morgue and autopsy room and that he was given a bullet by Dr. Crawford along with a blood sample and some tissue of the body. Mr. Robey stated that he received another bullet from a Dr. Carraway at the University Hospital.
Dr. Willis B. Crawford, a pathologist, testified that he had performed the autopsy on the deceased, Fred Harp. Dr. Crawford testified as to the wounds on the body. He used diagrams and photographs to illustrate his testimony. Dr. Crawford further testified that possibly three bullets could have entered the body and that a bullet designated on his diagram as bullet #1 was the cause of death.
Patrolman Hocutt testified that he was the radio dispatcher for the Mountain Brook Police Department, and that he had been in communication with the deceased just before the shooting. He further testified that the deceased called in to check the license number of the Cadillac which the appellant was driving at the time of the incident. Patrolman Hocutt stated also that he had no further contact with the deceased, but some other person using Officer Harp's radio called to report that an officer had been shot, and Hocutt called for an ambulance.
The State put on numerous witnesses who had happened along the ramp at the Red Mountain Expressway immediately after the incident and one witness who came by possibly just before the shooting.
Much of the State's presentation of evidence involved the testimony of various law enforcement officers who arrived at the scene or those who took part in the investigation of the murder. The appellant's attorney sought to show that the appellant was severely beaten by the arresting officers.
The State called as a witness, Adrian McCall, a rider in the back seat of the car which the appellant was driving on the night of the fatal shooting. Adrian McCall stated that when he heard the shot, he looked around and saw the appellant 'jumping back.' He further stated that after the shot, he and the others jumped out of the car and ran. The record shows that Adrian McCall was the cousin of Ronald Allison who was also indicted for the murder. On cross examination, Adrian McCall testified that three shots were fired. The witness stated that he heard one shot, a pause, and then heard two more shots right after each other.
The next witness called was Willie Jones, a rider in the back seat of the Cadillac on the night of the shooting. His testimony closely paralleled that of Adrian McCall's in that neither one of them actually saw Ronald Allison fire any shots. Willie Jones demonstrated for the jury the way the appellant moved his handcuffed hands to his side in order to reach and get the policeman's gun from his holster. On cross examination, the witness testified that he did see the gun 'jerk' while in the hands of Ronald Allison.
The next few witnesses had to do with the arrest of the appellant at 2102 Henrietta Road. Officer Thomas C. Green and Officer Tommie Evans were the first to arrive at the scene of the arrest. Sergeant Higgins, Commanding Officer of Scientific Investigation, Birmingham Police Department, testified that he took into his possession a revolver found in the closet at 2102 Henrietta Road and that three of the cartridges had been spent. He test fired six cartridges, and turned the bullets over to the State Toxicologist. Sergeant Watkins of the Mountain Brook Police Department made positive identification of the handcuffs belonging to the deceased, Fred Harp, that had been used on the appellant. Don Knight testified to the purchase of and identified the revolver owned by the deceased, Fred Harp.
The State called as its witness Dr. Robert B. Johnson, Toxicologist in charge of the Birmingham Division, who testified to receiving two spent bullets and the six test-fired bullets from the murder weapon. Dr. Johnson stated, '. . . they all had six land and grooves with a left hand twist; that is left right . . ..' After viewing them, Dr. Johnson microscopically identified them as having been fired from the same gun.
The defense called the appellant as its first witness. As to the shooting, his testimony appears as follows:
'Q. All right, now, put your hands behind your back like you were handcuffed that night. If I represent the policeman, what if anything, did you do with your hands handcuffed behind your back?
'A. I 'retch' like this for his pistol.
'THE COURT: Talk louder, please.
'A. I 'retch' for his pistol like this.
The defense called as its second and last witness, Linda Robinson who lived at 2104 Henrietta Road, next door to where the appellant was arrested. She testified as to the arrest of the appellant. In her testimony, she stated that the appellant was beaten by some of the policemen. Rebuttal witnesses called by the State denied the beating of the appellant. Witnesses at the police station where appellant was brought after the arrest denied that he appeared to have been beaten as was indicated in his testimony.
We find no merit whatsoever in the appellant's argument that the State failed to make a prima facie case under the indictment. The facts and evidence hereinabove set out clearly establishes the death of Officer Harp, the means and cause of death, and the shooting of the deceased by the appellant. From the witness stand, from the appellant's own lips, comes a clear description of how he took the victim's gun and shot him. Whether he or others present fired other shots into the wounded officer are questions for the determination of the jury. Likewise, where the officer was shot three times, under the circumstances...
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