Allred v. State

• Decision Date: 04 March 1975
• Docket Number: 4 Div. 259
• Parties: Barbara Ann ALLRED v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 195

313 So.2d 195

55 Ala.App. 74

Barbara Ann ALLRED v. STATE.

4 Div. 259.

Court of Criminal Appeals of Alabama.

March 4, 1975.

Rehearing Denied April 1, 1975.

Smith & Smith, Dothan, for appellant.

William J. Baxley, Atty. Gen., and Eric A. Bowen, Asst. Atty. Gen., for the State.

BOOKOUT, Judge.

The appellant was convicted by a Jury of murder in the second degree and sentenced to twenty years in the penitentiary. On October 1, 1970, the Grand Jury of Houston County, Alabama, charged Barbara Ann Allred with the first degree murder of James A. Allred by shooting him with a pistol. On October 23, 1970, she entered a plea of not guilty and not guilty by reason of insanity. On December 28, 1970, she was committed to Bryce Hospital in Tuscaloosa for an examination of her sanity. The Superintendent of Bryce Hospital rendered a report on February 5, 1971, certifying that appellant was insane on that date and at the time of the commission of the crime.

On February 23, 1971, a jury in Houston County found appellant to be insane. The court returned her to the state hospital until she was restored to sanity. She was released on August 16, 1971, and her case was set for trial on May 29, 1972. She was convicted of murder in the second degree, sentenced to fifteen years, and appealed her conviction. That conviction was reversed and remanded by this Court on May 3, 1973. The October 1, 1971, indictment was amended July 16, 1973, charging murder in the second degree, and the first degree murder charge was Not prossed. The conviction on the amended indictment is the subject of this appeal.

The charge arose from an incident occurring on the road known as the Graceville Cut-off in Houston County, Alabama, on July 17, 1970. Witness Harry Smith stated that about 1:00 P.M., he saw appellant and her husband, James A. Allred, standing by the car which had stopped on the edge of the road. Appellant was holding her husband. Mr. Allred waved for Mr. Smith to stop. Smith drove a bit further, turned around and came back to the car where he found Mr. Allred lying in front of the car. As Smith approached the car, appellant was running toward him and threw something in the weeds along side of the road.

Smith stated that he asked appellant what was going on. Her reply was that her husband was beating her, and she shot him. Mr. Smith saw some wounds in Mr. Allred's body and noticed some bleeding. He further stated that appellant then went through her husband's pockets, and he heard Mr. Allred say, 'Don't let her take it.' A lady then stopped, and Mr. Smith had her call the police. They arrived in about thirty or forty-five minutes.

On cross-examination, Smith stated that appellant looked mean. He said she looked normal for a mean, mad woman and that she looked wild.

Clifford Rainey also stopped at the scene of the incident. He saw appellant standing by the body and heard Mr. Allred say, 'Don't let her get it,' as appellant went through his pockets. He also heard appellant say, 'I wonder what they're going to do with me.' He further testified that appellant had a crazy look on her face and that her clothes and hair were in a state of disarray and that she had a little trickling of blood coming out of the corner of her mouth.

Franklin T. Barber also stopped at the scene. He said he heard appellant say what she was interested in was what they would do with her. He stated that he noticed nothing abnormal with appellant and that she looked as calm as anyone.

Mrs. Runell Clark, Deputy Sheriff for Houston County, testified that she arrived at the scene at about 3:00 P.M. and saw appellant sitting in a police car. She took appellant to jail. She searched appellant and found four $50.00 checks, one check for $675.00, and one check for $18,437.65. All the checks were made out to Mr. and Mrs. James A. Allred and had not been endorsed. She also found a small red package in appellant's purse containing $97.00 in cash and one .22 caliber bullet wrapped together. She stated that appellant was calm at the scene, but upon arriving at the jail, she sat down in the parking lot and screamed that she was not going to do 'this and that.' Further, the witness said that she had to pull appellant out from under a bed in the jail to get her to take some medicine prescribed by a doctor. Joe Pitts, an investigator for the Houston County Sheriff's Department, testified that when he arrived at the scene, he examined the body of Mr. Allred. He had four bullet holes in him; one in the arm pit and three in the abdomen. The witness stated, 'At the time I was kneeling beside the body, she made a statement to the effect that she wasn't going to let him beat her --.' Appellant's objection to this testimony was overruled. Pitts said that he had talked to Mr. Smith and concluded that appellant was the chief suspect and arrested her immediately. He said that he did not talk to her before he arrested her. The court asked Pitts whether her statement was made before he arrested her. He said yes. The court also asked if appellant's statement was made before he talked with Smith. He said yes. At another time in his testimony, he stated that he talked to Smith, then formed the conclusion that appellant was the prime suspect and then arrested her.

Further, on cross-examination, it was revealed that at the priminary hearing, Pitts had stated that he had not spoken to appellant. He said, however, that he did not say that she had made a statement. He stated at the preliminary hearing that she stood there and didn't say anything. However, it is clear from the transcript of the evidence that Pitts did not ask appellant any questions and that her statement was not in response to anything he had said or done. In addition, on cross-examination, Pitts stated that he made a note of the fact that she made a statement. The note read, 'Made the statement, 'See how he beats me."

The following transpired with regard to the memorandum:

'Q. Nowhere in this testimony at a prior hearing on the 29th day of May, 1963,--1973, did you tell anything about her making a statement at that time, did you? You can examine it, if you would like?

'A. Without going back through and examining it, I wouldn't say.

'Q. Well, those matters were fresher on your mind at that time than they are now, aren't they--wasn't they, Mr. Pitts?

'A. Yes, sir.

'Q. And, as a matter of fact, in September of '70, at the preliminary hearing, and that was just right after it happened, wasn't it?

'A. Yes, sir, it was.

'Q. And you didn't mention anything about the statement at that time? Is that because you didn't recall the statement at that time?

'A. No, sir. I have the statement noted in my notes that I made shortly thereafter.

'Q. You've got it wrote down there then, is that right?

'A. Yes, sir. I did not quote the statement.

'Q. Let's see what you've got wrote down?

'A. Said, 'Made the statement, 'See how he beat me".

'Q. You don't really know when she made the statement, do you?

'A. That was during the time that I was on the scene, before I placed her in the car, at the time when I was kneeling over the body.

'Q. But you don't know exactly when she made that statement? Whether it was when she was standing there before you had arrested her, or when it was do you?

'A. Yes, sir. I'm sure that it was before I arrested her.

'Q. Well, you don't--you don't recall--you didn't recall it in any other proceedings, so-- 'MR. WHITE: We object to this. This is repetitious.

'Q.--the only thing that you really recall about it is the fact that it's wrote down, isn't it, Mr. Pitts?

'A. That's correct.'

Pitts stated he then took appellant to a police car and gave her a 'Miranda' warning. She stated that she wanted a lawyer, and no questions were propounded. When he first arrived at the scene, he did notice, 'a small amount of blood trickling out the corner of her mouth.'

Chief Deputy Sheriff, O. E. Jones, testified. He said that when he arrived, appellant was in a police car. He searched the area and found a .22 caliber revolver in the weeds a short distance from the Allred's car. There were five spent cartridges and one live round in the pistol. In a search at a later time, some live ammunition was found in the car's glove compartment. Also, another pistol was found in the trunk. A gun box with the number 938049 was also discovered in the trunk. This number was the same as the number found on the gun retrieved from the weeds.

It was stipulated that a State Toxicologist would testify that Mr. Allred sustained four gun shot wounds. He would also testify that Allred died from shock, hemorrhage and trauma associated with these wounds.

The State then rested its case. There was no Motion to Exclude the State's Evidence.

Rosendolph Smith testified on behalf of appellant. It was his testimony that Mr. Allred and his wife passed his car on the Graceville Cut-off and that they were fighting. He did not lose sight of their car and in a short while the car stopped. Mr. Allred had appellant down on the front seat of the car and was 'a chuggin' her with his fist. He said Allred was, 'hitting her pretty pert.' The time was about 1:00 P.M. on July 17, 1970.

A deposition of Frances D. Etheridge was admitted into evidence. She is the custodian of medical records at the Jackson Memorial Hospital in Miami, Florida. Appellant was admitted to the hospital on August 5, 1969, by James Allred. Her medical records were admitted into evidence without objection.

Mrs. C. R. Britt testified that she knew the Allreds and that Mr. Allred was with her two or three weeks before his death. He told her that his wife was sick and that he wanted to place her at the Chattahoochee Hospital for mental patients in Florida. On cross-examination, she said that appellant acted irrational once six years ago when she beat her fists on a table in her home.

By stipulation, six of appellant's letters written to Mrs. Turner, were admitted into evidence. The contents were...