Atchley v. State

• Decision Date: 20 January 1981
• Docket Number: 6 Div. 333
• Citation: 393 So.2d 1034
• Parties: Jackie Dale ATCHLEY v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1034

393 So.2d 1034

Jackie Dale ATCHLEY v. STATE.

6 Div. 333.

Court of Criminal Appeals of Alabama.

Jan. 20, 1981.

Jeff Bennitt, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., and Elizabeth Ann Evans, Asst. Atty. Gen., for appellee.

TYSON, Judge.

Jackie Dale Atchley was indicted and convicted of the first degree murder of James Eddie Powell "by stabbing him with a knife," and his punishment was affixed at imprisonment in the penitentiary for life. § 13-1-70, -74, Code of Alabama 1975. His subsequent motion for a new trial having been overruled by the trial court, Atchley now brings this appeal, urging the existence of several errors in the conduct of this trial below, thus urging reversal of this cause. We do not agree and affirm for reasons which follow.

After Mrs. Maggie Clay testified as to seeing her deceased son, James Eddie Powell, at a Birmingham funeral home, the State called Jay M. Glass, the Chief Medical Investigator for Jefferson County, who stated that he had performed an autopsy on the body of James Eddie Powell on the morning of July 29, 1979. Mr. Glass testified that Powell's body exhibited signs of recent surgery and also displayed the presence of four stab wounds, one in the upper shoulder, two in the left side of the chest, and one in the abdomen. Of the four wounds, Mr. Glass testified that three were fairly superficial, but the fourth penetrated Powell's heart. In the witness' opinion, death resulted from shock and hemorrhage attendant to the multiple stab wounds.

At this point in the testimony, a hearing was conducted outside the presence of the jury concerning a motion to suppress made by appellant in connection with a knife which had been seized from his person. As we will examine the circumstances surrounding appellant's arrest and the discovery of the knife in other portions of this opinion, we will not do so here. The trial court, after hearing the evidence on the motion to suppress, overruled it and admitted a knife, seized from appellant, into evidence.

After the hearing out of the jury's presence, Mr. Glass resumed his testimony before the jury and identified a knife in evidence as being capable of causing wounds consistent with those observed on the body of James Eddie Powell.

Under cross-examination, Mr. Glass testified that he had had many occasions to examine injuries inflicted by blunt objects, and that in his opinion a pool ball, if thrown or used to beat a person, could be a potentially deadly instrument.

Steven W. Adherholt testified on direct examination that he had been present at the Little Bombers Lounge in Birmingham between approximately 6:00 and 8:00 p. m. on July 28, 1979, and that he and a friend had been seated at a table in a second floor poolroom, drinking beer. Adherholt, who stated that he did not know appellant personally, identified him in open court, but was unable to say for sure if he had seen him at the lounge on the night in question. The witness testified that he observed an argument between a white male, described as heavy-set and with blond hair drawn into a ponytail, and a black male, who Adherholt heard to say, " 'If you don't like something, change it' " (R. 65). The witness could not remember further conversation between the two, but stated that he was sure further words had been exchanged. During the argument, the black male and white male were standing, facing each other with about three feet of distance between them, near a pool table. At one point, Adherholt stated, the black male picked up two pool balls and then threw them at the white male as the white male advanced on him, striking him once in the face, after which fighting began between the two. Adherholt was unable to say who then struck who first, and testified that he did not observe any weapons other than a pool cue being wielded by an unidentified person. The witness stated that the two then went down the stairs to the first floor still fighting, but Adherholt did not see the black male get stabbed and did not know at the time that he had been injured.

Adherholt testified on cross-examination that, besides him and his friend, and the white male and black male, there had been several others present on the second floor at the time of the fight, including another black male apparently accompanying the black involved in the fight, which he termed to be a "pretty rough" one. He further stated that he did not know anyone named Chris Parks, but was familiar on a first name basis with a Tony Mickle, who he stated he saw at the lounge that night, but not on the second floor.

Victor Rex Woodward testified that he had accompanied Steve Adherholt to the Little Bombers Lounge on the night of July 28, 1979, and had witnessed an argument between a white male, who he described as having blond hair drawn into a ponytail, a brown moustache, and overalls and a tee shirt on, and a black male, who, in the witness' opinion was either nearly the same size or a little bigger than the white male. Woodward was unable to identify appellant as the white male involved in the argument. He further stated that, although he observed the two arguing, he could not tell what the argument was about and did not see any blows struck upstairs because he chose to go downstairs to avoid trouble. While downstairs, Woodward testified, he saw a black male leap from the second floor balcony, knock down an overhead chandelier and fall to the first floor, while another black and a white came down the stairs fighting. When the two reached the first floor, they separated, and the black male went to a pool table and picked up some pool balls, which he then dropped. At this point, Woodward stated, the black male walked over near the door to the lounge and fell down, bleeding from a wound in the abdomen area. The witness further stated that he saw the white male holding a knife with a blade similar to that of the knife in evidence.

On cross-examination, Woodward stated that he had seen Tony Mickle in the lounge, but was not sure whether Mickle had been upstairs at any point. He further stated that the black male, who had jumped from the second floor balcony, had then run out of the door to the lounge.

Tony Ray Mickle stated that he had accompanied the deceased, James Eddie Powell, to the Little Bombers Lounge on the night of July 28, 1979, but had remained outside the lounge for a period of time talking to a girl while Powell had gone inside. At some point later in the evening, Mickle testified, a girl had come outside the lounge screaming about a fight, and Mickle went inside in time to see Powell and two others coming down the steps to the second floor. As Powell reached him, Mickle stated, he told him " 'He has got a knife' " (R. 109), and Mickle then saw appellant holding a knife and running out the door accompanied by another person. Powell then passed out, and Mickle took him to a hospital. The witness further testified that Powell had come down the stairs first, followed by two white males with long hair and overalls. One had dirty blond hair and the other had black hair. Mickle then identified the latter as an individual named Parks and the former as appellant, who had been brandishing the knife that night. He also stated that he had identified appellant later on the night in question at the city jail.

On cross-examination, the witness stated that, in his opinion, Powell had been "big," but he denied having said that Powell first attacked appellant. Mickle also stated that Powell, while downstairs in sight of him, did not pick up any pool balls from a pool table. He further testified that he had had a lot to drink that night and might have struck appellant at some point, although he was not sure, and further that he was somewhat unsure about whether appellant was the same person who had been at the lounge because of his changed appearance. Mickle finally stated that he did not witness the stabbing itself, nor did he see any pool balls thrown.

Michael Christopher Parks stated that he and appellant had gone to the Little Bombers Lounge on the night of July 28, 1979, and had been drinking beer in the upstairs poolroom. Parks testified that at some point a black male began throwing pool balls at appellant, but that he had not witnessed any prior argument between the two. In Parks' estimation, three or four balls were thrown in rapid succession with one hitting appellant, and he stated that he himself was hit by something, although he did not know what. At that point, Parks went down the stairs and then witnessed the black male, who had been throwing the balls, downstairs as well, apparently hurt. He stated that he and appellant then left the lounge together, and that appellant was holding his head and saying " 'What got all that started?' " (R. 136). Parks stated that he never saw any knife in the possession of appellant. He then testified as to the circumstances of appellant's arrest, which will be explored below, and thus will not be dealt with here.

Paul Yarbrough, a Tarrant City police officer, testified that, on July 28-29, 1979, he had been employed with the Birmingham Police Department and had been on routine patrol in the downtown area of Birmingham. Officer Yarbrough then testified to the circumstances of appellant's arrest and identified the knife which he had removed from appellant at the time of his arrest, and which he had turned over to a Sergeant Gaut.

Kevin Noppinger, a serologist with the State Department of Forensic Sciences, testified that, on October 10, 1979, he had received a knife from Sergeant William Gaut and had analyzed the blade of the knife for the presence of blood or other body fluids. His tests disclosed the presence of Type A human blood on the blade.

On cross-examination, Mr. Noppinger testified that he received a vial of blood, identified as coming from James Eddie Powell, from Chip Walls, a toxicologist. Mr. Noppinger stated that the blood type of...