Aycock v. State, 4 Div. 125

• Decision Date: 23 January 1973
• Docket Number: 4 Div. 125
• Citation: 277 So.2d 404,50 Ala.App. 130
• Parties: Carlton Jerry AYCOCK v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 404

277 So.2d 404

50 Ala.App. 130

Carlton Jerry AYCOCK v. STATE.

4 Div. 125.

Court of Criminal Appeals of Alabama.

Jan. 23, 1973.

Rehearing Denied March 13, 1973.

Smith & Smith, Dothan, for appellant

William J. Baxley, Atty. Gen. and John A. Yung, Asst. Atty. Gen., for the State.

[50 Ala.App. 133] PER CURIAM.

Appellant was indicted along with Patricia Louise Neal Aycock in Houston County for murder in the first degree. He was there tried separately, convicted of the offense with fixation of punishment at life imprisonment. After due allocution, the trial court sentenced him in accordance with the jury's verdict and entered lawful judgment therefor. Appellant, represented at trial and here by court appointed counsel, appeals from the judgment.

ON MOTION FOR CHANGE OF VENUE

Defendant by motion and a hearing thereon prior to trial contended that he could not receive a fair and impartial trial in Houston County for the reason that the news media of that County--newspaper, television and radio--in their reports of the alleged arrest of the defendant and of the crime charged against him generated so much prejudice against him that the trial should be moved to another county as authorized by Tit. 13, § 267, Code of Alabama, 1940, recompiled 1958.

We have examined the newspaper articles and other news publications in evidence. These newspaper articles carried routine news statements about the alleged offense and the arrest of the defendants. We are not impressed that they were sensational or carried undue emphasis on the alleged offense or any of the details. They were not in our judgment calculated to stir up per se undue emotions of their readers. They did not carry any editorial implications that the defendants were guilty of the crime. The television and radio accounts about the crime and the arrest of defendants likewise were free of implications of guilt. They, too, were just news items carrying usual publicity about the nature of the alleged crime and the arrest of the defendants.

On motion for a change of venue in a criminal case defendant has the burden of showing to the reasonable satisfaction of the court that a fair and impartial trial cannot be had and an unbiased verdict cannot reasonably be expected. Tiner v. State, 271 Ala. 254, 122 So.2d 738. Jurors, under the admonition of the trial court, usually enter the jury box free of influence and bias generated by the news media or otherwise and try a criminal case with an open mind that responds to the evidence adduced and free of bias or prejudice. We do not think that the defendant met the responsibility or burden cast upon him that he could not obtain a fair and impartial trial in Houston County. There was no error on the part of the court in overruling defendant's motion for a change of venue. Mathis v. State, 280 Ala. 16, 189 So.2d 564.

MOTION FOR INVESTIGATION OF DEFENDANT'S SANITY, VEL NON

The trial court heard evidence ore tenus which was favorable and unfavorable to defendant's motion to have his sanity vel non investigated in accordance with Tit. 15, § 425, Code, supra. After considering the evidence the trial court overruled the motion. The judge hearing the motion had an opportunity to observe the defendant The Supreme Court of Alabama in Campbell v. State, 257 Ala. 322, 58 So.2d 623, said the following:

in court. He was not impressed with the merits of the motion and denied it.

'No written report by three or more reputable specialist practitioners in mental and nervous diseases was filed or requested by the court nor was a written report of the Superintendent of the Alabama State Hospitals filed or requested by the court. The court is under no duty to appoint such a commission nor to direct the Superintendent to make a report. The court simply has the inherent right to seek these aids for advisory purposes when the court in its discretion thinks such aids will be helpful. Oliver v. State, 232 Ala. 5, 166 So. 615; Reedy v. State, 246 Ala. 363, 20 So.2d 528; Benton v. State, 245 Ala. 625, 18 So.2d 428; Burns v. State, 246 Ala. 135, 19 So.2d 450, certiorari denied 324 U.S. 843, 65 S.Ct. 589, 89 L.Ed. 1405.'

We are unwilling to disturb the court's denial of the motion for a sanity investigation.

ON THE MERITS

Defendant and co-defendant were living together in a trailer home in Dothan, in Houston County. Both defendants had been married prior to ceremonial procedure which purported to unite them as man and wife. The co-defendant, Patricia Louise Neal Aycock, was the mother of two children, one of whom, Linda Louise Carlson, age three, was the alleged victim of the defendant, Carlton Jerry Aycock. She was afflicted with cerebral palsy and had much difficulty walking.

The indictment of appellant contained four counts. Count One alleged that the appellant killed the child by hitting her with an instrument; Court Two charged that he killed her by throwing her upon and against a fixture, to-wit, a commode; Count Three asserted that he killed her by striking her with his hands and fists; and Count Four, by means to the grand jury unknown.

The evidence without dispute shows that the child received wounds in the trailer bathroom where her step-father, appellant, had taken her while her panties were wet. Defendant contended at the trial that he accidentally dropped the child; that she slipped out of his arms; and that the wounds were the result of the accident. The mother, a co-defendant, came into the bathroom and they both took the child into the living room where they undertook to administer first aid. The child got worse and they rushed her to a hospital in Dothan. The step-father, appellant, stayed in the automobile while the mother took the child to an emergency room where she received medical treatment at the hands of Dr. Flowers who was in the hospital and answered the emergency call. The child died a few minutes after receiving the emergency medical treatment.

According to the testimony of the State Toxicologist who performed an autopsy where there were numerous marks and bruises on the child's torso, chest, and abdomen. They were concentrated on the upper right chest and shoulder, and the right abdomen. A few were located on the left chest, a few in the middle back and several on the buttocks. After considerable testimony as to the width and length of the bruises and their respective locations, the witness testified that in his opinion 'death in this case resulted from an intracranial hemorrhage, brain damage and shock, associated with trauma to the head.' As to what he meant by 'trauma to the head' the witness answered:

'Trauma would be violence to the head; in other words there is numerous evidence here of wounds or blows to the head, and these, in my opinion resulted in intra-cranial hemorrhage, and the death of the individual.'

In reply to the question, 'So it is your opinion that there were at least six There were other witnesses who testified as to the multiple bruises on the deceased child. Several photographs of the deceased's body reflected bruises in corroboration of the oral testimony. There was no error in admitting these photographs in evidence. Allen v. State, 260 Ala. 324, 70 So.2d 644.

wounds, or injuries to that head, any of which could have resulted separately or severally, in the hemorrhage which you have described?' the toxicologist replied, 'That is correct.'

There was considerable testimony by the co-defendant, the mother of the deceased child, as to the condition of the child when she hurried to the bathroom after the child was wounded or injured; what she and the defendant did in an attempt to relieve her; and their determination to take her to the hospital for examination and treatment. Also she testified as to the good relationship between the defendant and the child and as to their mutual efforts from time to time to discipline the child, spanking it on occasions and on an occasion making it stand against the wall for considerable time as punishment. This was done in spite of the fact that the child's legs were diseased and crippled. We list some of the questions asked the mother and her answers:

'Q. . . . What happened between the child Linda Louise, and the defendant, Carlton Jerry Aycock, after he carried her into the bathroom?

'A. She slipped out of his arms and hit the back of the commode, which we had a plastic ring we put on the commode. When she hit that, her head hit the back of the commode.

'Q. All right, and then what happened?

'A. I went in there to see what happened, because I didn't know, maybe he had fallen or she had fallen or what, and he slapped her.

'Q. He slapped her. You mean the defendant, Carlton Jerry Aycock, slapped the child, Linda?

'A. Yes.

'Q. What did he hit her with?

'A. His hand.

'Q. His hand, was it his closed hand or his open hand?

'A. His open hand.

'Q. What, if anything, did you and Carlton Jerry Aycock do after he had slapped Linda Louise Carlson?

'A. He pushed me I hit the edge of the commode and he went on out.

'Q. Who carried the child out of the bathroom?

'A. I did.

'Q. Where did you take her?

'A. Into the bedroom.

'Q. Where did you then take her?

'A. We took her into the bedroom and then when he come in and put her pants on, talked to her about her Christmas tree and she talked to him, and the last words she said, 'Daddy, I love you.'

'Q. And then what happened?

'A. He took and stood her down, in order to get her, to walk her you had to prop her up against something to get her to walk her; and he propped her up and he turned around and pushed me--I went to reach for her and he pushed me--and he was going to walk her and he had noticed she had fallen. He hollared at me and I grabbed her by the ankles and shook her, because the doctors had told me if she ever passed out, because of her being premature, her bronchial tubes collapse, and she passed out and we picked her up.

'Q. She passed out, there in the bedroom?

'A. Yes, and I picked her up by the...