Ball v. State

• Citation: 337 So.2d 31
• Decision Date: 04 May 1976
• Docket Number: 6 Div. 648
• Parties: Earnest BALL v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 31

337 So.2d 31

Earnest BALL v. STATE.

6 Div. 648.

Court of Criminal Appeals of Alabama.

May 4, 1976.

Rehearing Denied June 1, 1976.

J. Knox Argo, Montgomery, for appellant.

William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.

PER CURIAM.

First degree murder; sentence: life imprisonment.

Appellant was convicted of murdering a police officer in Tuscaloosa. The record on appeal consists of 765 pages. Defense pretrial motions and petitions included: petition for mental examination; motion for preliminary hearing; motion to dismiss/quash the indictment; motion for discovery; motion to require production and suppression; motion to conduct special voir dire examination; motion for reasonable bail; motion for a mistrial; and ten separate petitions for writ of habeas corpus for various purposes. Over 290 pages of the record were consumed with prehearing motions, evidence thereon, arguments, and rulings of the trial court, prior to the receipt of any evidence on the merits. The record was lengthy and the issues logion.

Briefly stated, the shooting occurred when police officers answered a radio dispatch to quiet a disturbance at the residence of the appellant's former wife, Mary Ball. On arriving at the residence, Mary Ball informed Officers Larry Wood and John Thomas that appellant had threatened to kill her and was in a back bedroom armed with a shotgun. She removed her children from the premises and asked the officers to go in and get the appellant out of her house. Her testimony shows that appellant had broken into her house on three separate occasions during that day; the last break-in resulting in the call to the police.

The officers entered the house with pistols drawn. Officer Thomas went down the hall ahead of Woods. Woods heard the door to the first befroom open. He saw the muzzle of a shotgun appear from the bedroom and fire into Thomas. Woods said Thomas shouted, 'Oh my God,' then turned around and said, 'I've been hit.' Thomas then backed into the kitchen and sank to the floor and died.

The bedroom door then closed and Officer Woods fired two shots into the door and retreated to the living room. The evidence clearly established the commission of the offense of murder in the first degree and likewise established the appellant was the guilty party. The weight and sufficiency of the evidence in this regard cannot be disputed.

During pretrial hearing on the myriad of defense motions, appellant attempted to prove that the arresting officers beat him, both at the scene of the shooting and at the police station. Officers testified that it was necessary to rush the bedroom and wrestle the gun away from appellant, which accounted for some minor abrasions. That matter being irrelevant to the issue of appellant's guilt Vel non of murder, further discussion here is not appropriate. It is mentioned for purposes of beckground information.

On April 18, 1973, counsel for appellant filed a petition for mental examination of his client, alleging that he believed that the appellant, 'may be insane now and/or may have been insane at the time of the alleged offense.' In that petition, counsel specifically stated that he believed the appellant to have been suffering from paranoia at the time of the offense, and requested an order pursuant to Title 15, § 425, Code of Alabama 1940, transferring appellant to Bryce Hospital for a determination of his mental condition. The appellant was admitted to the state mental hospital on April 19, 1973. After examination and observation, a report was submitted to the court from three physicians on the Bryce Hospital staff. That report, in pertinent part, is as follows:

'After full study and observation since the date of admission it is the opinion of each of us separately, and our opinion jointly and collectively, that the said Earnest Ball is presently sane and competent. It is also our opinion that he was sane and competent at the time of admission in Bryce Hospital. It is our further opinion that he was sane and competent at the time of the commission of the crime for which he is charged. . . .'

The appellant was then ordered by the circuit court to stand trial.

The appellant had originally entered a plea of not guilty and not guilty by reason of insanity, however, he later insisted on withdrawing his plea of not guilty by reason of insanity. The trial court allowed withdrawal of that plea with the understanding that it could be reinstated at any later time during the trial. The plea of not guilty by reason of insanity was reinstated by the court on request of defense counsel, prior to trial.

I

On direct examination, Officer Larry Woods detailed the occurrence from the point of receiving the radio dispatch, through the shooting of Thomas and up to the point of his firing two shots into the door and his identification of the appellant. The State asked no further questions of Woods beyond that point in time.

On cross-examination, defense counsel questioned Woods on each detail of his direct testimony, however, when the cross examination went past the point where Woods testified that he fired the two shots and retreated back to his prior position, the District Attorney made the following objection:

'Judge, I'm gonna object to any further testimony beyond this. I think the res gestae has now been reached.'

The trial judge then recessed the trial and allowed argument on the objection, in chambers, where the following occurred:

'THE COURT: Gentlemen, there has been extensive pre-trial hearings regarding the arrest, capture, incarceration, et cetera, of the Defendant, all of which as a matter of sequence of times starts to evolve to the point which is now before the jury. I take it that Mr. Lackey is suggesting to the Court that that's not relevant, and I take it that Mr. Knowles is suggesting that it is relevant. Am I correct on your positions?

'MR. LACKEY: Actually, if the Court please, we're not--Judge, that's close, but I'd like to state for the record that it isn't really at this point, that we really have still another delay, because if this man testified, he will testify that having secured his position he then left his position, went to the front door, spoke to some officers out there, gave some directions; then came back to his position while some more people back through the door, and that quite a significant period of time passed before anything else happened involving the entry of that room, and I'm saying that the entry of that room no longer has anything to do with the crime, or with the event, if you will, but that now this has to do with taking custody of the malefactor, and therefore, that inasmuch as this has no relationship whatsoever to the--since the taking into custody has nothing in the world to do with the events which resulted in the death of Officer Thomas. Then they're beyond res gestae and therefore have no basis in fact for being in the case, and that's the basis for my objecting . . .'

The defense argument in pertinent part was as follows:

'. . . We think it's relevant as within the res gestae and Mr. Lackey is absolutely correct that we don't have much interest in showing that he went to the door and talked to an officer, but we do have some interest in showing what happened after he came back, both his action and the other police officers' actions and Mr. Ball's actions, and I think It has relevance and is material and competent to the question of self-defense, and also probably to the question of insanity. The second ground is that we think we should be able to continue this line of questioning, to further impeach Mr. Woods. We expect to show that he gave further inconsistent statements concerning what happened after that and that tends to show that he was wrong about what happened. . . .' (Emphasis supplied.)

The record further shows:

'THE COURT: Really the only thing I could see in the whole matter is that if we go into that, then we're no longer trying what we have before us; we're trying a civil rights suit that would be more appropriate to be brought under the Civil Rights Act, and whether or not the Defendant's rights, as a matter of his civil rights as a human being, were violated or not, and not the question of whether or not he is guilty as charged in the indictment, or innocent; that's not the question that's being presented.

'MR. DRAKE: That's not what we intend to show.

'THE COURT: In addition, I feel that the events in the bedroom being immaterial to the question of guilt or innocence or anything, and not probative of that question--then if you were to seek to show that that I would have to agree with the State's position that you would be laying groundwork on immaterial points on which to attempt to impeach officers on immaterial points, and if Mr. Lackey had opened the door, both factually and actually, then naturally you could impeach on immaterial points if the other side had brought up those immaterial points.

'THE COURT: I have to feel that somewhere the Court has to draw a line on what the issues are before the jury, and I think it would be more appropriate that if the defense wishes to present these issues to a jury, it should be in another case and on other points, and not on the question of guilt or innocence; in another Court.

'MR. DRAKE: I take it you would also not allow the Defendant to testify as to those events?

'MR. LACKEY: I'd object to it.

'THE COURT: As to those events in the bedroom, it's true. I'm saying that as far as I'm concerned, I've heard all of this testimony before on several occasions; therefore there's no need asking y'all to, you know, make an offer to show or something like this because I've already heard it. . . . (The court reporter's note shows here that the trial judge was referring to pretrial hearings, which was not evidence presented in the presence of the jury.)

'MR. DRAKE: For the record here, have you sustained the objection?

'THE COURT: Yes, sir. ...