Barnes v. State

• Decision Date: 20 June 1978
• Docket Number: 3 Div. 830
• Citation: 361 So.2d 390
• Parties: Willie James BARNES v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 390

361 So.2d 390

Willie James BARNES v. STATE.

3 Div. 830.

Court of Criminal Appeals of Alabama.

June 20, 1978.

Rehearing Denied July 25, 1978.

Richard D. Shinbaum, Montgomery, for appellant.

William J. Baxley, Atty. Gen., and Jack M. Curtis, Asst. Atty. Gen., for the State, appellee.

TYSON, Judge.

The indictment in this case charged the appellant with unlawfully and with malice aforethought having killed Johnny James Tyner "by shooting him with a pistol." The jury returned a verdict of guilty of murder in the second degree, fixing punishment at fifteen years imprisonment. The trial court set sentence accordingly.

Officer Jay Hardy, a Montgomery City police officer, testified that, during the early morning hours of April 17, 1977, he and his partner responded to a call concerning an alleged shooting at the Harlem Inn on High Street in Montgomery. Officer Hardy stated that, upon their arrival, he found a man slumped across the front of an automobile parked in front of the Harlem Inn. Having ascertained that the man had been shot, Officer Hardy summoned the paramedical squad to the screen. Officer Hardy indicated that he searched the surrounding area for a weapon, or any other possible evidence, but found nothing of that nature.

Louise Tyner testified that she was the mother of the deceased, Johnny James Tyner. Mrs. Tyner identified State's Exhibit One as being a photograph of the deceased, who died on April 17, 1977.

Ben Time, Jr., testified that he was at the Harlem Inn on the morning of April 17, 1977. As he was leaving the Harlem Inn, he met the appellant and the appellant's brother, George Barnes, Betty Floyd, Betty Bauldwin, Ann Young, and one Jessie as they were entering the Harlem Inn. Mr. Time stated that he decided to stay a while longer at the Harlem Inn because he had arranged to ride to his home with someone in this group. Accordingly, Mr. Time went back into the Harlem Inn and seated himself at the table with his newly-found companions. Mr. Time recalled that the deceased, Johnny James Tyner, came over to their table and conversed with Betty Bauldwin. Sometime later, the appellant, his brother, Betty Floyd, Betty Bauldwin, and Mr. Time decided to leave the Harlem Inn (Ann Young and Jessie had left earlier). Betty Bauldwin and the appellant's brother were the first members of the group to walk out of the Harlem Inn. They were followed by Ben Time, Betty Floyd and the appellant. As these three were making their exit, the deceased followed them, saying something to Betty Floyd as they walked. Mr. Time indicated that Betty Floyd repeatedly told the deceased not to bother her.

On the sidewalk in front of the Harlem Inn, the appellant told the deceased to "Go ahead on, man" (R. p. 25). The deceased responded by calling the appellant a "country s.o.b." (R. p. 25). Mr. Time testified that it was at this point that the appellant turned around and saw the deceased, who had a knife in his right hand. The appellant drew his pistol, pointed it at the deceased, and warned him again. The deceased took a step forward, and the appellant fired one shot, fatally wounding Tyner. Mr. Time testified that he and Betty Floyd stood approximately four feet from the incident. At the time of the shooting, Betty Bauldwin and the appellant's brother were almost to the parking area some distance away. Immediately after the shooting, according to Mr. Time, the appellant said, "Let's go," and the group left in two automobiles. Mr. Time left with Betty Bauldwin and Betty Floyd while the appellant and his brother drove away in another automobile.

On cross-examination, Mr. Time testified that he did not know what had happened to the knife that he saw the deceased holding just prior to the shooting. He stated further that the appellant and the deceased had not conversed inside the Harlem Inn before the shooting took place. Mr. Time indicated that the appellant turned and faced the deceased for about two minutes before he fired the fatal shot.

Betty Bauldwin testified that, on the morning of April 17, 1977, she had occasion to be at the Harlem Inn in the company of Betty Floyd, Ben Time, the appellant, Willie James Barnes, appellant's brother George Barnes, Ann Young, and her boyfriend. Ms. Bauldwin testified that, while she and her companions were seated at their table inside the Harlem Inn, the deceased, Johnny James Tyner, came over to their table and conversed with her. Ms. Bauldwin repeatedly tried to avoid the deceased's advances by leaving the table and walking away. Finally, Ms. Bauldwin decided to leave and asked Betty Floyd to accompany her. Then Ms. Bauldwin walked out of the Harlem Inn ahead of the others in the group. Ms. Bauldwin stated that she overheard the deceased and the appellant arguing just outside the entrance to the Harlem Inn. When Ms. Bauldwin heard the shot, she turned around and saw the deceased fall. At this point, Ms. Bauldwin was approximately twenty or thirty feet away. Ms. Bauldwin stated that she was not in a position to see whether the deceased had a knife because she did not turn around until she heard the shot. During cross-examination, Ms. Bauldwin related a past experience which tended to show that the deceased had been known to carry a knife on his person.

Dr. Richard A. Roper, State Toxicologist, testified that he performed a post-mortem examination on the body of Johnny James Tyner. Dr. Roper identified State's Exhibit Two as being a photograph which he took of the deceased at the time of his examination. Dr. Roper testified that the cause of death was sudden massive internal bleeding, resulting from a single gunshot wound to the chest. Dr. Roper recovered a bullet from the deceased's body, which he turned over to Tom Hopin, evidence technician in the laboratory of the State Toxicologist's Office. Dr. Roper stated that he received a sample of the deceased's blood from the Ross Clayton Funeral Home. Analysis revealed that the blood sample contained .25 percent ethyl alcohol. Dr. Roper stated that a person with such level of alcohol in his blood is legally intoxicated and would speak with a thick tongue, stagger, etc.

On cross-examination Dr. Roper indicated that a person with .25 percent alcohol in his blood would possibly be belligerent, pugnacious, and likely to provoke difficulties.

Tom Hopin testified that he received a .25 caliber bullet from Dr. Roper. The bullet was marked as State's Exhibit Three and identified by Mr. Hopin. State's Exhibit Four was a .25 caliber pistol. Based upon his training and expertise in ballistics, Mr. Hopin testified that the results of his ballistic comparison of State's Exhibits Three and Four indicated the bullet, given to him by Dr. Roper, was fired by Exhibit Four to the exclusion of all other weapons.

On cross-examination, Mr. Hopin stated that he acquired possession of State's Exhibit Four when it was delivered to him by C. O. Bolden of the Montgomery Police Department.

The next witness for the State, Betty Floyd, substantially corroborated the testimony of Ben Time concerning the events leading up to the shooting on the morning of April 17, 1977, in front of the Harlem Inn. Ms. Floyd stated that she saw the deceased with a knife in his hand immediately prior to the shooting. But, contrary to Mr. Time's testimony, Ms. Floyd did not recall an argument between the deceased and the appellant prior to the shooting. Ms. Floyd stated that she was distantly related to the deceased and had been seeing the appellant socially for about a month. According to Ms. Floyd, the appellant and the deceased were about three or four feet from each other at the time of the shooting. Ms. Floyd did not see any people other than the members of her party at the scene of the shooting.

Robert J. Humphrey testified that he was at the Harlem Inn on the morning of April 17, 1977. Mr. Humphrey stated that his automobile was parked directly across the street from the Harlem Inn, facing east. When he left the Harlem Inn, Mr. Humphrey got into his automobile, drove to the service station and turned left into it so that he could turn around to drive west on High Street. As he was waiting for traffic to pass before he re-entered High Street, Mr. Humphrey witnessed the shooting from a distance of about twelve or fifteen yards. Mr. Humphrey stated that he saw the appellant walking hand in hand with a woman and the deceased following about five feet behind them. According to Mr. Humphrey, the appellant suddenly let go of the woman's hand, reached to his side for his pistol, and turned around facing the deceased. Mr. Humphrey said the appellant then aimed and fired. Mr. Humphrey did not see a weapon in the deceased's hand, nor did he say that the deceased advanced on the appellant prior to the shooting. Mr. Humphrey testified that, immediately after the shooting, the appellant walked to the deceased, looked down at him, and then walked away with the others in his party. Mr. Humphrey immediately reported the incident to the Montgomery Police by way of his citizens' band radio. Later that morning, Mr. Humphrey gave a statement to the police.

Reginald James Phillips testified that he was in Mr. Humphrey's automobile, seated on the passenger's side, at the time of the shooting. Mr. Phillips' account of the incident substantially corroborated that of Mr. Humphrey's. Mr. Phillips gave a statement to the police at the scene of the incident.

Montgomery Police Detective Robert H. Hankins testified that he investigated an alleged shooting at the Harlem Inn on the morning in question. At the scene of the incident, Detective Hankins interviewed Mr. Humphrey and Mr. Phillips.

At the Baptist Hospital, Detective Hankins received from hospital personnel the clothing of the deceased. Detective Hankins testified that he searched the deceased's clothing and did not find a weapon. On April 18, 1977, Detective Hankins arrested the appellant at his place of employment. At the...