Bass v. State, 6 Div. 738

• Decision Date: 06 May 1975
• Docket Number: 6 Div. 738
• Citation: 313 So.2d 208,55 Ala.App. 88
• Parties: Carl BASS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 208

313 So.2d 208

55 Ala.App. 88

Carl BASS v. STATE.

6 Div. 738.

Court of Criminal Appeals of Alabama.

May 6, 1975.

Anthony M. Falletta, Birmingham, for appellant.

William J. Baxley, Atty. Gen., Montgomery, and Quentin Q. Brown, Jr., Asst. Atty. Gen., Birmingham, for the State.

HARRIS, Judge.

Appellant was convicted of murder in the first degree and sentenced to life imprisonment. Prior to arraignment he was found to be indigent and counsel was appointed to represent him throughout the trial proceedings in the court below. He pleaded not guilty. After conviction he was furnished a free transcript and trial counsel was appointed tor epresent him on appeal.

The homicide occurred on February 7, 1973, shortly after 8:00 P.M. in front of the A & A Delicatessen, located at First Avenue and Thirty-Fifth Street, North, in Birmingham, Alabama.

The wife of the deceased, Herman Leonard Garland, testified that she last saw her husband alive on Monday, February 5, 1973, when he carried her to Huntsville where she was employed. She further testified that her husband carried several credit cards in his billfold--Gulf Oil Card, Standard Oil Card, Shell Oil Card, and a Sears Revolving Card. She was an aunt to Mrs. Frances Petruzella Clark, who was employed by the A & A Delicatessen which was owned by her mother.

Mrs. Clark testified that the deceased was her uncle and was employed by the ABC Board but he came by the store every night to take the garbage out and help them close the business; that on the night of February 7, 1973, he came to the delicatessen about 7:00 P.M. and carried the garbage out the front door about eight o'clock. While Mr. Garland was out putting the garbage in the cans, she heard two shots. The front door was open at the time and her mother was in the store. After hearing the two shots, she saw her uncle leaning up against one of the front windows to the store. His eyes were open and she and her mother went out the store to him. Her mother called his name and he did not answer. Someone walked up and said he had been shot. She called the ambulance and the Police Department. The police arrived after the ambulance got there and she rode in the ambulance to the hospital.

Mr. Charles C. Robey from the Jefferson County Coroner's Office went to the University Hospital and examined the body of Mr. Garland and found that he was dead. His qualifications were admitted and he testified:

'He had two gunshot wounds. The first wound I'll describe as entrance wound number 1. It was two and one fourth inches approximately to the left of the middle line of the body. Fifteen inches down from the head. The second wound, wound number 2, was approximately three inches to the left of the middle of the body and approximately nineteen from the head. These wounds were in front of his body.

* * *

* * *

'Bullet number 1 entered between the second and third rib angled down and to the right. It lodged between the eighth and nineth rib at the back of the body. It penetrated the lung. Bullet number 2 penetrated the liver. It entered the body between the seventh and eighth rib, went through the lobe of the liver, lodged to the left of the spine between the eleventh and twelfth rib at the back of the body.'

He was asked his opinion as to the cause of death and replied, 'Yes sir. The cause of death was multiple gunshot wounds to the chest.'

The Coroner made photographs of the wounds on the body and they were admitted in evidence without objection. It was the Coroner's opinion that a small caliber weapon was used in shooting the deceased, and he was shot at close range as there was powder on his shirt.

On the night of the killing four black men met at the Bamboo Room at Frank's Motel and Lunge. They were Joe Ferguson, Jim Davis, James Merritt and appellant. Jim Davis had a blue Ford automobile. He told the other three men that he was going to find his girlfriend and asked them if they wanted to go with him. All four got into the car with Davis driving. Appellant was in the frontseat with Davis. Merritt and Ferguson were in the backseat. Davis drove to his girlfriend's house located about a block and a half from the A & A Delicatessen but he did not find her at home. They parked in an alley near the store and Davis and appellant got out of the car and said they were going to the store to buy some cigarettes. They were gone about five minues and when they returned to the car, Davis asked Ferguson to drive the car. On the way back to the Bamboo Room, Davis asked appellant why he shot the man and appellant said, 'Ah _ _ it.' The other occupants of the car testified that appellant made that statement loud enough for everyone in the car to hear it.

In the course of the investigation of this homicide, James Davis was picked up and questioned about the events leading up to the shooting. He was given the Miranda rights and warnings. He gave a statement to the officers and testified for the state. He testified that he parked his car in an alley a short distance from the A & A Delicatessen and was fixing to go into the store; that appellant was in the vicinity of the store at the time; that he saw that appellant had a small caliber pistol. As he approached the store, he saw a short, heavy-set white man in the vicinity of the garbage can to the side of the store. He saw appellant and James Merritt close to the white man and heard two shts but he did not see who actually shot him. After the shots were fired, he turned around and ran back to his car. As they drove away he asked appellant, 'What he shot the man for?', and appellant said, '_ _ it, you know. Let's go, you know.'

From the record:

'Q. Thats what Carl Bass said? (sic)

'A. Yes sir.

'Q. Have you ever made a statement to police officers?

'A. No police officer.

'Q. I beg your pardon?

'A. No.

'Q. Sergeant Zales or Wallace?

'A. Detectives. But I haven't talked to no police.

'Q. The detectives, you talked to them?

'A. Yes.

'Q. MR. PICKARD: Your Honor, with respect to one question and answer, I would like to claim surprise and ask him about a previous statement.

'THE COURT: You are surprised?

'MR. PICKARD: Yes.

'Q. When you talked to Detective Wallace and Zales, I would like for you to read that last question and answer. Look at it. I'd like to ask you whether Sergeant Wallace or Zales asked you this or this in substance, 'You are telling me now that Carl Bass shot Mr. Garland?' And your answer was, 'Yes.'

'A. Yes.

'MR. PICKARD: That's all the questions I have.

'THE COURT: Is that what you are saying?

'WITNESS: Yes.

'THE COURT: That Carl Bass shot him?

'WITNESS: Yes.

'MR. PICKARD: I do have one more question, Your Honor.

'Q. When you got back to the Bamboo Room, how many of you got out of the car?

'A. I don't remember going back to the Bamboo Room.

'Q. Did you ever part company with Joe Ferguson and James Merritt?

'A. Could you repeat that?

'Q. When did you separate, You and Joe Ferguson and Jimmy Merritt?

'A. I was with Joseph Ferguson.

'Q. Where did Carl Bass go after you left there?

'A. I don't know.

'Q. Did you ever see the pistol after that?

'A. No.'

Davis further testified that as he was about to go into the store, he saw appellant and Merritt go over to Mr. Garland and start tussling with him but he did not see who fired the pistol. Until this time, however, appellant was the only one he saw with a pistol. He further testified that Ferguson was in plain view of the incident and that Ferguson told him that he was positive that appellant shot Mr. Garland.

A twelve-year-old boy, Sylvester Jones, testified that he was at the store that night and he saw a tall man holding the gun on Mr. Garland and he heard two or three shots. He was asked to look around the courtroom and 'see if you see the man in this courtroom today who had the gun and shot Mr. Garland.' The witness pointed toward the defendant.

Woodrow E. Talley, who was employed at Wells Shell Service Station, located on 26th Street and 34th Avenue, North, in Birmingham testified that on Ferbuary 16, 1973, a black man came to this station and bought a battery, gas and oil, and also got a lube job. The total amount came to about $48.00. He presented a Shell Credit Card in payment of these purchases. The card bore the name of Herman Garland. Shell Oil Company has a policy that when a purchase is made in excess of $10.00, the transaction has to be cleared with the company's central office. Mr. Wells called the central office and was informed that the credit card could not be used for this purchase.

We quote from the record:

'Q. Did you return this card to the person who was there?

'A. I can't remember whether Mr. Wells took the card or not.

'Q. Did you make a purchase on that card?

'A. He tried to. He called the number in. You have to get a number from Shell Oil on anything over $10.00. I think this came to about somewhere about $48.00.

'Q. Was it OK'd?

'A. No sir it wasn't.

'Q. What did you do with the card?

'A. I believe Mr. Wells held the card, I believe.

'Q. Do you see a person in the courtroom today that brought that card to the service station which bore the name of Herman Garland?

'A. Yes sir.

'Q. Would you point him out please?

'(MR. PICKARD) Let the record show that the witness pointed to and indicated the defendant, Carl Bass.

'Q. Did you and he have any conversation about the card after that?

'A. Well I walked out and told him that the card was no good. And he said well I don't understand why it ain't, and I said well it isn't. Then I told him we would have to have $48.00.

'Q. Are you talking about a conversation you were having with him?

'A. Yes sir.

'Q. Go ahead?

'A. So I told him we were gonna have to have $48.00 and he said he would have to call somebody, and he did. I don't know who. They were in a Skylark Buick, that's what they were driving when they brought the money up there.

'MR. PICKARD: I would like these two documents marked as 'State's Exhibit No. 6 and 7 for Identification please.' (si...