Blevins v. State

• Decision Date: 28 September 1973
• Docket Number: 8 Div. 206
• Citation: Blevins v. State, 51 Ala.App. 214, 283 So.2d 664 (Ala. Crim. App. 1973)
• Parties: Gene Olive BELEVINS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 664

283 So.2d 664

51 Ala.App. 214

Gene Olive BELEVINS v. STATE.

8 Div. 206.

Court of Criminal Appeals of Alabama.

Sept. 28, 1973.

Benjamin E. Pool, Montgomery, for appellant.

William J. Baxley, Atty. Gen., and John J. Pilgrim, Sp. Asst. Atty. Gen., for the State.

LEIGH M. CLARK, Supernumerary Circuit Judge.

Appellant was tried on an indictment charging him with murder in the first degree. A jury found him guilty of murder in the second degree and fixed his punishment at imprisonment in the penintentiary for a term of twenty years. The trial court rendered judgment and sentence accordingly. Appellant (defendant) filed and presented a motion for new trial, which was overruled by the trial court. This is an appeal from such judgment and sentence and from the order overruling defendant's motion for a new trial.

The death of the alleged victim, Roland Laverne Hill, occurred early on the evening of July 9, 1971, in front of his residence in Sheffield, which he was accustomed to utilize as a place to sell and dispense beer and hard liquor and, according to some witnesses, to gamble occasionally with some of his patrons.

There are some conflicts as to items of time, location and other details, but in general the evidence was without dispute that a group of more than a dozen had assembled after an afternoon ball game and were in the process of buying and drinking from Hill's supply. Most of them were some of the ball players. The defendant was not one of the ball players; neither was his companion Jerry Brewer. The two entered the house together; Brewer ordered and obtained two cans of beer from the refrigerator, gave one to defendant, and after a short time (the exact time being variously estimated) stated to Hill that he wanted to see him outside. They left by the front door, and in a short time defendant also went out the front door. Soon thereafter those inside heard shots outside in front of the house. After subsidence of the immediate excitement and confusion, Hill was found mortally wounded by at least two bullets that struck his chest. He was taken to the hospital, where he died.

One other person left the house before the shooting occurred. He testified to the effect that he had cleared the premises well before the shooting started.

No witness definitely identified by sight either Brewer or defendant as the one who shot Hill, but there was definite evidence that two white men left in an automobile from in front of the house. One witness testified that one of the two in the automobile was shooting while the other was driving. There was no evidence by anyone to the effect that either defendant or Brewer tarried after the shooting. There was a variance in the evidence as to the number of shots that were fired, but the overwhelming weight of the evidence was to the effect that there were two separate series, although the intervening time was short. The evidence indicates that two or three or more shots were fired in the first series and three or four or more in the second.

Defendant and Brewer had been seen together in Hill's house, as well as at other places, on several previous occasions. Latter that night they were located in a mobile home in Florence where they had apparently retired for the night. No one else was in the mobile home at the time. They were arrested by officers with warrants, and at the time a .38 caliber revolver was found under the bed occupied by defendant. It has in it at the time three empty cartridge shells and three live cartridges. About forty-five minutes or an housr after the arrest of the two and their transportation to jail, officers returned to the mobile home and found a 45 Colt automatic near the bed previously occupied by Brewer.

Expert testimony was to the effect that Hill had been killed by a large caliber pistol, a 45, and a slug in his spinal column was identified as such. Empty 45 cartridges were found in or about the yard. A slug was taken out of the wall in front of the house of decedent, and it was identified as a spent slug from a 38 pistol. The testimony was that the hole made by the slug was fresh. Brewer had also been indicted for murder in the first degree of Roland Hill, but it was by separate indictment. Neither defendant nor Brewer testified in the case.

Defendant's witnesses were Barbara Clark and Sheila Brewer, a sister of Jerry Brewer. Barbara Clark had rented the trailer or mobile home at which defendant and Brewer were arrested from the operator of the trailer park. Barbara Clark testified that the 38 caliber pistol found under the bed occupied by Blevins was, in fact, owned by her, that she placed the gun under the bed and had fired it three times after she purchased it three weeks prior to the death of Roland Hill. Sheila Brewer testified that the last time she saw Roland Hill was on July 1, when she saw him in the presence of her brother, Jerry Brewer. This was substantially all of her testimony, as the court sustained State's objection to several other questions asked the witness by defense counsel, which rulings of the court are the basis for some of appellant's assertions of error.

Appellant takes the position that the trial court committed reversible error in connection with its consideration of the qualifications, claims of exemptions from jury service and reasons or excuses offered by jurors as to why they should not be required to serve on the panel from which the jury was selected to try defendant. It is charged that there was a violation of Title 30, § 63, Code of Alabama 1940 (Recomp. 1958), which provides for the drawing and summoning of a special venire in capital cases. The record shows that the trial court in open court inquired of all of the jurors on the general venire and on the special venire as to their qualifications and any excuses or reasons for not serving, in the presence of defendant and defendant's counsel and others, but that after inquiry by the court of such jurors of the general venire and obtaining their responses, the trial judge went into an anteroom with the prosecuting attorney and attorney for defendant, and with a clerk of the court and the court reporter, and there the trial judge discussed with counsel for the State and counsel for the defendant each juror who had indicated that he was disqualified, or that he should be excused. A similar procedure and discussion in an anteroom took place after the inquiry had been made of the special venire. Defendant was not present in the anteroom during either discussion. In the course of the discussions, counsel for the defendant was afforded an opportunity to state his position as to each of said jurors, that is, whether it would be agreeable with him in representing defendant for the particular juror to be discharged or excused, or whether on the other hand he wished for the juror not to be released from the panel from which the jury was struck. Counsel for defendant agreed to the court's releasing several of said jurors. It seems that no point is made to the effect that the court erred to the prejudice of defendant either in releasing or in holding any of said jurors. Strong insistence is made, however, that the court was in error in conducting the discussion stated out of the presence of the defendant. Counsel for appellant relies heavily upon Draper v. State, 250 Ala. 679, 36 So.2d 73; Lassiter v. State, 36 Ala.App. 695, 63 So.2d 222, and other cases that make it clear that in a capital case the defendant has the right to be present during the selection of the jury and should have the opportunity to participate therein. In Lassiter it was stated:

'A defendant in a capital case has a right to have excuses from jury service heard and determined at the time of trial as a part thereof, so that he may know the facts on which the excuse is based, and if defendant desires, make showing that the excuse is not valid. This requirement is mandatory, and its denial compels reversal when properly presented.'

The point was made by defendant's counsel on the trial of the case, but it was not made until after both of the discussions in the anteroom had taken place. It is obvious that everyone in the anteroom knew that the defendant was not in the anteroom at the time. There seems to be no contention that he was denied access to the anteroom at any time. That he could have been of benefit to his cause by his attendance upon the discussions in the anteroom is possible, but it is also possible that he could have probably served his cause better by remaining in the court room. It seems to us that defendant's able counsel would have made known to defendant and to the court that defendant's presence was desired in the discussion if it appeared to defendant's counsel that such presence would have been to the best interest of defendant. The record shows no effort along this line, and there is nothing in the record to indicate that a request accordingly would have been denied. The record shows that at each of the mentioned discussions inthe anteroom, defendant's counsel was an active participant. It appears that there was no reluctance whatever on his part to give his views as to whether the particular jurors considered should or should not be released. The trial court accepted his views as to almost all of the jurors mentioned. It seems clear that defendant's counsel, with the best interest of defendant in mind, voluntarily entered into each of the discussions with the proper objective of furthering the best interest of the defendant, and as to this we think he succeeded. The trial judge made no rulings in the anteroom. His rulings as to all of such jurors were made in open court and in the presence of the defendant, as well as defendant's counsel. No objection, no exception, no request for further consideration was there made. After jurors on the special venire had been excused by the court, as jurors on the general venire had been previously excused in open court, the...