Body v. State

• Decision Date: 03 February 1976
• Docket Number: 6 Div. 972
• Citation: 329 So.2d 650,57 Ala.App. 593
• Parties: Lorenzo BODY v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 650

329 So.2d 650

57 Ala.App. 593

Lorenzo BODY v. STATE.

6 Div. 972.

Court of Criminal Appeals of Alabama.

Feb. 3, 1976.

Rehearing Denied March 9, 1976.

Robert C. Boyce, III, Bessemer, for appellant.

William J. Baxley, Atty. Gen., Montgomery, and Randolph P. Reaves, Asst. Atty. Gen., Birmingham, for appellee, the State.

TYSON, Judge.

The appellant was indicted for the first degree murder of Roosevelt Duncan, Sr., 'by shooting him with a pistol.' At trial the jury found the appellant guilty of murder in the second degree and fixed punishment at twenty-five years imprisonment. The trial court then pronounced judgment, setting sentence in accordance with this verdict.

County Coroner J. P. Helton testified that an autopsy performed on the body of the deceased, Roosevelt Duncan, Sr., around mid-morning, September 7, 1974, at Bessemer Carraway Hospital, indicated that death resulted from a gunshot wound through the heart. He stated that he turned the projectile, which was removed from the deceased's chest cavity, over to the State Toxicology Office in Birmingham for a comparison test.

Charles Holland testified that when he entered the Chicken Shack in Bessemer, Alabama, on the night of September 6, 1974, he saw the appellant, Lorenzo Body, 'standing in the back at the pool table.' While at the Chicken Shack, he did not notice any disturbances, but later, as he was walking out the front door with Elmore Rutledge, he was shot in the back.

On cross-examination, Holland testified that Lewis Duncan and the deceased, Roosevelt Duncan, Sr., were brothers of his, and that they, too, were at the Chicken Shack on the night of September 6, 1974.

The testimony of Enoch Oliver and his wife, Brenda, owners and operators of the Chicken Shack, was essentially the same. They testified that on the night of September 6, 1974, they had a 'pretty good night,' that the crowd included the appellant, his cousin, Elmore Rutledge, and the three 'Duncan boys'; Roosevelt, Lewis, and Charles Holland. Around 10:00 p.m. Mr. Oliver broke up an argument between Lewis Duncan and Elmore Rutledge (R. p. 20), at which time appellant was shooting pool (R. p. 21). Later, appellant walked over to the table where Elmore and Roosevelt were sitting, jerked a gun from Elmore's pocket (R. pp. 22, 35) and said, 'Why do you keep arguing with the Duncan boys, don't argue with them, just shoot them all' (R. pp. 26, 35). Appellant then ran toward Charles Holland, who was heading toward the front door, and shot him in the back (R. pp. 22, 35). As this shot was fired, Roosevelt Duncan, Sr., who had been seated, jumped up and said to appellant, 'What's wrong with you man' (R. p. 42), at which point appellant shot him too (R. pp. 22, 42). After shooting Charles Holland and Roosevelt Duncan, Sr., appellant pointed the pistol and pulled the trigger at Enoch Oliver and Lewis Duncan, but in neither instance did the weapon fire (R. p. 36). As appellant backed out the front door, waiving the pistol in the air (R. p. 23), he said, 'Don't nobody move, don't mess with me none . . . if anybody move, I'll kill you everybody' (R. p. 36).

Both Mr. and Mrs. Oliver testified that on the night of the shooting, they did not see Roosevelt Duncan, Sr., involved in any arguments, nor did they see him with any weapon, and that the same applied to Charles Holland.

Detective Sergeant G. N. Franklin, of the Bessemer Police Department, testified that he received a phone call from the appellant at approximately 8:00 p.m. on the night of September 7, 1974; that he, accompanied by another officer, proceeded to appellant's house, located on Alabama Street in Bessemer, where the appellant met them and voluntarily turned himself in. Franklin testified that at the time of appellant's arrest, he turned over a .38 caliber Taurus pistol, Serial Number 813184, which, he, Franklin, immediately marked for identification and subsequently turned over to the State Toxicologist.

State Toxicologist Robert Johnson testified that, based on his tests, the bullet retrieved from the body of the deceased was fired by the pistol he received from Sergeant Franklin. (The gun and bullet were admitted into evidence as State's Exhibits Nos. 1 and 2, respectively.)

At this point the State rested its case and the appellant's motion to exclude was overruled by the trial court.

State's witness Charles Holland was recalled by the defense and identified State's Exhibit No. 1 as his uncle's pistol (R. p. 61). He explained that, seeing his uncle drunk, he had taken the pistol for safekeeping, but stated that on the night of the shooting, upon entering the Chicken Shack, he had given the pistol to Elmore Rutledge to keep for him (R. p. 62). Holland said that he and the appellant had a fight about a year before the shooting, but had been friends ever since.

The defense next called appellant's cousin, Elmore Rutledge. He confirmed that Charles Holland had given him a gun to hold upon his, Howard's, arrival at the Chicken Shack on the night of September 6, 1974. Rutledge said that he did not see anyone else with a gun, nor did he see or hear anyone arguing.

On cross-examination, Rutledge testified that he and appellant were cousins, that they had grown up with the 'Duncan boys,' Roosevelt, Lewis, and Charles Holland, and that they were all friends. He stated that he did not see any sort of weapon in Roosevelt's possession, and that he was not aware of arguing before the shooting.

Upon taking the stand, the appellant, Lorenzo Body, admitted to having, in 1971, plead guilty to a manslaughter charge in connection with another shooting (R. p. 71). As for the shooting in question, appellant testified that he heard his cousin, Elmore Rutledge, and Roosevelt Duncan, Sr., arguing, that he walked over to where they were sitting, and told his cousin not to argue with Roosevelt because 'You know how he act about women' (R. p. 74). According to appellant, Roosevelt got mad and told him to leave the table, but he, appellant, replied, 'You...