Boggan v. State, 6 Div. 32

• Court: Alabama Court of Criminal Appeals
• Writing for the Court: TYSON
• Citation: 455 So.2d 228
• Parties: Jerry Wayne BOGGAN v. STATE.
• Docket Number: 6 Div. 32
• Decision Date: 22 May 1984

Page 228

455 So.2d 228 Jerry Wayne BOGGAN
v.
STATE. 6 Div. 32. Court of Criminal Appeals of Alabama. May 22, 1984.
Rehearing Denied June 26, 1984.
Certiorari Denied Aug. 24, 1984
Alabama Supreme Court 83-1136.

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George W. Andrews III, Birmingham, and Dan C. King, III, Bessemer, for appellant.

Charles A. Graddick, Atty. Gen., and Patricia E. Guthrie, Asst. Atty. Gen., for appellee.

TYSON, Judge.

Jerry Wayne Boggan was indicted for feloniously taking $1,232.05, the personal property of Penny Williams, from her person and against her will, by violence or threat of violence, and in the course of committing such robbery, intentionally killing Penny Williams by smothering her with his hand or by beating on her head with a blunt instrument, in violation of § 13A-5-31(a)(2), Code of Alabama 1975. The jury found the appellant "guilty of the capital offense as charged in the indictment" and the appellant was sentenced to life imprisonment without parole.

Woodrow Foster testified that in 1978 he lived in a trailer which was located in Penny Williams' yard on Carver Avenue. He stated that the appellant lived down the street. He said that on September 12, 1978, he got off work at 3:30 p.m. and went home. He said that when he arrived home

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he saw "Aunt Penny" sitting on her front porch and the appellant was down the street sitting on his mother's front porch. He said that he fixed supper and went to visit a friend. He said that as he was leaving his trailer he saw the appellant at "Aunt Penny's."

Mr. Foster further testified that when he returned he stopped at Ms. Williams' home to check on her. He said he knocked on her door but no one answered. He stated that he entered the home, saw a light on in the kitchen and looked around in the kitchen. He stated that when he did not see "Aunt Penny" in the kitchen he left and went to Annie Fox's home. He said that Ms. Fox was "Aunt Penny's" niece. He said that he told Ms. Fox he did not see anyone at "Aunt Penny's" house and asked her to go back with him. He said they went in "Aunt Penny's" home, looked around, went to her bedroom and turned on the light. He said "Aunt Penny" was on the floor between the bed and the wall and that she seemed to be dead.

Mr. Foster testified that "Aunt Penny's" home had a front and back door, but the back door was nailed closed and could not be used. He further stated that "Aunt Penny" always carried a pistol and then identified the gun in evidence as her pistol. He said that she kept money in a metal box in her closet. He stated that when they found "Aunt Penny" the closet where she kept her money was open, and the contents of the closet were scattered on the floor of the room.

Jay Glass testified that he was a coroner employed by the Jefferson County Coroner-Medical Examiner's Office. He stated that he assisted in the autopsy of Penny Williams. He stated that there were multiple lacerations of the scalp and face--at least eight, and there were multiple bruises and abrasions. He stated there were skull fractures beneath two of the lacerations. He testified that the lacerations could have been caused by being struck with a pistol and that the cause of death was asphyxia combined with blunt force injuries.

John Henry Bester testified that he was driving home from work at approximately 9:15 p.m. on September 12, 1978, when he was flagged down by a man walking along the side of the road. He identified the appellant as the man who flagged him down. He stated that he was approximately one and one-half mile from Carver Avenue. He said that the appellant offered him twenty dollars to give him a ride to Bessemer, Alabama. He said that he refused to give the appellant a ride and that the appellant then offered him twenty dollars more, which he again refused. He said that the appellant dropped a money bag full of change on the ground beside the car and some of the change spilled out of the bag. He stated that the appellant then told him he needed to get away because he had just robbed someone. Mr. Bester identified a money bag as the one that the appellant had dropped and stated that he helped the appellant pick up the change.

Mr. Bester testified that the appellant saw a police car driving towards them and that the appellant took a gun from the front of his pants and threw it under the car. He stated that the police drove up and asked the appellant where he got all of the money and that the appellant stated he won the money playing "skins." He testified that the appellant was intoxicated. He stated that the police started to drive away, then stopped their car and told them to put their hands on the car. He stated that the police picked the gun up, then searched them. He stated that the police found more money on the appellant and took both men to jail. He stated that while in the jail the appellant told him that he (appellant) would tell the police that Bester had nothing to do with his act.

Lester Sherrod testified that in 1978 he was the dispatcher for the Brownville Police Department. He stated that on the night of September 12, 1978, Officer Horton and Officer Proveaux brought two men into the jail. He stated that they gave him a pistol to keep and identified the pistol in evidence as the one he was given by the officers. He stated that he placed the pistol in his desk drawer, kept it about an

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hour, then turned it over to Officer Todd of the Birmingham Police Department. He further stated that, from the time he received the pistol until he turned it over to Officer Todd, no one had access to the pistol.

John Sturgeon testified that he was Penny Williams' nephew. He stated that he went into "Aunt Penny's" house along with Mr. Foster and Ms. Fox and that they found "Aunt Penny" dead in her bedroom. He said that he knew "Aunt Penny" kept money in her home and that she kept the money in a metal box. He further testified that about one week after "Aunt Penny's" death he found the metal box in a field beside the Health Center. He stated that he called the police and when they arrived he took them to the box. He stated that the police picked up the box and took it with them. He stated that normally the box had a lock on it, but when he found the box the lock was missing.

Mr. Sturgeon testified that he saw the appellant at "Aunt Penny's" home on September 12, 1978. He also said that the appellant knew where "Aunt Penny" kept her money. He further stated that "Aunt Penny" owned a pistol and identified the pistol in evidence as her pistol.

Annie Fox testified that she was Penny Williams' niece and lived down the street from "Aunt Penny." She stated that "Aunt Penny's" house had a front and back door but the back door had been nailed closed for years.

Ms. Fox testified that "Aunt Penny" kept money in a metal box, and this box was inside her closet. She stated that "Aunt Penny" stored her coin money in a money bag, which was inside the metal box. She identified the money bag, which was found in the appellant's possession at the time of his arrest, as the one in which "Aunt Penny" kept her change. When questioned as to how she could be sure this money bag was "Aunt Penny's," Ms. Fox stated that she counted the money for "Aunt Penny" and wrote the amount on the outside of the bag. She further stated that "Aunt Penny" had $389.80 in change and $1,500 in paper money, and this money was stored inside a metal box with a lock on it.

Ms. Fox testified that "Aunt Penny" always carried a pistol and identified the pistol in evidence as "Aunt Penny's." She stated that on September 12, 1978, the appellant was living with "Aunt Penny" and that she had seen him at "Aunt Penny's" house that day. She stated that during the night of September 12, 1978, Mr. Foster came to her house and they went to check on "Aunt Penny." She stated that they found "Aunt Penny" dead in her bedroom. Ms. Fox further testified that the closet was open and "Aunt Penny's" money box was missing, and that the drawers from "Aunt Penny's" chifforobe had been pulled out and emptied. She also said that the appellant knew "Aunt Penny" kept money in her house.

Hugh Thomas Yester testified that in 1978 he was an evidence technician employed by the Birmingham Police Department. He stated that he took a number of photographs of Penny Williams' home. These photographs included one of the back door of the house and Mr. Yester testified that there were cobwebs around the bottom of that door.

Clay Horton testified that in 1978 he was employed as a police officer in the Brownville Police Department. He stated that he was the officer who arrested the appellant on September 12, 1978. He stated that on that night he and his partner were on patrol when at approximately 10:00 p.m. they spotted a car parked on the side of the road. He stated that one man was sitting in the car and the appellant was standing beside the car on the drivers' side of the vehicle. He stated that when he first noticed the men, the appellant was kneeling beside the car. He said that he pulled up beside the stopped car and asked if there was a problem. He said the appellant told him he was picking up some change he had dropped on the street. Officer Horton stated that the appellant said he won the money playing "skins." He stated that he noticed a bank bag, which contained a large

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amount of change, in the appellant's hand. He identified the money bag in evidence as the one the appellant was holding that night.

Officer Horton testified that as he was leaving he noticed a pistol lying under a back tire of the car. He identified the pistol in evidence as the weapon he saw. He stated that the appellant claimed ownership of the pistol and at this point both men were "patted down." He stated that he found a large lump in the appellant's front pocket which turned out to be a roll of money. Officer Horton testified that the men were then placed in the patrol car and while transporting them to...