Boutwell v. State

• Decision Date: 03 March 1966
• Docket Number: 3 Div. 206
• Citation: 183 So.2d 774,279 Ala. 176
• Parties: Grady Vance BOUTWELL, Jr. v. STATE of Alabama.
• Court: Alabama Supreme Court

Page 774

183 So.2d 774

279 Ala. 176

Grady Vance BOUTWELL, Jr. v. STATE of Alabama.

3 Div. 206.

Supreme Court of Alabama.

March 3, 1966.

Rehearing Denied March 17, 1966.

Grady Vance Boutwell, Jr., pro se.

Richmond M. Flowers, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.

PER CURIAM.

Appellant was indicted for murder in the first degree by a grand jury of Escambia County, Alabama. He was tried and convicted of murder in the second degree, from which judgment of conviction he appeals. The sentence was 30 years imprisonment in the penitentiary for the murder of Shirley Ann Mosley.

Defendant was an indigent and unable to employ counsel to represent him either at the preliminary, when he was bound over to the action of the grand jury, or when he was tried on a plea of not guilty in the nisi prius court. Prior to arraignment, the trial judge of the circuit court of Escambia County, where he was convicted, on petition of defendant for counsel appointed him an experienced and capable trial lawyer who performed the duties for which he was appointed. Defendant was also represented by appointed counsel at the preliminary trial.

Defendant's plea of not guilty to the charges embraced in the indictment was entered in the presence of defendant's counsel at the arraignment.

On the date of the arraignment, March 30, 1965, the defendant, through his attorney, filed a verified motion for a change of venue. He asserted that he could not get a fair trial in Escambia County on account of some alleged prevailing conditions. The petition was presented at the time without comment from defendant's counsel and overruled on that date. Counsel then indicated that he desired to be heard on the motion. The court thereupon set Friday, April 2, 1965, as the time and occasion to hear the motion.

Testimony on the motion was taken on that date. This testimony consisted mainly of the introduction of several newspapers published in Escambia County, and one in Florida adjoining said county. These newspapers, which are before us, gave publicity to the charge against defendant and statements that he had confessed to the murder. Also, some detective magazines, not published in Escambia County, but distributed therein, with details of the crime and the confession, were introduced. No oral testimony was taken by either side.

On motion of the State, the question vel non of a fair trial for defendant in Escambia County was passed for determination on voir dire examination of the special jury summoned to hear the evidence if selected. Sections 63 and 64, Title 30, Code of 1940.

On voir dire, it appears that 35 jurors, in answer to the question, 'Have you read any newspaper stories at any time about the death of Shirley Ann Mosley?' held up their hands which indicated that they had. No juror held up his hand in answer to the question, 'Have you read any magazine stories at any time about the death of Shirley Ann Mosley?'. In answer to the question, 'Have you heard any radio broadcasts about the death of Shirley Ann Mosley?', no juror indicated that he had. On being asked if they subscribed to certain newspapers, the responses were as follows: The Brewton Standard, 9; Atmore Advance, 6; Esca Rose Journal, 1; Mobile Press, 25; Montgomery Advertiser, 9. In answer to the question if they had discussed the case with any one, there were no affirmative answers or signs. None indicated that he had expressed an opinion as to the guilt or innocence of the charge, no juror held up his hand. The court thereupon asked the jurors if they knew of any reason why they could not give the defendant a fair and impartial trial, taking into consideration the newspaper articles and the publicity given the case in Escambia County. No juror indicated that he had been affected by the publicity or was biased by any of the news media. The court thereupon overruled the defendant's motion for a change of venue. Defendant excepted.

On motion for a change of venue (§ 267 et seq., Title 15, Code of 1940) in a criminal case, defendant has the burden of showing to the reasonable satisfaction of the trial court that a fair and impartial trial cannot be had and an unbiased verdict cannot reasonably be expected. Tiner v. State, 271 Ala. 254, 122 So.2d 738(2).

We quoted, with approval, in the Tiner case, supra, an observation of this court in Godau v. State, 179 Ala. 27, 36, 60 So. 908, as follows:

'So long as we have newspapers we may expect to have through them the report of crimes, and it is not to be unexpected that, when a homicide is committed and discovered under circumstances like the present--even if the defendant's account of the entire matter is the truth--the newspapers of the community, answering the public interest, will furnish the defendant with at least some material upon which to base an application similar to the one under discussion. * * *'

The foregoing applies also to radio and television news reporting. Tiner v. State, supra.

We do not discover from the newspapers and magazines offered in evidence any inflammatory statement, or other matter, on which we can base a conclusion that the appellant could not receive a fair and impartial trial in Escambia County. Tiner v. State, supra. The motion for a change of venue was overruled without error.

It appears from the evidence that the nude dead body of Shirley Ann Mosley, possibly 18 or 20 years of age, was discovered early in the morning of May 18, 1964, in Little Escambia Creek in Escambia County, Alabama. The point of discovery was between Pollard and Flomaton. The signs indicated that she had been dragged for twenty-five or thirty feet across a sand bar to the edge of the water and the body found lodgment in the bottom of the creek. The sheriff contacted a State Toxicologist, Dr. Nelson E. Grubbs, at Mobile, Alabama.

Dr. Grubbs, whose qualifications as a toxicologist were conceded by the defendant, testified for the State that on or about May 18, 1964, he performed an autopsy on the body of Miss Mosley at the funeral home in Flomaton, Alabama. He further testified the body revealed that she had a bruise over the right eye; there was an abrasion under her chin approximately an inch and one half by an inch long. There was an abrasion on the neck.

Also the witness testified that he performed an autopsy on the body of Miss Mosley; that he 'opened * * * and examined' the body 'from the pubic region to the neck, dissected the skin away from the neck around the skull and observed the findings therein.' The autopsy also consisted 'of an examination of the trachea, the esophagus, lungs, the heart, thorax area, stomach and other organs.' Further he answered questions as follows:

'Q. New I want to go back and ask you about the examination of the trachea and throat and just tell us what you found there please sir?

'A. I found at the base of the tongue at the top of the trachea or wind pipe, that it was crushed, hemorrhagic and bleeding, or leaking blood which had extended down into the trachea into the upper part of the lungs.

'Q. What does not examination there and your findings indicate to a person trained in the science of toxicology Mr. Grubbs?

'A. It indicates strangulation.

'Q. After an examination of this body there at that time, and based on the results of your knowledge and experience and upon your examination of this particular body, do you have an opinion as to the cause of death of this person?

'A. I do.

'Q. What is that opinion sir?

'A. Strangulation.'

Further the witness testified that he made an examination of the automobile (shown to be that of defendant) and obtained hair and blood stains from the car. He examined the stains and hairs in his laboratory. He made a laboratory examination and comparison of these blood stains from the car with blood from Miss Mosley, but the identification was not conclusive. With reference to his study of the hair which he removed from the automobile with that removed from the dead body, he testified:

'Q. Now let me ask you sir--did you also conduct a study into the hair which was removed from the automobile and the hair which was removed from the dead body?

'A. I did.

'Q. Tell the petit jury how you go about doing that please sir?

'A. This is primarily a microscopic examination in which the hair is first examined miscroscopically in length and diameter by means of a comparison microscope in which you put the known hair--in this case, the hair I removed from the body, and the hair that was obtained from the car in my presence--under an adjoining part of the microscope and you examine two at the same time for similarity, then later you do a cross section to determine any further information that might be determined--in this case I did both and it was similar in all respects, but it was not positive identification. It was similar.

'Q. You say similar in all respects, are you referring to the texture, the diameter which of course can be measured under the equipment you have there, and the color as well?

'A. Yes sir.

'Q. What you are saying then is nobody could state positively that was hair from the same person, but it resembled it in every respect?

'A. Yes sir.'

It appears from the record of the evidence of Sheriff G. S. Byrne, Jr., that on May 18, 1964, responding to a call about 6:10 A.M., he viewed the scene at the creek, between Pollard and Flomaton, where the nude body of Miss Mosley was discovered in the creek. He saw 'where the body was drug [sic] and I walked down to the creek and saw the body then I came back to the car and called Mr. Taylor and told him to come down--him and Mr. Holmes--and then I went and called Nelson Grubbs.' The body, as he testified, was taken to the funeral home at Flomaton. He identified the dead body as that of Shirley Ann Mosley. Also, he testified that the dragging signs from the edge of the water went back to where an automobile had been parked.

Witness further testified that he first saw...