Bracewell v. State

• Decision Date: 30 January 1979
• Docket Number: 4 Div. 646
• Citation: 407 So.2d 827
• Parties: Charles BRACEWELL, alias, v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 827

407 So.2d 827

Charles BRACEWELL, alias, v. STATE.

4 Div. 646.

Court of Criminal Appeals of Alabama.

Jan. 30, 1979.

Rehearing Denied Feb. 20, 1979.

Griffin Sikes and John B. Givhan, Andalusia, for appellant.

William J. Baxley, Atty. Gen. and Elizabeth N. Petree, Asst. Atty. Gen., for the State.

HARRIS, Presiding Judge.

Appellant was indicted by the grand jury of Covington County for robbery during the commission of which the victim was intentionally killed, as delineated in Code of Alabama 1975, Section 13-11-2(a)(2). Two attorneys were appointed to represent appellant and he was arraigned in their presence, pleading not guilty to the indictment. After a two-day trial, the jury returned a verdict of guilty as charged in the indictment. Subsequently, the trial court heard evidence on mitigating and aggravating circumstances, adjudged appellant guilty and set forth written findings of facts to support the imposition of the death penalty. Trial counsel were appointed to represent appellant before this court and appellant was provided a free transcript.

Marie Carnley testified that she was the widow of the deceased, Rex Carnley, who had been engaged in running a store near Opp, Alabama, in Covington County, until he died on Monday, August 15, 1977. On the preceding afternoon, the deceased left home and went down to his store to spend the night as he had been having burglaries in the past few months. At the time the deceased was carrying a billfold in which he had seventeen or eighteen hundred dollars. Mrs. Carnley and their three sons subsequently went to the store that evening and locked the deceased inside the store at closing time, 8:00 p. m., using a padlock on the front door. Mrs. Carnley had observed cash in denominations of ones, fives, tens and twenties in the store's cash register before leaving the store. After her husband's death, Mrs. Carnley received his personal effects; however, the deceased's wallet was not among them and Mrs. Carnley did not find it or its contents later at the store.

Marlon Brewer, employed by the Alabama Bureau of Investigation, testified that he went to the deceased's store on the morning of August 15, 1977, where he observed the body of the deceased on the floor of the store. Brewer noted that there was no billfold on the body and also observed a pistol at the side of the deceased.

Johnny Harrelson testified that on Monday morning, August 15, 1977, around 6:00 a. m., he stopped at the deceased's store to get gas. There he saw lights on in the store; however, the gas pumps were not running. Harrelson discovered deceased's body when he entered the store to have the pumps started and then called the Opp Police Department. Harrelson remained at the store until the police arrived.

Jerry Brannon, Chief of the Opp Police Department, testified that the police radio log showed that at 6:17 a. m. on August 15, 1977, a call stating that the deceased had been shot was received. Brannon further testified that he participated in the subsequent investigation of the report.

John Ellis, an Opp police officer, testified that he went to the deceased's store following a dispatcher's radio call. Ellis observed deceased's body lying on the floor. Subsequently, Ellis identified deceased's body to the coroner at the funeral home.

George Szpek, a deputy in the Covington County Sheriff's Department, arrived at the deceased's store at approximately 7:30 a. m., on August 15, 1977, and participated in the investigation of deceased's death. Szpek testified that he examined deceased's body and found no billfold. Szpek observed only loose change and checks in the till of the store's cash register.

Richard Roper, a toxicologist with the State of Alabama, Department of Toxicology and Criminal Investigation, was qualified as an expert, and he testified that he conducted a postmortem examination of the deceased's body on August 15, 1977, at Rainer's Funeral Home in Opp, Alabama. Roper noted multiple gunshot wounds to the deceased's head and testified that in his opinion death occurred as a result of acute central nervous system trauma and intracranial hemorrhage subsequent to the gunshot wounds. In all, there were nine gunshot wounds to the body.

Roper recovered several projectiles and projectile fragments which he delivered to Dale Carter of the Enterprise Division of the Toxicology Department. Additionally, Roper gave Carter powder and blood scrapings from the chest and face of the deceased.

On cross-examination Roper testified that the caliber of the projectiles removed from the deceased's body was .22. He stated that in his opinion death occurred between 3:00 a. m. and 5:00 a. m., August 15, 1977.

Richard Dale Carter, a criminalist with the Alabama Department of Toxicology and Criminal Investigation, testified that he went to the deceased's store on August 15, 1977. There he found a Herrington and Richardson, .22 caliber, nine-shot revolver lying on the floor to the right of the deceased's body. Nine expended cartridges were in the chamber of the weapon. Carter test-fired the revolver found at the deceased's side and compared those projectiles with the projectiles received from Roper. In Carter's opinion, four of the projectiles received from Roper were fired from a weapon having identical class characteristics, e.g. rifling, as the Herrington and Richardson recovered at the scene of the deceased's body. The remaining projectiles were too mutilated or damaged to allow a comparison to test-fired projectiles. Blood scrapings taken from the chest and face of the deceased contained particles of gunpowder.

Eddie Robertson testified that he had helped "raise" appellant and that he had known him all his life. Robertson lived seven miles from Samson in the direction of Opp. Robertson saw appellant on the evening that the deceased was killed. At that time appellant told Robertson that "he got out of Opp on account of that boy got killed up there and they would be up there to pick him up." Appellant told Robertson's wife that "they" had not done it.

W. E. Harrell, the Sheriff of Covington County, testified that he had known appellant four or five years. Harrell first spoke to appellant concerning the death of Rex Carnley, on November 2, 1977, in the Coffee County Jail and then again on that same date in the Covington County Jail.

Outside the hearing and presence of the jury, Harrell testified that he arrested appellant at the Coffee County Jail on another charge. En route to Covington County, Harrell told appellant that he was suspected of killing the deceased and advised him of his "Miranda" rights. Having been advised of these rights, appellant stated that he understood them. No one threatened or coerced appellant to make a statement, or offered appellant any reward or hope of reward for making a statement. Appellant then told Harrell that he had no knowledge of deceased's death. Harrell testified that he "just didn't pursue it any further at that time."

On Friday, November 4, 1977, Harrell testified someone informed him that appellant wanted to talk to him. Subsequently, Harrell saw appellant in the sheriff's office at the Covington County Jail. There, in the presence of Harrell's wife, appellant told Harrell that he wanted to tell him about Rex Carnley. Harrell told appellant that, before appellant told him anything, he wanted to advise appellant of his rights again, which he did. Responding that he understood his rights, appellant began to make a statement. From the record:

"Q. If you would just tell us Sheriff what he told you at that time with reference to the Rex Carnley murder?

"A. Okay. Charles appeared to be very nervous. I handed him a cup of coffee and asked him to have a seat. He sat down and said, I want to tell you the truth about Rex Carnley. I told him before he told me anything I must advise him of his constitutional rights again, which I did. He then said he wanted to get right with God and that the only way he could do that was to tell the truth about everything. He said that he and Debra did go to Rex Carnley's store about four or five o'clock in the morning on August the fifteenth, 1977, with the intention of robbing him. He said that they drove past the store a few times before he saw any lights on in the store. And then, just before five o'clock they saw the lights on in the store. He said that he stopped the car near the gas pumps and got out and walked to the front door. He stated that he had a pistol and Debra knocked on the door. When Rex opened the door they both went inside and he pointed the pistol at Rex and told him that he wanted his money. He said that Rex had his hands up and his back to the counter. Debra went behind the counter and got a pistol from under the counter and shot Rex in the back of the head. He said that he took the gun from Debra and shot Rex several more times in the face. And he said that while Rex was lying on the floor that he turned him over and shot him again in the back of the head. He said that they removed a wallet from Rex's body and left the store. After Charles related this story to me, I called Sergeant Brewer and he came to the jail and Charles related a similar story to him in my presence."

Harrell further testified that appellant related his story three times that night: twice to him, and once to Sergeant Brewer. Again, appellant was advised of his rights, before he made his statement to Brewer. Harrell talked to appellant again a few days later.

On November 21, 1977, Harrell again advised the appellant of his rights and took another statement from him. The District Attorney, Mr. McGill, Barbara Blackwell and Marlon Brewer were also present. Subsequent conversations were held with appellant on November 22, 1977; December 2, 1977; January 14, 1978; January 17, 1978; January 19, 1978; January 23, 1978; and January 25, 1978. On each of these occasions appellant made a statement, having been advised of his...