Breeding v. State

• Citation: 523 So.2d 496
• Decision Date: 28 April 1987
• Docket Number: 8 Div. 686
• Parties: Brian Gene BREEDING v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 496

523 So.2d 496

Brian Gene BREEDING v. STATE.

8 Div. 686.

Court of Criminal Appeals of Alabama.

April 28, 1987.

Rehearing Denied March 8, 1988.

Certiorari Denied April 29, 1988

Alabama Supreme Court 87-688.

Raymond Uhrig of Uhrig, Munger & Howard, Huntsville, for appellant.

Don Siegelman, Atty. Gen., and Beth Slate Poe, Asst. Atty. Gen., for appellee.

McMILLAN, Judge.

The appellant, Brian Breeding, was found guilty of the murder of Billy Gene Cobb, by strangulation, in violation of § 13A-6-2, Code of Alabama (1975) and sentenced to life imprisonment.

I

The appellant raises the issue of the sufficiency of the evidence to support his conviction for murder. The victim, Billy Cobb, was found dead in his apartment on March 4, 1986, by Mickey Woods, a maintenance person for the apartment building. He testified that he opened the victim's apartment in order to allow an exterminator to enter. Woods testified that upon entering the victim's apartment he discovered the television on and a body lying on the floor. He also testified on cross-examination that he did not detect any odor in the apartment.

Andy Jackson, the crime scene investigator for the Huntsville Police Department, testified that, in entering the victim's apartment, he observed the victim's body, lying on his back with dried blood about his face, mouth and nose. His pants were "around his buttocks and the underwear was pulled down some from his waist"; his belt was unbuckled. He also found a ligature, a gray shirt tied around his neck. The television and the light were both on and the drawers of his dresser had been pulled out and apparently ransacked. He further testified that 30 cards of latent fingerprints were taken from the apartment and turned over to the identification section of the police department. He also indicated that there was no indication of forced entry. He testified, on cross-examination, that he did not detect any odor when he first entered the victim's apartment; however, when the body was being removed, he became aware of a distinct odor.

Doug Copeland, the manager of CNN Tire Warehouse, testified that he had known the victim for approximately six to seven years before he came to Copeland for a job. Copeland testified that the victim had a drinking problem which caused him to miss work occasionally. He further testified that he had last seen the victim at work on Friday, February 21, 1986. He also indicated that prior to Friday, February 21, the victim had not worked since the preceding Saturday. Copeland further testified that the victim always kept money with him, usually in large amounts. The victim had been paid on the last Friday that he was seen at work and Copeland also stated that the victim kept approximately $200 in rolled coins in his apartment. Copeland testified, on cross-examination, that he went to the victim's apartment and knocked on the door every day that he was absent until Wednesday or Thursday. He further testified that the victim's car was not in the parking lot so he believed that the victim must be gone. Copeland, on redirect examination, described the victim's car as "an old dented four-door cream colored Chrysler."

Anthony Monroe Glover, nicknamed "Squirrel," testified that he worked with the appellant in demolition. He further testified that he rented his trailer out to the appellant during the time that the appellant was in Huntsville. He testified that on Saturday, February 22, the appellant came to the trailer, some time after 5 o'clock p.m., and picked up his clothes. The appellant told "Squirrel" that he was moving in "with Bill." "Squirrel" testified that he knew "Bill" to be the victim. The appellant arrived at the trailer in an automobile which "Squirrel" identified from photographs as being the victim's car. He testified that someone else was in the car whom he did not recognize.

Bill Smith testified that he knew the appellant from the Mission. Smith testified that he had noticed tattoos on the appellant's arms and that, although he was not certain, he believed the tattoo to be a reaper, i.e., a skull with a hood and sickle. Smith testified that the last time he saw the appellant was a Saturday night, which might have been February 22. The appellant arrived at Smith's trailer at approximately 11 o'clock p.m. in a car which Smith described as a dark four-door model with a dent on the passenger's side. Thereafter, Smith identified a photograph of the victim's car as being a photograph of the car the appellant was driving on that Saturday night. Smith testified that the appellant and he drove to a lounge, stayed for approximately two hours, and that then the appellant drove Smith back to his trailer. Smith testified that he had not seen the appellant or the automobile that he was driving since that night.

Dr. Eugene Hunt Scheuerman testified that he is a forensic pathologist with the Alabama Department of Forensic Sciences. He testified that he was called to the scene of the homicide on March 4. He testified that the victim's trousers were pulled part way down, his pockets were turned inside out, and he had a shirt fashioned into a ligature with a single overhand knot around his neck. He testified that there appeared to be some blunt force injuries to the victim's face and that the body was subject to "early decomposition" which was consistent with the body having been there for some period of time. Dr. Scheuerman further testified that he did not have an exact judgment as to how long the body might have been there, because many variable factors make such a determination difficult. He further testified that the cause of the victim's death was ligature strangulation. On cross-examination, Dr. Scheuerman testified that the victim's blood alcohol was .21 percent.

The victim's neighbor testified that he had met the victim twice. He testified that around the middle of February, he observed the victim and a young man carrying some boxes into his apartment. The neighbor identified the appellant as the young man helping the victim. He indicated that the appellant had a mustache and his hair was a little longer at that time. The neighbor further testified that the victim referred to the appellant as "son or sonny". The neighbor also stated that he passed the appellant on the sidewalk coming out of the apartments about a week later. The neighbor indicated that this occurred on a Friday some time after 5 o'clock p.m.

Wanda Schiavone testified that she was employed by El Palacio Restaurant as cashier, hostess, and bookkeeper. She testified that the appellant was also employed as a cook at the restaurant back in February. She testified that on Saturday, February 22, the appellant was working and that he received a visit at the restaurant from an "older man." She observed the older man drink a beer as the appellant drank a cup of coffee, she said that and subsequently they talked on the telephone. The appellant asked to check out and clock out at 4:44 p.m. He left with the older man and returned at 6:14 p.m. alone. She testified that he clocked out at 11 o'clock p.m. and that she had not seen him since that night. She also testified that he never came back to pick up his pay checks, one for $30.49 and the other for $26.44.

Danny Lamont, of the Huntsville Police Department, testified that he was a latent fingerprint examiner. He testified that 38 fingerprint cards were recovered from the victim's apartment, but only nine were of value for comparison purposes. None of the fingerprints that Lamont had to work with matched those of the appellant. He further testified that subsequently he received an additional 29 cards of latent prints from a vehicle which had been found in Colorado. Lamont then indicated that of the three prints which were of value he was unable to identify any of them as belonging to the appellant.

Vernon Leroy Tolson testified that he was a police officer in Parker, Colorado. He identified photographs of a vehicle that was reported stolen from Alabama and found in a shopping center parking lot in Colorada. The vehicle had no license plates. Several other witnesses from Campo, Colorado, testified that they had observed the appellant and the victim's car in Campo, Colorado, on February 24.

James Parker, an investigator with the Huntsville Police Department, testified that he traveled to Parker, Colorado, in order to inspect and examine the automobile that the Parker police had impounded. Officer Parker identified the vehicle from photographs taken of the car in Parker, Colorado, and from photographs identifying the car as belonging to the victim. Subsequently, at trial, Parker was recalled to the stand to testify concerning an interview conducted with the appellant in the Madison County Jail. The appellant was advised of his rights; he indicated that he understood them and voluntarily agreed to talk to Parker. Parker testified that, while the appellant was in jail, his hair was somewhat longer and that he had a mustache. Parker testified that after the interview with the appellant, he read the notes he had taken back to the appellant and the appellant indicated that they were accurate. Parker testified as to the content of the appellant's statement. The appellant took the stand in his own behalf and testified to substantially the same facts.

The appellant, Brian Breeding, testified that he was known as Bill Pollard in Huntsville (William Harold Pollard). The appellant testified that on the last day of his employment at El Palacio, Bill Cobb, the victim, arrived at the restaurant looking for his friend Charlie Harris. Charlie refused to talk to the victim, who was "pretty drunk". The appellant asked for time off from work in order to drive the victim home. They arrived at the victim's house at approximately 6 o'clock p.m., whereupon the two went inside; the appellant consumed two beers and then telephoned for a taxi in order to get back to work. The victim gave the...