Breen v. State, 1 Div. 453

• Decision Date: 29 October 1974
• Docket Number: 1 Div. 453
• Citation: 53 Ala.App. 588,302 So.2d 562
• Parties: Frank Robert BREEN, Sr. v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 562

302 So.2d 562

53 Ala.App. 588

Frank Robert BREEN, Sr. v. STATE.

1 Div. 453.

Court of Criminal Appeals of Alabama.

Oct. 29, 1974.

David L. Barnett, Mobile, for appellant.

William J. Baxley, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for the State.

HARRIS, Judge.

Appellant was indicted for, and convicted of, murder in the second degree and sentenced to ten years imprisonment in the penitentiary. At all stages in the trial below he was represented by able, astute and resourceful counsel under pleas of not guilty and not guilty by reason of insanity. After conviction he was found to be indigent and a free transcript was furnished him. One of his trial lawyers was appointed to represent him on appeal.

Appellant was put to trial upon a four-count indictment charging, inter alia, that he killed the deceased, (1) 'by beating him with his fists and kicking him with his feet, but without premeditation or deliberation'; (2) 'by beating him with his fists, etc.'; (3) 'by kicking him with his feet, etc.'; and (4) 'by some means to the grand jury unknown, etc.'.

The facts leading up to the homicide are not in dispute. In the late afternoon of February 5, 1973, appellant, Leon Murphy (the deceased), and one Marvin Finger (appellant's accomplice), and an unnamed man were at the Little Turf Club in Mobile. The deceased preceded appellant and Finger to the Club and was drinking beer and playing billiards when the latter two entered the Club. Appellant had one beer at the bar but he was not intoxicated. All four of them left the Club in a taxi cab.

The cab transported the four men to the Hammel Building where the unnamed man was left. The cab driver then carried appellant, the deceased, and Finger to a State Liquor Store where the trio made a purchase, including several bottles of wine. The men were carried to the Star Fish and Oyster Company where they left the cab. According to the cab driver, none of the men were intoxicated though the driver smelled the odor of alcohol.

While on the dock of the fish company, according to appellant's statement, all three began to drink but he did not drink as much as the deceased and Finger. An altercation ensued between the deceased and Finger but was short-lived, and the deceased left the dock. While the deceased was gone, appellant and Finger sat on the boats and discussed 'getting' the deceased the next time he pushed Finger around. In appellant's words, 'I told him, yeah I'll help you.' A short time later, the deceased returned to the dock and appellant and Finger got off the boat and walked toward the deceased. According to appellant the deceased 'started some _ _ with Marvin.' Finger hit the deceased with his fist, knocking him toward appellant, who grabbed the deceased and hit him with his fist. The deceased fell to the dock and appellant kicked him several times on the head with his right foot (shoe). Appellant and Finger fled the scene on foot and went to the freight yard of a railroad company four-tenths of a mile away. They went in the yard office and bought some potato chips and a coca-cola. They went back to the freight yard and were loitering near some unlocked trucks and cars parked on private property. The yard foreman called the yardmaster tower on a walkie-talkie and told them to get these men off the premises. The time was between 6:00 and 7:00 p.m., shortly after the killing. It was now dark.

A few minutes later an officer of the Mobile Police Department arrived at the freight yard and found appellant and Finger. The officer asked the two where they were coming from and their names and identification. Appellant and Finger first said they were from Alabama and then changed that to Montgomery. The officer with the use of a flashlight looked over appellant and noticed that he was dirty, sweaty, had blood on his hands, on his pants leg and on his shoes. He asked appellant where the blood came from and he replied that he cut his hand on a nail on a freight car, but the officer could not find a cut or laceration on his hands. Finally appellant produced identification which showed a Mobile address. The officer put appellant and Finger in the squad car while he used the police radio to check out appellant through the N.C.I.C. Before any information came back on this check, the officer received a radio message to carry the two men to the Star Fish and Oyster Company where detectives were investigating the slaying of Leon Murphy.

Upon arrival at the fish company, the officer observed the dead body of Murphy lying on the dock. There were several officers present and ambulance attendants. Appellant and Finger were advised of their constitutional rights and were carried to the Detective Bureau in separate squad cars. At the Detective Bureau, appellant appeared calm and he was cooperative. The officers noted nothing unusual about his actions or appearance, except that his clothes were dirty and blood-splattered. They also observed blood on his hands, pants leg and shoes. The officers smelled alcohol on appellant, but he was not intoxicated.

He was again given the Miranda rights and warnings and appellant freely and voluntarily signed a waiver of rights form. Appellant told the detective that he knew he was guilty and wanted to get it over. He then gave the officers a detailed oral statement which was taken by an office secretary on the typewriter and typed in his own words. After the statement was typed, it was removed from the machine and read to appellant. He acknowledged that it was correct and voluntarily signed his name thereto. The statement in full is as follows:

'MOBILE POLICE DEPARTMENT CRIMINAL INVESTIGATION DIVISION

DATE: February 5, 1973--9:30 P.M.

OFFENSE REPORT NUMBER 42645

'I, Frank Robert Breen, Sr., HAVING BEEN ADVISED OF MY RIGHTS, DO HEREBY MAKE THIS VOLUNTARY STATEMENT TO OFF. James Ogan and Henry Wilson OF THE MOBILE POLICE DEPARTMENT, WITHOUT FEAR, THREATS, OFFER OF REWARD OR ANY UNDUCEMENTS (Sic) WHATSOEVER. I ALSO UNDERSTAND THIS STATEMENT WILL BE USED IN A COURT OF LAW.

'L (Sic) met this man in the pool hall. Jimmy's Pool Hall we left the pool hall and met this other fellow. This man I don't know his name said do you want to come with us down to the docks. I said OK. They got some wine four bottles at least. Then we went to the docks and went up on a fishing boat. There was three boats at the docks. After we got on this boat. There was two other boats. We started drinking and I didn't drink to (sic) much. We went to the docks on (sic) a cab. The two men I don't know there (sic) names but they got to drinking heavy and this was 4:30 P.M. The guy in the hospital started pushing this other fellow around. This was his buddy. The two got in a fight. Marvin said to me you want to get this guy the next time he starts pushing me around. I told him yeah I'll (sic) help you. Then this other guy went some where some where (sic). Then me and Marvin got off the boat and was walking towards the fish office. Marvin's buddy came at us and he started some _ _ with Marvin and Marvin slugged him and the man fell towards me and I grabbed him and hit him. This man fell to the ground (Leon Murphy) (sic) I kicked him two or three times with my right foot. I couldn't see as it was pretty dark. This man was out on the ground. Marvin said lets (sic) go. This man was knocked out and we left and Marvin said lets (sic) go get a cab. We were waiting for a cab and the police came. They arrested us and brought us to the Police Station.

'I can not read to (sic) good and I have had this statement read to me by Sgt. James Ogan and I swear that it is a true statement to this best of my knowledge and belief.

'/s/ Sgt. J. M. Ogan Sgt. Henry Wilson Frank R. Breen Sr.'

By stipulation, the coroner's report was admitted in evidence. This report, in pertinent part, reads as follows:

'The body is that of a 43 year old white male, with violent injury seen about the head and face. The skull is crushed, the face bones are crushed, lacerations are seen over the face and it is a bloody mass of compressed, distorted, lacerated tissue, hardly recognizable as a human face. No other injuries are seen over the body which is clad in a brown sweater and yellow sport shirt and brown pants with underwear.

'DIAGNOSIS: Death due to fractured skull and crushed brain with multiple lacerations and injuries to the face, traumatic.'

A voir dire hearing was had out of the hearing and presence of the jury to determine the voluntariness vel non of appellant's confession. Considerable testimony was heard by the trial judge on this question which covers well over a hundred pages of the transcript. At the conclusion of this hearing, the court ruled the confession was knowingly, voluntarily and intelligently made. After the proper predicate was laid the confession was read to the jury.

The only evidence offered by appellant was in support of his special plea of not guilty by reason of insanity. Testifying in appellant's behalf were a psychologist, a neurologist, and a psychiatrist. The testimony of these experts is adequately summarized in the state's brief and argument from which we take the following:

'The doctors agreed that the Appellant has psychomotor epilepsy. Psychomotor epilepsy is a condition under which the party is subject to seizures or fits. The seizures are characterized by a blacking out and a repetitive continuation of whatever the party was doing just prior to the seizure. (Eg. walking, driving a nail, etc.) The seizure may last from a few minutes to several hours. During this period the party is utterly unable to control his actions. He becomes, during the course of a seizure, an automation, acting without thinking, knowledge or volition. Following the seizure the individual is dazed for several hours and lacks control of his faculties. Finally, when not having a seizure the party is normal.

'Dr. John W. Davis, a twenty-nine year old psychologist, testified...