Brooks v. State

• Decision Date: 20 December 1977
• Docket Number: 6 Div. 307
• Citation: 353 So.2d 1
• Parties: Shirley Delores BROOKS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1

353 So.2d 1

Shirley Delores BROOKS v. STATE.

6 Div. 307.

Court of Criminal Appeals of Alabama.

Dec. 20, 1977.

Frank S. Buck, Birmingham, for appellant.

William J. Baxley, Atty. Gen., and Barry V. Hutner, Asst. Atty. Gen., for the State.

LEIGH M. CLARK, Retired Circuit Judge.

Appellant was tried on an indictment charging her with murder in the first degree of J. P. Carmack, by shooting him with a pistol. A jury found her guilty of murder in the second degree and fixed her punishment at imprisonment for twenty-five years. She was sentenced accordingly.

Defendant was represented on the trial by employed counsel. After her conviction, she was declared an indigent; she is represented on appeal by counsel appointed by the court, who did not represent her on the trial.

Most of the material facts are undisputed. Defendant had driven an automobile to the drive-in window of Milo's Hamburgers in Birmingham and had opened the door of the automobile on the driver's side; Mr. Carmack was standing near the drive-in window and had some difficulty in getting to or from the window on account of the open door of the automobile. He made some remarks about the open door, and then he partially or completely closed it himself. Defendant obtained a pistol from the glove compartment of the automobile and shot Carmack, the bullet entering his "right flank, meaning to the right back below the ribs," severing the inferior vena cava and lodging underneath the skin of the victim's left side. He was promptly taken to the hospital and died on the operating table.

Three witnesses for the State said they heard Carmack ask defendant to close the door of the automobile. Their testimony was to the effect that he did not ask her in a rude manner. One of them did not thereafter observe defendant, or Carmack, until the shot was fired. Two of them testified that defendant told Carmack not to close the door but that Carmack either completely or partly closed it. One of these witnesses testified that defendant then got out of the automobile and shot Carmack. The other did not see where defendant was at the time she fired the pistol.

The only witness for defendant on the trial was her sixteen-year-old sister, Sharon Brooks, who was in the automobile with defendant at the time they arrived at Milo's Hamburgers. She testified that defendant, twenty years of age at the time, had taken her in the automobile, which belonged to their brother, to a dentist and thereafter went to the hamburger place, drove up to the drive-in window, where defendant "got out of the car to ring the bell" and give her order, and then "got back into the car and left the door open." Then a Mr. Thompson, a witness for the State, went to the window and was followed there by Mr. Carmack, who said to Mr. Thompson, "Why don't you close that damn door?" and thereafter said, "The damn niggers always trying to take over." She said that Carmack walked up to the door and said, "Close this damn door," took the door with his hands and pushed the door, that defendant had one leg outside the door and the other inside; that defendant's leg was caught in the door and that she and defendant attempted to push the door off defendant's leg and Carmack continued to push or shove the door to close it and in doing so he used "his rear end" and that defendant reached into the glove compartment, took the gun therefrom and shot Carmack from inside of the automobile, at which time she said that Carmack had his "rear end side" against the door.

The evidence was sufficient to support the verdict of the jury, and no contention is made to the contrary.

Appellant urges as error the trial court's action in overruling defendant's motion for a new trial, in which defendant set forth as ground 7 the following:

"For that jury venireman number 234, Norman J. Wehby, failed to respond to the following question propounded by attorney for defendant during voir dire: 'Has any member of the jury venire been the victim of a crime of violence?' Defendant alleges and believes that venireman Wehby, who became a member of the jury, had, at a time prior to trial, been the victim, in his capacity as Manager of Parisians, Inc., of a shoplifting attempt wherein he was required to participate in the physical restraint of the perpetrators of the attempt (who were black persons), and that, because of the nature of this specific shoplifting attempt, said Norman J. Wehby had in fact been the victim of a crime of violence.

"Said venireman Wehby's failure to answer the above question prejudiced defendant's right to examine jurors as to their interests and bias and to have a fair trial by impartial jury."

Testimony was taken on the hearing of the motion, particularly as to ground 7. Mr. Wehby testified that about a year before the testimony, while he was the manager of a department at Parisian's, two black males were detected by someone else in the act of shoplifting in the store and that as he saw them running out of the store, he ran after them. He did not touch them; others restrained them and held them for the police. He further testified that he had forgotten about this incident until reminded of it upon being interrogated about it in connection with the motion for a new trial.

According to the evidence on the hearing of the motion for new trial, the juror had not been "the victim of a crime of violence" and...