Buskey v. State, CR-92-1155

• Decision Date: 19 August 1994
• Docket Number: CR-92-1155
• Citation: 650 So.2d 605
• Parties: John Lionel BUSKEY v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 605

650 So.2d 605

John Lionel BUSKEY v. STATE.

CR-92-1155.

Court of Criminal Appeals of Alabama.

Aug. 19, 1994.

Rehearing Denied Sept. 30, 1994.

Richard Keith, Montgomery, for appellant.

James H. Evans, Atty. Gen., and Lisa Gunter, Asst. Atty. Gen., for appellee.

MONTIEL, Judge.

The appellant, John Lionel Buskey, was indicted on February 5, 1993, for murder, a violation of § 13A-6-2, Code of Alabama 1975. The indictment alleged that the appellant intentionally caused the death of his father, John Lee Buskey, by shooting him with a gun. The jury found the appellant guilty as charged in the indictment, and the appellant was sentenced to life in the penitentiary. Approximately two years before the shooting, Cherlyn Harding and the appellant had had a relationship and that relationship had produced a child, Germaine. The appellant was unable to support this child financially, so the appellant's parents allowed Ms. Harding, Germaine, and Timothy, Ms. Harding's son by a previous relationship, to live in their house. The appellant also lived with his parents. Mrs. Buskey testified that the relationship between the appellant and she and his father had deteriorated in the years before Ms. Harding moved in. Confrontations between the appellant and Mr. Buskey included verbal and physical exchanges.

On December 3, 1992, some hours after the shooting, the appellant turned himself in to police. In his statement, the appellant told the police that he and Ms. Harding had gotten into a fight while they were in Ms. Harding's car. The appellant told police that he and Ms. Harding yelled at each other and that blows were exchanged. The fight then moved out of the car and continued in front of the Buskey residence. Mr. Buskey intervened and told both parties to go inside the house. Once inside, the appellant and his father argued, and the appellant said that he told his father, "I'll show you who's bluffing." The appellant said that he ran upstairs to get his rifle which he intended to use to scare and intimidate Ms. Harding. The appellant told police that he and his father struggled over the rifle and that it discharged accidentally, killing Mr. Buskey. The appellant said he then panicked, ran, and later decided to turn himself in to police. At trial, two witnesses, Calvin Cochran and Robert Leon Williams, testified that on the night of the shooting they heard a woman scream and that, upon arriving at the scene, they saw two men arguing, and the woman continued to scream. Mr. Cochran said that he left to call the police. Mr. Williams testified that he saw all three individuals go into the Buskey residence and that he then heard a gunshot from inside the house. According to Mr. Williams, within seconds after the gunshot, a woman came running out the front door of the house. The appellant then came out of the front door holding a rifle and yelling to the woman, "You think I'm bluffing, you think I'm bluffing." Mr. Williams said that the appellant then ran back into the house and that he did not see him again. He said that he did see Mrs. Buskey arrive alone at the house, enter after the gunshot had been fired, and a short time later, leave with two small children. Mr. Williams said that she took the children to a neighbor's house, and then returned. By that time police had arrived and would not let anyone enter the house.

Officers Charles Athey and G.P. Shirley were the first police officers to arrive at the scene. Officer Charles Athey testified that he saw a black male come out of the front door of the house, then run back in. Officer G.P. Shirley, who was driving the patrol car, testified that he heard what sounded like a fence in the backyard rattling as someone jumped over the fence. The officers testified that after Mrs. Buskey told them about the shooting, they requested paramedics, and entered the residence. They found Mr. Buskey in the upstairs hall, on the floor, apparently dead. The officers secured the scene and awaited the paramedics and detectives.

Officer H.D. Kenney, an evidence technician with the Montgomery Police Department, testified that after arriving at the scene, he began to "process the scene" and collect evidence. As part of this procedure, Officer Kenney photographed and videotaped the scene, and collected physical evidence, including a spent shell casing, an empty box of shells, and a gun case, all of which were in the appellant's bedroom. Officer Kenney later found the shirt that the appellant was wearing at the time of the shooting in a duffel bag under a bed at the home of Joann Richardson, the appellant's girlfriend. The appellant's rifle was hidden under a sofa in Ms. Richardson's bedroom. Eric Wine, a firemedic sergeant with the Montgomery Fire Department, testified that upon arriving at the scene of the shooting, he found Mr. Buskey in the hallway lying on his right side with his right arm pinned beneath his body. Mr. Buskey was pronounced dead at the scene.

Dr. J.R. Lauridson, a state medical examiner, offered expert forensic testimony regarding the wounds on Mr. Buskey's body and the cause of death. Dr. Lauridson testified that, in his opinion, the abrasions found on Mr. Buskey's chest were caused by a blow from the butt of a rifle. Dr. Lauridson also testified that a bullet had entered Mr. Buskey's chest, had penetrated his heart, had exited the right side of his chest, and had bruised the inside of his right arm without exiting through his jacket, indicating that Mr. Buskey's right arm was pinned against his body at the time of the shooting. The left arm showed no traces of gunpowder residue, indicating that at the time of the shooting it was being held out away from the body, and was out of the direct line of fire.

Craig Bailey, an expert in trace evidence at the Department of Forensic Sciences, testified that the markings on the butt-plate of the appellant's rifle matched the marks found in the abrasions on Mr. Buskey's chest.

Joe Saloom, a firearms and tool mark examiner with the Department of Forensic Sciences, offered expert testimony concerning the operation of the rifle and the physical evidence that showed how it was used to shoot Mr. Buskey. Mr. Saloom testified that he had fired the rifle and had matched the rifling marks and striations on the test bullet with the bullet recovered from Mr. Buskey and determined that they were fired by the same rifle. He also testified that he compared the shell casings from the testing with the actual shell casing taken from the scene and that they matched. Mr. Saloom further testified that the rifle was within a few feet of Mr. Buskey's chest when it was fired.

The appellant testified that he and Ms. Harding had had a serious argument that began in her car on December 3 and that moved to the Buskey's front yard and into the house, where the appellant's father, Mr. Buskey, became involved. The appellant testified that he went upstairs to get his gun intending to intimidate and to scare Ms. Harding, and that his father approached him and there was a struggle in the upstairs hallway. The appellant testified that during this struggle the rifle discharged and Mr. Buskey was fatally shot. The appellant's memory of the details of the shooting was unclear; he stated that he could not remember several intervals in this time period and that "things just happened so fast." He testified that after the shooting, he panicked and ran out the front door, then turned around, ran back into the house, ran out the back door, jumped over a fence in the backyard, and ran to Joann Richardson's house. There, he said, he put the rifle under a sofa in her bedroom and removed his shirt, putting it in a duffel bag, which he put under her bed. The appellant testified that later that night, he turned himself in to police and gave a statement. The appellant testified that Mr. Buskey said to Ms. Harding something to the effect of "He's just bluffing." The appellant also testified that he was angry with Ms. Harding for not moving out and at his father for not making her leave. He then acknowledged the steps that had to be taken to fire the rifle: loading a round in the chamber, cocking the rifle, pulling the trigger safety lever up, then pulling the trigger. The appellant could not explain the absence of any evidence of a struggle at the instant of the shooting. He testified that he did not call for medical assistance for his father after the shooting and did not call later to check on his father. The appellant also could not explain the presence of the abrasions caused by the butt of the rifle on his father's chest.

The defense then asked to be allowed to put Ms. Harding's six-year-old son, Timothy, on the stand. He apparently was an eyewitness to the shooting. After the defense asked Timothy a few questions, the trial court determined that the child was not competent to testify. The defense objected and the trial court overruled the objection.

Joann Richardson, the appellant's girlfriend, testified next. She testified that on several occasions over a period of a couple of years, the appellant had brought his gun to her house and that when he did she made him put it under the sofa in her bedroom. She also testified that he had bought the gun for hunting and that he had mentioned that he also kept it for protection, because he had recently been robbed.

I

The appellant challenges the sufficiency of the evidence, arguing that the State did not prove that the appellant intended to cause the death of John Lee Buskey and that, therefore, the trial court should have granted his motion for a judgment of acquittal. Section 13A-6-2(a)(1), Code of Alabama 1975, defines murder as follows:

"(a) A person commits the crime of murder if:

"(1) With intent to cause the death of another person, he causes the death of that person or of another person ..."

To prove that an accused is guilty of murder, the State must prove beyond a reasonable doubt (1) the death of the...