Carter v. State

• Decision Date: 24 January 1978
• Docket Number: 1 Div. 655
• Citation: 356 So.2d 682
• Parties: Floyd CARTER v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 682

356 So.2d 682

Floyd CARTER v. STATE.

1 Div. 655.

Court of Criminal Appeals of Alabama.

Jan. 24, 1978.

Rehearing Denied Feb. 21, 1978.

E. Graham Gibbons, Mobile, for appellant.

William J. Baxley, Atty. Gen., and Mary Jane LeCroy, Asst. Atty. Gen., for the State.

BOOKOUT, Judge.

First degree murder; sentence: life imprisonment.

Around 11:30 P.M. on October 11, 1974, the appellant requested that Robert James Ford, the victim, repay approximately four dollars which Ford owed him. Ford laughed and refused to do so. The appellant then went and got his grandfather's shotgun and shot at Ford twice. He missed the first time, but the second shot hit Ford in the head, killing him. The appellant then took thirty-five cents from Ford's pocket and ran to a neighbor, Mrs. Bessie Mae Smith, and told her, "Robert was shot."

Officer J. V. Sells, who investigated the murder and arrested the appellant, testified that he read the appellant his Miranda rights from a printed form. He stated that the appellant understood the rights and signed the form before any questioning began. Sells said that Lorenzo Carter, the appellant's brother, called the police station and asked that he be allowed to come and talk with the appellant. He was brought to the station in a patrol car and was allowed to talk with the appellant alone in the interrogation room. After appellant talked with his brother for about five minutes, he made a complete confession to the police.

I

Appellant contends that the trial court erred in admitting the confession into evidence prior to the establishment of the corpus delicti. He asserts that nonmedical testimony by Officer Sells as to the cause of death was not competent to establish the corpus delicti. The State contends that the competency of the witness to give an opinion as to the cause of death was within the discretion of the trial judge. The State contends that Officer Sells' qualification to testify as to the cause of death in the instant case was properly established, therefore, the trial court did not abuse its discretion in admitting such testimony into evidence.

A defendant's confession may not be admitted into evidence until proof of the corpus delicti has been established by the State by independent evidence. Arnold v. State, 57 Ala.App. 172, 326 So.2d 700 (1976). Proof of the corpus delicti must show the actual commission of the crime by someone, but such evidence does not necessarily have to connect the defendant with the crime. Arnold, supra. Proof of the corpus delicti may be by circumstantial evidence as well as direct evidence. Johnson v. State, 55 Ala.App. 581, 317 So.2d 548 (1975). In the instant case, before the confession was admitted into evidence, it was established that the victim was shot. One witness stated that she heard the two shots and then saw an unidentified person running from the scene. Another witness, Bessie Mae Smith, testified that shortly after the shots were fired, the appellant ran up to her and told her the victim had been shot. We deem such testimony to be sufficiently strong as to support an inference on the part of the jury that the victim had been shot and that the shooting was brought about by the criminal agency of another. The fact that the witness could not identify the person running from the scene of the shooting is not necessary to the establishment of the corpus delicti. Malone v. State, 37 Ala.App. 432, 71 So.2d 99, cert. denied 260 Ala. 699, 71 So.2d 101 (1954). The fact that the victim had been shot is undisputed; however, the question remains as to whether the State presented adequate proof that the victim was dead, and if so, whether death resulted from the shooting in question.

Whether a witness is qualified to testify as an expert is a question addressed to the sound discretion of the trial court, and that court's decision will not be disturbed on appeal in the absence of abuse. Chatom v. State, Ala., 348 So.2d 838 (1977); Luckie v. State, 55 Ala.App. 642, 318 So.2d 337, cert. denied 294 Ala. 764, 318 So.2d 341 (1975). Physicians are not the only persons who are qualified to express an opinion as to cause of death. A detailed list of many such persons and their qualifications is found in Cobb v. State, 50 Ala.App. 707, 282 So.2d 327 (1973).

In Welch v. State, 45 Ala.App. 657, 658, 235 So.2d 906, 907 (1970), this court stated:

"In a death as distinguished from a 'killing,' the prosecution must prove an absence of natural causes. That is, the first step is to prove the victim died because he was killed."

In Dismukes v. State, Ala.Cr.App., 346 So.2d 1170, cert. denied, Ala., 346 So.2d 1177 (1977), this court held that cause of death could be shown by nonexpert testimony. In that case, the defendant shot her husband five times with a pistol on a public street. A "volunteer emergency technician" arrived at the scene and examined the victim and found no breathing, blood pressure, or carotid pulse. There, this court stated:

". . . The causal relationship between the act of the accused inflicting the wound and the death of the deceased was not obscure or beyond the knowledge of the average layman. A dangerous weapon was used and there was no evidence presented or even suggested that the accused died from anything but the bullet wounds inflicted by the appellant. . . .

"Expert medical testimony as to the cause of death should be admissible in all homicide cases. It should be regarded as necessary and essential for a conviction in many homicide cases and in those where death is not the natural and probable consequence of the unlawful act of the accused or the result of an independent intervening cause in which the accused does not participate and which he could not foresee."

In McDonald v. State, 56 Ala.App. 147, 320 So.2d 80 (1975), the cause of death was proved without medical testimony. There, the shooting and death were almost simultaneous. The cause of death was so obvious that there was no necessity for a physician to testify. As stated in Dismukes, supra, on rehearing:

"There are cases where the killing is almost immediate or simultaneous with the commission of the crime, such as the shooting of a person five times. Where witnesses observe this, find no pulse and no blood pressure, and state that the person appears to be dead, the cause of death is fairly obvious and, therefore, may be proved by circumstantial evidence without expert testimony. However, (1) where the act which the State claims to have caused death is remote in time from the actual death, or (2) where there is a possibility or likelihood that an intervening cause could have brought about death, or (3) where the nature of the injury is not one that is ordinarily likely to cause death, or (4) where there is not an obvious causal connection between the nature of the injury and the death, then the State is under a burden to present expert testimony to show that the injury in fact resulted in and caused the death in question."

In the instant case, Officer Sells testified that he had been employed by the Prichard Police Department some sixteen years. In that capacity, he had observed twenty-five or more bodies where gunshot wounds had resulted in death. The witness was questioned on voir dire examination outside the presence of the jury, and the trial court, after extended argument by counsel, concluded that an adequate predicate had been laid for Officer Sells to testify as to cause of death of the victim. Sells testified that he examined the body and checked for a pulse, heartbeat, and breathing. He stated the victim was not breathing and had a gunshot wound to the head, with small pellet holes around it. On the basis of Lucy v. State, 49 Ala.App. 116, 269 So.2d 134 (1972), the trial judge allowed the witness to testify in the presence of the jury that the cause of death was a gunshot wound to the head. In Lucy, supra, the defendant was charged with murdering the victim by repeatedly stabbing him with a knife. This court noted that there was an objection to testimony from a deputy sheriff that the victim's death was caused by the loss of blood from the stab wounds administered by defendant. This court concluded:

" . . . It appears from a preliminary examination that the witness had, during his career as a police officer, considerable experience in observing stab wounds and the effects thereof and was more knowledgeable than the average witness or juror. . . .

"The competency of the witness to give his opinion as to the cause of death was addressed to the sound discretion of the court and its ruling will not be disturbed on appeal in the absence of abuse. . . .

"Aside from this, the jury could conclude from the physical facts in evidence that deceased died from the effects of the wounds." (Citations omitted.)

We therefore conclude in the instant case that the trial court did not err in allowing Officer Sells to testify as to the cause of the victim's death. His testimony, coupled with the prior testimony of Bessie Mae Smith and Margaret Hixon, sufficiently established the corpus delicti thus rendering the appellant's confession admissible if it meets the standards of voluntariness.

II

Counsel for appellant asserts that the appellant's confession should not have been admitted into evidence because it was induced by a promise of favor or reward.

Appellant's brother testified during a hearing on a motion to suppress the confession that he did not call the police and request that he be brought to the police station to talk with his brother. He stated that the police came to his home, picked him up in a police car, and carried him to the station where he was allowed to talk to his brother alone. No police officers were present while the brothers talked, and the police did not know what was said during the conversation. The appellant's brother stated:

"I told him that if he wanted to he could tell the truth and they would make it easier on him if he would go ahead and...