Carter v. State
| Decision Date | 28 June 1974 |
| Docket Number | 3 Div. 257 |
| Parties | Luther CARTER v. STATE. |
| Court | Alabama Court of Criminal Appeals |
N. T. Braswell, III, Montgomery, for appellant.
William J. Baxley, Atty. Gen., and Don C. Dickert, Sp. Asst. Atty. Gen., for the State.
Appellant was indicted for murder in the first degree. He was convicted of manslaughter in the first degree and his punishment fixed at eight (8) years imprisonment in the penitentiary. He was represented by retained counsel who represents him on appeal.
On the 25th day of November, 1972, appellant and his wife were visiting in his brother's home in a rural community in South Montgomery County. His brother was not at home at the time. Present at the time were his brother's wife, two children and a man who came to get a haircut. Appellant's brother was a pulpwood operator and cut hair as a side line when he wasn't bootlegging.
It was a cold and rainy November afternoon and everyone was gathered around an open fire place except the two girls, ages eleven and fifteen, who were in the kitchen making cookies. No one was drinking in the house. Late afternoon on this date the deceased knocked on the front door and appellant's brother's wife asked her youngest daughter to see who was at the door. The deceased, Andrew Derrico, was well known to appellant's brother's family as he had worked in the pulpwood business with appellant's brother, was a distant cousin to his wife, and had visited in the home on several occasions. The deceased was known as 'Buddy Man' and 'Big Charlie'. The young girl reported to her mother that 'Buddy Man' was at the door and her mother told her to let him in. Appellant got up and walked out of the room followed by the man who was there for a haircut. Appellant went to the front door and told the deceased he could not come in, that his brother was not at home and he Appellant and his wife got in his pickup truck and drove from the scene. On the way home, appellant gave the pistol to his wife and told her to throw it out of the truck and he thought she did. She kept the pistol and surrendered it to the Sheriff's deputies a day or two later.
did not want him around his brother's children. Appellant's brother's wife told him to let that boy alone, 'We know him and he comes here all the time.' Appellant did not know the deceased and had never seen him before. The screen door was latched [53 Ala.App. 45] and as the deceased reached for the door handle, appellant fired one shot with a pistol striking the deceased in the mid-chest and he staggered around a few seconds and sat down on the top doorstep with his head bowed and died before the ambulance arrived. Upon hearing the shot appellant's brother's wife went out on the porch to see if she could aid the deceased and appellant said to her, 'If you touch him, I'll blow your heart out.' She further testified that the deceased did not say anything to appellant before the shot was fired.
Tom Jordan, the man who was there to get a haircut was an eye witness to the shooting. According to his testimony, he followed appellant to the door and was standing close behind him. He heard appellant tell the deceased to stand back and he backed up a few steps and started to reach for the screen door again. Appellant told him again to back up and then fired the fatal shot. This witness said the deceased never opened his mouth to appellant and, as a matter of fact, never uttered a word. This witness further testified that he did not see anyone drinking at this house that afternoon prior to the shooting. After the shooting occurred Jordan asked appellant to take him to his home and appellant carried him.
Appellant went to the county jail that night and turned himself in to the Sheriff's Department. The officers gave him the Miranda warnings and he told the officers he understood his rights and signed a waiver form. He voluntarily made and signed the following statement:
The interrogating officer testified on cross-examination that appellant was almost drunk when he came to the jail and by that he meant that 'he had been drinking to the point that he was very arrogant and boisterous, and talking loud.' The officer recanted the statement that appellant was drunk, saying, He said he took down the statement just as appellant gave it to him. The statement was written by one deputy in pen and ink. It was read to appellant and he said it was true and correct and he Appellant's wife testified in his behalf. According to her the little girl was not asked to go to the door but, on the contraty, her sister-in-law asked appellant to answer the door. She said her husband had not been drinking that afternoon prior to the shooting. She said that after Tom Jordan got out of the truck at his home, she and her husband were enroute to their home in Montgomery when he gave her the pistol and told her to throw it out of the truck. She said instead of throwing the pistol away, she put it in her pocketbook and gave it to the officers when they came to her house later.
signed his name thereto and the other deputy witnessed the confession. After the proper predicate was laid, the confession was received in evidence.
Testifying in his own behalf, appellant said he bought twelve (12) cartridges that morning before going to his brother's house and he put six (6) of them in his pistol. He said he purchased the pistol from someone on the street and did not have a pistol permit; that he usually carried the pistol in the glove compartment of his truck put when he walked in his brother's home, he put it in the front pocket of his hunting clothes. He further testified that he and his wife had been in the house an hour or two when he heard a knock on the door; that his brother's wife asked her little daughter to go to the door and a few minutes later he went to the door at her request.
He said he did not know the man at the door and had never seen him before. He denied that the little girl identified the man as 'Buddy Man' and further denied that his brother's wife said she knew him and to let him in the house. The man told appellant he wanted to see Julius Carter and he relayed the message to his sister-in-law and she told him to tell the man that Julius was not at home and to come back later. Appellant said he asked her if he should let the man in and she said, 'No, don't let him in.' Appellant told the man to leave as the man of the house was not there. He said the man reached for the screen door and he pulled his pistol. The man saw his pistol and said, 'That means nothing', and he saw him reach back to his hip pocket; that he thought he was a robber and he pulled the trigger one time and shot the man through the screen door.
On cross-examination he admitted that the child told her mother that the man at the door was 'Buddy Man' and that he heard his sister-in-law say, 'Let him in, we know him.'
An Assistant State Toxicologist performed an autopsy on the body at a local funeral home. After proper qualifications, he was asked the cause of death and stated:
'In my opinion, death is attributed to shock, hemorrhage, and trauma associated with this gunshot wound to the chest.'
Prior to trial appellant filed a sworn motion to quash the indictment, alleging:
'That he is a member of the Negro race, that Negroes are systematically excluded from the jury roll of Montgomery County, Alabama, because of their race and that the Grand Jury which indicted defendant herein was selected from said jury roll or jury box of Montgomery County, Alabama, from which eligible Negroes are excluded by reason of their race, in violation of defendant's right to equal protection of the law as is guaranteed by the Fourteenth Amendment to the Constitution of the United States.'
Appellant filed a motion to quash the trial venire on identical grounds.
The following stipulation was entered into by and between the State of Alabama and appellant:
'STIPULATION
STATE OF ALABAMA
Vs. #7937
'It is stipulated and agreed by David W. Crosland, District Attorney for the Fifteenth Judicial Circuit of Alabama, and N. T. Braswell, Attorney for Defendant, Luther Carter, and at all times pertinent to the selection of the Grand Jury which indicted Defendant, Luther Carter, herein and the selection of the trial venire or list of regular and special...
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