Clark v. State

• Decision Date: 12 November 1974
• Docket Number: 6 Div. 494
• Citation: 318 So.2d 813,56 Ala.App. 67
• Parties: Billy Don CLARK v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 813

318 So.2d 813

56 Ala.App. 67

Billy Don CLARK v. STATE.

6 Div. 494.

Court of Criminal Appeals of Alabama.

Nov. 12, 1974.

Rehearing Denied Dec. 17, 1974.

William M. Dawson, Jr. Birmingham, for appellant.

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

TYSON, Judge.

We now review this entire record as is our duty under the law.

State Toxicologist Robert B. Johnson testified that he examined the body of Donald Richard Gwin on September 15, 1969, at the Strickland-Hayes Funeral Home in Tuscaloosa at the request of the coroner, Mr. Rufus Strickland. His testimony as to the cause of death is as follows:

'In my opinion, the subject died from multiple gunshot wounds to the right side of the head, damaged the vital areas of the brain resulting in a fatal hemorrhage.'

Mr. Johnson further testified that he recovered six .22 long rifle bullets from the body of the deceased.

Carl Birchfield testified that the deceased, Donald Richard Gwin, and the appellant came by his store at about 3:00 on the afternoon of Saturday, September 13, 1969, bought some groceries and cigarettes, and stated they were going to the home of the deceased.

Charles Kenneth Gilbert testified that he had gone by the home of the deceased with one Randall Shattuck shortly after 12:00 noon on Saturday, September 13, 1969, and that the appellant was at the home of the deceased. He stated he did not see the deceased alive again. On cross-examination, he testified that the two men had been drinking beer, that there were some bottles in the house.

Randall Shattuck testified that he was the half brother of the deceased, that he had gone by the home of the deceased on Saturday, September 13, 1969, on the first occasion, about 8:00 in the morning, that later he returned with a friend, Kenneth Gilbert, at about noontime, that they stayed approximately thirty minutes, and that the appellant told them on this occasion he had been picked up for hitchhiking in Mississippi and had to pay a fine. He stated that the deceased told him he had met the appellant near Birmingham at a service station after he had gotten off work on Friday, and that the two men had been drinking beer. He stated that the deceased owned a 1967 Dodge Dart Convertible. He stated that on Friday evening, he, the appellant, and the deceased had been out drinking beer and whiskey at several night clubs in the area between Birmingham and Tuscaloosa. He stated that his half brother worked at the construction site at the new Mall near Bessemer, and that he had been paid $150.00 on Friday as he got off work. He further testified that when he came back on the second occasion on Saturday the two men had been shooting a .22 caliber pistol, which belonged to the deceased, and the deceased also owned a 30--30 Winchester rifle.

The State next called Deputy Sheriff Walter A. Howell, Jr., who testified that he and Chief Deputy Warren Miller had gone to the residence of the deceased on September 15, 1969, arriving there about 11:00 in the morning. He stated the house was locked from the outside with a padlock. Upon entering the house through a window, they found the body of the deceased lying on the bed, clothed in his underwear. He stated that the Winchester rifle was on the top of the bed by the body, and that under the mattress he found a .22 caliber pistol. He stated that the 1967 Dodge Dart automobile was missing, and that four days later he was notified that this automobile had been found in LaFayette, Louisiana, by the Sheriff's Department there.

Officer Howell described the interior of the house as follows:

'Q. Officer Howell, if you will, would you describe--you testified about finding the alleged victim in the bed. Would you describe the area around the bed, the floor and whatnot, the condition of the bed when you found it that morning?

'A. The victim was laying in the bed with the covers pulled up about his chest and, of course, the bed itself was soaked with blood. There was enough blood it had come through the mattresses and had run out on the floor and as I stated before, the room was, the furniture was arranged. There wasn't any sign of any struggle.

'Q. O.k., and State's exhibit 2 which you have already testified to, when you found the pistol there the morning of the 15th of September, that you have spoken about, did you examine the gun at that time?

'A. Yes, sir.

'Q. And would you tell us what, if anything, you found in the chamber of the gun?

'A. There were six empty 22 shells in the chamber.

'Q. And do you know where those shells are today, the empty cartridges?

'A. No, sir, I don't.

'Q. But you say at the time you found it, there were six empty cartridge shell cases?

'A. Yes, sir.

'Q. That had been fired?

'A. Yes, sir.

'Q. And did you find any other cartridges or casings there in the house?

'A. Yes, sir, I found six fired 22 hulls in a coal scuttle at the left of the fireplace.'

Officer Howell further testified that he was subsequently notified that the appellant had turned himself in to the Stockton, California, police, and upon going to Sacramento, California, he was allowed to interrogate the appellant at the County Jail in Sacramento, California, at about 11:00 in the morning, in the presence of himself and one other officer, but before talking to the appellant, the following Miranda warning was administered:

'Your rights. Before we ask you any questions, you must understand your rights. You have the right to remain silent. Anything you say can be used against you in court. You have the right to talk to a lawyer for advice before we ask you any questions and to have him with you during questioning. If you cannot afford a lawyer, one will be appointed for you before any questioning, if you wish. If you decide to answer questions now without a lawyer present, you will still have the right to stop answering at any time. You also have the right to stop answering at any time until you talk to a lawyer. Waiver of rights. I have read this statement of my rights and I understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me and no pressure or coercion of any kind has been used against me. Signed--Billy Don Clark.'

The appellant's statement taken at this time is as follows:

'Sacramento, California County Jail

10--8--69

11:00 a.m.

'Statement from Billy Don Clark, white male, address--County Jail, Sacramento, California. Date of birth, 5--24--40. After advising the suspect of his rights, he agreed to give a statement free and voluntary. The statement is as follows:

'I had an argument with my wife. We were living in Fort Smith, Arkansas. I was working for the Trinity Baptist Church in Fort Smith. After this argument, I decided to leave. I went to the bus station and bought a ticket for Birmingham, Alabama. I thought I would go to Birmingham because it was in the South and maybe the people would be friendly. I was going to try to get a job. I arrived in Birmingham about 10 or 11 p.m., Friday, September 12. I was just walking around and I saw the Bluebird Cafe open and decided to get a cup of coffee. I went inside and ordered a cup of coffee. After I got inside, I saw everybody was drunk, so I drank my coffee and hurried out. I walked on up the road across an overpass and went into a Shell Service Station. While I was at this service station, I met Don Gwin. His half brother was in the car passed out. They said they had been out drinking. Don Gwin invited me to go home with him to spend the night. When we got to Don's house, Don, his half brother and I went in the house and went to bed. Don slept on the bed by the door in the front room. I slept on the bed next to his and his half brother slept on the bed in the back room. We all got up about noon Saturday, September 13, 1969. After we got up, his half brother said he had to go home, so he left. Don had some guns and showed them to me and asked me if I wanted to shoot them. I told him I didn't know much about guns. I shot the 22 once or twice and missed what I was shooting at. He took the gun and shot it some. While we were out in front of the house shooting, Don's half brother came back over with a friend. We talked about fifteen minutes and they left. They said they had to go to a party. Don took the 22 pistol and a 30--30 rifle back into the house and put them up. I stayed on the porch while he went inside. He came back out and we tried to fix the lawn mower so we could mow the lawn. We couldn't get it fixed. By this time, I had ran out of cigarettes and Don said 'let's go to the store and get some.' We went to this country store in a little old town. I don't remember the name of the town. We bought a carton of Winston's, a carton of Camel's, a chicken, some soup and he bought some gasoline. We went back over to Don's house and got ready and went to town. After we left Don's house, he looking (Sic) for two men who lived way out in the country. Don said these men owed him some money. We looked for them about an hour, but couldn't find them and we drove on to Tuscaloosa. We stopped at a big Pure Truck Stop outside Tuscaloosa near the Interstate. Don was talking to a waitress at the truck stop. He said he had a date with her for Wednesday night. I also heard him talking to her about some pills. I went outside and got into the car and Don came later and we left. We went on down the freeway toward Tuscaloosa and met a car going in the opposite direction. They waived at Don and he turned around and tried to catch them. We did not catch them. In the process of his turning around, a bottle of whiskey slid from underneath the seat. The bottle hit my foot and I picked it up and started to hand it to him. He said they had the whiskey the night before and he did not think about it. He said 'open it and we will have a drink.' We drank...