Clements v. State, 7 Div. 575

• Decision Date: 16 May 1978
• Docket Number: 7 Div. 575
• Citation: 370 So.2d 708
• Parties: Roy Frank CLEMENTS, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 708

370 So.2d 708

Roy Frank CLEMENTS, alias v. STATE.

7 Div. 575.

Court of Criminal Appeals of Alabama.

May 16, 1978.

As Corrected On Denial of Rehearing July 7, 1978.

Jack Floyd and James E. Hedgspeth, Jr. of Floyd, Keener & Cusimano, Rowan S. Bone and J. Edward Cunningham, Gadsden, for appellant.

William J. Baxley, Atty. Gen. and J. Anthony McLain, Asst. Atty. Gen., for the State.

TYSON, Judge.

Roy Frank Clements was indicted under Alabama's Death Penalty Statute (Act No. 213, General Acts of Alabama, 1975, Title 15, Sections 342(3) 342(11), Code of Alabama 1940, as amended) ¹ for the robbery and first degree murder of one Dora Mae Ford. The jury found the appellant guilty as charged and fixed punishment at death. The trial court thereafter conducted a post-conviction hearing on the aggravating and mitigating circumstances as required by law. ² The trial judge then pronounced judgment which left punishment at death by electrocution.

William O. Bragg, Coroner of Etowah County, testified that on November 8, 1976, he went to the residence of one Roy Malone in the Shady Grove Community. Bragg stated that he found the body of one Dora Mae Ford lying on the living room floor in the residence. According to Mr. Bragg, Mrs. Ford's head had been nearly severed from her body except for a two inch tract of flesh behind the neck which held the head intact with the body. The cause of her death was due to massive hemorrhage.

Mr. Marlin Corbett Bartlett testified that on November 8, 1976, around 3:00 p. m., he and his wife drove to the residence of Mr. Roy Malone for a visit. He indicated that they pulled in Mr. Malone's driveway and noticed a Ford pickup which belonged to one Gilbert Beck. Seeing the pickup in the driveway, Mr. Bartlett and his wife left.

Mr. Ted Malone stated that he was the son of now deceased Mr. Roy Malone. He indicated that on November 8, 1976, around 4:30 p. m., he went to his father's home. Mr. Malone related that he walked in the kitchen door and found a large puddle of blood on the floor. He stated that he found the deceased, Mrs. Dora Mae Ford, lying on the living room floor. He then telephoned the operator and asked her to get the police, which she did.

Mr. Don Longshore, an investigator with the Etowah County Sheriff's Department, testified that he, along with Arnold Hatley and Donald Wiggins, went to the home of appellant in Boaz, Alabama, around 7:00 p. m., on November 8, 1976. He stated that appellant's wife answered the door and they went inside. The appellant's wife went to the bathroom door and told appellant that some men wanted to talk with him. According to Mr. Longshore, he asked her to gather up the clothes that appellant wore that day, which she did. He stated that he advised the appellant of his "Miranda " Mr. Roy S. Hale, a member of the Etowah County rescue squad, testified that on November 9, 1976, he found a brown paper bag on Sand Mountain in Boaz, Alabama. He turned the paper bag over to Mr. Leslie Cox of the Etowah County Sheriff's Department.

rights (R. p. 230) and placed him under arrest. The appellant was transported to the county jail where he signed a waiver of rights form. Mr. Longshore indicated there were no threats, coercion, intimidation, or inducement made or offered the appellant in order to obtain a statement or get his signature on the waiver of rights form. Mr. Longshore then related that the appellant made a statement which he, Longshore, wrote down and had appellant read over and then affix his signature thereto. ³

Mr. Leslie Cox testified that the paper bag found by Mr. Hale contained a lady's pocketbook. He stated that he turned the items over to Mr. Don Longshore. Mr. Longshore was recalled to testify and he said that the bag also contained a Timex watch in addition to the pocketbook.

Mrs. Tessie Malone, the wife of Mr. Ted Malone, testified that the pocketbook found in the paper bag belonged to the deceased, Mrs. Dora Mae Ford. She stated that the value of the pocketbook was approximately ten dollars.

Mrs. Jenny James, the deceased's daughter-in-law, testified that she was with Mrs. Ford when she purchased the Timex watch, identified as State's Exhibit No. 10 (found in the brown paper bag). According to Mrs. James, the value of the watch was seven dollars.

Mrs. Mary Ann Thrasher, the appellant's mother-in-law, testified that on November 8, 1976, she was living with one Mr. Gilbert Beck. Mrs. Thrasher stated that on this date she and Mr. Beck went to the appellant's home at approximately noontime. She indicated that Mr. Beck and the appellant discussed going over to an old man's house and getting some money. She stated that the two of them left around 2:00 or 2:30 p. m. and did not return for approximately an hour and a half. According to Mrs. Thrasher, the two men mentioned that a yellow car drove up to the old man's residence and so they left. Mr. Beck further related again of going to the old man's house and getting some money.

Mrs. Thrasher stated that she and her daughter then went over to Gilbert Beck's trailer where she lived. Upon arrival there, Mr. Beck and the appellant were sitting at a table upon which lay a billfold and a purse. Mr. Beck took seventy dollars out of the purse and split the sum between her and her daughter (appellant's wife). Then, Mr. Beck, Mrs. Thrasher, her daughter and the appellant drove to Sand Mountain where Mr. Beck threw a paper sack containing the billfold and purse over a cliff. When they returned to the trailer, Mr. Beck burned the clothing he was wearing earlier that day.

On cross-examination, Mrs. Thrasher stated that Mr. Beck was sharpening a knife on a whetrock shortly before he and appellant left the second time. She also testified that Beck and appellant left both times that day in Mr. Beck's pickup truck.

Dr. Vann Pruitt, Jr., State Toxicologist, testified that he performed a post-mortem on the body of one Dora Mae Ford. Dr. Pruitt stated that the results of the post-mortem showed a ". . . laceration in the neck that commenced slightly behind the left ear and ranged around the front of the neck, terminating on the right side of the neck that completely severed all of the musculature and the blood vessels within the neck" (R. p. 315). The cause of death was extensive and massive hemorrhage from the severing of the arteries and veins in the neck. Dr. Pruitt indicated that the laceration could have been caused by a bladed instrument of some type.

Mr. John Case, State Toxicologist, testified that he examined a pair of blue jeans, which had been identified as those the appellant had worn on November 8, 1976. He stated that two small blood stains were On cross-examination, Mr. Case testified that several human hairs were taken from Mrs. Dora Mae Ford's hand. These hairs, according to Mr. Case, had been removed in a violent manner, but did not show any similarities to hair samples taken from appellant.

found on the jeans. The stains were identified by Mr. Case as Group O, human blood. Also, he indicated that the deceased's blood group was type O.

The appellant then made a motion to exclude the State's evidence, which was overruled.

The appellant testified that on November 8, 1976, Gilbert Beck and Mary Ann Thrasher came to his home around noon. He stated that Mr. Beck asked him to drive over to Mr. Malone's home with him to inquire about purchasing a puppy. The appellant agreed because he knew that Mr. Malone had some tin which he desired to purchase. En route to Mr. Malone's home, he related that Mr. Beck stated that Mr. Malone had some money and that he was thinking about taking some of it. Upon arrival, Mr. Malone was standing in the carport. Mr. Beck asked him about the puppy and Mr. Malone replied that he had gotten rid of them. Malone also told the appellant that he did not have any tin for sale, but he knew a Mr. Bloodworth who did. About this time, a yellow car drove up in the driveway and he and Mr. Beck left and returned to his home. The appellant said he took a nap and then went back over to Mr. Malone's house with Mr. Beck to find out where Mr. Bloodworth lived. Once again, he related that Mr. Beck mentioned getting some money from Mr. Malone. When they arrived, Mr. Malone asked them in, and they all went in the kitchen where they were joined by Mrs. Dora Mae Ford. ⁴ The appellant testified that Mr. Malone was standing by the sink, preparing some food for his dog when Mr. Beck grabbed him by the ankles and drug him to the floor. Mr. Malone hollered for Mrs. Ford to get a gun. Then the following occurred (R. pp. 358-360):

"Q. All right. What, if anything Roy, when that happened, when he said 'Miss Mae, get a gun,' what did you say or do?

"A. I got Miss Mae by the arm.

"Q. What did you say to her, if anything?

"A. I told her please don't get a gun.

"Q. All right, did you say anything to Beck?

"A. I told him to leave Mr. Malone alone.

"Q. All right, what did he do? What did he do?

"A. He cut him.

"Q. He cut him. When did you first see a knife?

"A. Then.

"Q. Where did he cut him? Where did he cut him, Roy? In the neck?

"A. (Witness indicating.)

"Q. In the neck?

"A. Yes, sir.

"Q. All right, when he cut him was there blood?

"A. Yes, sir.

"Q. What was Miss Mae doing?

"A. Screaming.

"Q. What did you do?

"A. I ran out the door.

"Q. There has been some evidence that you said Were you sick?

"A. Yes, sir.

"Q. When you ran out the door where did you go?

"A. I run past the truck.

"Q. Roy, did you cut Mrs. Ford?

"A. No, sir.

"Q. Did you cut Mr. Malone?

"A. No, sir.

"Q. Did you have any part in doing it?

"A. No, sir.

"Q. All right, you say you ran out?

"A. Yes, sir.

"Q. Where did you go?

"A. Ran right past the truck.

"Q. All right. Then what did you do, if anything?

"A. I turned around and got in the truck.

"Q. How long was it after you did that before you saw Gilbert Beck?

"A. Just seconds shortly. I don't know how long it was. It was real short.

"Q. All right, where did you see him?...