Cole v. State

• Decision Date: 18 May 1976
• Docket Number: 8 Div. 682
• Citation: 337 So.2d 40
• Parties: Wayne COLE v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 40

337 So.2d 40

Wayne COLE v. STATE.

8 Div. 682.

Court of Criminal Appeals of Alabama.

May 18, 1976.

Rehearing Denied June 15, 1976.

Roger H. Bedford, Russellville, for appellant.

William J. Baxley, Atty. Gen., and Ellis D. Hanan, Asst. Atty. Gen., for the State.

HARRIS, Judge.

Appellant was put to trial upon a two-count indictment which, omitting the formal parts, reads as follows:

'COUNT I

'The Grand Jury of said County charge that before the finding of this Indictment, Wayne Cole, whose name is unknown to the Grand Jury other than as stated, unlawfully and with malice aforethought, killed Fayrene Wilson, by shooting her with a pistol;

'COUNT II

'The Grand Jury of said County further charge that, before the finding of this indictment, Wayne Cole, whose name is unknown to the Grand Jury other than as stated, unlawfully, and with malice aforethought, killed Merita Cole, by shooting her with a pistol; against the peace and dignity of the State of Alabama.'

At arraignment, in the presence of his counsel, he pleaded not guilty and not guilty by reason of insanity.

On January 2, 1975, appellant filed a written motion for a psychiatric examination but the record is entirely silent as to whether this motion was ever called to the attention of the Court and a ruling thereon invoked.

When the case was called for trial on January 14, 1975, appellant withdrew the pleas interposed at arraignment and filed the following plea:

'THE STATE OF ALABAMA, PLAINTIFF

VS.

WAYNE COLE, PRESIDENT. CASE NO. __________

'Comes now the defendant in the above styled cause and enters his plea of guilty to murder in the second degree to each Count and demands that a jury be empanelled to determine the degree of his punishment.

Roger H. Bedford

----------------

Attorney for Defendant

Wayne Cole

----------

DEFENDANT

Defendant demands a struck jury.

Roger H. Bedford

----------------

Attorney for Defendant'

The State objected to the filing of the above plea and the Court refused to accept said plea. Appellant then refused to plead further and stood mute before the Court and the Court entered pleas of not guilty to the charges laid in the indictment. A trial was had on the not guilty pleas entered by the Court.

The jury returned separate verdicts as to the counts in the indictment finding the defendant guilty of murder in the first degree under each count and fixed his punishment at life imprisonment under each count. He was adjudged guilty of murder in the first degree under each count of the indictment and was sentenced to life imprisonment under each count. He gave notice of appeal and was found to be indigent. He is in this Court with a free transcript and trial counsel was appointed to represent him on this appeal.

This case was tried solely on the evidence presented by the State. Appellant did not testify or offer any evidence in his behalf.

On the late afternoon or early evening of August 28, 1974, appellant went to the home of his father-in-law, James Willard Wilson, in the Blue Springs Community of Franklin County, Alabama, and shot his wife and mother-in-law with a .38 caliber pistol. Appellant's mother-in-law died instantly and his wife died shortly after being carried to the hospital.

The record reflects that appellant and his wife had a very stormy marriage and were constantly in and out of the divorce courts. Divorce proceedings were pending on the date appellant committed this double murder.

According to the testimony of Mrs. Dovie McAlister, who was the grandmother of appellant's wife, appellant had driven by the house on several occasions on the day of the homicide. He finally stopped and sounded the horn on his automobile. The only people present in the house at this time were Mrs. McAlister, her daughter Fayrene Wilson, her granddaughter Marita Cole, and the one-year-old child of appellant and his wife. Mrs. Wilson and Mrs. Cole were in the kitchen eating dinner and Mrs. McAlister was in the kitchen holding the baby. Appellant's wife asked her mother to go to the door and tell appellant to leave as she did not feel like talking to him. Mrs. Wilson went to the door and gave appellant the message from his wife. Appellant told Mrs. Wilson to tell his wife to come out on the porch and talk to him and he would stop bugging her. Mrs. Wilson told appellant again that his wife did not feel like talking to him. During this conversation Mrs. Wilson was holding the storm door partially open. Appellant then tore the grill work out of the storm door and entered the house. Mrs. Wilson said, 'Marita here he comes and he has a gun.' Mrs. Wilson went back to the kitchen and Mrs. McAlister carried the baby just inside a bedroom door. While standing in the bedroom door Mrs. McAlister heard a gun fire and there was a short pause and she heard four or five more shots in rapid succession. As Mrs. McAlister turned to leave the bedroom, she came face to face with appellant who stated, 'I want my _ _ baby,' and grabbed the baby out of the arms of Mrs. McAlister and moved at a fast pace toward the front door. Mrs. McAlister ran in the kitchen to see about her daughter and granddaughter. She saw them on the floor in a sitting position between the back door and the refrigerator. She called their names and got no response. She raised their heads at the same time. Her daughter's face was bloody and she was dead. Her granddaughter looked like a half gallon of blood had been splashed on her and her eyes were rolling in her head, but she never uttered a sound.

Mrs. McAlister ran to the telephone to call for help but got the telephone numbers confused and had to give up. She then ran to the front door and started calling for help. She further testified that no threats were made to appellant by anyone, and there were no weapons of any kind in the house. She stated she did not see a weapon in the hands of appellant but that she was not looking for one.

She further testified that she was aware that there had been hard feelings between the Wilson family and the defendant but she was not allowed to state whether she was aware that on two occasions the defendant's father-in-law, James Willard Wilson, had tried to kill the defendant. It should be noted at this point that appellant's father-in-law was not at home when appellant invaded his home and killed his wife and mother-in-law.

Dianne Wilson testified that she was eleven years of age on August 28, 1974, and was living with her parents Mr. and Mrs. James Willard Wilson. She stated that when she came from school on that date, the only people in her home were her grandmother, mother, her sister, Marita Cole, and her sister's baby. That she went next door to see a friend and that her next door neighbors were Mr. and Mrs. J. T. Stanford and they lived right across the road from her house. While she was at the Stanfords, she saw appellant drive up in an automobile. She saw him walk up on the porch and saw her mother talking to him at the front door but she could not hear the conversation. She saw appellant go in her house and heard five or six shots. She stated that appellant was in the house two or three minutes and that she got a glimpse of him when he came back out of the door, and she did not see anything else.

Mr. J. T. Stanford testified that on August 28, 1974, he lived right across the road from the Wilsons and was employed by the State Highway Department. That he got home from work around 4:30 p.m. That between 4:30 and 5:30 that afternoon he saw appellant drive by the Wilson house. That he had the hood of his son's car up working on the fan belt. While working on the fan belt, he heard a car drive up and stop and then he heard a racket. It was a loud racket and he stepped out from under the hood of the car to see if he could determine where the racket was coming from and at that time he didn't see anything. He walked around to the side of the car and a minute later he heard a shot and then after a pause he heard four or five more shots. He saw a car parked on the Wilson side of the road and described it as being a 1970 or 1971 model Plymouth that was greenish-gold like in color. The next thing he saw was appellant coming out of the house with a baby in his arms and he was kind of running. He saw him go straight to the car and get in and leave. He went south toward Phil Campbell. About that time he saw Mrs. McAlister come out the front door screaming and crying and said something about Marita. He went back in his house and called the ambulance.

Jerry Stanford, son of J. T. Stanford, testified that he was at his father's house on the afternoon of August 28, 1974. He got there around 4:30 p.m. and spent the afternoon and night. That it was nearly sundown when he saw appellant drive up and park in front of the Wilson home and sound his horn. Mrs. Wilson stuck her head out the door and said something to appellant but he did not hear what was said. He heard one shot and in five or six seconds he heard continuous firing and everything got quiet. He saw appellant come out of the house with a baby under his right arm and he had a gun in his left hand and appellant got in his car and left.

He further stated he went in the Wilson home and found Mrs. Wilson and Mrs. Cole lying in a corner. He checked their pulse and Mrs. Wilson was dead. Mrs. Cole was still breathing and he tried to wipe the blood off her face until the ambulance got there. He stated he found one piece of lead behind Mrs. Wilson's back. He picked up the slug and gave it to Rev. Motes who in turn gave it to the Coroner. He was shown State's Exhibit 12 and identified it as the hunk of lead that he picked up from the floor behind Mrs. Wilson's back.

Mr. Joe Newton testified that he was the Coroner of Franklin County and had held this position for eight years. That following a call from the Russellville Police Department he went to the Wilson residence. He stated there were a number of people there when he...