Conley v. State

Decision Date20 December 1977
Docket Number4 Div. 561
Citation354 So.2d 1172
PartiesLinder B. CONLEY v. STATE.
CourtAlabama Court of Criminal Appeals

Larry W. Roney, Phenix City, for appellant.

William J. Baxley, Atty. Gen., and Joseph M. Carlton, Montgomery, for the State.

BOWEN, Judge.

The appellant was indicted for the first degree murder of Mrs. Rudene Edwards of Phenix City, Alabama. Punishment was fixed at life imprisonment. This court has previously reviewed the convictions of two of the alleged accomplices of the appellant: Austin v. State, 354 So.2d 40 (Ala.Cr.App.1977) and Anderson v. State, 354 So.2d 1156 (Ala.Cr.App.1977).

On this appeal four points are presented for our consideration and review: (1) The sufficiency of the evidence to support a conviction, (2) the admissibility of statements made by an alleged co-conspirator prior to and after the commission of the charged crime, (3) the admissibility of statements allegedly made by the appellant concerning the commission of other crimes than the one charged, and (4) the admissibility of the circumstances of a prior conviction of the appellant.

On the 20th of October, 1976, the bludgeoned body of Mrs. Edwards was found in her home in Phenix City, Alabama. Death resulted from multiple blows to the head. The house had been ransacked. Apparently robbery was the motive for the murder for Mrs. Edwards had recently recovered $66,450.00 in a civil law suit which she had brought against the federal government. This fact was well publicized in the locality. Because the Federal Bureau of Investigation had originally seized this same amount from her safe deposit box in the course of a gambling investigation, Mrs. Edwards' attorney had advised her not to put the money back in the bank.

There were no eyewitnesses to the actual murder, and the state did not contend that the appellant personally killed Mrs. Edwards. The evidence linking the appellant to the murder is circumstantial and almost all of it came from prostitutes and petty thieves. Though indirect and circumstantial, the web of guilt was so finely woven around the appellant as to leave no reasonable doubt of his participation in and responsibility for the murder of Mrs. Edwards. Because of the volume and nature of the evidence and our function in reviewing a case to determine the sufficiency of the evidence, we will only summarize those portions of testimony which tend to implicate the appellant.

At 2:30 o'clock on the morning of October 20, 1976, a neighbor heard Mrs. Edwards' dog barking and the sound of someone running. Mrs. Edwards' body was discovered later that same morning at 7:00 o'clock by another neighbor. The intruders had taken Mrs. Edwards' jewelry and a police scanner.

Sarah Rezek was a local prostitute in Columbus, Georgia, who "dated" the appellant from late August until late November of 1976. On three separate consecutive Sunday afternoons or nights she overheard the appellant discussing the robbery of Mrs. Edwards. On October 3, 1976, she overheard a conversation between the appellant, Ronnie Anderson, Andy Austin, and others in her home in Columbus. The appellant stated that he knew of a $50,000.00 "score" in Phenix City and indicated that Mrs. Edwards was the score to which he was referring. He also stated that "some people" had come to him in the past to borrow some guns for this very same job but that he would not let them have the weapons because Bobby Smith (Mrs. Edwards' son) was a friend of his. On the following Sunday night, October 10th, the appellant again stated that there was $50,000.00 sitting "over there" but that he could not get it because the people knew him.

On the Sunday night of October 17th, the appellant stated in response to Anderson's comment that he wasn't making enough money in "boosting" (shoplifting) that "the $50,000 was sitting across the river; why don't you go over there and get that".

On the afternoon of October 19th, Anderson borrowed a Colt .38 pistol which the appellant had given to Ms. Rezek. Anderson and Austin then left in Ms. Rezek's automobile. The testimony indicates that the appellant did not know that Anderson had Rezek's pistol. When he found out that Anderson had borrowed her car the appellant told Ms. Rezek that she was going to keep on letting them use her car and they were going to get off and do something and get caught at it and she was going to be put right in the middle.

Ms. Rezek, in an attempt to get back her pistol, telephoned Anderson at a local night club later that night. Anderson told her "not to worry about it; that something was going to go down" and that he might need it.

Penny Hatcher was also a prostitute in Columbus, Georgia. She testified that she spent the entire night of October 19th with the appellant at his house and that they stayed awake the entire time. Around 4:00 or 4:30 o'clock on the morning of October 20th, the appellant received a telephone call and told Ms. Hatcher that they had "screwed up" and became "real upset". This was the only contact they had with the outside world that night. Sometime between 8:00 and 9:00 o'clock on the morning of the 20th, the appellant called Ms. Rezek and told her about someone having been beaten. Ms. Rezek testified that the appellant called her around ten or fifteen minutes to nine that morning and asked her if Anderson and Austin had returned her car. He told her that Bobby Smith's mother had been found beaten to death at her home. When Ms. Rezek asked the appellant how he knew, he told her that he was at a friend's house down the street from Mrs. Edwards.

Anderson returned Ms. Rezek's car later that Wednesday morning around 11:00 o'clock. He asked if she had heard from the appellant and told her that if she contacted him "to tell him that they needed to get in touch with him bad; that they had that stuff or those things for him".

On the night of Thursday, October 28, 1976, Ms. Hatcher had another "date" with the appellant. At his house the appellant showed her some men and women's jewelry that was on a dresser in his bedroom. This jewelry generally matched the description of that owned by Mrs. Edwards and found missing following her death. Ms. Hatcher also noticed a police "Bear-cat" scanner in the appellant's bedroom about which the appellant stated, according to Ms. Hatcher, that "a lot of people would like to know where it was because a woman had been beaten or hurt over it". The appellant then stated that he would kill anyone or kill himself before he would go back to prison.

Deborah Lynn Vella lived with Ms. Rezek from the last weekend in September until November 23rd. On October 3rd she also heard the appellant and several others, including Anderson and Austin, talking about robbing some "old lady that lived over in Phenix City". The appellant stated that he knew a score in Phenix City, Bobby Smith's mother; and that there was supposed to be $50,000.00 in her house because Mrs. Edwards had removed the money from her safe deposit box and hidden it in her house so the "Feds" could not get it. Ms. Vella heard "some more" on the next Sunday (October 10th).

She testified that on the following Sunday, October 17th, "Whiskers", the appellant, was getting "a little bit mad" and said that the "money wasn't going to stay over there forever and they were going to have to go over there and get it or either it was going to be gone". When Anderson said that he wanted the money split five ways, the appellant said that it would be split three ways and indicated that one-third would go to Anderson and Austin, one-third to James Smith and Jimmy Don Hall and one-third for himself. The appellant told Anderson and Smith that he would be "over there"; that they could bring "the stuff" to him and that he would take care of it until he got rid of it and then they would also divide that money three ways. When Smith told Anderson that "we will have to kill that old lady because she is not going to give up the money like that", the appellant laughed and went to bed.

Ms. Vella stated that on November 21st she was at Austin's father's house in Phenix City and the appellant was mad because Austin and Anderson had gotten the jewelry and "stuff" from his house and taken it to Albany and tried to sell it. At that time the appellant said that "ain't nobody going to take that stuff; I am the only one that can sell it and I will get rid of it when I get good and ready". Ms. Vella also stated that Lamar Jackson told her that Austin and Anderson killed Mrs. Edwards; that Anderson also told her that he killed Mrs. Edwards and that the $50,000.00 wasn't over there and if it was he couldn't find it. She testified that although the appellant never said that he killed Mrs. Edwards, that he did tell her that "whenever you kill somebody, you always kill them in the head because if you don't kill them dead, you are sure enough going to make them crazy". On November 22nd, Austin admitted to her that he killed Mrs. Edwards.

The appellant testified in his own behalf and denied making any statement concerning a $50,000.00 score in Phenix City. He denied any knowledge of any plan to kill or rob Mrs. Edwards. His mother testified that she lived in Phenix City and was a neighbor of Mrs. Edwards; that after the body was discovered, she told her son of the murder when he came to her house that morning about 8:30 o'clock.

Among the other witnesses called by the appellant were Ronnie Anderson and Andy Austin, both under conviction for the murder of Mrs. Edwards, who testified in support of the appellant and contradicted the testimony of Ms. Rezek and Ms. Vella.

Although the appellant testified that he purchased the police scanner from Butch Martin, in the state's rebuttal Martin testified that he never sold the appellant any scanner.

I

The appellant's motion to exclude the evidence presented by the state was properly overruled. Under the law of this state, it is settled that any word or act contributing to the commission...

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    ...to the commission of a felony, intended to incite or encourage its accomplishment, makes one a co-conspirator. Conley v. State, 354 So.2d 1172 (Ala.Cr.App.1977). The words 'aid and abet' comprehend all assistance rendered by acts or words of encouragement or support or presence, actual or c......
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