Coulter v. State, 8 Div. 673

• Citation: 438 So.2d 336
• Decision Date: 28 December 1982
• Docket Number: 8 Div. 673
• Parties: David Leroy COULTER v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 336

438 So.2d 336

David Leroy COULTER v. STATE.

8 Div. 673.

Court of Criminal Appeals of Alabama.

Dec. 28, 1982.

Rehearing Denied Feb. 1, 1983.

Carl Stolsworth and William J. Underwood, Tuscumbia, for appellant.

Charles A. Graddick, Atty. Gen., and Ed Carnes, Asst. Atty. Gen., for appellee.

BARRON, Judge.

David Leroy Coulter, the appellant, was convicted under § 13-11-2(a)(2), Code of Alabama 1975, for the robbery and the intentional killing of George Morris in rural Colbert County. A separate sentencing hearing was held before the same jury that had found the appellant guilty of the capital offense. The jury weighed the evidence of aggravating and mitigating circumstances and fixed appellant's punishment at death. In a second sentencing hearing, the trial court independently weighed the aggravating and mitigating circumstances pursuant to §§ 13-11-3 and -4, Code of Alabama, 1975, and, in accordance with the jury's punishment determination, sentenced the appellant to death. The trial court in its "Order of Court on Imposition of Death Penalty" (attached as Exhibit A) specified its findings of fact from the guilt phase and sentencing phase hearings, including a description of the aggravating and mitigating circumstances which it had considered.

On September 26, 1977, the appellant and two companions, Tony Almedeo and Bill Conologue, left Jacksonville, North Carolina, on their way to Memphis, Tennessee, to visit Almedeo's girlfriend. During the three days that followed, the three men went on a crime spree that included the incident in Alabama on September 28, wherein George Morris was robbed and killed (the appellant and Conologue were

arrested in McDuffy County, Georgia, on September 29).

Guilt Phase Hearing

In an interview with Alabama officials the morning after his arrest in Georgia, the appellant made a detailed voluntary statement describing the robbery and killing of George Morris in Colbert County, Alabama. His statement was transcribed independently by both Lawrence Smelley, an investigator with the Alabama Bureau of Investigation, and Ronnie May, an investigator with the Colbert County Sheriff's Department. Their transcriptions of appellant's statement were admitted by the trial court and read into evidence by each official. The recordings were essentially identical. In the words of Lawrence Smelley, the appellant's statement read as follows:

"Tony Almedeo, Bill Conologue and myself left Jacksonville, North Carolina in Tony's white Chevrolet Monte Carlo. We went to Memphis, Tennessee to see Tony's girlfriend. We pulled into Memphis around 10:00 A.M. on Tuesday the 27th and we left Memphis around 9:00 P.M. That night headed back to Jacksonville. We spent Tuesday night in the car on the side of the highway, Highway Number 125 in Tennessee. The day we left Jacksonville Tony borrowed a .22 caliber automatic from a black dude and he had intended to get even with a white guy in Memphis who had stolen his black chic. I bought three boxes of .22 short ammo at Gibson's in Jacksonville, North Carolina. Tony had planned on robbing some places during the trip to get the money we needed. On Wednesday we woke up on the side of the road Number 125 in Tennessee and we drove on down until we came to U.S. Highway 72 and we turned east onto it and went into Alabama. Not long after we got into Alabama we stopped at a fairly new country store and Bill who was driving went in and tried to cash a check for ten dollars on a North Carolina bank. The lady wouldn't cash it and told us to go to the bank. So we went to the bank in this small town and Bill went in the bank and tried to cash the check but they wouldn't cash it either. Bill got back in the car and we headed on east on U.S. 72 until we came to this deserted looking country store and gas station. It was just a few miles from where we had tried to cash the check at the bank. I suggested that we rob the store so Bill pulled in. It was about 10:00 A.M. in the morning when we pulled in the store lot. The place had two gas pumps and we pulled up on the outside of the pumps. Right across the drive from the store was a brown brick house and the drive went right on by the store and by the house and came out on another road that I believe ran into the small town where we tried to cash the check. I went in the store and an old black man wearing suspenders was in back of the store banging on something. I think he was wearing glasses. He asked me how I was doing and if he could help me and I said 'I'm just looking around. I'm going back out and see what the hell the other want.' I went outside and got Tony and we went back inside. I bought a orange drink in a bottle and Tony bought a grape drink in a can. We talked with the old man for a minute and when he opened the till to put the money we paid him in we pulled our guns and told him to leave it open and back away. I had the .22 and Tony had the starter pistol. I told the old man to stay away from the back door and he started toward the back door and I grabbed him by the suspenders. He said, 'this way.' I led him by the suspender straps through a small passage way to the rear of the store. I put the pistol on safety and hit the old man in the back of the head and he tried to hide under some foam rubber and said 'Don't kill me, don't kill me.' And I said 'Don't worry about it, just lay down on the floor.' And he said 'Go ahead and take it all. Take it all but don't kill me.' At this time I didn't have any intention of killing anybody. While all of this was going on Tony was getting the money out of the till. Tony then walked back to where we were and said 'Get his wallet.'

                I got his wallet and got two ten dollar bills and a one dollar bill out of it and then I threw it over a pile of stuff in the back of the store.  A lot of papers came out of it when I threw it.  I then walked up to the man's head and I stomped him in the back of the neck with my heel.  At this time I noticed a lawnmower near where the old man was laying.  After I stomped the old man in the neck I started to walk out and Tony said 'Cap him' and I fired the pistol toward the old man.  I don't know at the time, I didn't know at the time that I hit him.  I just fired in his direction to satisfy Tony.  After I fired I put the pistol in my pocket and when I got back out of the store to the car I took the pistol out and noted the gun was jammed.  When I went in the store I had one round in the chamber and four in the clip.  And when I got out to the car I had two in the clip and one jammed in the gun.  When we left the store I left my drink bottle on the counter and Tony took his can with him.  Tony walked hurriedly to the car passing through the gas pumps and I walked at a moderate pace to the car passing through the gas pumps.  When I got in the car on the passenger side I told Bill that I had shot the old man.  I asked him if he heard it and he said 'Yes.'   I asked him if it was loud and he said 'About like a loud firecracker.'   Tony got in the back and we pulled out headed east.  Tony counted the money that he got which was $26.00 and he gave it to me.  I added it to the $21.00 that I got and divided it out at $15.00 a piece and I put $2.00 in the tray for the kitty to buy cigarettes and stuff with.  We then went on down the road and stopped in a small town at a store that had six gas pumps.  We bought two packages of ham, some cheese, some bread, two packs of Kool and some Chesterfield's and some milk.  There was a teenage girl behind the counter and we asked her where we could buy some beer and she told us Huntsville or Nashville or Warrior was the closest places.  We then went on down to Birmingham.  On the way to Memphis on Tuesday morning we robbed a place near Michigan City on Highway 72 in Mississippi.  It had one gas pump and it was also a store.  We got $52.00 off of it."
                

This statement was fully corroborated through the testimony of other witnesses.

Helen Morris, the wife of the victim, stated that her husband left the house at approximately 9 a.m., as he usually did, and walked across the yard to begin work at their store.

When Mrs. Morris went to relieve him for breakfast at 10 a.m., she found him lying face down in a pool of blood back in the side room of the store. She did not realize at the time what had happened. She had seen an opened bottle of orange soda on the front counter, but had seen no other evidence that anyone else had been in the store. She did not realize her husband had been shot until she reached the hospital and learned that the gunshot wound had been fatal.

John Kilbourn, the toxicologist who performed the autopsy, reported that the cause of death was a gunshot wound to the left rear portion of the deceased's head. He suspected that the gun that fired the fatal shot was held more than two feet from the deceased when fired because there were no powder burns or residue on the body. Kilbourn removed a .22 caliber slug from where it had lodged in the front left portion of the deceased's brain. He had also found an empty .22 caliber casing and a "live" round of .22 caliber ammunition at the scene of the crime. Kilbourn's autopsy also revealed facial abrasions to the nose and inner surface of the lips, and a laceration of the kidney and a hemorrhage of the intestines. He explained that the latter two internal injuries were consistent with a "hard kick" to the lower back of the deceased. The facial lacerations were depicted in a photograph admitted into evidence. Kilbourn also lifted fingerprints from a cash register receipt found on the front counter of the store. He explained that these prints were later identified as belonging to Tony Almedeo.

Ronnie May, in addition to reading his transcription of appellant's statement taken in Georgia the day after his arrest, testified that he arrived at Morris's store between thirty-eight minutes and an hour after Mrs. Morris discovered her husband's body. As soon as the...