Cumbo v. State

• Decision Date: 19 December 1978
• Docket Number: 7 Div. 584
• Citation: 368 So.2d 871
• Parties: William T. CUMBO v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 871

368 So.2d 871

William T. CUMBO v. STATE.

7 Div. 584.

Court of Criminal Appeals of Alabama.

Dec. 19, 1978.

Rehearing Denied Jan. 16, 1979.

John S. Casey, Heflin, James Allen Main, Anniston, for appellant.

William J. Baxley, Atty. Gen., and Eddie Hardaway, Jr., Asst. Atty. Gen., for the State.

BOWEN, Judge.

The appellant was indicted for the first degree murder of Lawrence William Hicks, Jr. A jury found him guilty of murder in the second degree and punishment was set at thirty years' imprisonment.

The major issue presented on appeal is the sufficiency of the evidence to support the conviction. There was no eyewitness to the murder; all the evidence is circumstantial.

The State's key witness and the only witness, other than the appellant, to relate any of the facts leading up to the murder was Edward Katon, who had also been charged with the murder of Hicks. Katon testified that he, the appellant, Chester Mercer, and Hicks had been together drinking and driving around in the appellant's car all day on Saturday, April 16, 1977. They left Birmingham, Alabama, that morning headed to Atlanta, Georgia, to find work. The appellant was driving and Hicks was seated on the front passenger's side.

Throughout the day the appellant and Hicks had been arguing and having "a big ruckus or fight". The appellant had "backhanded" Hicks and they had been fighting in the car. During the day the four men had been drinking substantial amounts of beer, wine and whiskey. They shoplifted food items from different stores and "tapped the till" at another.

The appellant and Hicks were arguing because Hicks wanted to break off his homosexual relationship with the appellant and leave; he felt like the appellant was "living off him". Hicks wanted "them to separate". "They had been living together for about three or four months." The appellant "was tired because Hicks hadn't slept with him". "Hicks was real upset about . . . (the appellant) cursing him."

Sometime after 9:00 P.M. on that Saturday the appellant, who was driving, started to weave off the road. Katon took over driving and managed to back into another car and then "broadsided" (wrecked) the appellant's car in going around a curve. After this second accident, the appellant resumed driving. Hicks was again sitting in the front passenger's seat. Mercer and Katon were seated in the back seat.

Around 10:00 P.M. Mercer was "too drunk" and had passed out. "Hicks was hysterical, and started arguing, and then Cumbo (the appellant) took a slap at him." Katon had been drinking and had passed out or gone to sleep. Katon testified that the next thing he recalled after seeing the appellant slap Hicks was the appellant waking him and saying, "Open the door". The car was stopped but Katon did not know their location. The passenger's door was partly open and Katon "just reached up, grabbed the outside door and the door swung open". He heard the appellant and knew that Mercer was in the car but did not recall seeing Hicks. Katon just unlatched the door and it swung open and then he went back to sleep. He did not hear, see, or remember anyone getting out.

The next thing Katon remembered was the appellant again waking him and saying, "Come on out and help push the car" which was stuck in someone's yard. Katon tried to back the car up and the next thing he knew a policeman was there. Hicks was not present.

The appellant's car was parked on the yard of Joe Conners who lived off Highway 78 East in Heflin, Alabama. Shortly after midnight on the morning of April 18, the Heflin Police arrested the appellant, Mercer, and Katon for public intoxication. Hicks was not present. No weapon or knife was found.

After placing the appellant under arrest, the officers noticed an extreme amount of blood on his shirt. At some point after the arrest an officer examined the appellant's nose to determine if it had been bleeding but found no clotted blood. The car had a stolen tag on it and blood was found on the center of the front seat and on the right front door. Hicks' wallet was on the dashboard. A wallet belonging to the appellant contained Hicks' identification card.

Upon arrest Katon told the officers his name was William H. Allen. Blood was found under the fingernails of his left hand.

After finding the blood in the appellant's automobile, the police began questioning the three men the next morning. They "found out the story . . . (they) were given at the time just didn't add up". "They had identifications they shouldn't have had."

Hicks' body was discovered Monday, April 18, 1977, between 11:00 A.M. and 1:00 P.M. It was found twenty to twenty-five feet down an embankment off the side of Highway 46, two and one-half to three miles from the Cleburne County Courthouse. The body appeared to have been lying there for some time. The face was covered with blood. The cause of death was asphyxia resulting from manual strangulation. There were an equal distribution of abrasions on the sides of the face and head. There were no stab wounds or cuts on the body.

In his defense, the appellant testified that Hicks was a homosexual but that they had never had relations though he saw Hicks and Katon having a relationship on the Saturday they left Birmingham. He denied ever hitting or slapping Hicks but testified that Katon did. He stated that he got the blood on his shirt when Hicks leaned up against him in the car after Katon had hit him.

The appellant testified that he left Birmingham for Atlanta by himself and picked up Katon and Mercer when he saw them hitchhiking. He let Katon drive so he could sleep and when he awoke Hicks was in the car. Katon and Hicks were arguing and Katon hit him and grabbed his hair. Katon told the appellant to stop the car and helped Hicks out. They were gone a few minutes and then Katon alone got back in the car. The appellant knew that Katon had a knife and the testimony is not clear as to whether Katon had the knife in his hand when he returned to the automobile. This was the last time the appellant saw Hicks.

The appellant admitted that it was Hicks' blood on his shirt although on arrest he told the officers that the blood was from a nosebleed he had had and did not mention Hicks. On direct examination the appellant specifically denied ever having seen Hicks before approximately the second week in April (the day after Easter Sunday) when the appellant was in Birmingham. However, on cross examination, the appellant admitted having known Hicks even before he came to Birmingham, when they were together in Tennessee.

I

In reviewing a conviction based on circumstantial evidence, this court must view that evidence in the light most favorable to the prosecution. The test to be applied is whether the jury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt; not whether such evidence excludes every reasonable hypothesis but guilt, but whether a jury might reasonably so conclude. United States v. Black, 497 F.2d 1039 (5th Cir. 1974); United States v. McGlamory, 441 F.2d 130 (5th Cir. 1971); Clark v. United States, 293 F.2d 445 (5th Cir. 1961).

"(W)e must keep in mind that the test to be applied is not simply whether in the opinion of the trial judge or the appellate court the evidence fails to exclude every reasonable hypothesis but that of guilt; But rather whether the jury might so conclude. Harper v. United States, 405 F.2d 185 (5th Cir. 1969); Roberts v. United States, 416 F.2d 1216 (5th Cir. 1969). The procedure for appellate review of the sufficiency of the evidence has been aptly set out in Odom v. United States, 377 F.2d 853, 855 (5th Cir. 1967):

"Our obligation, therefore, is to examine the record to determine whether there is any theory of the evidence from which the Jury might have excluded every hypothesis except guilty beyond a reasonable doubt. Rua v. United States, 5 Cir., 1963, 321 F.2d 140; Riggs v. United States, 5 Cir., 1960, 280 F.2d 949. In Judge Thornberry's words,

' * * * the standard utilized by this Court is not whether in our opinion the evidence and all reasonable inferences therefrom failed to exclude every hypothesis other than guilt, but rather whether there was evidence from which the Jury might reasonably so conclude.' Williamson v. United States, 5th Cir., 1966, 365 F.2d 12, 14. (Emphasis supplied)

"The sanctity of the jury function demands that this court never substitute its decision for that of the jury. Our obligation is so examine the welter of evidence to determine if there exists any reasonable theory from which the jury might have concluded that the defendant was guilty of the crime charged." McGlamory, 441 F.2d at 135 and 136.

See also Blair v. State, 18 Ala.App. 615, 93 So. 45 (1922). Whether circumstantial evidence tending to connect the defendant with the crime excludes, to a moral certainty, every other reasonable hypothesis than that of the defendant's guilt is a question for the jury and not the court. Cannon v. State, 17 Ala.App. 82, 81 So. 860 (1919); see also Evans v. State, 39 Ala.App. 404, 408, 103 So.2d 40, cert. denied, 267 Ala. 695, 103 So.2d 44 (1958).

Circumstantial evidence may afford satisfactory proof of the corpus delicti in a murder prosecution, and, if facts are presented from which the jury may reasonably infer that the crime has been committed, the question must be submitted to the jury. Hopson v. State, 352 So.2d 500, 502 (Ala.Cr.App.), affirmed, 352 So.2d 506 (Ala.1977). However circumstantial evidence justifies a conviction only when it is inconsistent with any reasonable theory of innocence.

"The humane provisions of the law are, that a prisoner, charged with a felony, should not be convicted on circumstantial evidence, unless it shows by a full measure of proof that the defendant is guilty. Such proof is always insufficient, unless it excludes, to a moral certainty, every other reasonable hypothesis, but that of the guilt of the accused. No matter how...