Daniel v. State, 4 Div. 987

• Decision Date: 20 April 1982
• Docket Number: 4 Div. 987
• Parties: George DANIEL v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

Page 933

459 So.2d 933

George DANIEL v. STATE of Alabama.

4 Div. 987.

Court of Criminal Appeals of Alabama.

April 20, 1982.

Rehearing Denied May 18, 1982.

Larry W. Roney, Phenix City, for appellant.

Charles A. Graddick, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., for appellee.

TYSON, Judge.

Appellant was convicted under § 13A-5-31(a)(5) Code of Alabama 1975, for the murder of a police officer because of some official act or performance by such officer: to-wit, effecting the lawful arrest of the appellant. After a separate hearing on aggravating and mitigating circumstances, the jury returned a verdict fixing appellant's punishment at death. Subsequently, the trial court weighed the aggravating and mitigating circumstances pursuant to § 13A-5-33 Code of Alabama 1975, and sentenced appellant to death. The court issued both written and oral findings of fact from the trial and sentence hearing which enumerated the aggravating circumstances the court found sufficient to support the sentence of death. ¹ This appeal followed.

Eddie Upshaw, a resident of Hurtsboro, Alabama, testified he went to police headquarters on January 27, 1981, to obtain help in removing a man from the B. Lindsay residence. Upshaw then returned to the Lindsay home where several people had gathered. He observed the victim, Officer George L. Claypool, bring the appellant from around the back of the house to the police vehicle. The two men were talking, and then suddenly they were on the ground.

L.A. Davis testified he observed Officer Claypool and man tussling in the ditch in front of Willie B. Lindsay's home on January 27, 1981. He heard a gun shoot three or four times, and then saw the unidentified man run around the corner.

Mary Wesley Jenkins stated she was staying at the Lindsay residence on January 27, 1981, because her home had burned. She saw the appellant that day at approximately 4:00 p.m. Later that evening, appellant came to the Lindsay home. He entered the house and Ms. Jenkins begged him to leave. Mr. Lindsay left at that point to obtain help. When Officer Claypool arrived, he called the appellant, and the appellant accompanied him to his vehicle. She saw the two men begin to fight, and they fell into a ditch out of her sight. She then heard five gunshots fired. Officer Claypool then got up, and she heard him pleading, "Somebody please help me." Ms Jenkins testified that appellant was the only one in the area with the victim at the time the shots were fired.

Willie B. Lindsay recalled that on January 27, 1981, he returned home and was told by his lady friend that there was a man in the back yard. He went to the door and the man, appellant, told him he wanted a place to stay. Mr. Lindsay told appellant he could not stay at his home. He went back inside, and when he checked later and saw the appellant was still there, he went to a neighbor's home to call the police. When he returned he saw the policeman trying to get appellant into the automobile. Appellant refused, and the victim hit him on the leg. The appellant grabbed the officer and they fell into a ditch. At that point, Mr. Lindsay went to call for more help. He heard five shots, then looked out of a neighbor's window and saw appellant running with a gun down by his side.

Vincent Alexander stated that Mr. Lindsay came to his residence on the night of January 27, 1981, to call the police. The police arrived at the same time, and Alexander saw Officer Claypool attempt to get appellant to enter the vehicle. The two men fought, and Alexander saw appellant take Officer Claypool's gun and fire four or five shots as Claypool lay on the ground. Appellant then started up the street and the witness ran into his house.

Marshall Dent, a resident of the neighborhood where the crime occurred, testified that appellant came into his home on the night Officer Claypool was murdered and asked to stay there. He told appellant he could not stay and he made him leave. Mr. Dent thought appellant left, so he left to go to the scene of the murder. When he returned his wife told him she heard a noise. Mr. Dent opened the door and saw appellant going into his kitchen. He then went and got the police who came and took him away.

Mayor Don Williams, Councilman B.W. Vann, Jr., Police Chief Pate and Police Dispatcher Mary Lamb all testified Officer Claypool was on duty as a policeman for the town of Hurtsboro the night he was killed.

Officer Tom Woodward of the Russell County Sheriff's Department stated he arrested appellant at the Dent residence on January 27, 1981, with the assistance of Deputies George Smith and Willie Ross.

Jack Kennedy, of the State Game and Fish Commission, testified he found the pistol, later identified as Officer Claypool's, under the back porch of the Dent house on January 27, 1981.

Officer Herbert Parker of the Russell County Police Department stated he personally opened the police vehicle door and informed appellant he was a murder suspect and read his Miranda rights before appellant was taken from the area of the crime. He was also present an hour later at the Russell County Jail where appellant took part in a lineup conducted by Officers Newell, Payne, Boswell, and Battle. Appellant did not have an attorney present at that time, nor was he readvised of his rights in Officer Parker's presence.

Officer Tommy Boswell was present at the lineup in which appellant participated. He testified that Mr. Lindsay identified appellant as the man he had seen in his house earlier that night. Officer Boswell also testified that he searched for a prior criminal record for appellant and could find none.

Sergeant Harold Newell of the Alabama Bureau of Investigation testified he took a statement from appellant at the Russell County Jail on January 27, 1981, after reading him his rights. No threat, promise, or hope of reward was made to appellant in order to obtain his statement. Appellant's statement, elicited on cross-examination by defense counsel, appears in the record as follows:

"I left Houston, Texas on Sunday, January 25, 1981 by bus and went to Montgomery, Ala. I asked the bus driver how much further could I go. The bus driver took me to the Police Station in Union Springs on Sunday, night time. I had been laid off from my job at Pier I Imports in Houston, Texas, where I was a fork lift driver. I came to Alabama to look for some of my folks that live in Montgomery, Ala. My mother's name is Lillie Daniel. The Police in Union Springs let me spend the night there. I left the Union Springs Police Dept., Monday morning or Tuesday morning. I went to a cafe up the street and got some breakfast. I left there and walked up the street where I knocked on a window at a place of business and was looking at a woman. I must have knocked too hard on the window because it broke. Someone must have called the police, they came and picked me up and took me to jail. They let me out sometime after dinner. One of the Police Officer's took me somewhere to look for a job. I don't know where he let me out. I remember sitting on the railroad tracks throwing rocks and some white dude asked me what I was doing. It was getting close to dark and he told me I couldn't hand (sic) around there. I started asking some people at a house about a place to stay. I remember talking to a man and woman there, they told me there was a Hotel down the road. I walked down the road but couldn't find the Hotel. I went back to the house and asked them again if they knew a place where I could stay. I don't remember any police officer trying to put me in the police car. I remember going under a house and then I was standing in the kitchen of the house. I don't remember how I got there. I don't remember a gun shooting. I blacked out, like lights blinking. I have never blacked out before. I remember alot of Police coming in the house to get me. I don't remember fighting with a Police Officer." (R. 529)

Carol Curlee of the Latent Print Unit of the Alabama Bureau of Investigation testified that appellant's left thumb print matched a latent fingerprint lifted from the cylinder of Officer Claypool's pistol.

Both Leslie Vance, the Russell County Coroner, and Dr. Thomas Gilchrist, a forensic pathology physician for the State, testified Officer Claypool died as a result of the gunshot wound he received. Dr. Gilchrist testified the bullet entered the left hip and traveled to the victim's abdomen.

Lonnie Harden, a firearms coordinator for the State, testified the bullet which was identified as the one taken from Officer Claypool's body was fired by the pistol identified as belonging to Officer Claypool.

William Landrum, a forensic serologist with the state, testified his examination of a brown coat belonging to appellant revealed the presence of Group A human blood, which was the blood type of Officer Claypool.

The state rested at the close of Coroner Vance's testimony. Appellant's motion to exclude based upon the insufficiency of the evidence and the inadequacy of the Miranda warnings and waiver, before the lineup, was denied. The defense rested without presenting any evidence.

Appellant's sole contention on appeal is that the conduct of the appellant's court appointed counsel reduced appellant's trial to a farce, sham or mockery of justice and thereby denied appellant of effective representation by counsel. The problem of inadequate legal representation was compounded by the appellant or his family repeatedly retaining and then dismissing counsel on their own part. The trial judge did everything in his power to insure that appellant was represented by competent counsel at all times, even refusing to allow retained counsel who had been dismissed by appellant's family at a late date, to withdraw from representing appellant at trial. Thus, at trial, appellant was provided with two attorneys; one, the original counsel appointed by the trial court, and two, the retained counsel who sought to withdraw, but who was...