Davis v. State

• Decision Date: 01 June 1976
• Docket Number: 3 Div. 523
• Citation: 333 So.2d 168
• Parties: Julian DAVIS, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 168

333 So.2d 168

Julian DAVIS, alias v. STATE.

3 Div. 523.

Court of Criminal Appeals of Alabama.

June 1, 1976.

Solomon S. Seay, Jr., Montgomery, for appellant.

William J. Baxley, Atty. Gen., and Carol Jean Smith, Asst. Atty. Gen., for the State.

HARRIS, Judge.

Appellant was convicted of murder in the first degree and the jury fixed his punishment at imprisonment in the penitentiary for life. He was sentenced in accordance with the verdict of the jury. At arraignment, with his counsel present, he pleaded not guilty and not guilty by reason of insanity. After sentence was imposed, he gave notice of appeal. He was found to be indigent and a free transcript was furnished him. Trial counsel was appointed to represent him on appeal.

The State's evidence is not disputed. Appellant did not testify nor was any evidence offered in his behalf.

This case arose out of the robbery of Delchamps store on South Court Street in Montgomery, Alabama, on the night of October 9, 1974, in which Crawford Herring, the grocery manager, was killed by a shotgun blast. He died instantly.

According to the testimony of Mrs. Daisy Johnson, who was operating a cash register on the night of the robbery, several men wearing ski masks and long overcoats entered the store at about twenty minutes to 9 o'clock. Several of the men had sawed-off shotguns and one had a pistol. She stated there were at least four men of various sizes. The tall man came to the cash register she was operating and said, 'This is a robbery. Everyone lay on the floor.' There were seven employees in the store at this time including the deceased and there were two or three customers in the store also. The tall man was giving orders and the other men took up different positions in the store. The tall man ordered Mrs. Johnson to open the cash register and she did. The man with the pistol took the money from the cash register while the tall man held the gun on her. She was then ordered to lie on the floor and not to look at the men. The deceased was on the floor and the tall man told him to get up and open the other cash registers. The deceased got up and went to the number three cash register and opened it, but this register had been checked up and was empty. He then went to register number two and Mrs. Johnson heard someone say, 'This white man thinks I am playing,' and she heard a shotgun blast. She heard one of the men say, 'Let's go,' and all the robbers ran out the front door.

After the robbers left, Mrs. Johnson got up and found the deceased lying on the floor in a puddle of blood near the number two cash register. The City police were called and arrived at the store within ten minutes. The deceased was still on the floor when the officers arrived, and a photograph of him was made. Mrs. Johnson identified the photograph of the deceased and it was introduced into evidence over the objection of appellant.

Mickey Hodge testified that he was employed by Delchamps on October 9, 1974, when the store was robbed and Mr. Herring was killed. He stated that at that time the store closed at 9 o'clock. That shortly before closing time he was in the wareroom located in the rear of the store behind swinging doors. He identified a photograph of the area of the store where he was working and this photograph was introduced into evidence without objection. He further testified that another employee of the store, Harold Henderson, was with him in the wareroom which was the stock room. He stated he was standing just opposite the door of the wareroom when a man came through the door and pointed a shotgun at him and Harold Henderson.

He said the man was wearing an overcoat that came down to his knees and had on a mask over his head that was blue or gray. That the man had a shotgun and the barrel had been sawed off and had a strap hanging from it. That the man just stood there and stared for a few minutes and then he walked back out the door and looked up front. He then came back through the door and asked if anyone was in the office and Hodge told him he didn't think so, and Harold Henderson told him no one was up front. The man then pointed the shotgun at both of them and ordered them to lie on the floor and they complied with this order. The man then went back through the door and at this time they heard a loud noise which sounded like a shot. They stayed on the floor until they heard the shot and saw four or five men running from the store and they were all wearing ski masks, and they saw guns hanging off the back of their shoulders. These two employees then got up and locked the back door and walked to the front of the store. Mrs. Johnson told them they had been robbed and Mr. Herring had been shot and she picked up the telephone to call the police. Hodge got the keys from a cash register and locked the doors and started looking for Mr. Herring. He found him on the floor near the number two cash register and he was bleeding from his neck.

The testimony of Harold Henderson corroborated the testimony of Mickey Hodge. He also testified that the ski mask worn by the robber who came in the stock room was blue with a white trim. He said he saw this man's hands and they were black. He further stated the robber was wearing a long dark trench coat that came down to his knees.

Mr. Wayne Bullard, the Assistant Store Manager of Delchamps, testified that he was at home when the store was robbed. That he received a call from Mrs. Johnson and went to the store immediately and saw Crawford Herring lying on the floor by the number two cash register and he was dead. He inventoried the cash registers and determined that $630.00 was missing.

Mr. Richard A. Roper testified that he was employed by the State Department of Toxicology and Criminal Investigation and was stationed in Montgomery. Mr. Roger's qualifications were admitted by defense counsel. He testified that he examined the body of Crawford Herring and gave his opinion as to the cause of death as follows:

'From my examination, I conclude that death resulted from central nervous system trauma and hemorrhage, associated with a single shotgun wound to the neck; within which the spinal cord, a major artery and a major vein were severed.'

Mr. Roper was shown State's Exhibit Number 3, a photograph, and stated the photograph accurately depicted the scene of the shooting and the body of Crawford Herring. This photograph was introduced into evidence over appellant's objection that it tended to inflame the minds of the jury.

Mr. Cecil H. Humphrey, a Detective with the Montgomery Police Department, testified that he made a search of the grounds in front of the store where the robbery and killing occurred and found four live twelve gauge shotgun shells and one twenty gauge spent shell. He stated that he put these items in a plastic bag, sealed the bag and turned it over to Mr. Charles Smith, a State Toxicologist. This witness further stated that he was downtown on October 12, 1974, and saw three men emerge from the WAPX radio station. He was shown a photograph of the three men emerging from the radio station and identified appellant as one of the three men and pointed to him in the courtroom. This photograph was admitted into evidence over appellant's objections.

This Detective further testified that he went in the radio station and found three sawed-off shotguns. One was a twenty gauge gun and two were twelve guage guns. These guns were introduced into evidence over appellant's objections. He delivered these guns to Mr. Charles Smith.

Mr. Smith testified as to his education, experience and qualifications. He stated that on October 9, 1974, he received a spent twenty gauge shell from Detective Humphrey and that later he received from Humphrey a twenty gauge pump shotgun. He test fired the gun and conducted a microscopic examination and comparison and rendered an opinion that the twenty gauge pump gun fired the spent twenty gauge shell that was found in front of Delchamps the night of the robbery and killing.

Mr. Roy Holton, Chief of Detectives of the Montgomery Police Department, testified that on Saturday, October 12, 1974, he saw three black males get out of an automobile that had been wrecked by a Montgomery policeman on his orders. He identified appellant as one of the three black males who came out of the automobile firing shotguns. He later saw the same trio emerge from the radio station. A photograph was taken of the men as they came out of the radio station and Chief Holton identified appellant in the photograph which was admitted into evidence over appellant's objections.

Detective J. D. Foster testified that he obtained a search warrant to search the automobile in question. He stated that Chief Holton gave him the information which served as the basis for the affidavit leading to the issuance of the search warrant. Foster testified that he told Judge Piel who gave him the...