Davis v. State

• Decision Date: 27 May 1980
• Docket Number: 6 Div. 4
• Citation: 387 So.2d 268
• Parties: Fred DAVIS, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 268

387 So.2d 268

Fred DAVIS, alias v. STATE.

6 Div. 4.

Court of Criminal Appeals of Alabama.

May 27, 1980.

Rehearing Denied June 17, 1980.

William B. Lloyd of Lloyd, Ennis & Lloyd, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., and Sarah Kathryn Farnell, Asst. Atty. Gen., for appellee.

HARRIS, Presiding Judge.

Appellant was convicted of murder in the first degree and the jury fixed his punishment at life imprisonment in the penitentiary. He was sentenced accordingly. Throughout the trial proceedings he was represented by court-appointed counsel and at arraignment interposed a plea of not guilty. After sentence was pronounced he gave notice of appeal and was furnished a free transcript. Trial counsel represents him on appeal.

Omitting the formal parts the indictment reads as follows:

"The Grand Jury of said County charge that, before the finding of this indictment, Fred Davis, alias, Fred David, alias, Bill Davis, whose name is to the Grand Jury otherwise unknown, unlawfully, and with malice aforethought, killed L. E. Fuller, Jr., by beating him with a pipe or by means otherwise unknown to the Grand Jury, against the peace and dignity of the State of Alabama."

It was not disputed that the cause of death was due to a skull fracture, brain contusions, inter-crania bleeding, due to blunt force injuries to the head.

The deceased was last seen alive by his wife on November 12, 1977, at Fuller Furniture Company, in the Powderly Community of Jefferson County. The next time she saw him was on November 18 at Elmwood Chapel. In her words, "He was deceased." She was shown State's Exhibit 1 and identified it as a photograph of his truck which was parked at the place of his business on November 12, 1977, when she last saw him alive.

Police Officer Donny Todd, an evidence technician with the Birmingham Police Department, testified that he was called to a vacant house in the Ishkooda section of Birmingham on November 17, 1977, where he and a fellow officer found the body of L. E. Fuller, Jr., who had apparently died as the result of a blow to the head. A piece of iron pipe was found near the body. Officer Todd took the pipe to police headquarters and left it on the desk of the Crime Laboratory Supervisor Robert Johnson. At trial Officer Todd identified State's Exhibit 9 as being the identical pipe he found near the body of the deceased and stated that it was in the same condition as it was when he picked it up at the scene. He identified several photographs of the crime scene depicting the body of the victim and these were introduced into evidence.

Officer Robert B. Johnson, Supervisor of Scientific Investigation with the Birmingham Police Department, testified that the pipe was left on his desk in a sealed package with a receipt form indicating that it had been put on his desk on November 19, 1977, by Officer D. D. Todd. The pipe was in a bag which had been taped together. He stated the pipe was constantly in his possession from the time he found it until he personally delivered it to the Toxicology Department on December 1, 1977. At the time he delivered it to the Toxicology Department the pipe was in the same condition as it was when he received it. He further stated that he received three packages, "one of them containing a 'lead pipe,' and the other one was an envelope that was sealed and labeled as containing some sort of fiber and the third one was an envelope sealed and containing some sort of a paper object." He was asked who had access to his office and he replied, "The Evidence Technician and myself."

Officer Johnson stated that he made a preliminary investigation of the pipe and found a reddish brown stain which contained a hair which he removed and sealed in another envelope and took the hair and the other items to the Department of Toxicology.

On cross-examination he testified that about twelve evidence technicians had keys to his office at that time, but there was no indication that anyone touched or disturbed the items left on his desk by Officer Todd. He resealed the lead pipe and the other items before he delivered them to the Department of Toxicology.

In the course of the homicide investigation arrest warrants were issued for three suspects. They included Joseph Hardman, Tommy Battle and appellant. During a voir dire hearing out of the presence and hearing of the jury Officer William T. Gant testified that he interrogated appellant on January 5, 1978. Prior to asking him a single question the officer furnished him a form containing the Miranda rights and warnings and requested that he follow the form as it was read to him. He asked appellant if he could read and write and received an affirmative answer. After reading the waiver of rights form to appellant the officer asked him if he understood his rights and appellant assured him that he did. Appellant then signed the waiver form and told the officer he would make a statement. The officer further testified that no promises were made to appellant to get him to make a statement; that no threats were made against appellant, and no rewards or hopes thereof were offered or held out to appellant or other inducements made to him to get him to make a statement concerning his involvement in the crime. Appellant then made an oral statement admitting his participation in the robbery and the homicide. The officer then requested appellant to repeat the statement while the officer wrote the statement-in the words of appellant. Appellant agreed, and as he related the events leading up to the robbery and killing, the officer printed his statement. After printing the statement the officer read it back to appellant and asked him if it was correct. Appellant stated the statement was correct and initialed the first page and signed his name on the last page. His signature was witnessed by Officer Gant and Officer Albert Wallace.

The statement follows:

"He stated, Me and Joe Hardman and Tommy Battle got together around Tommy's house on the morning before Mr. Fuller was killed. Me and Joe had stolen a t.v. and we were walking to Fuller's to sell it to him when we met Tommy who was in the car with his mother and Joe's grandmother. We rode back to Tommy's house and was going to get Tommy to drive us to Fuller's place but Tommy couldn't get the car from his mother. So me and Joe and Tommy got to talking about needing money and Tommy suggested that we rob Mr. Fuller. Tommy said we would have to kill him because he would recognize us. I told him that we could rob Fuller but we didn't have to kill him. Tommy and Joe both said we would have to kill him but they finally agreed that we would just rob him. Me and Joe then walked to Powderly to get Fuller to come back with us. We told him that we had a hot t.v. to sell to him. Fuller drove us back up on the hill in the truck. I rode up front with Fuller and Joe rode in the back. When we got there Joe went in first and I went in and was showing the t.v. to Fuller. Fuller went to the back of the house, looking around and that's when Joe hit him with a rock. After Fuller fell down Joe hit him about two more times. I went in his pocket and got his billfold out and then me and Joe left and went into the woods behind the house. We stopped and split up the money which was about a total of a hundred or a hundred and fifty dollars. We then went to Joe's house and after about five minutes I left. Joe did all the hitting and I never hit Fuller at all. I just was going to rob him and I thought Joe was only going to rob him until Joe actually killed him. Tommy got one third of the money because he said he set everything up. He called himself being in the clear because he was outside the house when Fuller was killed. And, then, it's signed by Mr. Davis and witnessed by myself and Albert Wallace with a notation of City Jail, the date 1/5/78, and the time 12:50 p. m."

At the hearing on the motion to suppress the defense presented the testimony of Dorothy Jean Reynolds, a former elementary school classmate of appellant. This witness testified that appellant dropped out of school during the sixth grade; that appellant could only read a few words; that she had never seen him read a book, newspaper, or magazine, and that she had offered him a Bible to read but he declined because of his inability to read.

Appellant's mother testified that he could not read and had received bad grades while in school. She stated that she had never seen him read any printed material and had never seen him write anything.

Appellant testified at the same hearing and said he had dropped out of school in the sixth grade; that he had repeated two grades before dropping out of school. He said he could write his name but could not read. He claimed that after signing the statement transcribed by Officer Gant he handed the statement back to him saying he could not read. He further testified that Sergeant Gant told him that the two other suspects were trying to put it all on him. He claimed that the officer told him if he didn't make the statement he would get the death penalty. He further claimed that the statement signed by him was different from his original statement.

It should be noted here that after Officer Gant read the statement back to appellant he asked him if he wanted to make any changes and appellant said no--and he did not make or suggest any changes.

At the conclusion of the voir dire hearing the trial court ruled that the confession was voluntarily, knowingly and understandingly made. Back before the jury the State laid the voluntariness predicate and appellant's confession was admitted into evidence.

Appellant makes three contentions on this appeal in which he claims reversible error was committed by the trial court: (1) The confession was not shown to be voluntary, (2) the chain of custody of the alleged murder weapon was not sufficiently connected to justify its admission into evidence, and (3) that he was denied his...