Dickerson v. State, 6 Div. 441

• Court: Alabama Court of Criminal Appeals
• Writing for the Court: TYSON; In reviewing a number of authorities in Sashington, supra
• Citation: Dickerson v. State, 360 So.2d 1045 (Ala. Crim. App. 1978)
• Decision Date: 07 February 1978
• Docket Number: 6 Div. 441
• Parties: Kenneth Wesley DICKERSON v. STATE.

Page 1045

360 So.2d 1045

Kenneth Wesley DICKERSON v. STATE.

6 Div. 441.

Court of Criminal Appeals of Alabama.

Feb. 7, 1978.

Rehearing Denied March 7, 1978.

William H. Mills, for Rogers, Howard, Redden & Mills, Birmingham, for appellant.

William J. Baxley, Atty. Gen. and James L. O'Kelley, Asst. Atty. Gen., for the State, appellee.

TYSON, Judge.

Kenneth Wesley Dickerson was charged by indictment with the first degree murder of one James Cleo Bishop. The jury found the appellant "guilty as charged," and fixed punishment at life imprisonment in the penitentiary. The trial court entered judgment in accordance with this verdict.

William L. Allen, Jr., Acting Coroner of Jefferson County, testified that he investigated a death at 8702 Third Avenue North in Birmingham, Alabama, on February 17, 1976. Allen stated that an autopsy was performed on one James Cleo Bishop at the East End Hospital by Jay M. Glass. Allen indicated that he was present during the autopsy and that Bishop died as a result of a gunshot wound to the chest. Allen testified that the gunshot wound was not a contact wound (i. e., the muzzle of the gun was not in contact with deceased's body at the time the fatal shot was fired).

Jay M. Glass testified that he was employed by Cooper Green Hospital in the Department of Pathology. Glass stated that he performed an autopsy on one James Cleo Bishop on February 18, 1976. The cause of death was due to internal bleeding as the result of a gunshot wound in the chest.

James Jerome Hartley testified that James Cleo Bishop was his wife's uncle. Hartley related that on February 17, 1976, he was at Bishop's residence. Hartley indicated that he arrived at Bishop's residence around 5:40 p. m. According to Hartley, someone called Bishop on the telephone, and then ten to fifteen minutes later the appellant drove up in front of Bishop's house near the driveway. Hartley testified that Bishop's children came inside the house and talked with Bishop. Hartley indicated that he went outside and observed the appellant in the front seat of an automobile on the passenger side near the driveway. According to Hartley, appellant's ex-wife was behind the steering wheel.

Hartley stated that the barrel of a gun was sticking up out of the front window on the passenger side of the car near the area where the appellant was seated. Hartley testified that the car doors were closed but the window on the right front side was down. According to Hartley, he shook hands with the appellant, who then told Hartley that Bishop had called his wife a "spick" over the telephone and that he was going to kill him (R. p. 47). Hartley related that about that time Bishop suddenly walked up from behind on his left hand side. Hartley testified that the shotgun was in appellant's lap and that the appellant had his hand over the trigger with the barrel sticking out of the window. According to Hartley, Bishop "bumped him" from behind as he walked up to the car, so Hartley quickly pushed him back from the car to keep the two of them separated. Words were being exchanged. Hartley stated that as he pushed Bishop away from the car his own back was turned to the appellant. At this time, according to Hartley, the shot was fired, which struck Bishop. Hartley testified that he turned back around toward the appellant and saw the gun sticking out the window of the car. Hartley then grabbed the gun and threw it down on the ground very hard. Hartley, Dickerson, and appellant's ex-wife then went into the house and called the police. Hartley testified that he then went back outside with the appellant who attempted to give mouth to mouth resuscitation to Bishop. Hartley indicated that Bishop did not have a weapon and that Bishop never touched the shotgun.

Donna Marlene Lacey testified that she lived at 8700 Third Avenue North on February 17, 1976. Mrs. Lacey stated that James Cleo Bishop lived next door. According to Mrs. Lacey, she was on her front porch grilling a steak around 5:45 p. m. that evening. Mrs. Lacey testified that an automobile drove up near Bishop's driveway about that time this same evening. Mrs. Lacey stated that the driver was a woman and that there was another person on the passenger side in the front seat. According to Mrs. Lacey, there was a child on the front porch of Bishop's home. Mrs. Lacey testified that she was twelve feet from appellant's automobile. Lacey stated that she heard a male voice call to the child to "go inside and get his God-damned mother and father."

According to Mrs. Lacey, Hartley then came outside a few minutes later and went to appellant's car. Hartley and the appellant, Kenneth Dickerson, talked about someone calling someone's wife a name. Mrs. Lacey testified that she could not see Hartley or the passenger in the car due to a column obstructing her vision. Mrs. Lacey stated that Bishop came out a short time later. After that there was a gunshot.

Darrell Robert Bishop testified that on the afternoon in question he was out in the yard playing with his sister and his cousin (Hartley's child). Bishop stated that he was the son of James Cleo Bishop, the deceased. Bishop indicated that the appellant and a woman drove up near his driveway that afternoon and that the appellant told the children to go inside and get their "chicken § daddy" (R. p. 155). Bishop testified that all of the children, including himself, went inside and talked to his father and Hartley. Bishop then went to the storm door and looked outside through the window. He stated that he saw Hartley talking with the appellant and that the tip of a gun was sticking out of the car window on the passenger side of the front seat. Young Bishop testified that his father, about five minutes later, walked up behind Hartley and sort of pushed him from behind. According to Bishop, Hartley pushed his father back away from the car at which point a shot was fired. Bishop stated that he never saw his father put his hands on the gun.

Deborah Bishop, daughter of the deceased, testified that around 5:30 p. m. on February 17, 1976, the appellant drove up near the driveway of their home. According to Miss Bishop, the appellant told her and her brother to get their "chicken § daddy" (R. p. 175). Miss Bishop related that she and her brother then went inside and talked with Hartley and her father. Miss Bishop testified that Hartley went outside and four to five minutes later her father walked outside near the car.

William J. Thomas, a police officer with the City of Birmingham, testified that on February 17, 1976, he went to 8702 Third Avenue North at around 5:55 p. m. Thomas stated that by the time he had arrived the ambulance had left with the body of the deceased. Thomas indicated that he took the appellant into custody and searched him. Thomas testified that he found two .410 gauge shotgun shells in appellant's pocket which he turned over to Officer Crocker, an evidence technician. Thomas stated that he turned the appellant over to Detective Sergeant Gaut.

William T. Gaut, Detective Sergeant with the Birmingham Police Department, testified that he went to 8702 Third Avenue North on February 17, 1976. Gaut indicated that he arrived at this address around 6:00 p. m. He observed the appellant in the back seat of Officer Thomas' patrol car. Gaut testified that he did not threaten, intimidate, coerce, or abuse the appellant in any way, nor did he offer any remuneration or hope of reward in order to obtain a statement. He informed the appellant of his "Miranda rights." Then, Gaut indicated that the appellant stated that he understood his rights, but still wished to make a statement. Gaut testified that he and the appellant were the only persons in the patrol car.

Richard Keith Crocker, an evidence technician with the Birmingham Police Department, testified that he went to 8702 Third Avenue North on February 17, 1976, at around 6:23 p. m. Crocker stated that he found a shotgun at the scene between the sidewalk and the street in front of Bishop's home. According to Crocker, the shotgun was in the same condition at trial as it was when he found it at the scene. Crocker stated that he checked the shotgun in with the front desk (i. e., property control room) and that the weapon remained there until the day before trial when he checked it out. Also, Crocker testified that he found a spent Revelation brand, five shot, .410 gauge, hull inside the shotgun which had been fired.

The appellant's motion to exclude the evidence was overruled.

Mrs. Kenneth Dickerson, the appellant's ex-wife, testified that she and the appellant had a conversation on the afternoon of February 17, 1976, concerning a telephone conversation between the appellant and another person. Mrs. Dickerson stated that she and the appellant got in the car and that she drove, but did not know where they were headed. After driving for a while, the appellant told her that Bishop had called her a name and that they were going to his home to get an apology. When they arrived at Bishop's residence, she parked the car near the driveway, and the appellant told a young child in the front yard to "go inside and get his mother and father." Mrs. Dickerson stated that when she and her ex-husband got in their car at their home she did not notice a shotgun, but she did notice this while they were driving toward the Bishop's home. Mrs. Dickerson related that Hartley came out of Bishop's home about five minutes after the young child went inside. Mrs. Dickerson stated that her husband shook hands with Hartley and then told Hartley that Bishop had called his ex-wife a name and that he wanted an apology. Mrs. Dickerson testified that her husband gripped Hartley's hand with his right hand and pointed to her with his left hand. She stated that Bishop suddenly walked up to the passenger side of the car, reached in, and slapped the appellant. After Bishop had reached inside the car, according to Mrs. Dickerson, the shotgun fired. Mrs....