Dolvin v. State

• Decision Date: 30 October 1979
• Docket Number: 8 Div. 249
• Citation: 391 So.2d 666
• Parties: Sue DOLVIN v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 666

391 So.2d 666

Sue DOLVIN v. STATE.

8 Div. 249.

Court of Criminal Appeals of Alabama.

Oct. 30, 1979.

Rehearing Denied Nov. 20, 1979.

Jerry R. Knight, Decatur, for appellant.

Charles A. Graddick, Atty. Gen., Thomas R. Allison, Asst. Atty. Gen., for appellee, the State.

BOWEN, Judge.

On the night of August 16, 1970, Charles Ray Lovett mysteriously disappeared from his home in Decatur. Seven years later his skeleton was found in Seminole County, Florida. The defendant was indicted and convicted for his murder and sentenced to life imprisonment. From this conviction she appeals alleging numerous errors in her trial including the insufficiency of the evidence to support her conviction.

On March 13, 1970, the defendant's husband, Glenn Dolvin, was indicted for the theft of Lovett's automobile. It is the State's theory that Lovett was kidnapped and murdered in order to prevent him from testifying in Glenn Dolvin's trial.

J. R. Garrett owned and operated a barber shop in a small shopping center located within two blocks of Lovett's residence. On the Sunday afternoon of July 25, 1970, Mr. Garrett observed Glenn Dolvin drive a Cadillac in front of the shopping center and park. He "didn't do anything but sit there". On August 3rd, or sometime during that week, Mr. Garrett saw Glenn Dolvin walking near Freemont Street. Charles Ray Lovett and his family lived in the second house on Freemont Street. Two or three days later, Mr. Garrett reported Glenn Dolvin's actions to a detective of the Decatur Police Department because he "thought there was a bank robbery in progress".

On the afternoon of August 16th, Glenn Dolvin asked service station attendant Rick Hames for directions to Freemont Street. This service station was also within two blocks of Lovett's house.

At 8:30 on the evening of Sunday, August 16, 1970, Lovett went to his next door neighbor's house to get his son. Other than the kidnappers, neighbor Sherlon Nagy was the last person to report seeing Lovett alive.

At 10:00 that night, Lovett called his wife at the Dairy Queen where she worked part-time. He asked her to bring him something to eat. At approximately 10:05 Mrs. Lovett carried out a plastic bag of trash. She noticed a Volkswagen of a "dark greenish" color parked next to her car and almost directly in front of the side door of the Dairy Queen. Although she was unable to identify the driver except for the fact that he was a male, she positively identified the defendant as the woman who was sitting in the passenger's seat. Mrs. Lovett testified that the defendant "kept staring" at her while she placed some fruit in her car and then walked to the Dempsey Dumpster. When Mrs. Lovett returned from disposing of the trash the Volkswagen was gone.

Debbie Garrett was fourteen years old and had gone to work with her mother at the Handy Way convenience store on the Sunday night of August 16th. This store was in the same small shopping center as Mr. Garrett's barber shop and is bordered on one end by Ashley Drive. Ashley Drive is parallel to and one block from Freemont Street. As Miss Garrett locked the ice machine outside the store she noticed a dark green Volkswagen sitting near the beginning of Ashley Drive. Although the Volkswagen's engine was running, its headlights were off. The defendant was the only person Miss Garrett observed in the Volkswagen.

Miss Garrett saw the defendant back the Volkswagen out of Ashley Drive, drive one block and turn in Freemont Street, then back out of Freemont and return to her original spot on Ashley. The defendant drove slowly and without lights. In a few minutes the defendant made the same trip again. Shortly after this second trip, Miss Garrett heard a "holler" of inaudible words. Then she saw the defendant back out of Ashley Drive and drive into the alley which ran between Ashley Drive and Freemont Street. The defendant was driving "fast" and "in a hurry". About ten seconds later, the defendant came out of the alley and drove past the shopping center at which point the headlights of the Volkswagen came on. Driving "fast" or "moderately fast", the defendant drove one block, turned around in an intersection and drove back past Miss Garrett. At this time Miss Garrett saw two men in the front seat with the defendant. The man in the passenger's seat was sitting with his back towards the car window and was facing the defendant. The man in the middle of the front seat was sitting low in the seat but was not slumped over. Miss Garrett was unable to identify or recognize either man. During these events, she did not hear any shooting or the backfiring of an automobile.

Mrs. Betty Third lived directly across from the Lovetts on Freemont Street. At approximately 10:45 that night she "heard someone hollering, 'Help, help, let me go'. And then there was a loud noise." Looking out her front window she saw a Volkswagen of a dark color "pulling slowly" in front of the Lovetts' house. She also saw a man walking between her house and her neighbors' on the neighbors' carport. She noticed a barbecue grill turned over near the Hardimans' carport. After Mrs. Third saw the automobile she assumed the "loud noise" was a backfire and did not pay much attention to anything else about the Volkswagen. When Mrs. Third went to a window facing the Hardimans' house the man was gone so Mrs. Third returned to bed. Although she did not recognize the man she testified that the stranger was not Mr. Lovett.

Henry David Hardiman was awakened from his sleep by a noise on his carport. He noticed his grill overturned but could not identify the loud noise.

Mrs. Lovett arrived home at exactly 11:05 that night. She found the wooden front door open and the storm door slightly ajar. In the house, the lights and the television were on. Her husband's shoes and socks were next to the sofa and their two infants were asleep in their beds. The shirt she had laid out for her husband to wear to work the next morning was still on the dresser but a pair of blue and white checkered pants were missing. There was no sign of disarray or of a scuffle or struggle inside the house. Mrs. Lovett checked around the yard but did not find her husband. However she was not "terribly concerned" because the storm door, which was broken and would automatically lock if closed, "had been fixed where he could get back in". Mrs. Lovett assumed that her husband was visiting a neighbor.

Mrs. Lovett initially reported her husband's disappearance to the Decatur Police Department at 12:30 A.M. that night. A second call around 1:30 A.M. began an investigation into the disappearance and ultimately the death of Charles Ray Lovett.

Mr. and Mrs. Lovett had been married for seven years and had two sons ages six and fourteen months old. They had no domestic or unusual financial problems. Mr. Lovett was a lino type operator at the Decatur Daily News. In the days before his disappearance, Mr. Lovett had been painting his house. He had finished the nursery and completed half of the living room.

On August 26, 1970, Investigator Robert E. Hancock of the Alabama Bureau of Investigation went to Key West, Florida, and found the defendant living in Tamperick Trailer Park. On the windshield of her Volkswagen was an application for a replacement license tag. Pursuant to a search warrant the Volkswagen was searched. It appeared to have new floor mats and new recapped tires. Several items were taken from the automobile for analysis by the Federal Bureau of Investigation. However, of the items taken only three revealed the presence of human blood: a cap, a brown paper bag and a map. The stains on each item were very small and the blood could not be typed.

Investigator Hancock drove the Volkswagen to Miami where it was examined at the Dade County Crime Lab. There everything was taken out of the car; they "tore it all to pieces". The evidence indicates that the Volkswagen was thoroughly searched and examined for any evidence that would indicate that Charles Ray Lovett was present in the car. Despite these efforts, nothing was found.

Lovett's house was also checked without success. No fingerprints, footprints, bloodstains or evidence that would incriminate the defendant were found.

On November 10, 1970, Glenn Dolvin was convicted for grand larceny in the theft of Lovett's automobile. His conviction was affirmed on appeal. Dolvin v. State, 47 Ala.App. 382, 255 So.2d 52, cert. denied, 287 Ala. 730, 255 So.2d 55 (1971).

On November 11, 1970, the defendant gave a statement to Investigator Hancock and asked him to verify her alibi because she had nothing to do with Lovett's disappearance. The defendant made this statement in the presence of and against the repeated advice of her attorney.

In this statement the defendant denied being in Decatur on Sunday, August 16, 1970, and denied any knowledge of or participation in Lovett's kidnapping. She told Investigator Hancock that, on August 11th, her brother, who lived in Bradenton, Florida, had been hospitalized as a result of a fight. On Saturday, August 15th, or Sunday, August 16th, he had just gotten out of the hospital and had called her in Key West.

The defendant maintained that on the Sunday morning of August 16, 1970, she and her husband left their home in Key West, Florida. In their Volkswagen they traveled to Bradenton where they spent Sunday night with her brother. On Monday they drove to Miami and rode around Miami practically all night. Sometime on Tuesday morning they were stopped by a Miami police officer who informed them that there was no tag on the Volkswagen.

On Tuesday, August 18th, the defendant and her husband stopped at a State Trooper office somewhere near Miami and got a temporary permit to drive without a license tag to Key West. After shopping and buying some clothing for the defendant's daughter, the pair returned to Key West arriving around 9:00 or 10:00 Tuesday night. Upon their return they learned of a governor's warrant for ...