Duncan v. State

Citation436 So.2d 883
Decision Date29 March 1983
Docket Number8 Div. 515
PartiesLloyd DUNCAN v. STATE.
CourtAlabama Court of Criminal Appeals

T.J. Carnes, and William C. Gullahorn, Albertville, for appellant.

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

HARRIS, Judge.

Appellant was indicted and convicted under a two-count indictment charging him with two separate capital felonies: (1) the nighttime burglary of an occupied dwelling when one of the occupants was intentionally killed, and (2) with murder in the first degree wherein two persons were intentionally killed by one or a series of acts. These offenses are codified at Code of Alabama, §§ 13A-5-31(a)(4) and 13A-5-31(a)(10) (1975) as part of Alabama's Death Penalty Statute as it has been interpreted by our Supreme Court in Beck v. State, 396 So.2d 645 (Ala.1980).

Omitting its formal parts the indictment reads as follows:

"The Grand Jury of said County charge that before the finding of this Indictment, Lloyd Duncan, whose name to the Grand Jury is otherwise unknown, did on, to-wit: February 13, 1980, in the nighttime, with intent to commit a felony, to-wit: Murder, knowingly and unlawfully break into and enter an inhabited dwelling, to-wit: a mobile home, the property of Eva Sims, which was occupied by Eva Sims, Eric Sims and Neal Sims, persons lodged therein, and while effecting entry or while in the inhabited dwelling or in immediate flight therefrom, said Lloyd Duncan was armed with a deadly weapon, to-wit: a 22 caliber rifle, and during the course of said nighttime burglary, Lloyd Duncan did intentionally cause the death of another person, to-wit: Eva Sims, by shooting her with a 22 caliber rifle, in violation of § 13A-5-31(a)(4) of the Code of Alabama, as last amended, against the peace and dignity of the State of Alabama.

"COUNT II

The Grand Jury of said County charge that before the finding of this indictment, Lloyd Duncan, whose name to the Grand Jury is otherwise unknown, by one or a series of acts, did on, to-wit: February 13, 1980, unlawfully and with malice aforethought, intentionally cause the death of another person, Eva Sims, by shooting her with a 22 caliber rifle, and did unlawfully and with malice aforethought, intentionally cause the death of another person, Eric Sims, by shooting him with a 22 caliber rifle, in violation of § 13A-5-31(a)(10) of the Code of Alabama, as last amended, against the peace and dignity of the State of Alabama."

The jury returned two separate verdicts in this case finding appellant guilty as charged under each count in the indictment. A sentence hearing was then conducted pursuant to the sentencing procedures outlined in Beck, supra. After considering the aggravating and mitigating circumstances, the jury was unable to agree on a sentence of death for either of the capital crimes it determined appellant had committed. Accordingly, the trial court sentenced appellant to two terms of life imprisonment in the penitentiary without parole, the terms to run consecutively.

Appellant is represented on appeal by the same court-appointed counsel that represented him in the circuit court. He has also been furnished with a free transcript.

There is no question that appellant killed Eva Sims, her four-year-old son, Eric, and wounded her eight-year-old son, Neal, inside Ms. Sims' mobile home on the night of February 13, 1980, by shooting them with a .22 caliber rifle. The stage was actually set for this senseless tragedy some two and a half years earlier, however, when appellant was indicted and convicted for the rape of Eva Sims. A transcript of the rape trial has been included in the record before us; it was admitted into evidence during the sentencing phase of the instant trial as part of the aggravating and mitigating circumstances for the jury to consider. Attempts by appellant to have the prior transcript admitted during the guilt determining phase were disallowed by the trial court.

For purposes of this opinion it is only necessary to set out that the evidence presented at the rape trial was conflicting. Ms. Sims maintained that, during the early morning hours of May 15, 1977, appellant broke into her house and raped her. Appellant's version was that Ms. Sims consented to having sexual relations with him that night as she had on several prior occasions. The jury resolved the issues unfavorably to appellant and fixed his punishment at ten years' imprisonment. As it is not the function of this court to reweigh evidence decided by the jury, Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1978), cert. denied, 368 So.2d 877 (Ala.1979), appellant's conviction for the rape of Ms. Sims was affirmed. Duncan v. State, 355 So.2d 745 (Ala.Cr.App.1978). Appellant served twenty-two months of the ten year sentence and was placed on parole.

Upon being paroled appellant returned to his parents' home in the High Point community to live on January 7, 1980. After his return home, appellant's family noticed a discernible change in his personality. Appellant "acted like he was worried" and "didn't want to talk to nobody." He made frequent trips from the house to the field for no apparent reason on almost a daily basis. "He seemed to be withdrawn" and he never mentioned Eva Sims. This behavior continued until the night appellant committed the present offense.

Ron C. Foster testified that he arrived at Eva Sims' mobile home "just to visit" her around 7:30 p.m. on February 13, 1980 1. Foster stated that "no one was there except Eva." He testified that they "talked" and watched television. Foster had been to Ms. Sims' mobile home on five or six occasions. He described their relationship as "just friends, good friends."

Around 8:15 p.m. Foster testified that Ms. Sims' Doberman dog began to bark outside the mobile home. He opened the back door, but didn't see anyone or any movement. Shortly after 8:30 p.m. Ms. Sims' sons, Neal and Eric, were delivered home by Ms. Sims' parents. The boys had gone to visit their grandparents around 5:30 p.m. that afternoon. Ms. Sims' parents' home was located approximately one hundred yards from her mobile home. Neal and Eric took their baths, watched television and went to bed around 9:00 to 9:15 p.m.

Foster remembered leaving Ms. Sims' mobile home at 9:27 p.m. Foster stated that Ms. Sims was "sick" in bed experiencing "one of those monthly things." He handed her a pistol which she placed under her pillow just before he left. Ms. Sims' bedroom and her sons' bedroom were at opposite ends of the mobile home. Foster testified that he was driving a light tan El Camino pickup truck.

Neal Sims, who was nine years old at trial, testified that he and Eric had gone to sleep in their bedroom when they were awakened by their mother. "She come in yonder and wanted us to get up ... said, boys, get up, somebody's breaking in." Neal stated that he next saw a man standing at the doorway to his bedroom and that his mother "shot at him" with her pistol. Neal testified that the man then "starting shooting." He and Eric were "in the bed" and his mother was "on the bed" when appellant began firing. Neal further testified that the overhead light to their bedroom had been turned out when he and Eric went to sleep. The only light in the bedroom came from an adjoining bathroom where the door had been left cracked.

After the shooting ended, Neal realized that he had been hit by bullets in several places including his chest. Appellant asked Neal where the car keys were to his mother's car, but was unable to crank the car. Neal remembered appellant making him lie down and putting a blanket over him and telling him "he was gonna go get help."

Eva Sims' mother, Nora Bowden, testified that she went home after taking Neal and Eric back to her daughter's house trailer. Later that evening Mrs. Bowden heard dogs barking and gunshots from the direction of her daughter's trailer. She attempted to call Eva but "didn't get any answer." Mr. and Mrs. Bowden then drove to the trailer and saw Neal "standing in the door." Mrs. Bowden discovered Eva and Eric in the bedroom.

Mrs. Suzanne Thomas, a registered nurse, testified that she worked the night shift at Guntersville Hospital on February 13, 1980, and that she saw Chief Deputy Lacy Galloway of the Marshall County Sheriff's Department with appellant in the emergency room around 11:10 p.m. Mrs. Thomas assisted in treating appellant for cuts to his arms and a superficial gunshot wound to his abdomen. She described appellant as an "excited and disturbed individual" who was "both verbally and physically active." "He kept asking how were the children, how were the children, I didn't mean to hurt the children." Mrs. Thomas stated that appellant referred to the woman who was killed as a "whore."

Chief Deputy Galloway testified that he first saw appellant on the night of February 13, 1980, in the emergency room at Guntersville Hospital. "He was doing a lot of talking." At that time Galloway advised appellant of his constitutional rights under Miranda and repeatedly told appellant "to not talk about it." Despite the repeated warnings appellant made a statement in the emergency room "that he meant to kill Eva Sims." Appellant was very concerned about the children. "He said he didn't know the kids was in the house." Galloway and appellant left the hospital around 12:30 a.m. on February 14.

Appellant was transported directly to the Sheriff's office where Galloway again fully advised appellant of his constitutional rights. Shortly after being advised of his rights for a second time, appellant requested to telephone his father. The following telephone conversation between appellant and his father was recorded and its transcription, State's exhibit 72, was admitted without objection.

"Lloyd Duncan's telephone conversation with his father, Underwood Duncan

"Duncan: And she shot at me with...

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