Edwards v. State
| Decision Date | 29 June 1982 |
| Docket Number | 1 Div. 335 |
| Citation | 452 So.2d 487 |
| Parties | Ervin EDWARDS, alias v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Michael A. Figures and Merceria L. Ludgood, Mobile, for appellant.
Charles A. Graddick, Atty. Gen. and Thomas R. Allison and Edward E. Carnes, Asst. Attys. Gen., for appellee.
The appellant was indicted by the Mobile County Grand Jury in October 1979 for the capital murder of Mobile police officer, Henry Booth, in violation of Ala.Code § 13-11-2(a)(5) (1975). A new trial pursuant to the decision of Beck v. State, 396 So.2d 645 (Ala.1981), was conducted and appellant was found guilty as charged.
After a separate hearing on aggravating and mitigating circumstances, the jury returned a verdict fixing appellant's punishment at death. The trial court weighed the aggravating and mitigating circumstances pursuant to Code § 13-11-3 and sentenced appellant to death. Afterwards, the trial court issued both oral and written findings of fact which enumerated the aggravating circumstances the trial court found sufficient to support the sentence of death. 1
Mobile Police Officer William Noel testified that on August 14, 1979, he was patrolling the area adjoining Officer Booth's beat. Around 7:20 P.M. on August 14, Noel saw Booth at a local business answering a complaint. Noel had been assigned as a backup for Booth. Booth was investigating a complaint concerning an individual wanted on an outstanding warrant of arrest for misdemeanor assault with a gun. Information was radio dispatched to Officers Noel and Booth stating the name and telephone number of an individual who could assist them in locating the suspect. Noel had previously attempted to locate the same suspect, who at that time had been armed with a .45 caliber automatic pistol. The individual was the appellant. Noel testified that Booth was privy to all the above information.
Officers Noel and Booth proceeded to a residence located in the Plateau community of Mobile where they had been informed that they would find appellant. Both officers had a description of appellant as being in his early thirties, of medium build, having a bushy moustache, and wearing dull green work clothes. Noel arrived at the house immediately after Booth and was told by Booth that he had seen the suspect run into the house. With the consent of the residents, the officers searched the house but did not find the appellant. Shortly thereafter, both officers were dispatched to another location to answer an unrelated complaint. Later, Noel told Booth that he was going into town and Booth replied that he was going to continue looking for appellant. They parted company around 7:45 P.M.
Approximately five minutes later, Noel was dispatched to back up Booth. He had overheard the conversation between Booth and the dispatcher on his police radio and stated that Booth's transmission was hurried and rushed. It appeared to him that Booth was a little excited. About three to four minutes later, Noel arrived on the scene to find Officer Booth's patrol car's engine running, its headlights and blue lights on, and both left side doors open. He was directed to the body of Booth, lying in a pool of blood, in an alley between two houses. Noel testified that Officer Booth's gun, flashlight, and nightstick were not in his belt. He found the nightstick on the front seat of Booth's patrol car and the flashlight under it on the left side near the center post separating the doors. Noel stated that it was not yet dark when he arrived.
Noel testified that on August 14, neither he nor Booth had the outstanding warrant of arrest for appellant with them. However, the police dispatcher had informed them that it had been verified and was in the police records section. Noel testified that one cannot be arrested for a misdemeanor offense without having the arresting officer present the accused a warrant of arrest unless the crime is committed in the officer's presence.
Noel testified that the type of holster worn by Officer Booth had more safety features than a conventional holster. He Nolan Curtis Martin testified that on August 13, 1979, he and appellant had a fight during which appellant pulled a gun on him. On the morning of August 14, Martin had issued a warrant of arrest for appellant at Mobile City Court. Later that evening, Martin called the Mobile Police Department to lodge another complaint against appellant. Shortly thereafter, he received a telephone call from a Mobile police officer inquiring of the whereabouts of appellant. Subsequent to Officer Booth's death, Martin received another telephone call from the Mobile police and afterwards, Officer Noel visited Martin and took a statement from him.
stated that to remove the service revolver one would have to use a "down-forward motion."
Michael Burrell testified that he was present during the altercation between Officer Booth and appellant which resulted in Booth's death. He stated that he and Dan Prince were in Prince's car leaving the home of Gwen James, who was Prince's girlfriend, when appellant walked up and asked Prince for a "ride on the highway." Appellant did not tell them where he wanted to go. Burrell left the front seat and entered the rear seat while appellant sat in the front. As Prince was exiting James' driveway, a police car arrived and stopped the car. Both Prince and Officer Booth exited their vehicles and talked. Officer Booth asked Prince for his driver's license and was placing him in the back seat of the patrol car when he and appellant got out of the car. He asked Prince who was with him and afterwards called to appellant and told him that he had a warrant for his arrest. Burrell stated that appellant asked to see the warrant but was never shown it. Officer Booth told appellant to come to him, stating, "Come here boy." Appellant refused, telling Booth to come to him. Appellant opened his jacket apparently to let Booth see that he was not armed. Appellant had offered to move Prince's car out of the street, but Officer Booth would not let him. Instead, Gwen James moved the car.
Subsequently, Officer Booth approached appellant, grabbed him, and took him to his patrol car. The two began to scuffle as Officer Booth attempted to put appellant in the car. It was only after appellant refused to get in the car that Officer Booth hit him with his flashlight. The scuffle continued and moved to the alley near James' house. The two began to fight over control of Officer Booth's service revolver, a .357 caliber Smith and Wesson, which the officer was attempting to remove from his holster. The two fell on the ground and Officer Booth told appellant to let go of the gun which appellant refused to do. Shortly thereafter the gun discharged. Burrell ran when the gun fired, and did not see anything further.
Gwendolyn James testified that she was visiting Stella Smith, a neighbor who lived across the street, when the patrol car stopped her boyfriend, Dan Prince. James stated that appellant resided about five houses away. She overheard the conversation concerning Prince's failure to have a driver's license. James said that when she began to move Prince's car, Burrell and appellant got out of the car. Appellant began to walk toward his house and away from Officer Booth. Booth called twice for appellant to come to him. Appellant was asked his name to which he replied, "Tater Bow." After James left Prince's car, she saw appellant and Officer Booth begin to fight and saw Booth hit appellant with his flashlight. James stated that prior to the fight, she heard Officer Booth call for assistance. James saw Booth attempting to remove his service revolver and holding appellant against the car. She stated that appellant "put his hand on top of [Officer Booth's] to try to ... hold it down in there." James did not see the gun drawn or fired although she heard it discharge when she ran from the scene.
Dan Prince testified that he remembered being stopped by Officer Booth on August 14. He recounted in substance the events surrounding the stopping of his car as had been done by the other State's witnesses. Prince stated that when appellant got out of his car, he did not walk away. He Mobile Police Officer Walter Pickett testified that around 8:00 A.M. on August 15, 1979, he received a telephone call from Officer Sammy Brown informing him that appellant was going to surrender. Subsequently he met Brown, two other police officers, and Virginia Bryant. Bryant had told the officers that appellant wanted to surrender and was to lead them to him. When the police arrived at the location where Bryant had said appellant would be found, appellant walked to Officer Pickett's car, knocked on the window and entered the right side passenger door. He turned Officer Booth's gun over to Pickett. After being handcuffed he was taken to the police station.
stated that Booth told appellant he had a warrant for his arrest and appellant walked toward him. Booth had unstrapped his revolver while calling him. Prince stated that the two began to struggle as Booth attempted to place appellant in the rear of the patrol car. He stated that Booth knocked appellant to his knees with his flashlight. During the struggle the appellant was attempting to prevent Booth from drawing his revolver. He testified that appellant asked Booth not to hit him. Appellant was holding Booth's wrist as they struggled over the gun. Prince testified that Booth told appellant to "turn [the gun] loose." He stated that Booth fell on top of appellant but appellant used his legs to prop against a house wall and turn Booth over. Prince stated that at one point the gun was pointed at appellant's face, and when appellant shoved it out of his face it discharged. Afterwards, the appellant hesitated for a few moments, then fled. Prince stated he did not see appellant with the gun
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