Ellenburg v. State
| Decision Date | 15 November 1977 |
| Docket Number | 6 Div. 529 |
| Citation | 353 So.2d 810 |
| Parties | Bobby Joe ELLENBURG v. STATE. |
| Court | Alabama Court of Criminal Appeals |
H. C. Wiley, Jr., and Philip A. Laird of Elliott, Laird & Wiley, Jasper, for appellant.
William J. Baxley, Atty. Gen., and John B. Rucker, III, Asst. Atty. Gen., for the State.
Bobby Joe Ellenburg was charged by indictment with murder in the first degree. The appellant entered pleas of not guilty by reason of self-defense, by reason of temporary insanity, and by reason of insanity. The jury found the appellant guilty of murder in the second degree and fixed his punishment at twenty years in the penitentiary. The trial court then entered judgment in accordance with this verdict.
Patsy Holley testified that she was the daughter of the deceased, Clyde D. Morton. Holley identified State's Exhibit "B" as a work shirt belonging to the deceased.
Paul Ellenburg testified that he was appellant's brother. Ellenburg stated that on May 16, 1976, around 9:00 a.m., the appellant and his wife came to his home. According to Ellenburg, he and the appellant drank wine and beer until around 11:30 a.m., at which time the two of them left and went into the woods where they drank a half case of beer. Around 2:30 p.m., Ellenburg testified the two of them left and drove to appellant's mother's home. On the way, according to Ellenburg, they picked up the deceased, Clyde Morton. When the three of them arrived at appellant's mother's home, Ellenburg testified, he went inside, got a drink of water, and the three of them drove over to see a bootlegger where they purchased some whiskey. The appellant and Morton, according to Ellenburg, drank the whiskey.
While the three of them were driving around in appellant's car, Ellenburg testified, the appellant accused Morton of throwing his shoe out the car window. According to Ellenburg, the appellant called Morton a liar and stopped the car. The appellant and Morton, Ellenburg stated, got out of the car and Morton knocked appellant to the ground. The appellant got up, according to Ellenburg, grabbed Morton by the hair and knocked Morton to the ground. Next, the following occurred (R. pp. 341-343):
After leaving Mary Logan's house, Ellenburg testified, he and the appellant drove over to Venon Lawson's house. According to Ellenburg, the appellant took the deceased's clothes inside Lawson's house and told Lawson and his family that he must have killed Morton. The appellant and Ellenburg then left and went to pick up appellant's wife at a friend's home. After picking up Ellenburg's wife, Ellenburg testified, they drove to his (Ellenburg's) home. As they were entering the driveway, Ellenburg stated, the police drove up and the appellant ran. Ellenburg testified that appellant's knuckles on his right hand were very swollen.
James M. Buttram of the State of Alabama, Department of Toxicology, testified that he performed an autopsy on Clyde D. Morton. Buttram stated that the autopsy revealed significant injuries, such as a fractured hyoid bone, fractured ribs, cuts and abrasions, hemorrhages to the brain, and a laceration of the liver. Buttram testified that the cause of death was attributable to multiple blunt force damage to the body (i. e., foot or fist). Buttram stated that both the laceration to the liver and the damage to the neck region were potentially fatal wounds.
Donnie Richards testified that on March 16, 1976, around 10:00 or 11:00 a.m., George Rainey, Venon Lawson, Billy Loftin, Gene Pearson, and he met the appellant and Ellenburg at Lawson's house. Richards stated the appellant and Ellenburg left, but returned late that evening. The appellant, Richards testified, came in with a bundle of clothes in his arms which Richards identified as State's Exhibit "B." Appellant, according to Richards, stated that he didn't know whether or not he had killed Morton. Richards testified that appellant exhibited his hand to him, pointing out the fact that it was very swollen. During the examination of Richards, the following occurred (Vol. III, R. p. 436):
Frank Cole, Deputy Sheriff of Walker County, testified that he found the deceased's body, nude, in a wooded area. Cole stated that he drove over to Paul Ellenburg's house and saw an automobile with three occupants inside backing out of the driveway. Cole told the occupants to place their hands on the dashboard, which Paul Ellenburg and his wife did, but the appellant ran. Deputy Sheriff Cole stated that appellant was apprehended approximately twenty-five minutes later.
Charles Binkley of the Walker County Sheriff's Department testified that he read the appellant his Miranda rights, and that the appellant stated that he understood them. Binkley stated that the appellant also signed a voluntary statement form after which he made a written confession, attaching his signature thereto. The trial court ruled that the written confession was inadmissible due to the fact that Binkley could not remember whether or not he read the statement back to appellant, word for word, before the appellant signed his name thereto.
Dr. Annette Brodsky, Associate Professor with the Department of Psychology at the University of Alabama in Tuscaloosa, testified that she was familiar with a disease known as psychomotor epilepsy or temporal lobe epilepsy. Dr. Brodsky stated that the cause of the disease can be traced to some type of organic brain damage or a blow to the head. According to Dr. Brodsky, the disease can cause a person to pass out and not be aware of his actions upon recovery. Dr. Brodsky testified that she was familiar with hypoglycemia. According to Dr. Brodsky, hypoglycemia is a medical term used to describe someone with an abnormally low blood sugar level. Dr. Brodsky testified that hypoglycemia could trigger a psychomotor epileptic attack, resulting in violent conduct. Dr. Brodsky stated that she could not unequivocally state that appellant was suffering from an epileptic condition. On cross-examination Dr. Brodsky indicated that there were "some signs of psychomotor epilepsy." Dr. Joseph Wooddial, Psychiatrist at Bryce Hospital, testified that he agreed with the testimony given by Dr. Brodsky. Also, according to Dr. Wooddial, over fifty per cent of the inmates serving sentences in state institutions are suffering from hypoglycemia. In his direct testimony, Dr....
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...upon an undisputed matter. Hines v. State, Ala.Cr.App., 365 So.2d 320, cert. denied, Ala., 365 So.2d 322 (1978); Ellenburg v. State, Ala.Cr.App., 353 So.2d 810 (1977). The fact that a photograph is gruesome and ghastly is no reason for excluding it, if relevant, even if the photograph may t......
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