Fordham v. State

Decision Date09 September 1986
Docket Number7 Div. 492
Citation513 So.2d 31
PartiesRonald Ray FORDHAM v. STATE.
CourtAlabama Court of Criminal Appeals

Clarence F. Rhea of Rhea, Boyd & Rhea, Gadsden, for appellant.

Charles A. Graddick, Atty. Gen., J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.

TAYLOR, Judge.

The appellant, Ronald Ray Fordham, was indicted for the murder of Allen White. He was subsequently tried and convicted, and was sentenced to a term of life imprisonment.

The record indicates that the appellant and White had a history of violent confrontations with each other. Testimony indicates that on the first such occasion, the appellant stopped his truck to give White a ride. After White got in the truck, he asked the appellant if he could have a beer out of a case of beer which was located in the bed of the truck. Appellant told White that the beer was not his. At this point, White reached in his back pocket or in the back of his belt and pulled out a .38 caliber pistol, which he pointed at the appellant.

On the second occasion, the appellant stopped his truck on the side of the road to speak to a "friend" named Gary Richard Morgan. Clarence Price and White were with Morgan at this time. Testimony by Morgan and appellant indicates that soon after he stopped and they started talking, White and Price attacked appellant. Appellant was knocked to the ground, where, he testified, that he could "feel the guys beating the soup out of me." Appellant apparently lost consciousness, and when he regained it, White had a knife at his throat. White then went around the truck and took out Morgan's 16 gauge shotgun and White was told by Price that "You're a chicken son-of-a-bitch if you don't shoot him." Appellant testified that he feared for his life but that Morgan grabbed the shotgun away from White.

A third confrontation occurred on the same night as the second incident mentioned above. Testimony indicates that appellant was at home with his wife when White burst through his door. Appellant's wife asked White what was wrong and he said, "Shut up, you bitch." Appellant asked White to apologize to his wife and he responded that he was not going to apologize "to no God damn body." Appellant and White then got into a fight. Appellant apparently got White into a choke hold, forced him to apologize to his wife, and then forced him to leave. White, soon thereafter, returned and pulled a knife on appellant. Appellant was able to convince him that he should leave.

Testimony indicates that during each of the above mentioned altercations, testimony indicates that White was intoxicated and appellant was unarmed. It is also established that White had a general reputation in the community for committing violence when he was intoxicated.

On October 18, 1984, appellant took his wife, who was eight and a half months pregnant, to pick up her car from his father's house. Appellant had been married to her once before for a period of six or seven years, and then they had divorced. She then married Allen White's father and was married to him for one year before they divorced. At the time of this incident she was again living with appellant as his common law wife and had been for some months.

Appellant and his wife stopped at the Hilltop service station, which is directly across the street from his father's house, so that he could put gas in his van. White, who was intoxicated, approached appellant and told him that he wanted to talk to him. Appellant told White to go ahead and talk, but White said that they could not talk at the service station. White asked appellant if he would be home later and appellant responded that he would. Appellant then left with his wife.

The appellant then took his wife across the street to pick up her car. After doing so, they proceeded home with appellant in the lead.

Appellant testified that, upon arrival at his home, and while his wife was still driving up the driveway, he got out of his van and went up to his door to unlock it. Just as he reached his door and was about to unlock it, he heard White say "Don't you open that God damn door." White had been driven to appellant's cabin by Robert McElroy and Mark McElroy, who both remained seated in their car.

Apparently, appellant's wife drove up in the meantime. She testified that White asked her "nice" how she was doing, and then asked her if their dog would bite. She said that when she told him that it would not, he then turned around to face appellant, and that, as he turned his whole facial expression changed" and he then approached the appellant.

Appellant then talked to White from a distance and repeatedly asked White to leave, but White stated that he would not, and that they had a score to settle. Appellant turned his back and walked into the house and picked up his 30.06 rifle from behind the door.

When appellant emerged from the house with the rifle, he again asked White to leave and told him that he did not want any trouble. When White refused, appellant fired a "warning shot" to the right of White's feet. Appellant again asked White to leave, and he responded, "I ain't got to do a damn thing."

White then stated, "Me and my Daddy's going to settle this with you once and for all." White, who had been holding his hands behind his back during the entire conversation, then took a step towards appellant, and appellant shot and killed him. White was unarmed.

Appellant was subsequently convicted of murder and was sentenced to life imprisonment. It is from this conviction and sentence that he now appeals.

I

The appellant contends that his sentence of life imprisonment is excessive. In view of the considerable evidence on self-defense, it may appear that the punishment is too severe; however, we note that murder under § 13A-6-2, Code of Alabama 1975, is a Class A felony. Section 13A-5-6, Code of Alabama 1975, provides that a Class A felony in which a firearm is used requires a minimum sentence of 20 years and carries a maximum of life imprisonment.

When a sentence imposed by the trial court is within the minimum and maximum range provided by our statutory law, this court will not overturn the sentence unless there is clear abuse by the trial court. Tombrello v. State, 421 So.2d 1319 (Ala.Cr.App.1982); Williams v. State, 456 So.2d 852 (Ala.Cr.App.1984).

II

Appellant next contends that there was a lack of evidence to show that he had an intent to kill White. Intent to kill can be inferred from the character of the assault, use of a deadly weapon and other attended circumstances. Fears v. State, 451 So.2d 385 (Ala.Cr.App.1984); Johnson v. State, 390 So.2d 1160 (Ala.Cr.App.), cert. denied, 390 So.2d 1168 (Ala.1980); Tucker v. State, 383 So.2d 579 (Ala.Cr.App.), cert. denied 383 So.2d 586 (Ala.1980).

In this case, we believe that the necessary intent to kill can be inferred from the fact that appellant had already fired a "warning shot" at White's feet, the fact that the second shot came after White stepped toward appellant, and the fact that to accomplish the second shot, the appellant had to raise the rifle from some downward pointing position to point it at White.

III

Appellant contends that the trial court erred in restricting defense counsel from arguing the punishment aspect to the jury. Punishment in non-capital cases is properly left to the discretion of the trial judge. It should not be argued to the jury. Warden v. State, 468 So.2d 203 (Ala.Cr.App.1985); Pruitt v. State, 457 So.2d 454 (Ala.Cr.App.), cert. denied, 457 So.2d 456 (Ala.1984); Yancey v. State, 446 So.2d 686 (Ala.Cr.App.1983).

IV

Appellant contends that it was error for the trial court to reserve a ruling regarding the admission of evidence derived from White's autopsy which indicated his degree of intoxication. The record, however, fails to show any instance where appellant attempted to introduce this information at trial. Without such an attempt, and a formal ruling by the trial court, there is nothing for this court to review. If appellant had attempted to introduce this evidence, it would have been relevant on the issue of self-defense. Wood v. State, 347 So.2d 1001 (Ala.Cr.App.), cert. denied, 347 So.2d 1005 (Ala.1977).

V

Appellant contends that the trial court erred in granting the State's challenge of prospective jurors. Debra S. Lovell and Violet Smith. The trial court apparently granted the State's challenges to both jurors because both jurors indicated that they would be unable to follow the court's instructions regarding the applicable burden of proof, and stated that they could not convict the appellant unless they were "100%" convinced of his guilt. It is fundamental that the applicable burden of proof on the State in a criminal trial is proof beyond a reasonable doubt of every material ingredient of the crime charged. Piano v. State, 161 Ala. 88, 49 So. 803 (1909); Robertson v. State, 36 Ala.App. 117, 53 So.2d 575, cert. denied, 256 Ala. 113, 53 So.2d 576 (1951).

Where, as here, jurors insist on following their own burden of proof requirements and are unwilling to follow the instructions of the trial court, they may be properly challenged. Here, we find no error by the trial court in granting the challenge.

VI

Appellant next contends that the trial court erred in denying defense counsel's challenge of juror Tucker. The applicable portion of the record was as follows:

"MR. WOODROW: Your Honor, for--if we can reopen this we would also move to challenge Steve Tucker, the police officer who stated because he was a law enforcement official he couldn't render a fair and impartial verdict.

"THE COURT: He didn't state that. I asked him that and he said no, that isn't what he said.

"MR. WOODROW: He did state that because he was a police or law enforcement official he shouldn't sit on the jury.

"THE COURT: Officer Tucker, step up here, just a...

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