Free v. State, 3 Div. 162

Decision Date09 September 1986
Docket Number3 Div. 162
Citation495 So.2d 1147
PartiesLewis Lamar FREE v. STATE.
CourtAlabama Court of Criminal Appeals

Johnnie B. Byrd, Jr., of Caffey & Byrd, Brewton, Otis Roberts, Atmore, for appellant.

Charles A. Graddick, Atty. Gen., Martha Gail Ingram, Asst. Atty. Gen., for appellee.

PATTERSON, Judge.

Appellant, Lewis Lamar Free, was convicted of the intentional murder of Bernice Harvill, in violation of § 13A-6-2(a)(1), Code of Alabama 1975. Appellant was also convicted of the attempted murder of McArthur Davis, Nellie Shook, Sherman Sanks, Robert Earl Moye, and Sherry Gibbs Morris, in violation of § 13A-4-2. The trial court sentenced appellant to a term of life imprisonment in the penitentiary on the murder conviction and a term of twenty years in the penitentiary on each conviction for attempted murder. The attempted murder sentences were to run concurrently with each other and consecutively to the life sentence for murder. Appellant appeals these convictions.

This was appellant's second trial, his first conviction being reversed by this court in Free v. State, 455 So.2d 137 (Ala.Cr.App.1984). In Free, 455 So.2d at 147, this court stated, "We must caution the prosecution that upon retrial of this case, the State must show proof of the appellant's specific intent to murder the person named in the indictment." We deem it helpful to recite the facts elicited at the second trial.

On the morning of November 20, 1981, J.D. White, the warden at Holman Prison, observed appellant park his pickup truck on the side of the road near Wet Weather Creek Bridge (hereinafter referred to as "the bridge"). The bridge is located on Highway 21, north of Atmore and just south of Holman Prison and G.K. Fountain Correctional Center. White stated that appellant was seated behind the steering wheel of the vehicle and was the only occupant. White testified that, when he saw appellant, he thought appellant was a deer hunter, and because the land in that area belonged to the prison, White pulled off the road. Appellant's vehicle "moved on." White then continued on to his destination. Approximately six to ten minutes later, while he was listening to his car communications radio, White heard that there was shooting at the bridge.

Sherman and Mergle Sanks were traveling south on Highway 21, when they observed a pickup truck parked by the side of the road near the bridge. Mr. Sanks, who was driving, observed that the driver's door of the truck was open, and that appellant was standing beside the door with a rifle in his hands. Mrs. Sanks stated, "[T]he man is going to shoot." Mr. Sanks watched as appellant "raised the gun, but he didn't fire right away." When the Sanks vehicle was approximately sixty yards from appellant, he fired the rifle. A bullet struck the Sanks vehicle "right above the grill" on the driver's side. The Sanks vehicle stalled, and Sanks placed it in neutral and let it roll across the bridge past appellant. Mr. and Mrs. Sanks escaped in another person's vehicle.

John and Nellie Shook were traveling north on Highway 21, when they observed appellant's vehicle parked on the side of the road. Mr. Shook stated that he noticed nothing unusual until there "was an explosion in my car." Mr. Shook initially began to stop his vehicle, but his wife said, "Somebody is shooting at us." A bullet had entered the back window of the Shook vehicle, hit the top of Mrs. Shook's ear, and exited the front window of the vehicle. Mr. Shook saw blood coming from his wife's ear. They proceeded to the top of the hill, where they encountered a uniformed prison guard and "some prisoners."

Glenn A. Williams was traveling north on Highway 21 with five members of his family. The passengers in Williams's vehicle were his wife, Ann Williams (seated on the passenger side of the front seat); his niece, Teresa Blair (seated in the left rear seat); his mother, Myrtle Williams (seated in the center rear seat); his sister, Bernice Harvill (seated in the right rear seat); and his great-niece, Candida Harvill (seated in Bernice Harvill's lap.) Williams saw appellant sitting in his vehicle "facing out looking right at me." Appellant then got out of his vehicle, and Williams "saw a gun come down out of the air" and the gun was aimed down the road "ahead of where I was going." Initially, appellant did not aim directly at the car. Mrs. Williams watched appellant as they drove past him, and as they passed, Mrs. Williams stated, "He is going to shoot." Mr. Williams then instructed the occupants of his vehicle to "duck." A shot was then fired through the right rear window of the vehicle. This bullet struck and killed Bernice Harvill.

Robert Earl Moye was traveling south on Highway 21 in his employer's "L.P. gas truck." Moye stated that he observed cars stopped at the top of the hill near the correctional center and that someone tried to stop him, but he ignored him. Moye saw appellant exit his vehicle with a "gun." Moye stated that appellant aimed "his gun across the highway," and he thought that appellant was preparing to shoot a deer, because it was deer season. Moye slowed his vehicle and then suddenly appellant turned and pointed the gun at Moye. Moye was alone in his vehicle and it appeared to him that appellant was aiming the rifle directly at him. Appellant then "started doing something with his gun." Moye lay down in the seat, and his truck struck the bridge. After crossing the bridge, Moye heard the gun fire, although he did not actually see the rifle when it was fired. No bullet holes were found in Moye's vehicle. Moye got to the top of the hill and started stopping traffic.

Sherry Gibbs Morris was traveling alone in her vehicle, south on Highway 21 when she observed appellant standing beside his vehicle "holding a gun." Morris stated that the weapon was pointed toward her vehicle and that she got down in the floorboard as she approached appellant's position. Morris heard a shot, but it did not strike her vehicle. On cross-examination, when pressed by defense counsel about where the weapon was aimed, Morris stated that the "gun was pointed at me."

Investigator McArthur Davis, of the Alabama Department of Corrections, was in his office at Fountain Correctional Center when he received a radio request from a prison farm office for assistance and an ambulance. Davis drove to the scene and observed cars stopped near the correctional center entrance. Davis collected his weapons and proceeded toward the two vehicles near the bridge. Davis did not know from which vehicle the shots were fired, and he first proceeded to the Sankses' abandoned vehicle. Davis stopped near the Sanks vehicle; then he heard a gunshot, and a bullet hit his vehicle. Davis lay down in the seat of his vehicle, and he then heard a second shot. Davis then looked over the dashboard of his vehicle and saw a gun barrel protruding from appellant's truck and steam coming from under the hood of Davis's own vehicle. According to Davis, "I was just in the right place to be shot," so he placed his vehicle in reverse and backed across the road, stopping at a point directly behind appellant's truck. A third shot was fired. Appellant's truck had a screen over the rear window and Davis could not see inside the truck. Davis got out of his vehicle and took a position at the rear of the vehicle. A fourth shot was fired, and Davis fired back. During the next ten minutes, five or six more shots were fired by appellant, and Davis returned fire on each occasion. Appellant then waved his hand from his position in the truck. Davis used the public address system in his vehicle to order appellant out of his truck, and he instructed him to lie down in the road. Appellant waved his hand again, but he did not comply with Davis's instructions. Appellant then fired his rifle several more times, and Davis returned fire on each occasion. The total exchange between appellant and Davis lasted approximately fifteen minutes.

When the Atmore police arrived, Davis had not sighted appellant for approximately two minutes. The Atmore police approached appellant's truck and opened the doors. Davis approached and saw appellant lying facedown on the floorboard of his truck with the rifle lying under him. Police authorities recovered a .30/.30 lever action rifle, an empty ammunition box, nineteen spent hulls, and one bent live round of ammunition.

Officer Jimmy E. Helton, of the Atmore Police Department, was present when appellant was removed from his truck. He testified that appellant, while in his truck, stated, "I have no other guns." Appellant was searched, and no weapons or drugs were found on his person. Fourteen empty beer cans were found in appellant's truck, along with eighteen unopened cans of beer. Appellant had sustained a "very minor" buttocks wound and was transported to Greenlawn Hospital at approximately 10:30 a.m. Appellant was twice informed of his Miranda rights, and, according to Helton, he appeared to be "completely" in control of his faculties. While at the hospital, appellant stated, "I don't know them" and "I was mad," referring to the shootings at the bridge.

Investigator Ronnie Cribbs, of the Alabama Bureau of Investigation, in the presence of Investigator James Dixon, interviewed appellant at the Atmore City Jail. Cribbs and Dixon arrived at appellant's cell at approximately 5:00 p.m., where appellant was sleeping. Appellant was taken to an interview room. He was informed of the charges pending against him and given his Miranda rights. Appellant then made a statement to the officers. Cribbs and Dixon stated that they did not detect the odor of alcohol on appellant, nor did appellant appear to be under the influence of drugs. Appellant's statement was written down by Dixon, and after it was read to, and by, appellant, he signed the statement. Appellant's statement was as follows:

"I left Greenville Thursday night around 8:00 p.m. I went to Pascagoula, Mississippi, to see my son who is 6...

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