Gamble v. State

• Decision Date: 15 August 1972
• Docket Number: 7 Div. 144
• Citation: 266 So.2d 817,48 Ala.App. 605
• Parties: Roland Colquitt GAMBLE, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 817

266 So.2d 817

48 Ala.App. 605

Roland Colquitt GAMBLE, alias v. STATE.

7 Div. 144.

Court of Criminal Appeals of Alabama.

Aug. 15, 1972.

Rehearing Denied Sept. 12, 1972.

James F. Hinton, Gadsden, for appellant.

William J. Baxley, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for the State.

TYSON, Judge.

The indictment charges murder in the first degree to which the appellant entered pleas of not guilty and not guilty by reason of insanity. The jury found the appellant guilty of murder in the second degree and judgment set sentence at thirty years imprisonment in the penitentiary.

As witness for the State, Alabama State Trooper Ronald Ogletree testified that on Easter Sunday, April 11, 1971, he and Auxiliary State Trooper Ormand Watkins were on routine patrol in Etowah County, Alabama. While patrolling along a road known as Steel Stallion Road, they met an automobile driven by the appellant. According to Ogletree, appellant was driving at a slow rate of speed and was weaving across the center line and off the shoulder of the road. Ogletree turned the patrol car around and followed appellant's vehicle for approximately one-half mile before turning on the flashing blue light on the top of the patrol car, signalling the appellant to stop. He also said he blew the car horn to get appellant's attention.

Appellant turned off of Steel Stallion Road onto Pineview Circle, then pulled into a driveway of a private residence, the officers pulling in behind him. Appellant got out of his car and began walking toward the carport of the house. Officer Ogletree ordered appellant to halt, which he did, and accoridng to Ogletree, appellant 'staggered' back to his car. Ogletree then asked to see appellant's driver's license, which he produced. Ogletree observed several beer cans inside appellant's car and, detecting a strong scent of alcohol on appellant's breath, informed him that he was under arrest for driving while intoxicated.

The record reflects that the following then transpired. Ogletree asked appellant to step around to the right-hand side of the patrol car, to place his hands on top of the car, and to spread his legs. A search of the appellant's person then ensued, revealing only a pocket knife. Appellant then asked if he could make a telephone cal, and Ogletree said he could not, but that he would be allowed a phone call at the jail.

During this time Auxiliary Trooper Watkins was standing behind Orletree and the appellant on the right-hand side of the patrol car. Ogletree testified that at that point appellant turned and started to run toward the street; that he grabbed appellant by the collar, causing appellant to fall backwards; and that he, along with Watkins, raised the appellant off the ground and held him against the right side of the patrol car. Trooper Watkins told the appellant 'not to try that again,' and appellant appeared to relax. But when Trooper Ogletree attempted to handcuff the appellant, a scuffle ensued and during the confusion Ogletree's hat was knocked over his eyes, blocking his vision momentarily. When his vision was again clear, he saw that appellant had his arm around Watkins' waist. At that point Ogletree said, 'Ormand, watch your gun,' and Watkins, feeling for his gun, replied, 'God, he has got it.'

Ogletree testified that he heard two shots; that he heard Watkins cry out after the first shot; and that he felt the second shot. Ogletree, wounded in the shoulder, staggered back and fell into a ditch, and, looking back toward the car, saw Watkins move away from the patrol car and fall nearby to the ground.

It was Ogletree's testimony that the appellant then got into the driver's seat of the patrol car; that he (Ogletree) fired a few shots at appellant while the car was sitting still; and that appellant then backed out of the driveway and drove toward the Steel Stallion Road. As appellant fled down the road, Ogletree continued to fire his gun at the patrol car but never hit the appellant.

Ogletree then ran across the road to a house trailer and asked a Mr. Dietz for help. Then, glancing up the road, he saw the patrol car turn around and start back toward him. Ogletree stated that he screamed for Watkins to run; that he observed appellant get out of the State vehicle, get in his own car, and drive away in the direction of Steel Stallion Road.

By use of the patrol car radio, and assistance rendered by Mr. Dietz in telephoning the Highway Patrol, help was obtained for the injured Ogletree. Trooper Watkins died from internal hemorrhaging resulting from the gunshot wound.

Following the incident, the appellant remained at large overnight and was apprehended at his home the following morning and taken into custody by State troopers. The weapon taken from the trooper, a thirty-eight caliber revolver, was found in a lake behind appellant's house.

Appellant took the stand and testified in his own behalf. He stated that on the morning of the date in question he had gone to church and returned home to have lunch with his family. Later that afternoon, between 4:30 and 5:00, he drove into St. Clair County and purchased a six-pack of beer. While returning home he consumed either two or three beers.

He stated that he first noticed some headlights behind him after turning off of Steel Stallion Road onto Pineview Circle. When he turned into his sister's driveway, he saw the State Trooper's car pull in behind him. He stated that he got out of the car and started walking toward the carport; that he stopped and turned around when the troopers got out of their car and told him to 'hold it'; and that when asked to produce his driver's license he did so.

Appellant testified that Trooper Ogletree then grabbed him, pushed him up against the patrol car and searched him. He stated that the trooper in addition to taking his pocketknife, took his 'brand new' watch. According to appellant, Ogletree then told him, 'you are going to jail,' at which time Trooper Watkins opened the front door of the patrol car. At that point, appellant said that he became frightened and started crying; that he informed the officers that he wanted to make a telephone call and started running, but that Ogletree grabbed him around the chest, and Trooper Watkins came over and the two troopers threw him against the patrol car, causing him to fall backwards and strike his head on the panel of the car door. He further stated that Trooper Watkins picked him up from the ground and 'was knocking me up against the car, saying, you son-of-a-bitch, you had better not try that no more.' Appellant testified that while Trooper Watkins had the appellant against the car in this position, he heard Trooper Ogletree say, 'Get your gun Ormand.' Appellant stated that he had his hands around Watkins' hand and gun and that at the same time Trooper Ogletree was pulling on his (appellant's) arm. In sum, all three men were wrestling over Trooper Watkins' gun which was still in Watkins' holster.

Appellant's testimony was that the gun discharged four times during the struggle, and that he could feel the gun in his hand when it fired. He stated that after the gun discharged, the troopers pushed him away and began running; that he became scared and got into the patrol car; that he heard shots while backing out into the road; and that after driving a short distance up the road, he turned the car around and returned to get his own car.

He stated that he drove straight home, not realizing that anyone had been wounded or killed. Appellant admitted throwing the trooper's thirty-eight caliber revolver in the lake behind his house.

I

Appellant first questions of the propriety of the trial judge's action in assuming that a waiver of counsel form, admittedly signed by the appellant, was in evidence when the same was never formally introduced in evidence by the prosecution.

Although the appellant is correct in his contention that the record does not reflect any formal offering of the waiver form in evidence, we are of the opinion that said form was properly considered as evidence in the case. In support of our holding, we quote from Kabase v. State, 31 Ala.App. 77, 12 So.2d 758:

"Demonstrative or real evidence, or evidence by inspection, is such evidence as is addressed directly to the senses of the court or jury without the intervention of the testimony of witnesses, as where various things are exhibited in open court.' 32 C.J.S., Evidence, p. 454, § 601; Underhill's Criminal Evidence, 4th Ed., pp. 148, 168, Sections 115, 125; Chamberlayne Trial Evidence, Tompkins 2nd Ed., pp. 603, 613, Sections 632, 642; Wigmore on Evidence, Vol. 1, p. 222, Sec. 24, Vol. 2, p. 672, Sec. 1151; Wigmore's Code of Ev., p. 223, Rule 136; 20 Am.Jur., p. 600, Sec. 716; Jones Evidence, Vol. 3, p. 2518, Sec. 1376. The tenor of its proffer is immaterial. It becomes evidence--the fact it imports--when it is properly identified and exhibited before the jury in open court for their inspection. Of such import are the foregoing authorities.

'The shoes of the prosecutrix, having been produced, identified and exhibited in open court to the jury for their observation and the witness interrogated about them, were in evidence in the case. That is, as Professor Wigmore puts it, they were 'thus Evidence, in the sense that Evidence includes all modes, other than argument, by which a party may lay before the tribunal that which will produce persuasion. It is something more than and different from Testimonial or Circumstantial Evidence, and it is to be included among the kinds of Evidence in the broader sense of that term.' Wigmore on Evidence, 2nd Ed., Vol. 2, Sec. 1150, pp. 671, 672.'

The record in the instant case indicates that the waiver of counsel form was produced in open court, identified by Captain James A. Davis, who testified that he was present when the appellant read and signed said form, and marked for identification as State's Exhibit No. 10. At no time during...