Gholston v. State

• Decision Date: 31 August 1976
• Docket Number: 8 Div. 698
• Parties: Ronald GHOLSTON v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 454

338 So.2d 454

Ronald GHOLSTON v. STATE.

8 Div. 698.

Court of Criminal Appeals of Alabama.

Aug. 31, 1976.

Rehearing Denied Oct. 12, 1976.

Guin, Bouldin & Porch, Russellville, for appellant.

William J. Baxley, Atty. Gen., and Stephen M. Langham, Asst. Atty. Gen., for the State.

LEIGH M. CLARK, Supernumerary Circuit Judge.

Appellant was charged in a two-count indictment with murder in the first degree and robbery, allegedly occurring in Franklin County. The indictment was returned by a Franklin County grand jury, but on motion for a change of venue, the case was transferred to and tried in the Circuit Court of Madison County. The jury returned a general verdict finding defendant guilty as charged in the indictment and fixed his punishment at life imprisonment in the penitentiary. He was sentenced accordingly. His subsequent timely motion for a new trial was overruled by the trial court.

The evidence shows without dispute that on the night of December 29, 1974, one Willie Washington, a taxi driver, was savagely murdered and robbed in Russellville, while answering a call for his services. His throat was cut by a sharp instrument, his body was left in the cab, and money that he had had on his person was taken from him. Two persons, who were seen in the back seat of the cab a short while before the crime was committed, were afterwards seen running from the direction of the cab after it had stopped with the body of the victim in it. It was and is the contention of the State that the two persons seen in the cab were appellant and one Charles Randolph, that they were the persons seen running from the cab and that they committed the crime. The case of Charles Randolph ¹ has been before us on appeal from his conviction. We reversed and remanded because of error of the trial court in admitting in evidence testimony of witnesses showing that a witness for the State had made statements, prejudicial to defendant, inconsistent with his testimony on the trial. We noted in the opinion the impressiveness of argument of counsel questioning the sufficiency of the evidence and passed 'to another day' a determination whether the evidence in this case justified the court in overruling defendant's motion to exclude the testimony, the refusal of affirmative charges requested in writing by the defendant and the overruling of defendant's motion for a new trial. Although the testimony in the case at hand is different in some respects from the testimony in Randolph, much of it is substantially the same, and the day has apparently arrived when we must make a determination, in the instant case at least, whether we must reverse the judgment for insufficiency of the evidence to withstand the mentioned motions and requests of defendant relative to the question of the sufficiency of the evidence, particularly defendant's motion for a new trial. The motion was partly grounded on alleged insufficiency of the evidence and alleged, in one or more grounds, that the verdict was 'not sustained by the great preponderance of the evidence.'

Following the course taken in Randolph, the State relies largely, if not exclusively, upon the testimony of fifteen-year-old Josephine Harrison to establish the identity of the persons in the cab. We had some concern in Randolph whether the witness had been shown to be a court's witness, as distinguished from a State's witness, but in the present case it appears that after the witness had been called and interrogated by the court, out of the presence of the jury, defendant's counsel agreed with the State and with the court that she was then a court's witness. No point was made to the effect that her status as a court's witness had not been established, entitling either party to impeach her as if she were an adverse witness, as authorized by Peoples v. State, 257 Ala. 295, 58 So.2d 599. The same procedure was taken as to the witness Calvin Hurley, that is, he was treated as a court's witness, by express stipulation of counsel. He was not called by the State as a witness, as he was in Randolph.

In Randolph, the State announced its surprise at the testimony of Hurley after only a few questions had been asked him. This unquestionably explains the difference between the status of the witness Hurley as a witness in Randolph and as a witness in the case now before us.

The identity of the persons in the taxicab with the victim was the crucial issue in the case. There seems to be no question as to their being the persons who robbed and killed him, and that they were the same persons seen running from the cab immediately thereafter.

Josephine Harrison testified that on the night of the crime she was at the home of one Sue Hamm in Russellville; there had been a death in the family; there were about ten other people present. She and her boy friend, Tracy, Hagler, left the house for a while and went to Tracy's nearby van. She saw the taxicab in which Washington was killed, with only the driver in it, going toward the Hamm house; it returned in about ten minutes. Her testimony continued:

'Q When the cab passed you coming back by, did you see anybody in the cab?

'A Yes.

'Q How many people were in the cab?

'A Three.

'Q And was there still a white person driving the cab?

'A Yes.

'Q Where were the other two people?

'A In the back seat.

'Q Were they white or black?

'A They were black.

'Q And you saw the cab come down here and you looked up and saw the cab stopped, is that right?

'A Um-hum.

'Q And then . . .

'Q Did you see anybody coming back up the road after you saw the cab stopped?

'A Um-hum.

'Q How many people did you see coming back up the road?

'A Two.

'Q Were they on the paved portion of the road?

'A Yes.

'Q Were they walking or running?

'A They were running.

'Q And you were parked there under that light?

'A Um-hum.

'Q And they never did leave the paved portion of the road, you could see them running down that part of the road?

'A Yes.

'Q Okay. Now, when they passed in front of the vehicle, did you recognize who it was?

'A Yes. I think I did.

'Q You think you did or do you know or are you sure you did, Ruby (Josephine)?

'A I think I did.

'Q Have you ever testified before that you knew who they were and testified you knew that's who that you saw?

'A What?

'Q Have you ever testified before that you recognized the people and you knew who they were?

'A Um-hum.

'Q You have?

'A Um-hum.

'Q And you gave that statement to somebody?

'A Um-hum.

'Q Did you testify at that time that you knew who the boys were and that it was Ronald Gholston?

'A Um-hum.

'Q And Charles Randolph?

'A Um-hum.

'Q Did you say at that time that is who you thought it was?

'A Um-hum.

'Q Did you say that is who you thought it was?

'A I don't know. I guess.

'Q Now,--but you are saying you are not positive now, but you think that is who it was?

'A I guess.

'Q You say you think it was the defendant seated over there, Ronald Gholston, and Charles Randolph?

'A Um-hum.

'Q Did you see where they went?

'A No.

'Q You watched them run all the way up that road and watched them run in front of that cab and you never did look at them?

'A Yes. I was looking at them.

'Q Who was it that you saw that ran in front of the cab?

'A I don't know.

'Q You don't know?

'A Oh, I guess it was Ronald and Charles.

'Q You guess it was Ronald and Charles, referring to Ronald Gholston and Charles Randolph, is that right?

'A Um-hum.

'Q But you could see the cab and you did see the boys run in front of the van?

'A Yes.'

During the testimony of Josephine Harrison she was questioned as to specific statements she had made wherein she had said that the two boys running back from the cab toward Sue Hamm's house were Ronald Gholston and Charles Randolph, that in the specific statements, including testimony before the grand jury, there was no 'I think' or 'guess' about her identification of the two. Included in such statements was a recording showing questions asked her and answers by her, which she identified out of the presence of the jury as her testimony 'at a preliminary hearing . . . in Franklin County.' The tape recording was first played back out of the presence of the jury, and thereafter it was played back in the presence of the jury. A portion of the tape as played back to the jury is as follows:

'Q What did the cab do after it left the Hamm house?

'A It rode down and stopped.

'Q Did you actually see the cab when it stopped.

'A Um-hum.

'Q What happened then when the cab stopped, please, ma'am?

'A Two boys got out of the cab.

'Q What did they do, where did they go?

'A They started running back down there to Sue Hamm's.

'Q And did you recognize who the two of them were?

'A Yes.

'Q Who were they, please, ma'am?

'A Garry--I mean Doug Gholston--I mean Ronald Gholston and Charles randolph.'

According to the undisputed testimony, the robbery and murder of Washington took place about 11:20 P.M. The testimony of the dispatcher of the cab company furnishes the best evidence as to the exact time. He received a call to send a taxicab to Sue Hamm's house. At 11:05, Washington advised the dispatcher that he had unloaded a fare in Reed Town, another section of Russellville, and at that time the dispatcher gave him the message 'to go to Sue Hamm's residence on South Carroll Street.' It would have taken 'anywhere from five to eight minutes' to go from where the passenger was unloaded in Reed Town to Sue Hamm's house.'

Defendant testified that he was not at the scene or in the vicinity of the crime at the time the undisputed evidence shows that it was committed. He said he had been at Sue Hamm's house that night from about 'a quarter to seven . . . until about nine thirty or something to ten,' when he went to the home of Marvin Hill in Reed Town. Accompanying him was Charles Randolph, who arrived at the Hamm house about eight or eight-thirty; they stayed at Marvin Hill's house until about 11:30 or something to twelve,' when he, Charles Randolph, and others left to go to Sue Hamm's. He...