Grey v. State, 8 Div. 121

• Decision Date: 27 March 1979
• Docket Number: 8 Div. 121
• Parties: Kenneth GREY v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 889

369 So.2d 889

Kenneth GREY v. STATE.

8 Div. 121.

Court of Criminal Appeals of Alabama.

March 27, 1979.

Rehearing Denied April 17, 1979.

Roderick Beddow, Jr., and Albert C. Bowen, Jr. of Beddow, Fullan & Vowell, Birmingham, for appellant.

William J. Baxley, Atty. Gen. and David W. Clark, Asst. Atty. Gen., for the State.

HARRIS, Presiding Judge.

Under an indictment charging murder in the first degree appellant was convicted of manslaughter in the first degree and the jury fixed his punishment at ten years imprisonment in the penitentiary. At arraignment, in the presence of his retained counsel, appellant pleaded not guilty. After sentence was imposed appellant gave notice of appeal and his sentence was suspended pending appeal. He is presently at large under a fifteen thousand dollar bond. Trial counsel represents him on this appeal.

On the night of October 12, 1977, there was a shootout between appellant and the deceased near a place known as Frank & Clara's Burger Basket on Highway 168 in Boaz, Alabama. After the shooting the deceased was found dead in the back seat of his 1969 Buick automobile and appellant drove his car to his mother's home where he was carried to the Boaz-Albertville Hospital. The rescue squad removed the victim from the Buick and transported him to the same hospital but he was pronounced dead on arrival.

The testimony during the three day trial was in hopeless conflict and only a jury could unscramble this conflicting evidence and arrive at a verdict.

The central place of this drama was the Sundown Apartment complex in Boaz, where appellant and his wife had an apartment. The deceased and his brother occupied an apartment in this same complex. Appellant's mother was manager of the Sundown Apartments and his father was the maintenance man. Appellant's sister and her two children also had an apartment in the same place. Prior to his death the deceased and his brother had lived at the Sundown Apartments for two to three months.

Appellant's marriage to Charlotte was apparently an unhappy one. After the deceased moved in this apartment complex he and Charlotte began seeing each other. On Friday, September 2, 1977, Charlotte did not come home. Appellant could not locate her and reported to the local police that she was missing.

The following Monday, Labor Day, appellant approached Jerry Irvin and asked him where Charlotte was. Irvin replied that he did not know. The evidence was in conflict as to what took place next. The State's witness, Stanley Irvin, testified that appellant walked up to Jerry and hit him, and that he (Stanley) pulled appellant away from his brother. Appellant then, according to Stanley, threatened to kill Jerry Irvin. The testimony of appellant and other defense witnesses who were present indicated that Stanley Irvin held appellant while Jerry Irvin hit him and that, when the fight was broken up, Jerry told appellant, "there would be another time".

On September 7, 1977, Charlotte returned for her things and moved out. The evidence was uncontroverted that during the period between Labor Day and the day Jerry Irvin was killed Charlotte Grey was seen on several occasions going into Irvin's apartment with him. On some of these occasions Irvin was carrying a shotgun, and Charlotte's car was seen parked overnight at the apartment. She also had a key to the apartment. Appellant testified that he once saw Jerry Irvin standing at his window pointing a rifle at appellant's apartment, which was across from Irvin's apartment. This testimony was substantiated by two other witnesses.

The testimony of both appellant and the State's eyewitness, M. R. Fine, Jr., revealed that, on the day of the shooting, appellant went to Fine's apartment around 6:00 p. m. The two men had a couple of drinks and talked about appellant and Charlotte "getting back together". The couple had been seeing each other for several days, talking about a reconciliation. Appellant told Fine that he was still in love with his wife, and that he was worried because he was supposed to see Charlotte that night and had not heard from her. The two men were going to appellant's apartment when he stated that he was concerned about where Charlotte was. Fine told him that he had seen her car parked earlier in front of her father's business. Appellant and Fine got in appellant's car and went to see if the car was still there. When they arrived, Charlotte's car was parked next to the deceased's car and she and Irvin were sitting in the front seat of his automobile.

Mr. Fine testified that appellant got out of the car and went toward the car occupied by Charlotte Grey and Jerry Irvin. Charlotte got out and screamed "stop him, stop him." Appellant went to the driver's door and Fine testified that he then saw a pistol in his hand, pointed at Irvin. Fine testified that he ran to appellant, grabbed his arm and got the gun above the car. As appellant snatched away from him, Fine heard a shot and ran across the highway. He heard more shots and, as he turned around appellant went to his car and left. Fine went back to Irvin's car and found him in the back seat.

Appellant's testimony of the events on the day of the shooting was essentially identical to that of Fine up to the time of the actual shooting. Appellant testified that, when he reached the door of the car in which Irvin was seated, it swung open and he saw deceased with a pistol in his hand. Appellant kicked the door closed and pulled his gun. At this point, Fine grabbed his arm and, while appellant was trying to pull away, Jerry Irvin shot him three times. Appellant testified that Irvin was "fixing to shoot me again, and I just unloaded my gun." Appellant stated that Irvin was trying to get over the seat of the car, that he knew Irvin kept a shotgun in the back seat, and he thought he was trying to get the shotgun.

The State toxicologist testified that he performed a post-mortem examination on the body of Jerry Irvin which revealed the presence of five gunshot wounds, one of which instantly caused death, entering the brain at the left temple. A blackjack was found in the deceased's boot at the hospital.

The doctor who performed surgery on appellant for injuries sustained by him in the shooting indicated three gunshot wounds, one of which caused massive bleeding in the abdominal cavity and injury...