Gurganus v. State

• Decision Date: 30 June 1987
• Docket Number: 6 Div. 788
• Citation: 520 So.2d 170
• Parties: Dennis Joe GURGANUS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 170

520 So.2d 170

Dennis Joe GURGANUS v. STATE.

6 Div. 788.

Court of Criminal Appeals of Alabama.

June 30, 1987.

Rehearing Denied Oct. 13, 1987.

Certiorari Denied Feb. 26, 1988

Alabama Supreme Court 87-91.

J. Paul Whitehurst, Tuscaloosa, for appellant.

Charles A. Graddick, Atty. Gen., and Beth Slate Poe, Asst. Atty. Gen., for appellee.

McMILLAN, Judge.

The appellant, Dennis Joe Gurganus, was convicted of murder during kidnapping in the first degree and murder during robbery in the first degree. The appellant was sentenced to life without parole.

The State presented evidence that the victim, David Cain, had a large amount of money in his possession on the date of the offense. The victim's brother testified that he believed that the victim had approximately $2,000 in his wallet, while the victim's nephew stated that he had examined the victim's wallet and noted that it contained three or four $50 bills and was thick with $20 bills. Another witness stated that he cashed a check for the victim for approximately $195 and observed a number of other bills in his wallet.

The victim owned a blue four-door Ford Gran Torino. In addition he purchased a light blue Pontiac Catalina at an automobile auction on June 30, 1984. He drove to his brother's store after the sale. George Ambrose, one of the victim's nephews, had accompanied the victim to the sale, for which the victim paid Ambrose $10. Ambrose thereafter drove to a fish fry with Bobby Joe McGraw, Craig Wade, and Jim Blackston, where they encountered the appellant and Randy Wade. Ambrose, McGraw, Blackston, and the appellant all testified at trial to the subsequent events. Their testimony is conflicting.

Ambrose testified that, while at the fish fry, the appellant stated that he only had $5. He further testified that they drank beer at the fish fry until 1:00 a.m., when they drove to the victim's brother's store, hereinafter referred to as "Cain's store." He testified that the victim's two cars were parked at the store and that the appellant walked up to the cars, hit one of them on the fender, and told the victim to get up; that "it wasn't time to go to sleep." The victim responded, "Leave me alone, I'm sick." Although the nature of the victim's illness was not explained, the State had presented other evidence that the victim's arm was in a sling. The group then left the store in order to drive Randy Wade home and then returned to the store. Ambrose further testified that, during the drive back to the store, the appellant remarked that the victim carried a lot of money, to which Ambrose replied, "Yeah." The appellant then stated, "Let's rob him." Ambrose further testified that Mark Wade stated, "Yeah, let's go for it," and the appellant then remarked, "No, that's George's [Ambrose's] uncle." Ambrose testified that Mark Wade and Bobby Joe McGraw then left the store. The appellant, Jim Blackston, and Ambrose remained, and Ambrose stated that just prior to his own departure, the appellant remarked that his friend's (the appellant's) tire was going flat. Ambrose testified that he did not see the appellant or Jimmy Blackston any more that night. Ambrose testified that he rode to the store with the appellant the following day, Sunday, and observed "an old looking single shot" gun in the appellant's car.

Bobby Joe McGraw testified that on Saturday night, after attending the fish fry, they drove to Cain's store and observed the victim's two cars. Thereafter, they left the store, and, when they returned, the appellant stated, "Let's rob the old man." Mark Wade responded, "Go for it." and the appellant stated, "No, that's George's uncle." He testified that he left the store with Mark Wade, went to a bar, and then went to Birmingham. He further testified that on the following Monday, the appellant and he went to the appellant's house to get a rifle and he observed a shotgun on the bed. The appellant was driving a car which he had just purchased. The following Friday, the appellant asked McGraw to ride to Jasper with him in order to buy some tags for another car that the appellant had just purchased. On the way to Jasper, they had a conversation concerning the news that the victim had been found dead. The appellant stated that he had heard that Ambrose and McGraw were responsible for his death. When McGraw stated that he did not do it, the appellant remarked, "I didn't either. By God, if they get me in trouble I'm going to kill the son of a bitch when I get out of the pen." McGraw testified that he neither observed the appellant beat on the victim's car, nor heard him tell the victim to get up.

Jim Blackston testified that after the group returned to Cain's store on the night in question, the appellant was talking about robbing the victim. He testified that the appellant asked Ambrose how much money the victim had. Ambrose responded that the victim had more than $1,000. He further testified that the appellant then asked him if he would like to help rob the victim and Mark Wade responded that he would help in return for half of the money. He further testified that Ambrose then told the appellant that they should not rob the victim because he was Ambrose's uncle. He testified that McGraw and Mark Wade then left the store, leaving Ambrose, the appellant, and him. Thereafter, Ambrose left and Blackston asked the appellant for a ride home. However, the appellant stated that he had a flat tire, which was verified by Blackston. The appellant then asked Blackston if he would help him rob the victim. He also asked him if he needed any money, to which Blackston replied that he did not. The appellant then removed a shotgun from the trunk of his car and approached the side of the victim's car and opened the car door. When the victim awoke, the appellant placed the shotgun in the victim's face and stated that he wanted his money and his keys. The victim gave the appellant his keys, which the appellant gave to Blackston, and the appellant told Blackston to drive. The appellant told the victim to give him his money and everything that was in his pockets. Blackston testified that the appellant kept cocking the gun and then releasing it. The appellant used the gun barrel to knock out the inside car light. Thereafter, the appellant instructed Blackston to turn off the road and stop the car. The appellant got out of the car with the gun and ordered the victim to get out also. The victim then stated that if the appellant would "let him ride out" he would give the appellant more money. The appellant told the victim to keep walking, after which, Blackston stated, he heard a gunshot. The appellant got back in the car and told Blackston that he had killed the victim by shooting him in the head. They ran to Clarence Blackston's home. Thereafter the victim's car battery failed to work. After waking Clarence, they traded the battery for the one in his truck; however, the car still would not "crank." Clarence, therefore, pushed the car to a location where the appellant took the battery, the spare tire, jack and lug wrench, and two bottles of whiskey from the car, as well as his shotgun, and placed these items in Clarence Blackston's truck. The appellant cut the gasoline line on the car, collected the gasoline, and poured it on the car, and set the car on fire. The appellant and Jim Blackston then took the victim's other car, removed the water pump, alternator, fan, fan belts, spare tire, jack, lug wrench, and battery. The appellant then set that car on fire also. Blackston testified that the appellant used a jug, which he identified in court, to pour the gasoline. Subsequently, the appellant used one of the tires from one of the victim's cars to replace his flat tire and replaced his water pump with the one taken from one of the victim's cars. Blackston testified that several days later the appellant told his mother and grandmother that they were going to work in Texas. However, Blackston stated that he was not planning to go to Texas. He testified that he did not see the appellant thereafter.

Clarence Blackston also testified that he followed the appellant and Jim Blackston to retrieve the automobile parts and set the cars on fire. He further testified that Jim Blackston stated that the appellant had shot the victim and that the appellant stated that the victim had "came at him" with a knife. Evidence was introduced concerning conflicting testimony given by Clarence Blackston.

The State also presented evidence that the appellant "sold" someone a battery and never returned to collect the payment. The battery was later delivered to the Tuscaloosa County Homicide Unit. Furthermore, the appellant's employer testified that after a discussion with the appellant concerning the victim's body being found, the appellant quit his job. The employer saw the appellant later and told him that he owed the appellant $60, but the appellant never returned to collect the money. The State also presented the testimony of a witness who sold the appellant a car for $100 and stated that the appellant paid him in $20 bills from a roll of twenties he pulled from his pocket. The appellant told him that he received the money from a turkey shoot.

The appellant testified that upon returning to Cain's store on the night in question, Ambrose tapped on the victim's car and told him to get up. He further testified that although someone mentioned robbing the victim, he stated that they should not rob him because he was George's uncle. He further testified that, later, Jim Blackston and he left and spent the night at the appellant's house. The appellant testified that he had acquired the automobile parts while he was in Texas. He testified that he did not shoot the victim and knew nothing about the murder.

I

The appellant argues that his conviction should be reversed because it was not based on credible evidence. Although the appellant argues that the testimony of the State's witnesses had weaknesses,...