Hale v. State
| Decision Date | 10 November 1994 |
| Citation | 654 So.2d 83 |
| Parties | Johnny M. HALE v. STATE of Alabama. CR 93-1489. |
| Court | Alabama Court of Criminal Appeals |
Jonathan Adams, Talladega, for appellant.
James H. Evans, Atty. Gen., and Thomas Leverette, Asst. Atty. Gen., for appellee.
The appellant, Johnny M. Hale, was charged with assault in the first degree and with two instances of reckless endangerment. A jury convicted him of all three charges and he was sentenced to imprisonment for fifteen years on the assault conviction and to imprisonment for one year on each of the reckless endangerment convictions. He was also ordered to pay $1,000 to the Crime Victims' Compensation Fund and to pay restitution in the amount of $6,036.28. Three issues are raised in this direct appeal from the convictions.
The conduct giving rise to the charges against the appellant occurred on October 18 1992. The evidence adduced by the State tended to show that on that date the appellant owned or operated the Tallaseehatchee Farms in Calhoun County. The appellant and his wife lived in a house on the farm. Roscoe Douthit, the victim of the assault, was the appellant's business partner in renting horses for trail rides. Douthit and Gail Smitherman rented from the appellant an apartment over the barn in which the horses available for rent were stabled. Douthit also operated a business at that location in which he bought and sold horses.
Several prosecution witnesses testified that around 9:00 a.m. on October 18, the appellant had an altercation with J.R. Lawley, an employee of Douthit's, in or near the riding pen in front of the barn. When the appellant slapped Lawley, Douthit intervened, stating that customers would be arriving and that if the two were going to fight, they should do so behind the barn. The appellant left the barn area and walked to his house, stating that he "would show" those present and that he would "run [them] all off." R. 26. Approximately eight people were in the barn area when the appellant made these threats.
A short time later, the appellant emerged from his house carrying a rifle. After exchanging words with Douthit, the appellant either pointed or waved his rifle in Douthit's direction. Douthit, who stated that he carried a .45 caliber pistol, drew his own weapon and pointed it at the appellant. The appellant's wife then talked the appellant into returning to the house.
A family of four arrived at the farm and began a trail ride, accompanied by Lawley. After these customers had left the barn area for their ride, the appellant's brother arrived, driving his pick-up truck at a high rate of speed. He parked near the appellant's house and went inside. Shortly thereafter, he and the appellant came out of the house. The appellant was armed with a rifle and his brother was armed with a shotgun. One or both men began firing at the barn area, where Douthit and four or five other people were located.
Douthit took cover behind a vehicle parked in the barn area, and the others present either ran into the barn or behind the barn. Douthit stated that he fired twice towards the appellant and his brother. One shot hit the appellant's vehicle, which was parked at the corner of the appellant's house, and the other struck the appellant's brother. Douthit sustained a gunshot to his foot and another to his shoulder. The shooting stopped shortly after Douthit was shot in the shoulder. Two women arrived at the farm at that time and Douthit was transported to the hospital in their vehicle.
Officers who arrived on the scene after the shooting confiscated a Ruger mini 14 semi-automatic rifle from the appellant and a Mossberg shotgun belonging to the appellant's brother. At the time the rifle was confiscated, the clip in it "contain[ed] 17 live, .223 caliber [full] metal jacket rounds." R. 131. The officers recovered 16 empty .223 caliber shells from the ground near the appellant's vehicle. They also recovered "five empty .12 gauge shotgun shell casings." R. 133. "[A] slug from a .45" was recovered from the appellant's vehicle, R. 135, and two spent .45 shells were found by the truck where Douthit had taken cover. The officers also photographed bullet holes in the barn walls and doors and in various vehicles and horse trailers parked near the barn.
The appellant's claim that the State failed to prove venue is without merit. Dennis Watts, who was present at the Tallaseehatchee Farms when the shooting occurred and who was the State's first witness, testified that the shooting occurred in Calhoun County. R. 34. This was sufficient to establish venue. See Rothchild v. State, 558 So.2d 981, 983 (Ala.Cr.App.1989) ().
The appellant asserts that the State failed to prove that the assault victim, Roscoe Douthit, suffered serious physical injury and that, consequently, the evidence is insufficient to support his conviction for first degree assault.
The appellant was charged with the form of first degree assault defined in Ala.Code 1975 § 13A-6-20(a)(1): "With intent to cause serious physical injury to another person, he causes serious physical injury to any person by means of a deadly weapon or dangerous instrument." The "serious physical injury" required for a conviction under this section is defined as "[p]hysical injury which creates a substantial risk of death, or which causes serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ." § 13A-1-2(9).
The victim, Douthit, testified that he was struck twice during the shooting, once in the foot and once in the shoulder. He displayed the scar from his shoulder wound to the jury, stating that the bullet "hit right up under [his] armpit," then "went down through [his] ribcage." R. 115. He also stated that he was taken to Stringfellow Hospital, from which he was transferred to Regional Medical Center, where he was admitted to intensive care. He testified that he remained in intensive care for "13 days or 14 days or something like that." R. 110. This was the sum of Douthit's testimony regarding his wounds. He did not testify as to any pain or suffering caused by the wounds, nor did he testify to any physical impairment caused by his injuries. Compare Haslerig v. State, 474 So.2d 196, 197-98 (Ala.Cr.App.1985) (). No physician testified regarding the nature and extent of Douthit's wounds or describing the medical treatment he received. Compare, e.g., Ware v. State, 584 So.2d 939, 941 (Ala.Cr.App.1991) (); Rothchild v. State, 558 So.2d at 983 (); Johnson v. State, 501 So.2d 1277 (Ala.Cr.App.1986) ().
By stipulation of the parties, however, medical records were introduced "to show that Roscoe Douthit was admitted to the Regional Medical Center on October 18, 1992, and admitted to intensive care for a gunshot wound to his left shoulder and arm--or his left chest and shoulder and trauma to his left ankle, and that he was in the hospital from the 18th until October 30th." R. 141-42. Although these records were not interpreted for the jury by medical personnel, a fair reading of the records reveals that the victim had a drainage tube in his chest for most of his hospitalization, C.R. 91-92; that one of his lungs collapsed at least once, C.R. 91 1; and that surgical procedures under local anesthesia were performed on the...
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