Harris v. State
| Citation | 347 So.2d 1363 |
| Decision Date | 29 March 1977 |
| Docket Number | 3 Div. 690 |
| Parties | Oscar HARRIS v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Delores R. Boyd for Mandell & Boyd, Montgomery, for appellant.
William J. Baxley, Atty. Gen. and David W. Clark, Asst. Atty. Gen., for the State.
The appellant was indicted by a grand jury of Montgomery County, Alabama, for the first degree murder of Harold Wayne Washington by shooting him with a pistol. After a trial at which the appellant was represented by retained counsel, a jury found the appellant guilty of murder in the second degree and fixed his punishment at forty-five years in the penitentiary. The trial judge entered judgment and sentence accordingly. The appellant is represented by retained counsel both at his trial and on this appeal.
As grounds for reversing the conviction had in the trial court, the appellant asserts (1) that he was denied the right to confront witnesses against him by the prosecutor's use of a purported statement made by the appellant's ten-year old son to the police, and (2) that the evidence was legally insufficient to sustain the conviction.
The shooting occurred on May 26, 1976, on the front porch of the appellant's house located in the Mobile Heights section of the City of Montgomery.
While the appellant has raised the question of the sufficiency of the evidence, there is no need to recite, in minute detail, the testimony presented by each witness.
On the evening of the shooting, Mrs. Valerie Sawyer and Aaron Washington, the brother of the soon to be deceased Harold Wayne Washington, were sitting in Aaron's car listening to music. They were parked in front of the appellant's house. The deceased was next door talking to Mr. T. C. Thomas and his son.
Mrs. Sawyer, who was separated, was "going with" Joel Welch who was the appellant's half-brother. On one or two occasions prior to this night, Mrs. Sawyer had contacted the appellant about getting a message to Joel that she wanted to see him. Joel was married but he and his wife were "getting along bad". On this particular night, Mrs. Sawyer asked Aaron Washington to go get the appellant. Mrs. Sawyer wanted to see the appellant and not Joel. However, Aaron did not go.
Aaron's brother, the deceased, walked over to Aaron's car and Aaron asked him to go get the appellant for Mrs. Sawyer.
The appellant, his wife, his aunt, and his children were preparing for supper when the appellant heard a "loud", an "abrupt" knocking on his front door. When he opened the door, the deceased told him that "there is a girl wants to see you out here". The appellant told the deceased that he didn't want "nothing to do with all that, . . . I have got my wife and family here and I ain't got time for none of that. . . ." The appellant then told the deceased to get off his porch but Harold Wayne did not leave.
The appellant testified that the deceased then said, "Nigger, shoot me," and he "kept going into his pants" where the appellant saw a black handle which he thought was a pistol. The appellant further testified that Harold Wayne kept "bubbling up and everything" and his eyes were "rolling and wandering". The appellant "didn't understand where he was coming from" and the deceased kept repeating, "Nigger, shoot me", and would not leave.
The appellant went to the closet and got his .22 caliber pistol. When the deceased again put "his hand into his pants", the appellant "shot out like that and shut the door" behind him allegedly to keep the deceased from shooting into the house and hitting his wife or one of his children. The appellant testified that he did not intend to shoot the deceased, but fired just to scare him away and to keep him from shooting into the house. The deceased cried out that he had been shot, ran into the street, fell and died.
After firing one shot, the appellant testified that he called the police. "A lot of people" gathered outside and when the appellant heard them talking about "getting the gun", he turned the lights off in the house. Next, according to the appellant, Aaron Washington pulled up near his house and fired a shot which came through the kitchen window and lodged in the kitchen wall. The appellant responded by firing once out the living room window.
When the police arrived on the scene, they found a large crowd gathered three or four houses down from the scene of the shooting. The deceased was lying in the street. On order, the appellant emerged from his house. He was immediately handcuffed and placed in a patrol car. Before the patrol car left for the police station, the appellant was advised of his constitutional rights which were read to him from a standard Miranda rights form.
On the way to the station, no one interviewed or interrogated the appellant. En route the appellant voluntarily stated that the deceased "had threatened him and he had wanted to shoot to warn him to get him away from the door and that he had not intended to shoot the man; that if he had shot somebody, he did not intend to shoot him". The appellant, according to Montgomery City Police Officer Frank H. Eckerman, further volunteered the information that he was interested in getting rid of some of the drug addicts in the neighborhood. The appellant denied making this last statement and stated that he did tell Officer Eckerman that something was wrong with the eyes of the deceased.
Captain I. B. Moore, a detective for the Montgomery Police Department, found a .22 caliber pistol in the living room of the appellant's house. Captain Moore turned the pistol, along with four live rounds and two spent hulls, over to Detective Cody Wood. Detective Wood also examined the inside of the appellant's house and observed "a hole in the wall in the kitchen that appeared to be made by a bullet".
At the police station later that evening, Detective Wood interrogated the appellant after advising him of his constitutional rights. At that time the appellant freely and voluntarily gave a signed statement which was properly admitted into evidence by the trial judge.
The substance of that statement was that the appellant was sitting in the living room of his home when Wayne Washington knocked on the front door and told the appellant that Valerie Sawyer wanted to see him. The appellant told Washington to Washington then said, "Nigger, shoot me", and reached into his pants or under his shirt. The appellant then stated that he:
The appellant then stated that he turned out all the lights and looked out the front window. He saw Aaron Washington with a gun and shot one more time "in the ceiling or somewhere", "to scare them and let them know not to shoot in the house . . .". The appellant, in his statement said that he shot the deceased because he "thought he had a pistol when he said Nigger, shoot me, and reached in his pants". The appellant did not want to kill him and just "wanted to scare him or wound him". Further the appellant stated that his half-brother, Joel, had told him that Mrs. Sawyer liked him and wanted to go with him. The appellant felt like the Washington brothers were trying to tear up his home.
A state toxicologist, Dr. Richard Roper, performed a post-mortem examination upon the deceased. It was his opinion that death resulted from hemorrhage and shock associated with a single gunshot wound from a .22 caliber long rifle bullet which lodged in the upper portion of the deceased's chest. Dr. Roper did not undertake to determine what type of weapon (pistol or rifle) had fired the fatal bullet recovered from the deceased's body but stated that it could have been a .22 caliber pistol.
During the prosecutor's cross examination of the appellant, the following exchange was had:
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...preserve by making a proper and timely objection in the trial court. See Biddie v. State, 516 So. 2d 846 (Ala. 1987); Harris v. State, 347 So. 2d 1363 (Ala. Cr. App. 1977), cert. denied, 347 So. 2d 1368 (Ala. 1978 [1977]). Indeed, it has been said that the plain-error doctrine 'applies to d......
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...to preserve by making a proper and timely objection in the trial court. See Biddie v. State, 516 So.2d 846 (Ala.1987) ; Harris v. State, 347 So.2d 1363 (Ala.Cr.App.1977), cert. denied, 347 So.2d 1368 (Ala.1978 [1977] ). Indeed, it has been said that the plain-error doctrine ‘applies to deat......
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