Harris v. State, 4 Div. 510

• Decision Date: 08 March 1977
• Docket Number: 4 Div. 510
• Parties: Charlie HARRIS, Jr. v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 567

343 So.2d 567

Charlie HARRIS, Jr. v. STATE.

4 Div. 510.

Court of Criminal Appeals of Alabama.

March 8, 1977.

Larry W. Roney, Phenix City, for appellant.

William J. Baxley, Atty. Gen. and Richard S. Jaffe, Asst. Atty. Gen., for the State.

HARRIS, Judge.

Appellant was convicted of murder in the first degree and the jury fixed his punishment at life imprisonment in the penitentiary. He was represented by retained counsel at arraignment and trial. He pleaded not guilty. After sentence was imposed he gave notice of appeal. Upon a proper petition he was determined to be indigent and was furnished a free transcript. Trial counsel was appointed to represent him on this appeal.

On the night of May 14, 1976, appellant shot and killed Jimmy Ford, Jr. in a tavern called Old Cloud 9 in Russell County, Alabama. The wife of the victim, Daisy Ford, was a witness to the killing. According to her testimony she was employed as a waitress at Old Cloud 9 and worked there two nights a week. The place was only opened on Friday and Saturday of each week. She testified that she opened the place at around 7:00 p.m. and appellant was there at that time. She fixed him two hot dogs and sold him a package of cigarettes. Her husband came in shortly thereafter and appellant asked him to play cards. The deceased told appellant that he did not want to play cards but appellant insisted and gave his car keys to the deceased to go home and get a deck of cards. When he returned the deceased and appellant started playing cards for money. Appellant lost sixty dollars and left the place saying he had to go check on his children. Appellant lived three houses from Old Cloud 9. He was gone fifteen or twenty minutes and returned with fifteen dollars and said he wanted to play cards again. He lost his fifteen dollars and left the place again. He was gone twenty or more minutes and returned to the club. At this time the deceased was playing cards with one Robinson. According to Daisy Ford when appellant returned to the club the third time he had his right hand in his pocket and he walked up to the bar and put two quarters and a dime on the bar and ordered a beer. He started drinking the beer and walked over to the table where the card game was in progress. He sat in a chair at the table and watched the game for a few minutes. Appellant then got up and walked around the table and stood over the deceased at which time he pulled his pistol and shot the deceased twice while he was still sitting in the chair. Daisey Ford further testified that she did not hear any cross words exchanged between her husband and appellant prior to the shooting and that her husband was unarmed at the time appellant shot him. Five photographs of the shooting scene showing the deceased still sitting in a chair at the table were introduced into evidence without objections.

On cross-examination this witness stated that she could see the men playing cards from the edge of the bar where she was standing. She said at no time did she see appellant with a walking cane and that he was three or four feet from the deceased when he shot him. After the shooting she stated she was going to call the police and she heard appellant say he was going to call the so and so's himself but he did not do so. She further stated that she could see her husband at the time appellant fired the two shots but she did not go near the body of her husband where he was still seated in he chair where he was when appellant fired two shots into his body.

Daisy Ford further testified that she did not see any money on the table while anyone was playing but she did see the cards. She said she did not know what became of the cards when she went to call the police and that when she got back to the club the officers were there. She stated that the next day she went to the coroner's office to get her husband's property. The coroner gave her $93.65, her husband's billfold, Social Security card, and his keys.

Johnny Robinson testified that he was at the Old Cloud 9 Club on the night appellant shot and killed the deceased. That he played cards with the deceased and appellant for a few minutes and that appellant stopped playing and he and the deceased continued to play. He stated that appellant left the club and when he returned he walked up and said something to the deceased about some money and then shot him. He said appellant was approximately two or three feet from the deceased when he shot him. He further testified that he did not hear the deceased say anything to appellant before he was shot or do anything to him, nor did he see a weapon of any kind on the deceased. Robinson stated that nothing was moved after the shooting took place until the police arrived. This witness did not remember whether appellant was using a walking stick or wearing a collar that night. He stated that a man named Allen Davis and another man whom he did not know were in the place at the time of the shooting but he didn't think they ever sat down.

On cross-examination Robinson stated that appellant fired two or three shots in rapid succession. Prior to the shooting appellant said something to the deceased about some money and he thought appellant said something about three or four dollars. He further stated that after the shooting he removed the cards from the table. Robinson further stated that he saw appellant with a gun before and after the shooting and after the first show he ju ped up from the folding chair he had been sitting in. He stated that he didn't see the money on the floor until after the police arrived.

On redirect examination Robinson stated that before the shooting nobody prevented appellant from walking out of the door and leaving the place; that he could have walked out of the building without passing near the position where the deceased was sitting in the chair.

Detective Robert Sawyer of the Phenix City Police Department and Detective Lee investigated the shooting at the Old Cloud 9 Club on May 14, 1976. Sawyer testified that when he and Lee entered the place he saw a man sitting in a chair with his head leaning back and blood was coming out of his head where he had apparently been shot. He stated that he went outside to ascertain who did the shooting and saw the wife of the deceased crying. He was told that the man who did the shooting was Charlie Harris and he lived two doors from Old Cloud 9. His car was still parked in front of the club. Sawyer left Detective Lee at the club to secure the place.

Sawyer further testified that he and Deputies Woodard and Johnson went to appellant's house and he knocked on the door. Someone asked who was there and he replied, 'Police.' That appellant opened the door and had a pistol sticking in his right front pocket with the handle sticking out. Sawyer saw appellant reach for the pistol and put his fingers on it and Detective Sawyer grabbed appellant's hand and told him, 'Don't touch the gun.' Sawyer took the pistol from appellant's pocket and told him he was under arrest and advised him of his rights. Appellant then stated, 'I was expecting you. I shot him.' Sawyer put his initials on the pistol and turned it over to Deputy Sheriff Woodard. He stated that when appellant came to the door he did not have a walking cane and he was not wearing a neck collar such as he was wearing at trial. The pistol was identified and admitted into evidence without objection. He stated that the pistol was in the same condition when he gave it to Deputy Woodard as it was when he took it from appellant's pocket except for the fact that he unloaded it. He didn't find any spent cartridges and the pistol was fully loaded. He turned the live rounds over to Deputy Woodard along with the pistol.

On cross-examination he stated that when he entered the club he saw some money on the floor near the left hand of the deceased who was still in the chair, but he did not touch the money as he left to find appellant. He further testified that other than an attempt to pull his pistol, appellant did not resist the arrest. Deputy Johnson went in the house and got appellant's walking cane, and he was not handcuffed when he was put in the patrol car.

Detective Albert Douglas Lee testified that he took photographs of the scene of the shooting showing the deceased was still sitting in a chair when he and Detective Sawyer entered the club. He stated that he recovered $90.00 that was lying on the floor near the left hand of the deceased. Detective Lee did not see or observe anything in the pockets of the deceased or on or near his body that resembled a gun or a knife. He turned the money over to the County Coroner. He said there were no cards on the table.

Deputy Sheriff Tom Wilson Woodard testified that he and Deputy Johnson got a call to go to Old Cloud 9 Club on May 14, 1976, at approximately 11:00 p.m. That when they got to the scene they found that Johnny Ford had been shot and he and Johnson went to appellant's house with Detective Sawyer to arrest appellant. He stated that Sawyer turned over to him the pistol that was removed from appellant's pocket together with two spent cartridges and three live rounds. That he put his initials on the pistol and personally delivered the pistol and the cartridges to Mr. Tellis Hudson at the Toxicology Laboratory in Auburn. He stated that everything he turned over to Mr. Hudson was in the same condition as when received by him from Sawyer.

Mr. Leslie Vance testified that he was the duly elected Coroner of Russell County on May 14, 1976. He went to Old Cloud 9 Club that night and pronounced Jimmy Ford, Jr. dead. He made an inventory of the personal effects of the deceased at the scene and removed a wallet and some change from his clothing. He stated there was no weapon of any kind on the person of the deceased. He said the officers had already gotten the money that was on the floor. He stated that he ordered the body removed to the funeral home where a postmortem...