Harville v. State, 8 Div. 339
| Decision Date | 29 July 1980 |
| Docket Number | 8 Div. 339 |
| Citation | 386 So.2d 776 |
| Parties | Quinton Dexter HARVILLE v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Donald R. White, Moulton, for appellant.
Charles A. Graddick, Atty. Gen., Thomas R. Allison, Asst. Atty. Gen., for appellee.
Appellant was indicted for the first degree murder of his five year old daughter by causing her suffocation. A jury found appellant guilty of second degree murder and fixed his punishment at twenty years in the penitentiary. Appellant was properly arraigned in the presence of his attorney and interposed a plea of not guilty and not guilty by reason of insanity. The special plea of not guilty by reason of insanity was subsequently withdrawn. After sentence was imposed, appellant gave notice of appeal and was determined to be indigent. Appellant has been furnished a free transcript and his trial counsel was appointed to represent him on appeal.
The evidence was conflicting and as such presented questions for the jury to resolve. McBryar v. State, Ala.Cr.App., 368 So.2d 568, cert. denied, Ala., 368 So.2d 575; May v. State, Ala.Cr.App., 335 So.2d 242; Jones v. State, 54 Ala.App. 251, 307 So.2d 59.
Viewing the evidence presented by the prosecution in its most favorable light, as we are required, Bass v. State, 55 Ala.App. 88, 313 So.2d 208; Livingston v. State, 44 Ala.App. 559, 216 So.2d 731, we find the evidence sufficient to prove appellant's guilt beyond any reasonable doubt. The State's evidence clearly supports the jury's verdict.
Briefly, appellant and his wife took their five year old daughter, Denise, to the emergency room of the Lawrence County Hospital at approximately 7:25 p. m. on July 8, 1979. She was declared dead on arrival. Dr. Garland C. Hall, Jr. administered emergency resuscitation measures, but to no avail.
An autopsy later revealed that Denise's death was caused by "the aspiration of the stomach contents into the lungs." Dr. Joseph Haden Embry, who performed the autopsy, testified that several mechanisms could have produced the aspiration. After ruling out epilepsy and drugs in Denise's case, Dr. Embry testified that another "common cause of aspiration is asphyxia, which may be produced either by smothering or choking or anything that cuts off air from the outside." Dr. Embry gave his opinion that Denise "was probably smothered."
Just prior to the Harvilles' leaving for the hospital, Doris Nolen, a next door neighbor, testified that she heard appellant talking in a loud voice, that "he sounded like he was angry or mad or something." Approximately a week later, appellant came to Mrs. Nolen's house to use the telephone and told her "he might of did kill Denise, but if he did, it was an accident in getting her to the hospital." Appellant also told her "that them was his children to do with as he pleased, and nobody had any say-so over the kids, because they belonged to him."
Dennis Harville, Denise's twin brother, testified that he saw "Daddy put his hand over her mouth and make her die." Dennis stated that it happened in the bedroom of their house and that he rode with his parents carrying Denise to the hospital.
Mary Davis testified that she saw the Harvilles arrive at the emergency room with Denise. Dennis told her Mrs. Davis further stated that she "could smell whiskey real bad" on appellant.
Mrs. Floy LouAllen also testified that she talked with Dennis at the hospital when Denise was brought in. Mrs. LouAllen stated that the odor of alcohol was strong on appellant and that she heard him say, "Blame me, it's all my fault."
E. D. Montgomery, a cell-mate of appellant's in the Lawrence County Jail, testified appellant told him in conversation that "he killed his baby."
Robert Wingo, another cell-mate of appellant's, testified:
Mrs. Melvie Stout testified that she overheard a conversation between appellant and his sister at the funeral home. ' "
After the State rested and appellant's motion to exclude the State's evidence was overruled, appellant presented the following testimony. Fred Harville, appellant's father, testified that Denise had been complaining with a stomach ache and that he heard Denise crying before "they left out and went to the doctor." The essence of Mr. Harville's testimony was Mr. Harville stated his son "wouldn't have killed her."
Dr. Willard Irwin testified that he had treated Dennis Harville for a respiratory infection on May 12, 1979, and that he had last treated Denise Harville for a respiratory infection in February of 1975.
Appellant testified in his own behalf that, while his wife, Annette, was cooking supper for Dennis and Denise, he had stepped outside to roll up the car windows and to use the bathroom. He heard Annette holler, "Quinton, something is wrong with Denise." Appellant stated that he ran into the house and Annette had Denise in her arms. "(S)he said she couldn't get her mouth open, and so I had to take my finger and prize her mouth open." It was appellant's story that, after they failed to revive Denise, "We got in the car and took her to the hospital." Appellant denied harming his child in any way. Annette Harville's testimony was substantially similar to her husband's.
The State presented additional evidence on rebuttal, which, again, was in direct conflict with appellant's version.
Prior to the reception of any evidence, and in accordance with Ala.Code § 12-21-165 (1975), the trial court conducted a hearing on appellant's motion to suppress the testimony of five year old Dennis Harville. It is alleged by appellant that Dennis could not understand the nature of an oath and was therefore incompetent to be a witness.
Omitting a number of preliminary questions which the trial judge asked Dennis, we quote from the record:
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...857 (1950); Puckett v. State, 213 Ala. 383, 105 So. 211 (1925); Crenshaw v. State, 205 Ala. 256, 87 So. 328 (1921); Harville v. State, 386 So.2d 776 (Ala.Cr.App.1980); Roberson v. State, 384 So.2d 864 (Ala.Cr.App.), cert. denied, 384 So.2d 868 (Ala.1980); Pennington v. State, 57 Ala.App. 65......
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Scott v. State, CR–08–1747.
...in the exciting occurrence.” C. Gamble and R. Goodwin, McElroy's Alabama Evidence § 265.01(8) (6th ed 2009). See Harville v. State, 386 So.2d 776 (Ala.Crim.App.1980) ; Bass v. State, 375 So.2d 540 (Ala.Crim.App.1979). The Alabama Supreme Court in Ex parte C.L.Y., 928 So.2d 1069 (Ala.2005), ......
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