Hewitt v. State

• Decision Date: 19 August 1980
• Docket Number: 6 Div. 195
• Citation: 389 So.2d 157
• Parties: John Solomon HEWITT v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 157

389 So.2d 157

John Solomon HEWITT v. STATE.

6 Div. 195.

Court of Criminal Appeals of Alabama.

Aug. 19, 1980.

Rehearing Denied Oct. 7, 1980.

Hugh Beaird of Selman, Beaird & Selman, Jasper, for appellant.

Charles A. Graddick, Atty. Gen., Joseph G. L. Marston, III, Asst. Atty. Gen., for appellee.

HARRIS, Presiding Judge.

Appellant was put to trial upon an indictment charging him with murder in the first degree. The jury returned a verdict of manslaughter in the first degree and fixed his punishment at four years in the penitentiary. He was sentenced accordingly.

Appellant was represented by counsel of his choice and at arraignment pleaded not guilty and not guilty by reason of insanity. At the conclusion of the testimony, appellant withdrew his special plea of not guilty by reason of insanity.

When the State rested its case, appellant made a motion to exclude the State's evidence for failure to make out a prima facie case. He also requested the affirmative charge on the four degrees of homicide embraced in the indictment. A motion for a new trial was filed in which, among other issues, the sufficiency of the evidence was raised. This puts us to a recital of the evidence.

In the early morning hours of April 13, 1979, the deceased, Sadie Thomas, was shot and killed in her home in Parrish, Walker County, Alabama. The evidence is not disputed that the deceased was shot with a .38 caliber pistol in the hands of appellant. Appellant claimed the shooting was accidental.

Mary Nash, the mother of the deceased, testified that she received a telephone call from appellant at 4:00 a. m. on April 13, 1979, and recognized his voice. The call awakened her and when she answered the telephone appellant said, "This is John Hewitt. I just shot your daughter." Mary Nash replied, "No, you ain't shot my daughter. If you is, you must be crazy." Appellant said, "No, I'm not crazy. I just done shot your daughter. You better get down here before she bleeds to death." Mary Nash lived about ten blocks from her daughter and she started walking to her house. She stopped on the way and got Wayne Thomas, the fourteen or fifteen year old brother of the deceased.

When they got to the home of the deceased, they found the door locked and the boy kicked it down. They entered the house and found it was filled with smoke, which came from the kitchen where the deceased had been cooking fish, butter beans and making coffee. The lights were on but appellant was not present. Mary Nash removed everything from the stove and went into the living room and found her daughter on the floor. She felt for a pulse in her daughter's arm and neck but could not find one. She told Wayne Thomas his sister was dead. She then call the Parrish Police Department and an officer arrived shortly. She further testified that her daughter worked at Marshall Durbin Processing Plant and for a Mrs. Pribbenow, and she had to be at work at the processing plant at a quarter to six.

On cross-examination this witness testified that the deceased and appellant had been going together for about six or seven months prior to her death, that the deceased and appellant lived in separate houses, and that she lived about half way between them. She said the Parrish police were the first officers to arrive at the scene of the shooting, and that appellant and her husband, Robert Nash, came to the house. Appellant came in the house, but Robert Nash did not. She further stated that, when appellant called her that morning at 4:00 a. m. to tell her about the shooting, he told her it was an accident. In her words, "Yes, he said it was an accident. He shore said it."

On re-direct Mary Nash stated that the house was locked when they arrived and appellant was not there, but came up with her husband, Robert Nash, who lives with her, and they were both at home when appellant called her. She said her daughter had a car with a brand new motor in it and it was in good running shape. She also stated that her daughter was a small woman.

Mr. John Vaughn, an investigator with the District Attorney's office in Walker County for two years, was called to testify out of the presence and hearing of the jury. He stated that he had been in law enforcement for seven years and he investigated the death of Sadie Thomas in the early morning hours of April 13, 1979. He arrived at the scene of the shooting at approximately 5:45 a. m., and there were officers already at the scene. These included a Parrish police officer and two Walker County sheriff's deputies. They were in the process of clearing the scene, and he observed a black female, identified as Sadie Thomas, lying on the living room floor. He stated he had appellant removed from the room where the deceased was lying and placed in a bedroom in the house so that he could photograph the crime scene before anything was disturbed. He made photographs of the entire house, including the body of Sadie Thomas. He then went to the funeral home and made photographs of the unclothed body of the deceased, showing particularly the entrance wound in the chest. While at the funeral home, Mr. Vaughn picked up the blouse deceased was wearing at the time she was shot.

State's Exhibits 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18 were identified and introduced into evidence. Most of these exhibits were introduced into evidence without objection. As to State's Exhibit 1, counsel for appellant asked the witness on voir dire about a black mark on the photograph, and the witness explained the mark was made by a black ballpoint pen which pointed to the wound in the center of the chest. Appellant's counsel objected to State's Exhibit 4 on the ground that photograph showed blood and would tend to inflame the minds of the jury. The objection was overruled. Appellant's counsel objected to a drawing made by Mr. Vaughn of the bathroom in the house of the deceased, but when the witness explained the exhibit was drawn to scale, i. e., three inches equaled one foot, the exhibit went into evidence without objection.

Mr. Vaughn further testified that he found a .38 caliber pistol on the couch in the living room of the home of the deceased, dusted it for fingerprints and marked the cartridges as to their corresponding chamber. The pistol would hold six bullets, and it contained four live rounds and one spent casing and one empty chamber. All of these items were marked with identifying numbers, sealed and sent to the crime laboratory.

Mr. Vaughn stated that he interviewed the defendant at 6:03 a. m. in the bedroom of the home of the deceased where defendant had been placed during the time Mr. Vaughn was taking photographs. Present at the time of the interview was Mr. Paul Kilgore, an investigator with the Walker County Sheriff's Department. Prior to asking appellant any questions, he read him his constitutional rights from a Miranda card and asked him if he understood his rights. Appellant replied that he understood his rights. This witness stated that no one in his presence and hearing made any promises to appellant, that no hope of reward, remuneration or inducement of any kind was made to or held out to appellant to get him to make a statement. Appellant was not told that it would be better or worse for him if he did or did not make a statement, and appellant was not threatened or coerced in any manner in order to obtain a statement from him. Mr. Vaughn was asked to read to the court the constitutional rights of which he advised appellant from the card, and he complied by reading:

"The Miranda Warning. 1. You have the right to remain silent. 2. Anything you say can and will be used against you in a court of law. 3. You have the right to talk to a lawyer and have him present with you while you are being questioned. 4. If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning, if you wish. 5. You can decide at any time to exercise these rights and not answer any questions or make any statements. Upon advising Mr. Hewitt of his rights I asked: Do you understand each of these rights I have explained to you?

"Q. What if anything did he say when you said that?

"A. He said, 'Yes.'

"Q. Did you say anything else to him?

"A. Yes, sir. I repeated by saying, 'Having these rights in mind, do you wish to talk to me now?' Again he said, 'Yes.'

At this point appellant's counsel questioned the witness on voir dire.

"Q. (Mr. Selman) Mr. Vaughn, what time of day was it that you talked to John Hewitt on this occasion you are about to testify about?

"A. Mr. Hewitt was interviewed, I noted at the time I was advising him of his rights, that the time was 6:03 a. m. on April 13, 1979.

"Q. Did you make a written statement of that?

"A. No, sir, I did not make a written statement of what Mr. Hewitt told me, in the fact that he signed it. The statement he made to me was oral. These notes were then placed in my case report.

"Q. And, you say who else was present?

"A. Investigator Paul Kilgore, Walker County Sheriff's Department.

"Q. And, this was about what time?

"A. 6:03 a. m.

"Q. Now, you had arrived down there at Sadie Thomas' house about what time?

"A. Approximately 5:45 a. m.

"Q. Had you learned in the course of your investigation about what time the shooting occurred?

"A. No, sir, I had not up until that point been given any information as to when the actual incident had occurred.

"Q. This was about 6:03 a. m.?

"A. Yes, sir.

"Q. I will ask you if John Hewitt here didn't appear in a rather dazed and slow and awkward and fumbly fashion when you talked with him?

"A. No, sir, he did not. He appeared very quiet and very reserved. This was my impression.

"Q. That was your impression?

"A. Yes, sir.

"Q. Had you ever known John Hewitt before that?

"A. No, sir, I had never met him before.

"Q. Had you ever seen him before?

"A. No, sir.

"Q. But, it was obvious to you that the shooting had not occurred more than an hour or two hours before you were...