Holder v. State, 8 Div. 470

Decision Date18 January 1991
Docket Number8 Div. 470
Citation584 So.2d 872
CourtAlabama Court of Criminal Appeals
PartiesKenneth E. HOLDER v. STATE.

David Schoen, Montgomery, for appellant.

Don Siegelman, Atty. Gen., and Jean A. Therkelsen, Asst. Atty. Gen., for appellee.

TAYLOR, Judge.

The appellant, Kenneth Holder, was convicted of the murder of Billy Don Jarrett. He was sentenced to 55 years in prison.

This case has previously been returned to the Circuit Court of Jackson County on appellant's motion to supplement the record on appeal. See Rule 10(f), A.R.App.P. The appellant has suggested in a footnote in his brief that the circuit court failed to file a complete supplemental record. That footnote reads as follows:

"The record still fails to set forth the proceedings held in connection with Mr. Holder's motion to dismiss. Similarly, the record on appeal does not contain a list of jurors nor any indication as to the race or sex of prospective and sitting jurors nor are juror numbers set out so that any issue regarding the use of peremptory strikes with respect to jurors can be analyzed. Other omissions from the record include requested jury instructions, and action by the court on such instructions, and Mr. Holder's pre-sentence investigation report."

In the appellant's previous motion to supplement the record, he had requested that all pre-trial hearings, all proceedings and documents relating to jury selection, opening statements and closing arguments of counsel, and all documents filed with the trial court which were not included in the original transcript, be filed with this court. We do not now pass judgment on what items must or must not be included as a part of the "record proper." We remand this case to the Circuit Court of Jackson County for that court to consider this footnote as an additional motion under Rule 10(f), A.R.App.P., rather than to face this issue again in subsequent proceedings. Due return shall be filed with this court within 45 days.


All the Judges concur.


TAYLOR, Judge.

The appellant, Kenneth E. Holder, was indicted for the capital murder during the course of a robbery of Billy Don Jarrett. He was convicted of the lesser included offense of murder and was sentenced to 55 years in prison. We initially remanded this case so that the record could be supplemented with a transcript hearing on the motion to dismiss, a list of jurors indicating their race and sex, requested jury instructions, and the rulings of the trial court on each of these requested instructions. We note that this is the second time that the record has been supplemented on appeal. The supplemented record still does not contain the requested jury instructions or the rulings thereon. It is the appellant's duty, not the duty of this court or the trial court, to make a correct and complete record on appeal. See Cardwell v. State, 544 So.2d 987 (Ala.Cr.App.1989). The appellant raises the following issues.


The appellant initially argues that the evidence was insufficient to find him guilty of murder. The state's evidence tended to show that on December 23, 1988, Billy Don Jarrett was found seriously injured near a boat dock in Bridgeport, Alabama. At the time he was discovered, the victim was still breathing. An ambulance was called. The chief of police of Bridgeport arrived shortly after the ambulance attendant and recognized the victim as Billy Don Jarrett. The victim had been shot twice in the back with a shotgun. Bird shot pellets were recovered from his lungs, kidneys, spleen, heart, intestines, back, arms, and buttocks. The coroner testified that there were over three hundred individual wounds on the victim's body. The cause of death was loss of blood.

A routine investigation, in which officers talked with the victim's friends and neighbors, led the police to the appellant. The appellant made several statements to the police in which he said that he and the victim had been drinking and playing craps the evening of his death and that he, the appellant, had won money from the victim. As a result of a consensual search of the appellant's home, the partially burned wallet of the victim was found in a wood-burning heater. The victim's driver's license and fishing license were still in the wallet. A 20-gauge semi-automatic shotgun was also recovered from the appellant's home. After tests were performed, the gun was identified as the murder weapon. Shells found in the appellant's home also matched those found near the victim. A witness testified that he saw the victim standing on the road near the boat dock. He appeared to be talking with an individual in a black Ford truck. The appellant drove a black Ford truck. Evidence also revealed that at the time of his arrest the appellant had approximately $100.00 more in his possession than he had received in pay that week. Testimony further established that the victim had slightly less than $100.00 in his possession on the day that he was killed. William Fulmer, a resident of Bridgeport whose home is near the boat dock, testified that he heard gunshots on December 23, 1988, at approximately 7:00 p.m. Evidence also showed that the appellant had bought the gun which was identified as the murder weapon several weeks prior to the incident.

The appellant testified in his own behalf and denied shooting the victim. He said that he had known the victim for approximately 30 years and that on the day of the victim's death he and the victim had played craps. He said that he had won about $50.00 from the victim. The appellant stated that when the victim had left his house on the day of his death, the victim had been drinking heavily. He also stated that he had encouraged the police to check the guns which he owned to show that he did not kill the victim.

As Judge Tyson, speaking for this court in DeRamus v. State, 565 So.2d 1167 (Ala.Cr.App.1990), wrote:

"A conviction will not be set aside on the basis of insufficiency unless 'allowing all reasonable presumptions for its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince this court that it was wrong and unjust.' "

DeRamus, 565 So.2d at 1171, quoting Johnson v. State, 378 So.2d 1164, 1169 (Ala.Cr.App.), cert. quashed, 378 So.2d 1173 (Ala.1979). See also Horth v. State, 553 So.2d 694 (Ala.Cr.App.1989).

We must view the evidence in the light most favorable to the State. Daniels v. State, 581 So.2d 536 (Ala.Cr.App.1990); Higdon v. State, 527 So.2d 1352 (Ala.Cr.App.1988); King v. State, 505 So.2d 403 (Ala.Cr.App.1987). In the instant case the evidence presented was circumstantial evidence. Circumstantial evidence is not inferior or deficient evidence. See Linzy v State, 455 So.2d 260 (Ala.Cr.App.1984). "Circumstantial evidence is entitled to the same weight as direct evidence, provided it points to the guilt of the accused." Casey v. State, 401 So.2d 330, 331 (Ala.Cr.App.1981). "Whether circumstantial evidence tending to connect the defendant with the crime excludes, to a moral certainty, every other reasonable hypothesis than that of the defendant's guilt is a question for the jury and not the court." Cumbo v. State, 368 So.2d 871, 875 (Ala.Cr.App.), cert. denied, 368 So.2d 877 (Ala.1979). "Conflicting evidence presents a question for the jury and a verdict rendered thereon will not be reversed on appeal." Horth, 553 So.2d at 698.

The above evidence was clearly sufficient to present the case to the jury for their determination. "We will not substitute our judgment for that of the jury." Neal v. State, 460 So.2d 257, 260 (Ala.Cr.App.1984).


The appellant next argues that the trial court erred in allowing several items to be received into evidence without first having established a proper chain of custody. Initially, the appellant argues that the state failed to establish a proper chain of custody for the victim's body. Testimony showed that the victim was brought to the emergency room by an ambulance attendant, Randall Gibson. Gibson delivered the body to a Dr. Wayne, the emergency room physician, at approximately 9:00 p.m. on the night of the shooting. The next morning the body was delivered to the coronor by Bill Wright, of the forensics laboratory in Huntsville, approximately 15 minutes prior to the coronor's commencing his autopsy. No testimony was received concerning the time the body was handed over to Dr. Wayne in the emergency room at 9:00 p.m. on the night of the shooting, and the exact time that the body was delivered by Bill Wright to the coronor.

"The establishment of a chain of custody is needed to show a reasonable probability that the evidence has not been tampered with or altered." Bridges v. State, 516 So.2d 895, 903 (Ala.Cr.App.1987). (Emphasis added.)

" '[I]t is not necessary to prove to an absolute certainty, but only to a reasonable probability, that the object is the same as, and not substantially different from the object at the commencement of the chain. Slaughter v. State, 411 So.2d 819 (Ala.Crim.App.1981), cert. denied, 411 So.2d 819 (Ala.1982). See also, Mauldin [v. State, 402 So.2d 1106 (Ala.Cr.App.1981) ]; Sexton v. State, 346 So.2d 1177 (Ala.Crim.App.), cert. denied, 346 So.2d 1180 (Ala.1977).' "

Bridges, 516 So.2d at 903-04.

This court recently addressed a situation where results of a blood test were admitted into evidence even though two individuals who handled the blood samples during the chain of custody did not testify at trial. See Moorman v. State, 574 So.2d 953 (Ala.Cr.App.1990). Using the totality of the circumstances test, Judge Bowen stated in Moorman and in Snowden v. State, 574 So.2d 960 (Ala.Cr.App.1990), that the totality of the circumstances established a "reasonable probability" of the integrity of the evidence. Judge Bowen further stated in Moorman that in that case...

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