Hopkins v. State, 1 Div. 389

• Court: Alabama Court of Criminal Appeals
• Writing for the Court: DeCARLO
• Citation: 429 So.2d 1146
• Parties: John E. HOPKINS v. STATE.
• Docket Number: 1 Div. 389
• Decision Date: 01 February 1983

Page 1146

429 So.2d 1146 John E. HOPKINS
v.
STATE. 1 Div. 389. Court of Criminal Appeals of Alabama. Feb. 1, 1983.
Rehearing Denied March 1, 1983.
Certiorari Denied April 22, 1983
Alabama Supreme Court 82-550.

Page 1148

Ronnie E. Keahey, Grove Hill, for appellant.

Charles A. Graddick, Atty. Gen., and Rivard Melson and Ed Carnes, Asst. Attys. Gen., for appellee.

DeCARLO, Judge.

Appellant was indicted for capital murder for the intentional killing of two or more persons by the same act or series of acts in violation of § 13A-5-31(a)(10), Code of Alabama 1975. Appellant entered pleas of not guilty and not guilty by reason of insanity. The jury returned a verdict of guilty and, after a sentencing hearing, appellant's punishment was fixed at life imprisonment without parole.

The State's evidence proved that on April 8, 1981, appellant caused the deaths of Willis Eugene ("Boy") Johnson and Maynard Aaron Overstreet, Jr. by shooting them with a .16 gauge shotgun.

On the afternoon of April 8, appellant's wife drove the family pickup truck to the Fred Clarke residence. Shortly thereafter, appellant was observed driving "pretty fast" in the direction of Fred Clarke's house. Appellant's wife then drove to the home of Mrs. Sophie Johnson, the mother of Boy Johnson, in Alma, Alabama, went inside trembling and shaking, and began to close the curtains and pull down the window shades. Appellant was seen driving past the Johnson house.

Billy Ray Spears, the son-in-law of Mrs. Sophie Johnson, who was present at the Johnson residence, made a call to the sheriff's office. Spears and Boy Johnson then drove the Hopkins pickup truck down the road and parked it in front of appellant's house. Sheriff's Deputy Buster Hough arrived at the Hopkins residence, later followed by Aaron Overstreet.

Appellant walked out into his yard and told the four men assembled in front of his house, "I just poured five gallons of diesel in my house and it's fixing to blow up." Boy Johnson responded, "Why didn't you pour it on yourself and burn yourself up?" Shaking his fists, appellant replied, "I'm going to get you; I'm going to get both of you." The four men left, with Aaron Overstreet, Boy Johnson, and Billy Ray Spears proceeding to the nearby residence of Jimmy Gates.

Spears and others testified that, using binoculars, they observed appellant sitting in his yard shortly after 5:00 P.M., with a rifle. Spears, Johnson, and Overstreet then returned to the Johnson residence.

Jimmy Gates testified that on the afternoon of April 8 he observed appellant driving up and down the road in front of the Gates house and, at one point, appellant stopped near the Gates driveway and then "took off, wide open ... throwing rocks every which a-way." Gates also saw Deputy Hough talking to appellant and heard appellant say, "Ever who told you I had a high-powered rifle told a damned lie." Gates observed appellant pick up a rifle and put it by his car. Then Gates watched appellant go to a shed, come out with a red can, and walk into his house.

Later, Gates was sitting on his front porch steps when he heard voices which he recognized as those of appellant and Boy

Page 1149

Johnson. He heard appellant say, "I reckon, God-dammit, you're slipping out here tonight to kill me, ain't you." Gates then walked to the corner of his yard and overheard appellant "tell them to pull something off." Boy Johnson replied, "It's tied, or they're tied; let me bend over where I can untie them." Appellant then was heard to say, "If you bend over I'm going to blow your God-damned belly wide open." Gates heard one shot fired and he went to Mrs. Sophie Johnson's house, where he met Debra Spears, the wife of Billy Ray Spears and sister of Boy Johnson, coming out the door with a shotgun. Gates and Mrs. Spears then took a light and went along the house wall to the north corner where they could hear talking coming from the nearby field. Gates recognized the voice of Aaron Overstreet calling out for Debra Spears and later for his father, Maynard Overstreet.

Deputy James Kidd arrived at the shooting scene at 7:30 P.M., found Maynard Overstreet kneeling by his son, Aaron, and saw Boy Johnson lying nearby. Kidd determined that Johnson was dead. Overstreet was taken to Grove Hill Hospital where he died shortly after his arrival. The deputy observed that neither Overstreet nor Johnson was clothed from the waist up. Next to Overstreet's body Kidd found a loaded pistol in a holster. There was no cartridge in the firing chamber.

Sheriff Roy Sheffield found a loaded .44 caliber pistol, belonging to Boy Johnson, lying between the two bodies in the field. Six spent .16 gauge buckshot shells were found at the scene. Also recovered from the shooting scene, which was in Mrs. Sophie Johnson's garden, 112 feet from appellant's property line, were two blue nylon jackets, and a pair of shoes.

Chief Deputy Jack Day began searching for appellant shortly after his arrival at the scene. Day went to appellant's house where he found a gasoline can in the living room, gas on the rug, and several boxes of .22 rifle ammunition and shotgun shells. Day then drove down the road in front of appellant's house and saw appellant step into the roadway with his hands in the air. The deputy arrested appellant and gave him the Miranda warnings at 9:15 P.M. He then asked appellant where his gun was and appellant replied that he had left everything in a ditch out in the woods. The following morning, Day found four guns in a ditch near the shooting scene: a Browning .16 gauge shotgun; a Remington .243 caliber semi-automatic rifle; an Iver-Johnson .22 caliber nine-shot revolver; and a .38 caliber revolver, all of which were loaded.

Richard Carter, a firearms and toolmarks examiner with the Alabama Department of Forensic Sciences, testified that he test-fired, in appellant's shotgun, the six expended shotgun shells found at the scene. In his opinion five of them had been subjected to the mechanical action of appellant's shotgun. Carter also examined the shot removed from the bodies of the two decedents and determined that they were number one buckshot. In addition, he identified pieces of felt and plastic shotgun shell waddings removed from the bodies and stated his opinion that the shells had to have been fired at close range in order for the waddings to enter the bodies.

Dr. LeRoy Riddick, forensic pathologist, performed autopsies on the bodies of the two victims. His examination of Boy Johnson revealed buckshot wounds to the right groin area and to the back of the chest. His autopsy of Aaron Overstreet disclosed wounds to the right side of the face and neck, accompanied by powder burns. The angle of entry, in his opinion was "back to front, from right to left, sharply down at about a seventy degree or sixty degree angle." There was also a gunshot wound in the left side of the victim's back, and a graze wound on the wrist surrounded by powder burns.

Appellant testified in his own behalf that on the morning of the shootings he was experiencing back pain related to old World War II battle injuries and he took three prescribed pain-killer tablets. He stated that the physical and emotional after-effects of his war injuries bothered him a good deal and were bothering him on April 8.

Page 1150

According to appellant, he had a drink with his wife at lunchtime and did not remember anything after that until mid-afternoon when he became upset because he could not find his wife. He testified that he brooded about her not being there and decided that if she did not think enough to stay at home he would burn down the house. He remembered taking a gas can and pouring the contents on the living room rug. He did not recall why he failed to ignite the gasoline.

Appellant admitted ownership of the four firearms introduced into evidence, but stated that he did not remember having them with him on the afternoon of April 8. Appellant next recalled that it was dark, his wife still was not home, and he decided to walk over to the Johnson house to see if she was there.

As he approached the Johnson garden, appellant saw two crouching figures come closer; he ordered them to halt and raise their hands. Appellant said he could not see their faces and could only see their silhouettes against the horizon. He asked them if they had any weapons and one of them said "yes." Appellant then ordered them to get rid of their weapons and to remove their clothing so he could make sure they were not concealing any weapons. He also told them not to bend over out of his sight.

Appellant recounted that he said, "I believe you were coming to my house to kill me," whereupon one figure quickly bent over and a voice said, "Let's get him." Appellant said he heard a shot fired and then he began firing, although he could no longer see the figures outlined against the horizon. He then left the field and walked down the road in front of his house to the spot where he was later arrested.

Appellant admitted that he had never had any trouble with either of the two victims, had no reason to expect a shoot-out that night, had nothing against Overstreet or Johnson, and at the time of the shooting, did not even know who they were.

Dr. Harold Jordan, a Tennessee psychiatrist, called on behalf of the appellant, testified that in his opinion appellant was suffering from a paranoid disorder and was insane on April 8, 1981. He based his opinion on two ninety-minute interviews with appellant, conversations with appellant's wife, and records of the Veterans Administration and Searcy Hospital. He also stated that he had read the transcript of appellant's preliminary hearing. It was the physician's opinion that on the date of the shootings appellant's paranoia caused him to believe that his life was threatened, led him to act on impulse, and made him unable to distinguish between right and wrong.

I

Appellant argues that the trial court erroneously denied his motion for a...