Ivey v. State

• Decision Date: 09 November 1995
• Docket Number: CR-93-0659
• Parties: Homer Eugene IVEY, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 179

698 So.2d 179

Homer Eugene IVEY, alias v. STATE.

CR-93-0659.

Court of Criminal Appeals of Alabama.

Nov. 9, 1995.

Rehearing Denied Jan. 19, 1996.

Leon Garmon, Gadsden, for Appellant.

Jeff Sessions, Atty. Gen., Shirley Brown, Deputy Atty. Gen., and Joseph Marston III, Asst. Atty. Gen., for Appellee.

COBB, Judge.

This case was originally assigned to another judge on the Alabama Court of Criminal Appeals. It was reassigned to Judge Cobb on January 17, 1995.

Homer Eugene Ivey, the appellant, was convicted of reckless endangerment, disorderly conduct, and aggravated stalking. He was sentenced to serve 12 months in the county jail for the conviction for reckless endangerment, 3 months in the county jail for disorderly conduct, and 15 years in the state penitentiary for aggravated stalking. The sentences were to be served concurrently.

FACTS

The conduct that resulted in the appellant's convictions stemmed from his actions toward Mrs. Ivey, his wife of 33 years, from whom he was estranged. The appellant and Mrs. Ivey were involved in divorce proceedings at the time of the offenses. Evidence of the appellant's infliction of physical abuse and threats of future abuse persuaded the trial judge presiding over the appellant's divorce proceeding (DR-93-415) to issue a temporary restraining order (TRO) on May 12, 1993, enjoining the following conduct by the appellant:

"1. The Defendant is to cease pushing, grabbing, bruising, threatening her and/or striking the Plaintiff in any manner whatsoever.

"2. The Defendant is to cease coming about the place of employment of the Plaintiff [First United Methodist Church], except on Sundays, to attend church, or coming about any home in which the Plaintiff resides.

"3. The Defendant is to cease contacting or harassing the Plaintiff in any manner whatsoever."

R. 464.

On June 8, 1993, Mrs. Ivey filed a petition requesting that the appellant be held in contempt of court for violating the TRO. Her petition alleged on the following:

"2. Defendant ignored said order and on one occasion drove to Birmingham, Alabama, where the Plaintiff was residing with her daughter and yelled at the Plaintiff from his vehicle until forced to leave by police. Defendant also made repeated attempts to contact the Plaintiff by letter and phone and made threats to the Plaintiff.

"3. On May 28th, 1993 a pendente lite hearing was held at which the above conduct was described and the Domestic Referee orally continued the restraining order. On June 3rd, 1993, while Plaintiff was having her hair done, Defendant presented himself at Mr. Mac's, a hair salon in Gadsden, and attempted to engage the Plaintiff in conversation. Defendant left after being asked to do so by the owner, but subsequently returned and harassed the Plaintiff as indicated by the attached report.

"WHEREFORE, Plaintiff moves this Court to set this case for a final hearing and to set a hearing and find the Defendant in contempt and impose such sanctions to ensure compliance with the restraining order."

R. 451.

The relevant portion of the incident report, referenced in the complaint and dated June 3, 1993, stated the following:

"The suspect came to Mac's beauty salon while the victim was there as a customer. The suspect came up to a window and said to the victim, 'I don't want to beat you up. I just want to talk.' Suspect left, then came back and sat in the parking lot, pretending to shoot a gun at the victim, much like a child would pretend. Suspect left, then returned again [at 2:25 p.m.] while responding police officer] was still present. The suspect also called the business to try to speak to the victim; however, the victim refused to speak with him. May be stalking."

R. 454.

At the beginning of the hearing on the contempt petition ¹ the appellant admitted the factual allegations forming the basis of the contempt petition and was allowed to present testimony in his own behalf to show justification for his actions. The appellant testified regarding serious problems with his mental condition, his physical health, his employment, his financial condition, his anger over the divorce and alcoholism. On cross-examination the appellant testified that it was a coincidence that he saw his wife at Mac's hair salon and that he did not speak to her at that time but only drove through the salon's parking lot. The appellant testified that he passed her driving on Interstate highway 759 one day and that he then saw her in downtown Gadsden four or five minutes later and the resulting confrontation ultimately led to in his arrest for disorderly conduct.

City of Gadsden police officer Christopher Adam Crisler testified on behalf of Mrs. Ivey at the proceedings on the petition for contempt. He stated that on June 8, 1993, he was dispatched to the First United Methodist Church, Mrs. Ivey's place of employment, where someone had found a .357 magnum Remington Peters soft-nose lead cartridge in a blue styrofoam cup at the rear entrance. While he was discussing the significance of the bullet with church personnel, the church received a telephone call from Mrs. Ivey, who was calling from her car phone. The call prompted Crisler to go outside where he saw the appellant in his truck blocking the street in front of Mrs. Ivey's automobile. He heard the appellant shout to her, "If you don't have your fucking ass home by midnight you are going to die." As the appellant started to drive away Crisler ordered him to pull over. R. 500. A loaded .380 caliber automatic pistol was lying on the front seat of the appellant's truck. There was also a loaded .357 Magnum revolver and Peters brand soft-nose lead .357 Magnum cartridges in the truck. These cartridges were the same type as the one found in the styrofoam cup at the church. Crisler swore out a warrant and arrested the appellant for disorderly conduct because the appellant was "yelling loudly at fifth and Chestnut, 'If [Mrs. Ivey's] fuckin' ass isn't home by midnight, [she's] gonna die.' " C.R. 71. This was in addition to the warrant sworn out by Mrs. Ivey for reckless endangerment because the appellant had attempted "to run [Mrs. Ivey] off the road while driving her vehicle." C.R. 2. On September 10, 1993, the grand jury later indicted the appellant for aggravating stalking in violation of 13A-6-91, Ala.Code 1975. That indictment charged the following:

"[The appellant] did intentionally and repeatedly follow or harrass ... Dorothy E. Ivey, and did make a credible threat, either expressed or implied, with the intent to place ... Dorothy E. Ivey in a reasonable fear of death or serious bodily harm, and that his conduct in doing so violated a court order or injunction or a court...."

C.R. 135.

Dorothy Ivey testified that on June 3, 1993, the appellant came to Mac's hair salon and said to her, "I'm not here to beat you up, I just want to talk to you." R. 508. Her hairdresser interceded and the appellant left. He then telephoned the salon twice, but Mrs. Ivey would not speak to him. The appellant then drove in front of the window of the salon and gestured with his hands as if to shoot Mrs. Ivey.

Mrs. Ivey testified that another morning she was travelling on Interstate highway 759 and the appellant tried to run her car off the road. She said that he drove away when he saw her pick up her car phone. She telephoned the police at that time, and the police told her to drive to city hall so that she could make an incident report. However, when she telephoned the church to report that she would be late for work she was told that the police were at the church and that she needed to go there. As she approached the church in her car, the appellant pulled up in his truck and started screaming at her. She telephoned the church from her car phone and an officer came out and apprehended the appellant. Mrs. Ivey concluded her testimony by stating that she was asking the court for some protection from the appellant.

Other witnesses testified expressing their fear that the appellant might harm Mrs. Ivey. The trial court found the appellant in contempt of court and sentenced the appellant to five days in the county jail as allowed by statute and ordered that the TRO remain in effect upon his release.

Gary Phillips, assistant district attorney, prosecuted the appellant on the three consolidated criminal charges of aggravated stalking, reckless endangerment, and disorderly conduct for the State of Alabama. At the trial on those consolidated charges Mrs. Ivey testified concerning an incident that occurred on May 8, 1993 (before the May 12, 1993, issuance of the TRO), in which, she said, the appellant struck her several times and placed her in such fear for her life that she fled to a neighbor's home. Later that day, with the aid of her 28-year-old son, Mrs. Ivey returned home to pack some necessities to move to her daughter's home. When she did so the appellant told her, "You don't have to leave, and if you do I'll get you." R. 109, Vol. V. As she drove away she heard what sounded like a gunshot being fired from her house. The appellant telephoned the couple's children, making threats against Mrs. Ivey. She testified that on May 11, 1993, she filed for a divorce and requested a temporary restraining order. She also testified concerning the June 3, 1993, incident at Mac's beauty salon. She further testified that on June 7, 1993, the appellant followed her car despite her attempts to elude him and that he continued to follow her until he saw her making a call on her car phone. That night the appellant telephoned their daughter's house and threatened Mrs. Ivey. She testified concerning the incident on I-759 and the one later outside the First United Methodist Church. The appellant was arrested following this later incident. Mrs. Ivey testified that the appellant had also placed collect telephone calls to her identifying himself when he placed the call as "the stalker." R.R. 124, Vol. VI. He placed these calls as often as 20...