Johnson v. State, 5 Div. 510

CourtAlabama Court of Criminal Appeals
Writing for the CourtTYSON
Citation390 So.2d 1160
PartiesBennie JOHNSON v. STATE.
Decision Date07 October 1980
Docket Number5 Div. 510

J. Michael Williams, Sr., Auburn, for appellant.

Charles A. Graddick, Atty. Gen. and Helen P. Nelson, Asst. Atty. Gen., for appellee.

TYSON, Judge.

Bennie Johnson was indicted in Lee County for assault with intent to murder, § 13-1-46, Code of Alabama 1975, and was found guilty as charged by a jury, and was sentenced to serve twenty years in the state penitentiary. He brings this appeal from that verdict and judgment in forma pauperis. The victim of the assault, Jo Nell Fitch, a resident of Opelika, testified that, on the morning of September 28, 1979, she had been at the home of her sister, Bertha Mae Tools, washing clothes. At some point the electricity went off, and Ms. Fitch and her sister were sitting in the den waiting for the power to come back on when Ms. Fitch saw appellant's car stop outside the house. Ms. Fitch stated that appellant, whom she had known for several years, knocked on the kitchen door and then entered the house, said "good morning," and "asked my sister if I can speak with you for a minute" (R. 12); the witness testified that Bertha Mae Tools got up and went into the kitchen with appellant. Ms. Fitch was starting to light a cigarette when "I looked up, I seen him standing there holding a gun. He was firing and shooting at me" (R. 12). She stated that appellant said nothing but was only "gritting his teeth and pulling the trigger" (R. 13). Ms. Fitch further testified that she was struck twice by bullets, and that she blanked out for a short time, reviving in time to hear appellant "outside, out there, shooting." The witness stated that she was in intensive care at the hospital for twenty-eight days, and under regular care for a longer period, and underwent treatment for gunshot wounds to the jaw and head.

Bertha Mae Tools testified that she had formerly dated appellant, but they had broken up before September 29, 1979. On that date, she testified, she had returned from work and was talking to her sister, Jo Nell Fitch, when appellant knocked on the door. She stated that she invited him into the house, that he entered, said good morning, and asked to speak to her. Ms. Tools testified that she then saw that appellant was holding a pistol and "I asked him to leave then" (R. 22). She then began "pushing on him" toward the door, at which point appellant "said I will shoot all three of us" (R. 23). She stated that appellant's pistol then fired two shots, and that she began running because "I thought he was going to shoot me" (R. 24). She did not know whether Jo Nell Fitch had been wounded at that point or not. She further testified that she ran out of the door, jumped over the hood of a car and fell over a fence, and that appellant followed and shot at her several more times. Appellant, after having fired what the witness estimated to be two shots outside the house, returned to his car, which was an older model painted white, and left. The witness returned to her house, discovered that her sister had been shot, and called the police and medical help.

On cross-examination, Ms. Tools testified that she was pushing appellant fairly hard either by the shoulders or chest, when the shots inside the house were fired. She further stated that she did not smell alcohol on appellant's breath, but had not paid that much attention.

Ms. Tools further testified on re-direct examination that on that day she had seen appellant at her place of employment, but had only waved, and had not invited him to come over to her house. She stated that she had broken up with appellant about two months previously.

Michael Jackson, a next door neighbor to Bertha Mae Tools, testified that, on the morning in question he had been lying down in his house when he heard "something like shots." He stated that he got up and ran to his front door and "heard somebody running and hollering for help, and all at the same time I heard the shots" (R. 33). The witness testified that he could not see who it was doing the yelling, but did see appellant get into a "light yellow-cream looking kind of car" (R. 35), and drive off. The witness further testified that he summoned the police, but never went into the house next door. In his judgment, he heard two or three shots.

Stanley Lee Chapman, a patrolman with the Opelika Police Department, testified that, on September 28, 1979, he had investigated a shooting at the residence of Bertha Mae Tools. He stated that, upon his arrival, he found a black female, who appeared to be wounded on the head, sitting in a chair. Other persons at the scene were able to give Officer Chapman a description of the woman's assailant, though none knew his name, and Officer Chapman relayed the description of the individual and his car to other police units.

Dan Davis, a captain of police with the same department, testified that, on the date in question, he and Officer Charles Minor had just left the Opelika Police Station in an unmarked car when they received a radio message advising them to keep a look-out for appellant, and furnishing a description of his car. Captain Davis stated that, though he did not know appellant, Officer Minor did, and during their patrol Officer Minor saw appellant and alerted Captain Davis. At that point, Captain Davis testified, he turned on his vehicle's blue light and "attempted to stop him" (R. 42). Appellant pulled his car over after traveling about a block, but when the officers approached appellant's vehicle and instructed him to get out with his hands raised, appellant "sped off from us then and we gave pursuit for approximately three blocks, at which time he stopped again ... and refused to get out" (R. 42). Captain Davis further testified that he and Officer Minor again ordered appellant out of the car. The third officer, an Officer Weaver, ran to appellant's car and grabbed appellant's hands while Captain Davis ran to the car's passenger side and "retrieved a pistol that was in between the two seats of the front of the car" (R. 42). Captain Davis stated that he subsequently turned the pistol over to Officer Jones, and that when he examined the weapon it was loaded with six shells, three spent and three live rounds. The witness further stated that he saw spent shells and an ammunition box on the floor of appellant's car.

On cross-examination, Captain Davis stated that he arrested appellant within thirty to forty-five minutes of the shooting, and that he did not smell alcohol about appellant's person. He did not give appellant a sobriety test, nor did he know of one being given appellant.

Under further questioning on re-direct examination, the witness testified that appellant resisted arrest by attempting to reach the pistol between the seats when he was stopped the second time.

Robert Buford Jones, a detective-sergeant with the Opelika Police Department, stated that, when he arrived at the Tools' residence on the day in question, he witnessed Jo Nell Fitch, who had suffered a gunshot wound to the face, being placed in an ambulance. He further testified that, upon entering the house, he saw a black chair covered with blood, and a bullet hole in one wall; also, he noticed that the front door had a window which had been shattered. The witness identified several photographs of the scene, and these were received in evidence. Sergeant Jones further testified that he received a description of appellant and his car, and broadcast that over the police radio. About forty-five minutes later, the witness stated, he received a radio dispatch from Captain Davis requesting him to come to the location of a stopped vehicle. Sergeant Jones testified that he and Captain Abbott drove to the scene and found appellant in custody and his vehicle parked on the street. An examination of the car revealed a partially filled box of .38 caliber ammunition. Further, the witness stated, Captain Davis gave him a blue steel .38 Titan Tiger, two-inch, six-shot revolver, which had been taken from appellant; this weapon was identified and received in evidence.

Outside the presence of the jury, Sergeant Jones testified that he and Captain Abbott talked to appellant in Captain Abbott's office at the Opelika Police station around 4:55 p. m. on the day in question, which would have been at least four hours after appellant's arrest. Sergeant Jones stated that appellant did not appear intoxicated, and had no trouble in understanding or communicating with the officers. The witness further testified that appellant was advised from a "rights form" of his rights to remain silent and to have an attorney present, and that appellant, who stated that he could read and write, was shown the form. Appellant, when asked if he understood his rights, "replied that he did" (R. 58) and "replied that he did want to make a statement" (R. 59), without an attorney being present. At that point, Sergeant Jones stated, appellant was read a "waiver of rights" form, and appellant signed the form after acknowledging that he understood its contents. The form containing both the rights paragraph and waiver was received in evidence.

Still outside the presence of the jury, Sergeant Jones testified that appellant had not been offered any reward or hope of reward, nor had appellant been threatened or coerced. He further stated that appellant then made an oral statement, which statement Sergeant Jones transcribed in his handwriting. Appellant read the written statement over, stated that he understood same and signed the paper.

On cross-examination the witness stated that the delay between appellant's arrest and the taking of the statement was due to various administrative reasons, and not because of appellant's intoxication in the interim. Sergeant Jones stated that he did not think appellant was intoxicated at the time of his arrest, and that he did not smell alcohol about appellant...

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