Johnson v. State, 7 Div. 559

• Decision Date: 24 January 1978
• Docket Number: 7 Div. 559
• Citation: 357 So.2d 162
• Parties: Christine JOHNSON v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 162

357 So.2d 162

Christine JOHNSON v. STATE.

7 Div. 559.

Court of Criminal Appeals of Alabama.

Jan. 24, 1978.

Rehearing Denied Feb. 21, 1978.

Huel M. Love and B. Greg Wood of Love, Love, Lawrence & Burton, Talladega, for appellant.

William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.

HARRIS, Presiding Judge.

Appellant was indicted for murder in the first degree involving the rifle slaying of the man with whom she had been living for several years. The shooting occurred on December 18, 1976, outside the home of appellant. She was convicted of murder in the second degree and the jury fixed her punishment at twenty years in the penitentiary. She was represented by counsel of her choice and at arraignment pleaded not guilty. Her retained counsel represents her on this appeal.

The evidence was in hopeless conflict and only a jury could unscramble the confused state of the evidence and arrive at a verdict. The evidence for the State made out a case of homicide against appellant but appellant denied that she fired the fatal shot and further denied that she was present when the deceased was shot. She claimed she was at her daughter's house about seventy-five yards away when she learned the deceased had been shot.

Officer William Edward Traylor testified that he was an investigator with the Alabama Bureau of Investigation and that on the night of December 18, 1976, he was dispatched to 108 Gray Road in Heflin, Cleburne County, Alabama, to investigate a shooting at this address. When he arrived he found the victim, James C. Johnson, had been carried by ambulance to a local hospital. He made a careful inspection of the premises and made numerous photographs depicting blood throughout the house. The photographs were introduced into evidence by appellant's counsel. Traylor also found a .22 rifle on the front porch of appellant's house. On a table in the back yard he found a 12 gauge bolt action shotgun. This gun had been on the table for some time as he observed spider webs leading from the barrel of the gun to the table and it was his opinion this shotgun had not been fired lately.

He further testified that he found cartridges for a .22 caliber weapon in one of the bedrooms of the house and also in the living room. This officer personally knew the deceased and made photographs of him which were used to identify the victim to the Toxicologist who conducted a postmortem examination on the body of the victim. These photographs were made of the deceased at the Cleburne County Hospital on the night he was shot.

This officer sent the .22 caliber rifle, cartridges, and the shotgun to the State Laboratory in Jacksonville to the Director, John M. Case, for examination.

The Toxicologist, Carlos Rabren, whose qualifications were admitted by the defense, testified that he performed a postmortem on a black male on Monday, December 20, 1976, in the autopsy room in the Auburn Laboratory. He was shown photographs of the deceased and identified them as the black male on whom he performed the postmortem. This examination was performed in the presence of the Coroner of Cleburne County and another employee of the Laboratory. He said that during the course of the autopsy he recovered a small caliber projectile which had severed the left pudendal vein, "which is a very large vessel." He stated his opinion as to the cause of death in these words: "In my opinion, death in this case resulted from massive hemorrhage, associated with a bullet wound which severed the left pudendal vein."

Mr. John M. Case, a Criminalist with the Alabama Department of Toxicology, whose qualifications as a ballistics expert were admitted, testified that he received from Officer Gwin McKleroy a Mossburg 12 gauge bolt action shotgun and a Winchester Model 67, .22 caliber rifle. He was requested to examine the weapons to determine if the bullets from either weapon matched a bullet removed from the body of the deceased. He test-fired the weapons and compared the test bullets from the .22 caliber rifle with the bullet identified from the body, "and in my opinion the bullet from the body was fired from this rifle."

Mr. Case further stated that he examined the shotgun for blood stains and failed to find any blood stains on the shotgun. He said a live round was submitted with the shotgun, but it was not inside the weapon.

On cross-examination Mr. Case testified that when he received the weapons, cartridges, and shell from Officer McKleroy he also received a sealed vial of blood labeled with the name of the deceased. He ran a laboratory test on this blood sample and it showed the presence of ethyl alcohol in the amount of 0.19 percent. Mr. Case said, "At this alcohol level a person displays some mental confusion, muscular impairment, and possibly has a staggering gait."

Police Officer Kerry Gwin McKleroy of the City of Heflin testified that he and another officer were sent to the place where the shooting occurred and arrived at about 8:30 p. m. He said they were the first officers to reach the scene. He said that appellant was not at her home. He saw the man who had been shot lying on the ground beside an automobile. The car lights were on and the door on the driver's side was open but the motor was not running. He further stated that he personally knew the deceased and that the automobile belonged to him.

He further testified that the only two people present who were known to him were Kelly Cunningham and Seletha Brazzell. He stated when they arrived that Cunningham and Brazzell were around the body of the deceased and in a few minutes the brother of the deceased arrived. He said that the first thing he observed was Kelly Cunningham and Seletha Brazzell were around near the victim and he told them to stand back. He stated that he then got down over the victim and asked who shot him and he replied, "Christine," and that this was in a low whispered tone. He said he was about two and one half inches from the victim's mouth so that he could hear his answers. This officer asked the deceased how he was shot and the only thing he could say was "rif.", and that his eyes rolled back in his head, and that in the opinion of the officer he was dying.

From the record:

"The Court: Let me ask you something. Was his eyes rolled back and mouth hanging open before he spoke or after?

"A: After.

"The Court: After he spoke, I see. All right. Thank you."

Appellant's counsel objected to this testimony on the "ground it doesn't come under the rule."

"THE COURT: I overrule the objection and will allow this testimony as a dying declaration. The jury is entitled to infer, and, of course, I am entitled to infer, that Mr. Johnson had requested assistance in getting to the hospital, had stated that he was shot not that he was dying or that it was serious, or anything else; but simply that he was shot and wanted to go to the hospital that he had spread blood around pretty well, he had bled in the car, the lights were on, the car was angled sort of across the road and partly off the road, the left door was open, and he was lying on his back, and Christine not Christine Seletha Brazzell stated probably within two or two and a half feet of the man's head that, 'he's dying.' I believe we are all entitled to infer from that that he knew he was dying and that he made a statement as to the cause of his death and the person responsible; and he did die. I believe that really covers the elements of a dying declaration."

Both Seletha Brazzell and Kelly Cunningham were present at appellant's home prior to the difficulty leading up to the killing of the deceased. According to their testimony all parties present that night had been drinking beer, vodka, and whiskey. Appellant had gone to Anniston to buy an automobile for the deceased as a Christmas present as he had wrecked his car, but they did not bring the car home as there was something mechanically wrong with it. Appellant left the deceased and returned home. Kelly Cunningham was rooming with appellant and the deceased.

Appellant asked Cunningham to take the car to a service station and put two or three dollars worth of gas in it. When the deceased came home he got into an argument about why she permitted Cunningham to drive the car. The argument became heated and the deceased told appellant that he had to walk all the way from Anniston.

Appella...