Johnson v. State

• Decision Date: 29 July 1975
• Docket Number: 8 Div. 422
• Parties: Charles Leon JOHNSON v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 548

317 So.2d 548

55 Ala.App. 581

Charles Leon JOHNSON v. STATE.

8 Div. 422.

Court of Criminal Appeals of Alabama.

July 29, 1975.

Joe Gilliland, Russellville, for appellant.

William J. Baxley, Atty. Gen. and William A. Davis, Asst. Atty. Gen., for the State, appellee.

BOOKOUT, Judge.

Charles Leon Johnson was indicted September 21, 1972, by the Franklin County Grand Jury on two counts of first degree murder. Count I charged that he murdered Melvin Harbin and Count II charged that he murdered Wesley Harris. Trial commenced November 13 and ended November 14, 1972, with a verdict on Count I of guilty of second degree murder and sentence of 25 years; and guilty of first degree manslaughter under Count II with sentence fixed at 10 years. There was no order by the court for the sentences to run concurrently, therefore, the appellant received a combined sentence of 35 years.

This Court remanded with directions for the appellant to be considered for treatment as a youthful offender pursuant to Morgan v. State, 291 Ala. 764, 287 So.2d 914. The trial court on June 20, 1975, filed its return to the remandment showing compliance with Morgan, supra, and denial of treatment as a youthful offender. We must now consider the appeal on the merits.

Cornell Cooper testified that on July 3, 1972, at around 9:00 A.M., he and his wife were driving throught the mining area of Franklin County when they saw Wesley Harris sitting by the side of the road naked and wearing only a pair of socks. Harris flagged for assistance, and the witness stopped and at the request of Harris, left and called the police and returned. The witness was with Harris when the police came and when the body of Melvin Harbin was found about a quarter of a mile down the mining road which intersected the county road where Wesley Harris had been sitting.

The witness stated that Wesley Harris had blood on his body, one eye was swollen closed, and he had bruises and scratches over his body. He said Harris was able to walk across the road and get into the police car to be taken to the hospital. The witness said Harris told him that some boys had killed Harbin and thought they had killed Harris. John James testified that he was employed as a deputy sheriff of Franklin County on July 3, 1972, and arrived at the scene of the crime between 10:00 and 10:30 A.M. on that date. He observed a body located about half way down a hill next to a small pond of water. He then identified State's Exhibits 1, 2, 3, 4 and 5 as photographs substantially and accurately depicting the scene as it was on July 3, 1972. He stated that the District Attorney took the photographs exhibited. All five exhibits were introduced without objection.

The witness stated that the left foot of the body from the ankle down was in the water and that the body was not clothed. The witness identified three items of clothing marked State's Exhibits 6, 7 and 8, which he had retrieved from the side of the ravine in which the body was then lying. He stated all three items of clothing were in substantially the same condition as when he found them, with the exception that at the time of the trial they were dry whereas the items had been wet when he found them. Defense counsel objected to the introduction of the three items of clothing on the ground that, 'The proper predicate had not been laid.' The court sustained the objection.

Carl Pride, a Russellville City Policeman, stated that on July 3, 1972, he was at the mining site where Melvin Harbin's body was found. He identified a shirt he found some thirty feet up the hill from where the body was located (State's Exhibit 10) and identified a piece of underwear found in the same general area (State's Exhibit 9).

Franklin County Coroner, Joe Newton, testified that he arrived at the scene around 10:00 A.M. on the date in question. He, likewise, observed the body in the ravine and observed various cuts and bruises about the face and head and scratches on the body. He stated he could tell from the mud that had settled in the wounds that the body had been in the water for some time. He observed three or four items of clothing between the water and the road and noticed from the appearance of the gravel that someone had fallen or had been dragged down the bank to the water.

Coroner Newton testified that the body was removed to the local funeral home and an autopsy was performed. He identified a photograph of the body (State's Exhibit 11). He, likewise, identified other photographs of the body taken by the State Toxicologist (State's Exhibits 12--14). He stated that Wesley Harris died a few days later and identified photographs of that body (State's Exhibits 15--17). On cross examination, he stated that he had injected the embalming fluid in the Harbin body prior to the time the autopsy was performed.

James Hickman, Franklin County Deputy Sheriff, testified that he observed the body at the mining site around 11:00 A.M. He stated that he found a belt, a small belt clip, some strips of a tee shirt and possibly a sock at the scene. Sam Gibson, a Franklin County Deputy Sheriff, identified some articles of clothing that had been found at the mining site on July 3, 1972, (State's Exhibit 18). He estimated that the distance from the road down to the body was thirty or forty feet.

Franklin County Sheriff Swanson Hindman next testified for the State. He stated that the body of Melvin Harbin was in the pool of water when he arrived at the mining site. He identified State's Exhibits 10 and 18 and stated that he received State's Exhibits 6, 7, 8, 9, 10 and 18 from officers at the scene. He had observed some beer cans in the area and observed a blue Rambler station wagon on County Road 59 some time after the body was discovered.

Gladys Harbin identified State's Exhibit 11 as a photograph of the body of her deceased husband, Melvin Harbin.

John James was recalled as a witness for the State. He stated that on July 3, 1972, at approximately 9:30 P.M., he interviewed the appellant in the interrogation room of the Franklin County Jail. He stated that before taking any statement from the appellant, he advised him of his right to remain silent; that anything he said could and would be used against him in a court of law; if he could not afford a lawyer, one would be appointed before any questioning; that he was asked if he waived his rights, and the appellant said he did.

The witness stated that the District Attorney was present at that time and asked the appellant if he understood his rights; would he waive those rights and talk about the case; that no one in the appellant's presence of hearing made any threats toward him to obtain a statement, nor did anyone make any offer of reward or promise or inducement of any kind to the appellant to obtain a statement. The witness stated that the appellant's statement was written down by the District Attorney; that the appellant looked on and read along as the District Attorney read it back to him, and the appellant had the District Attorney make two or three changes or corrections in the statement and then signed it.

At that point in the trial, the State offered the statement in evidence (State's Exhibit 19) and counsel for the appellant then objected for the first time to the admission of the statement on the ground that it had not been shown that the statement was taken after the defendant had been fully apprised of his constitutional rights. The court overruled the objection and entered the statement into evidence, whereupon the witness read it in open court. The witness then stated that it was his judgment that the appellant was not under the influence of either alcohol, narcotics or drugs at the time the statement was given. Appellant made no further objection to the statement and did not move to exclude it. A summary of the appellant's statement contained in the State's brief is here set out for purposes of brevity:

'In substance the confession said that the defendant, Danny Johnson and Becky, Danny's wife, left on Sunday afternoon, July 2, to go riding around. The threesome had been drinking beer when they went to the pond. When they got there, a blue Chevrolet station wagon with 3 men in it came up, and the driver and Charles Leon Johnson went swimming. Wes Harris was one of the three men. Harris had some wildcat whiskey which he shared with Charles Leon Johnson. Later in the afternoon these six people then left the pump pond with Danny Johnson driving the station wagon. They stopped at Piggy O'Neals and bought a half pint of wildcat. From there they went to another home and bought 3 cans of beer. On the way back to Russellville they turned off onto a mining road and turned down a road which wasn't blocked by a cable and parked the car on a hill. The defendant and one of the other men, a skinny man, (Melvin Harbin) went behind the car to relieve themselves. Wes Harris gave the defendant and Danny Johnson some pills. Danny and the skinny man got into a fight and the defendant and Wes Harris fought. Danny Johnson tore the skinny man's clothes off and rolled him over the bank and down a gully. Danny helped Leon take Wes Harris to the edge of the gully and the defendant ripped his pants off and cut his belt off before flipping him in the gully (R. pp. 50, 51).'

Becky Johnson testified that she was the wife of Danny Johnson and that she was present on July 2, 1972, with Danny and Charles Leon Johnson at a pond when Wesley Harris, Melvin Harbin and Charles Malone arrived in a blue station wagon. She said the appellant and Charles Malone went swimming and later became embroiled in an argument. Subsequently she, her husband, the appellant, Wesley Harris and Melvin Harbin left in her husband's car to buy some beer and whiskey. She said Wesley Harris told the appellant he knew where he could get some drugs, however, she did not see appellant take any.

The group drove back to the mine headings and parked the car. Wesley...