Jones v. State

• Decision Date: 05 July 1983
• Docket Number: 8 Div. 687
• Citation: 439 So.2d 776
• Parties: Billy Ray JONES v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 776

439 So.2d 776

Billy Ray JONES v. STATE.

8 Div. 687.

Court of Criminal Appeals of Alabama.

July 5, 1983.

Rehearing Denied Aug. 2, 1983.

Certiorari Denied Oct. 28, 1983

Alabama Supreme Court 82-1081.

John F. Porter, Livingston, and Ralph Grider, Scottsboro, for appellant.

Charles A. Graddick, Atty. Gen. and J. Thomas Leverette, Asst. Atty. Gen., for appellee.

LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal from a judgment of conviction and sentence to life imprisonment for murder. A jury found this appellant guilty as charged in an indictment with intentionally causing "the death of another person, Frances Neely, by shooting her with a pistol, in violation of Section 13A-6-2 of the Code of Alabama, subsequent to ... the effective date of said Section 13A of the Code of Alabama." The court fixed defendant's punishment at imprisonment for life and sentenced him accordingly.

By reason of defendant's indigency, he was represented by trial counsel appointed to defend him and who continued to represent him until he was sentenced, at which time defendant gave notice that he would appeal the judgment of conviction and sentence. The court then advised him that it would promptly appoint different counsel to represent him on appeal from counsel who had represented him on the trial, which the court did and which appointed counsel timely filed a motion for a new trial and represented defendant on the hearing of said motion, at which considerable testimony was taken. The trial court overruled the motion for a new trial, which ruling constitutes one of the issues presented on appeal.

No issue is presented by appellant as to whether the evidence was sufficient to present a jury question as to defendant's guilt. Furthermore, appellant presents no issue on appeal as to the sufficiency or the weight of the evidence as to defendant's guilt. However, as two of the issues presented by appellant could reasonably be affected by the sufficiency or the strength of the evidence as to defendant's guilt, we will give a brief resume of the evidence pertaining directly to his guilt or innocence.

At about 3:45 P.M. on December 14, 1981, the victim was killed while in her home at Paint Rock, Alabama. A neighbor had heard a shot, and soon thereafter another neighbor of the victim entered the victim's house and saw that she had been recently killed, that there was much blood on and about her body and signs of considerable violence. Law enforcement authorities were speedily alerted. The first officer to arrive at the scene was Deputy Sheriff Freddy Hall, who observed some onlookers and told them to move back from the premises, and then he secured the scene, including the inside of the house and parts of the outside and adjacent areas, to prevent any entrance or exit. He learned that an ambulance had been called and was informed by ambulance attendants that they had been in the house. Mr. Brent Wheeler of the Alabama Department of Forensic Sciences testified that he took part in the investigation of the residence of the victim on the night after she was killed and that he recovered a bullet from the "sub-flooring" in the northwest room of the house of an "approximate 44 caliber," which he identified as an exhibit on the trial and which was admitted in evidence. He said that in his opinion the bullet was one that could be fired only from a "Smith & Wesson 44 special or 44 Magnum."

Numerous photographs were taken of the residence of the victim, the interior of the house and many objects therein, including the body of the victim that showed what appears to be a bullet wound that penetrated the upper part of her chest and several marks and crushing wounds on her head, which according to the testimony of one or more expert witnesses, resulted in the fracture of her skull. According to the undisputed evidence, the body of the victim was lying on a door of the house which had been pulled down from its hinges and was largely covered with blood, and underneath the upper part of her body there was a hole in the door immediately above a hole in the flooring directly above the place where the bullet referred to above was found. According to further undisputed evidence, the defendant lived with his wife in a mobile home or trailer within a short distance of the residence of the victim, and he was at his home part of the day of her death.

The witness who first found the body of the victim testified that as she entered the victim's house she heard a noise that sounded like a gunshot and saw someone wearing a mask run by her and out of a back door. She said the person was bent over and was under six feet tall. She could not identify the person as the defendant. Police Officer Edward Cain, Jr., who had been assigned to the canine unit, testified that he and his dog, Dozer, arrived at the scene of the crime, that his dog followed several trails from the victim's backyard and that one of these trails led to the mobile home of the defendant, but upon reaching such property the officer's dog became more interested in other dogs than in tracking and trailing. A neighbor of the victim and of the defendant testified that some time between 9:30 and 11:30 A.M. of the day of the homicide, she saw defendant walking down the street wearing blue jeans, a black football jacket, and tennis shoes, and that she saw him again at the time the sirens were heard relative to the homicide and he drove from his home very fast and that she afterwards saw him in the victim's yard that night, and he told her then that when he left his house that afternoon he had changed direction from which he had started and had turned around, because "they" would not let him go in the direction he had headed. She further testified that he said "This is terrible to happen in your own back door ... this makes me sick at my stomach; I'm going to go home" and then he left. She said that he was wearing different clothes from the clothes he was wearing during the morning of that day, that he had on a red windbreaker and baseball cap. Another witness testified she saw the defendant on the morning of December 14 and then he was wearing tennis shoes and that she saw him that night in the yard of the victim's house and that he then had changed his footwear from tennis shoes to slippers.

According to the testimony of State Investigator Sgt. Louis Mewbourn, he and three other officers went to the mobile home of defendant on the night of December 14, 1981, after he had been at the scene of the crime, and found the defendant, defendant's wife and young daughter at home. He went to question the defendant and view his home and its contents. He apprised the defendant of his mission. The defendant was cooperative and readily gave his permission for the officer to search his home. He was fully advised of all of his constitutional rights and freely answered questions as to his whereabouts the day of the homicide, after voluntarily signing a waiver of rights form. He was asked by the officers to let them see his .44 caliber pistol. He replied that he had previously owned a .44 caliber pistol but that two years before he and his stepbrother had gone target shooting down by the river with the pistol, that his stepbrother dropped the pistol into the river, that they tried to find it but could not do so. Defendant stated that he had sat around the house for most of the day on December 14, that his wife had gone to Huntsville that morning and returned about noon, that he decided to go deer hunting and took his 30-30 rifle with him and did not return until about 4:00 or 4:30 P.M. and that upon returning home he heard the sirens. He said he attempted to drive to a store but could not get through to it and turned around and went in the opposite direction to a store in Paint Rock, where he was informed that Mrs. Neely had been killed or was shot.

On the late afternoon or evening of December 15, the day after Mrs. Neely was killed, an officer went to the home of the defendant and asked him and his wife to come to Scottsboro to be there questioned in an official office. They agreed to do so. In the course of the interrogation in Scottsboro, defendant signed a written permission for his house and premises to be again searched and delivered to them the key to the house. A search of the house was made that night. Among other items, a pair of tennis shoes that "were damp and looked like something that had come out of the washing machine" were found and introduced in evidence. They found some fingernail clippings within the bag of the carpet sweeper, which were also introduced in evidence, along with some fingernail clippers that were in the mobile home. On the agitator of the clothes-washing machine in the mobile home, which was introduced in evidence, there was a "red spot which appeared to be blood" according to the testimony of a witness. In addition, "scrapings that were characterized as blood stain" were found in the washing machine and introduced in evidence, as well as four "spent cartridges and one (1) live 44 Remington Magnum shell."

Defendant's testimony consisted of an outright denial of his presence in the house of the victim and of any connection whatever with her death. His testimony was substantially in accordance with what he had told investigating officers as narrated above as to his whereabouts on the day of the homicide. His testimony in material respects was corroborated by the testimony of his wife. She said that he had previously owned a pistol but that it had been a long time since she had seen it.

The evidence on behalf of the State and on behalf of the defendant, consisting of nearly seven hundred transcript pages, was extremely rambling. The State introduced sixty-four exhibits; defendant introduced eight exhibits. Many of the witnesses were extraordinarily loquacious. It is difficult to summarize the evidence within reasonable space. We have attempted a condensation of that...