Kent v. State

• Decision Date: 03 October 1978
• Docket Number: 6 Div. 466
• Parties: Oscar Eugene KENT v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 508

367 So.2d 508

Oscar Eugene KENT v. STATE.

6 Div. 466.

Court of Criminal Appeals of Alabama.

Oct. 3, 1978.

Rehearing Denied Oct. 31, 1978.

William N. Clark of Rogers, Howard, Redden & Mills, Birmingham, for appellant.

William J. Baxley, Atty. Gen., and Barry V. Hutner, Asst. Atty. Gen., for the State, for appellee.

BOOKOUT, Judge.

Second degree murder; sentence: ten years imprisonment.

On the night of November 20, 1971, Morris Carlisle, who had a prior conviction for burglary, was shot and killed in the home of the appellant. After an investigation, the Coroner of Jefferson County ruled the killing to be justifiable homicide. Almost five years later, the Birmingham Police Department reopened the case which resulted in the instant charge. Appellant charged that the case was reopened following several years of conflict between him and certain police officers in connection with his operation of a local club, The Wrought Iron Lounge.

Statements given to police officers by the appellant clearly made out a case of justified homicide. The State, through circumstantial evidence, sought to prove an unlawful homicide.

Birmingham Police Officer Robert J. Lamb and his partner, responding to a call, went to the residence of the appellant on November 20, 1971. They arrived shortly after midnight and within a few minutes, the Jefferson County Coroner, J. O. Butler, and other officers arrived at the scene. When Lamb and his partner entered the house, they observed a black man lying in a hallway. A piece of broken window pane glass was lying next to the hand of the deceased.

Lamb interviewed the appellant Kent who gave an account of the killing. Appellant told Lamb that he had awakened to discover the deceased coming from a back bedroom holding a piece of broken glass to the throat of the appellant's child. He stated that the deceased made sexual advances toward Mrs. Kent, but the appellant attempted to talk the deceased into leaving peacefully. The appellant told the deceased that he would open the door for him to leave, and then the appellant stepped into the living room and took a rifle from a wall rack, loaded it, and stepped back within sight of the deceased. He stated that Mrs. Kent screamed something to the effect that the deceased was cutting the child. At that time, he shot the man, Mrs. Kent grabbed the child, and the man fell to the floor.

Officer Lamb stated that he was informed that Mrs. Kent and the baby were at a local hospital. He went there to verify the appellant's story. Upon arriving, he observed doctors working on the child who had a "jagged, very deep wound" on the side of his throat.

Officer Jeffery E. Webb testified that on the date of the homicide, he and Police Sergeant M. E. Guillion went to the appellant's residence to investigate the shooting. He went back to the appellant's residence on October 27, 1976, (almost five years after the homicide) with Police Sergeant J. E. Rhodes. He identified a diagram of the appellant's house which Rhodes had made on that occasion. In the first instance, he had a conversation with the appellant in the presence of Officers Lamb and Guillion. He examined the body and found a wound in the abdomen on the right side of the navel. He observed no other wounds. He testified that the investigation was dropped when the coroner ruled the homicide to be justifiable. He stated that the coroner had consulted with him prior to making the ruling of justifiable homicide. The story which the appellant told him was essentially the same as that told to Officer Lamb.

Officer Webb testified that he examined a piece of glass which was in the right hand of the deceased and found only a small amount of blood on it. He saw no blood on the deceased except around the gunshot wound.

Webb examined the appellant's home and found a partially broken window in a rear bedroom. He had examined the area around the window, but did not see anything that looked like fingerprints that might be retrieved; however, he did see smudges on the glass. He observed that dust on the windowsill had apparently not been disturbed.

Officer Webb found a pair of shoes and a hat outside the rear bedroom window. The shoes were laced up and tied when he found them. The deceased was not wearing shoes, but was in his stocking feet when the police officers observed his body. Officer Webb testified that there were perhaps a dozen officers present during the investigation, but that he, Sergeant Guillion, Officers Little, Jones, Lamb, and Gardner and the coroner actually conducted the investigation which he admitted was thorough. A two-man fingerprint unit worked at the scene until approximately 2:00 A.M. on that occasion. The witness testified that, although he conferred with the coroner, he did not agree with the coroner's conclusion and had expressed his doubts to his supervisor and partner. He stated that he was aware that the deceased had a record for burglary.

Sergeant James R. Little testified that he took photographs and fingerprints at the scene of the homicide on the night in question. He was not able to obtain any identifiable fingerprints from around the window frame because of the rough surface.

Wayne Poole testified that he had known the appellant for ten or twelve years. He stated that in July or August of 1972, he was at the appellant's place of business, The Wrought Iron Lounge. He had consumed approximately two-fifths of liquor at the time and was in a rage. He had been in a fight earlier and wanted the appellant to go with him to retaliate against some people. When appellant would not go with him, Poole accused appellant of killing Carlisle. Poole said the appellant at that time stated to him that it would have been easy for him to have killed the deceased and made it look like self-defense. He testified that Kent told him he could have shot the deceased and then "pull the skin up on the baby's neck and let it go back and all that crap." (He apparently meant that appellant could have pulled the outer skin away from the neck and inflict a superficial cut without seriously injuring the child although his testimony is not completely clear on this point.) However, he then stated that Kent told him that he was just telling him that to get him to calm down and that the killing had actually occurred as he had related earlier "the guy broke in on him, threatened him and his wife, and cut the baby's throat." Poole admitted that he was drunk when he talked with the appellant in 1972 and that the appellant was trying to get rid of him at the time.

Poole admitted that ten years earlier he had been convicted of burglary, grand larceny, and automobile theft. Four years earlier he had been convicted of attempted murder, buying and receiving stolen property, grand larceny of an automobile, and conspiracy to pass counterfeit money. He admitted to serving time in the penitentiary and that he was out on both state and federal paroles at the time. He said no threats were made by the police in order to get him to talk to them; however, he was afraid that if he did not do so, his probation would be revoked.

Officer Little was reexamined and testified that he found some glass under the rear window of the appellant's house which appeared to have been there from some length of time. He stated that the glass was on the ground and was water spotted and had debris on it, however, he never tried to put the pieces of glass together to determine whether they came from the window. In fact, the glass had since then been disposed of, and he did not know what had happened to it. He admitted that he did not mention to anyone that the glass looked weathered until approximately two months before the trial. He did not check that particular glass for fingerprints, neither did he find prints on the glass that was remaining in the window.

Wilbert Gratton, the uncle of the deceased, testified on behalf of the State. He last saw deceased on the day of the homicide. Earlier on that date, he had received several telephone calls for the deceased from a person whose voice he said he had heard before.

After the shooting, Gratton went to the coroner's office where he saw the deceased's billfold, driver's license, money, and a "little telephone book." He said that prior to that time he had looked through the telephone book and had seen the name "Kent" and a telephone number written therein. He first testified that there was no other name in the book, but on cross-examination, he stated that there were other names in the book, all of which were relatives of the deceased. He stated that he did not know what happened to the book after he saw it at the coroner's office. The telephone number was never connected with the appellant by the State's evidence.

Gratton testified that on one occasion prior to the date of the crime a white man of heavy build with blonde hair had come to his house and asked for the deceased. He said the man drove a motorbike. The motorbike was never connected with the appellant by the evidence in the State's case in chief. Gratton also stated that he had heard a man's voice on the telephone several times. He stated that he recognized the voice on the telephone to be the same voice of the white man who visited his house on the day Morris Carlisle was killed. In his testimony before the jury, he did not connect the voice on the telephone with the appellant.

Gratton admitted to having given police a statement on September 29, 1976, and another statement on January 28, 1977, three days prior to the trial. Both of those statements were admitted into evidence and read to the jury. In the first statement, Gratton told police that the deceased had a few telephone calls, but he did not recognize any of the voices. When asked if he could tell whether they were black or white, he answered that they were "colored." The only time he had seen Carlisle associate with a white person was on the one occasion when the...