Kontos v. State

• Decision Date: 03 October 1978
• Docket Number: 6 Div. 695
• Citation: 363 So.2d 1025
• Parties: Hazel KONTOS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1025

363 So.2d 1025

Hazel KONTOS v. STATE.

6 Div. 695.

Court of Criminal Appeals of Alabama.

Oct. 3, 1978.

Rehearing Denied Oct. 31, 1978.

William N. Clark, Maurice Bishop, L. Drew Redden, Birmingham, for appellant.

William J. Baxley, Atty. Gen. and Mary Jane LeCroy, Asst. Atty. Gen., for the State, appellee.

TYSON, Judge.

The appellant was indicted for the murder of her ex-husband, James Barney Cooner by shooting him with a pistol. The jury found the appellant guilty of murder in the first degree and fixed punishment at life imprisonment. Thereafter, the trial judge set sentence accordingly. The appellant made timely motion to exclude the State's evidence, request for the affirmative charge and motion for new trial. The trial judge denied each motion.

The trial commenced with the voir dire examination of Sergeant William T. Gaut. Sergeant Gaut testified that, in response to a telephone call from Attorney Maurice Bishop, received by his partner, Sergeant Albert Wallace, he (Gaut) and Wallace went to Mrs. Hazel Kontos' home at 936 South 54th Street, Birmingham, Alabama, on November 15, 1976. Upon arriving at this address, the officers met Mr. Jerry Colvin, who identified himself as an attorney from the office of Mr. Bishop. Mr. Colvin waited in the yard while the officers went to the front door and knocked. Mrs. Kontos answered the door. The officers then identified themselves, and Mrs. Kontos said, "The corpse is in there" (R. p. 50). According to Sergeant Gaut, he asked Mr. Colvin to enter the house with the officers, at which point the three of them entered. Sergeant Gaut stated that he went to a hallway leading to a bedroom in the back of the house. In the doorway to the bedroom he saw a large bundle which appeared to be a body wrapped in a gold drapery. Sergeant Gaut recalled that the smell of decaying flesh permeated the house. Sergeant Gaut returned to the front hallway where Mrs. Kontos was seated with Mr. Colvin. At this point Sergeant Gaut informed Mrs. Kontos that she was under arrest and read to her from a standardized card her Miranda rights. In response, Mr. Colvin stated that Mrs. Kontos would not make a statement at that time.

Near the front door in the seat of a chair a nickel plated pistol with a pearl handle was found. Sergeant Wallace asked Sergeant Gaut who owned the pistol (R. p. 40). Mrs. Kontos replied, "That pistol is mine" (R. p. 47). Sergeant Gaut recalled that Mr. Colvin told Mrs. Kontos not to say anything further. In the living room, underneath a chair, on the floor, another pistol was found, this one in a cocked position. Sergeant Wallace asked Sergeant Gaut how this pistol got there. Again, Mrs. Kontos blurted out, saying, "I put it there" (R. p. 48).

Sergeant Gaut testified that he was present at Cooper Green Hospital at about 2:00 p. m., on November 15, 1976, when an autopsy was performed on the deceased. Sergeant Gaut indicated that Mrs. Kontos identified the corpse as James Barney Cooner, her ex-husband (R. p. 53). The State introduced numerous photographs during Sergeant Gaut's testimony on voir dire examination. Some of these photographs had been taken at the scene while others were taken during the autopsy. At the close of the voir dire examination, the trial judge ruled that certain photographs were inadmissible, but allowed others into evidence. All three of the statements made to the officers by Mrs. Kontos while she was at her home were ruled admissible. However, the trial judge ruled inadmissible a statement made by Mrs. Kontos on November 16, 1976, to Sergeant Gaut while she was in custody at the City Jail, but without her counsel being present (R. p. 102). The statement, which was neither recorded, transcribed, nor signed, contained a confession of the killing in substantial detail (R. pp. 59-60). Although ruled inadmissible during the State's case in chief, the substance of the statement ultimately came into evidence on rebuttal by the State (R. pp. 743-744).

Voir dire examination concluded, the Judge called the jury into the courtroom to hear testimony of the State's first witness, Wayne Cooner. Mr. Cooner, the brother of the deceased, identified State's exhibit one as a photograph of the deceased.

Deputy Coroner Jack Parker testified that he was summoned to the home of Mrs. Kontos on November 15, 1976 arriving at 10:41 a. m. Mr. Parker took several photographs at the scene depicting the body as it was found. State's exhibit two was a photograph taken by Mr. Parker at the scene showing the body with the gold drapery partially removed, showing other layers of wrappings around the body. Mr. Parker testified that at the foot of the bed in the bedroom in which the deceased was found, a large roll of clear plastic material was found standing on its end.

Mr. Parker stated that he was present during the autopsy at Cooper Green Hospital. The autopsy revealed two apparent gunshot wounds to the head. Mr. Parker identified several photographs that he had taken during the autopsy. Mr. Parker observed a bullet being removed from the deceased's brain during the course of the autopsy. Mr. Parker sealed the bullet in a vial and delivered it to the evidence technician, Officer Crocker, in the Birmingham Police Department.

Chief Medical Investigator Jay N. Glass testified that he accompanied Mr. Parker to the appellant's home where he began an investigation of the death of the deceased. Mr. Glass later performed the autopsy on the deceased at Cooper Green Hospital (R. p. 130). Mr. Glass stated that the wrappings on the body were removed during the autopsy, layer by layer, with a dictated description and photographs taken of each layer. Mr. Glass identified the photographs of the body taken at the scene and those taken during the autopsy.

Mr. Glass was shown to possess the necessary qualifications to express his opinion as to the effect of injuries upon the human body. Mr. Glass testified that there were two apparent gunshot wounds of entry to the head of the deceased and one apparent wound of exit. Based on his experience and his examination of the body, Mr. Glass formed an opinion that these wounds were the cause of the deceased's death. Mr. Glass estimated roughly that the time of death was between twenty-four and forty hours prior to 2:00 p. m. on November 15, 1976. In his judgment, Mr. Glass stated that it was more likely that death occurred more than forty hours prior to the autopsy than that death occurred less than twenty-four hours prior to the autopsy.

Sergeant Albert Wallace testified that he received a call at Police Headquarters at 10:05 a. m. on November 15, 1976, from one identified to him as Attorney Maurice Bishop. The caller said that, if the police went to 936 South 54th Street, the home of Mrs. Hazel Kontos, they might possibly find a dead body there. Upon arrival at the appellant's home, Sergeant Wallace and Sergeant Gaut met Mr. Jerry Colvin in the front yard. He identified himself as an attorney from Mr. Bishop's office. The remainder of Sergeant Wallace's testimony was substantially the same as the admissible part of Sergeant Gaut's testimony on voir dire. A number of photographs taken at the scene were identified by Sergeant Wallace and admitted into evidence during his testimony, including a photograph of the mattress in the bedroom where the deceased was found. The photograph showed a large red stain on the mattress which appeared to be blood (R. p. 161). Sergeant Wallace identified State's exhibits seventeen and eighteen as being, respectively, the nickel plated pistol with the pearl handle and the pistol found under a chair in a cocked position.

On cross-examination, Sergeant Wallace recalled finding some broken glass and a broken picture frame in the living room of the appellant's house (R. p. 195). During his on-the-scene investigation, Sergeant Wallace was called to testify in court on another case. His investigative involvement with the instant case ceased when he left the scene.

Evidence Technician Leonard M. Robbins testified that he was summoned to the appellant's address on November 15, 1976. He arrived about 10:45 a. m. with Officers Wyatt and Brown. Officer Robbins' duties during the investigation at the scene included taking photographs, collecting and marking evidence and diagramming the scene. Officer Robbins identified State's exhibit seventeen from his inscription as being the pistol that he photographed in a chair at 936 South 54th Street. Officer Robbins "dusted" State's exhibit seventeen, but was unable to recover any recognizable fingerprints. Officer Robbins noted that the pistol, labeled State's exhibit seventeen, was a five-shot revolver which, when found, had one loaded cartridge and four spent cartridges in its chambers (R. p. 207). Officer Robbins similarly identified State's exhibit eighteen from his inscription as being the pistol found under a chair in the living room of the appellant's house. State's exhibit eighteen was a .38 caliber six-shot revolver which, when found, was fully loaded, and in a cocked position. A third pistol, State's exhibit twenty-three, was found partially under the bed in the other bedroom of the house. Officer Robbins identified this pistol from his inscription and also identified a photograph of the pistol taken as it was when found.

Officer Robbins identified a photograph of the wall next to the bed in the bedroom in which the deceased was found. The photograph, State's exhibit twenty-five, showed two bullet holes in the wall. Officer Robbins testified that he cut out a portion of the wall surrounding the bullet holes and recovered a bullet from the wall (R. p. 220). Officer Robbins listed numerous household articles, clothing (some men's clothing), etc., that he collected at the scene. All of the evidence that Officer Robbins collected was turned over to the property room at the Police Department where it was sealed in boxes marked for identification. The three...