Kyzer v. State

• Decision Date: 21 August 1979
• Docket Number: 6 Div. 655
• Citation: 399 So.2d 317
• Parties: Dudley Wayne KYZER, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 317

399 So.2d 317

Dudley Wayne KYZER, alias v. STATE.

6 Div. 655.

Court of Criminal Appeals of Alabama.

Aug. 21, 1979.

Rehearing Denied Oct. 2, 1979.

Robert F. Prince, of McDuffie, Holcombe & Prince, Tuscaloosa, for appellant.

Charles A. Graddick, Atty. Gen., and J. Anthony McLain, Asst. Atty. Gen., for State.

TYSON, Judge.

Dudley Wayne Kyzer was charged in a six-count indictment under Alabama's Death Penalty Statute, § 13-11-1 through § 13-11-9, Code of Alabama 1975 (Act No. 213, General Acts of Alabama 1975), for first degree murder "wherein two or more human beings (were) intentionally killed by the defendant by one or a series of acts." ¹ & ^1a The jury found the defendant "guilty of first degree murder with aggravated circumstances as charged in the indictment," and fixed the punishment at death. (R.p. 829) Thereafter, the trial court conducted a post conviction hearing on the aggravating and mitigating circumstances pursuant to § 13-11-3 et seq., Code of Alabama 1975. The trial judge then set punishment at death by electrocution after making specific findings on the aggravating and mitigating circumstances. ² (R.p. 833-837)

At arraignment the appellant entered a plea of not guilty and not guilty by reason of insanity. Pursuant to defense motion, appellant was ordered committed to Bryce Hospital for psychiatric evaluation and examination to determine whether he was competent to stand trial. (R.p. 766-767) Criminal proceedings against appellant were resumed upon the trial court's receipt of the results of the lunacy commission's study of the appellant's mental condition pursuant to § 15-16-20, Code of Alabama 1975. (R.p. 768)

The issues on this appeal deal exclusively with matters pertaining to the post-conviction hearing conducted by the trial judge on the aggravating and mitigating circumstances. Consequently, our description of the evidence adduced at trial appears in an abbreviated format.

On Sunday, October 31, 1976, Emily Diane Kyzer, Eunice Barringer and Richard Pyron were found dead by the police at the home of Mrs. Barringer at 1232 Thirteenth Avenue, East, Tuscaloosa, Alabama. All three victims had been shot to death. The first officers on the scene found ambulance personnel working over the body of Emily Diane Kyzer. Ms. Kyzer had received one gunshot wound to the chest cavity which penetrated the heart. Ms. Kyzer was lying in the driveway leading from the street in front of Mrs. Barringer's house. Upon entering the house through the carport, which was situated on the end of the rectangular-shaped house, investigating officers found the body of Richard Pyron in front of a chair in a kneeling position in the den of the house. Mr. Pyron had been shot twice: a bullet entered his right shoulder exiting through his back and lodging in the den wall; a second bullet entered his skull from the top traveling downward through the brain and lodging in his neck. In one of the bedrooms in the house, officers found the body of Mrs. Eunice Barringer. Mrs. Barringer had been shot once in the head just over her right eye from very close range as revealed by gun powder surrounding the entrance wound. Officers found the telephone in the den with the receiver removed from its cradle. No other persons were found in the house by the police. Investigation revealed that Eunice Barringer was the mother of Emily Diane Kyzer who had been twice divorced from the appellant.

Chief investigating officer Shirley Fields with the homicide unit of the Tuscaloosa Police Department interviewed six-year old Chris Kyzer shortly after the investigation at the scene commenced. Officer Fields learned, and young Chris later testified On the Sunday afternoon in question, several of Mrs. Barringer's neighbors were outside playing with children, or performing household chores or duties, etc. Mr. Louis Holt, a nearby neighbor of Mrs. Barringer, was inside his house when he heard what he thought were two gunshots. Looking from his front window, Mr. Holt then saw Emily Diane Kyzer and Chris Kyzer running from the Barringer house towards his house. Mr. Holt saw Chris' mother fall in the driveway. Chris arrived at Mr. Holt's door moments later. Upon learning what had happened, Mr. Holt immediately telephoned the police. Sometime later during the investigation by the police, Mr. Holt witnessed the taking of Chris' statement by Officer Fields.

that he was present at the home of Mrs. Barringer when his father, Dudley Wayne Kyzer, arrived. The appellant forced his way into the kitchen from the carport area where young Chris was playing with some stray puppies. Chris followed his father into the kitchen and noted that his mother and appellant immediately began quarrelling. Chris recalled that Richard Pyron and Mrs. Barringer were in the den together. Chris stated under oath that he saw appellant, his father, draw a gun from his belt when Mrs. Barringer picked up the telephone receiver to make a call. Immediately, Emily Diane Kyzer told Chris to run out the door as she pushed him in that direction. As he was exiting, Chris saw his father fire one shot towards the den wall where Mrs. Barringer and Richard Pyron were located. Once outside, Chris heard one additional shot as he ran. Chris testified that he and his mother ran out the door together. Chris ran to a neighbor's house and did not see where his mother went.

Soon after Chris had arrived at Mr. Holt's house and the police had been summoned, Mr. Holt saw two other neighbors, Mr. Winston Owens and Mr. Charles Hester, slowly pass his house in a pick-up truck moving in the direction of the Barringer house. Mr. Holt went to his front door and motioned to the men in the truck instructing them to stay away from the Barringer house. Mr. Owens then backed his truck away from the Barringer house. Mr. Hester and Mr. Owens had been standing together talking when they both heard sounds that Mr. Hester thought were Halloween fireworks. The men exchanged comments about the noise as they observed Emily Diane Kyzer and Chris Kyzer run from the Barringer house. When Ms. Kyzer fell in the driveway, the men focused their attention on her to attempt to see whether she was hurt. Another neighbor, Mrs. Margaret Warbington, also heard the sounds and was discussing them with Mr. Owens and Mr. Hester when they all observed an unfamiliar maroon or burgundy colored automobile with a black vinyl top slowly pass by them at a normal rate of speed. None of the neighbors recalled the license plate numbers but Mr. Hester observed that the automobile was equipped with a trailer hitch. Mr. Hester described the driver as being a white male with light brown, long hair and a full beard. It was at this point that Mr. Hester and Mr. Owens drove in the pick-up truck towards the Barringer house to see what was wrong with the woman who had fallen in the driveway.

Freddie Sherrill, a life-long friend of the appellant, testified that on the afternoon in question between 5:15 and 5:30 p. m., the appellant arrived at his trailer on the east side of Tuscaloosa. The appellant drove around behind Mr. Sherrill's trailer and parked his maroon and black Buick automobile in Mr. Sherrill's garage despite the fact that numerous paint cans were in his path on the garage floor. Mr. Sherrill's description of appellant's appearance matched that given by Mr. Hester.

When Mr. Sherrill approached the appellant he was standing beside his car. Appellant mumbled something about "ending it all" and drew an automatic pistol from his belt, raised it to his head and attempted to pull the trigger but the pistol was apparently jammed. Appellant told Mr. Sherrill that he was in serious trouble and asked to borrow Mr. Sherrill's motorcycle, a Kawasaki 900 model. Appellant then left on the motorcycle.

Appellant drove the motorcycle from Tuscaloosa to Selma, Alabama, where he telephoned his aunt, Nell Clausen, at approximately 7:00 p. m. At Ms. Clausen's home, the appellant drove the motorcycle up some steps and into the living room of her apartment. Appellant said very little to his aunt other than that he was in trouble, needed her beige Volkswagen automobile and as much money as she could give him. Appellant also said "I've got to get away." (Rp. 216) After five or ten minutes, appellant left in his aunt's automobile with a small amount of money she had given him.

The following day appellant arrived at a used car lot in Pensacola, Florida, owned by Charles Tucker, who was a native of Tuscaloosa and an old friend of the appellant. The appellant entered Mr. Tucker's office in the morning and after exchanging greetings asked to borrow an automobile and for a place to stay for a couple of days. Appellant said he was in some trouble. (R.p. 247) Mr. Tucker explained that he could not help him with either of his requests but offered appellant twenty-five dollars in the form of a loan. Appellant took the money and left.

Mr. T. L. Sexton, a resident of Atlanta, Georgia, testified that he received a telephone call from the appellant between 12:00 and 2:00 p. m. on Tuesday, November 2, 1976. Appellant was lost in Atlanta and sought directions to Mr. Sexton's place of business. Mr. Sexton had known appellant's mother from his childhood and, consequently, had known appellant most of his life. When the appellant arrived at Mr. Sexton's office, Mr. Sexton asked him to wait because he was busy with business matters. Later, after the appellant had washed and shaved his face, the appellant gave Mr. Sexton a very sketchy account of the incident at the Barringer house. According to Mr. Sexton, appellant said he had gone to the home of his former mother-in-law to pick up a jacket left there earlier. When he arrived, his mother-in-law attempted to call the police and then a gun was fired in the room. The appellant was not sure who had fired the gun.

Mr. Sexton then called Tuscaloosa to find out exactly what had happened at the Barringer house. Upon learning of...