Lindhorst v. State, 8 Div. 881

• Decision Date: 08 March 1977
• Docket Number: 8 Div. 881
• Citation: 346 So.2d 11
• Parties: Richard Bernard LINDHORST v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 11

346 So.2d 11

Richard Bernard LINDHORST v.STATE.

8 Div. 881.

Court of Criminal Appeals of Alabama.

March 8, 1977.

Rehearing Denied March 29, 1977.

J. Zach Higgs, Jr., Hornsby, Blankenship, Higgs, Smith & Robinson, P.A., Huntsville, for appellant.

William J. Baxley, Atty. Gen., and Elizabeth N. Petree, Asst. Atty. Gen., for the State.

PER CURIAM.

On the morning of October 28, 1974, the bodies of Clyde Johnson and his wife Lucy were found in a field approximately eight miles from Huntsville, Alabama.Clyde Johnson's death was caused by a gunshot wound to the head, for which appellant was indicted for first degree murder on November 14, 1975.He was convicted and sentenced to life imprisonment on June 16, 1976.

William Grubbs testified that Lucy Johnson was his mother and Clyde Johnson was his step-father.On October 27, 1974, he went to the Johnson home at 7:30 P.M. and left with his younger brother at 7:45 P.M.The victim was in the back yard at that time working on a shed or a barn with a neighbor.Grubbs returned to the Johnson residence around 10:45 P.M. and discovered the house had been ransacked and that the Johnsons were missing and their Cadillac was gone.He noticed some guns which the Johnsons kept in the house were missing and after checking with his sister and with a neighbor concerning his parents, he called the police.The next morning, he was informed by the police of the death of his mother and step-father.

Grubbs testified that about a year earlier, his step-father had introduced him to the appellant.He said the appellant was in Huntsville, driving a Cadillac in which the Johnsons were passengers.Grubbs said that the appellant and Clyde Johnson went to Atlanta on that occasion, and Johnson returned later without the appellant.

Thomas and James DeSherlia were admitted accomplices in the murders.The State granted James complete immunity from prosecution for the murders if he testified against the appellant.Thomas DeSherlia was called as a witness, but refused to testify regardless of his grant of immunity.However, his brother James did testify.

James DeSherlia testified that appellant was married to his sister, Fonda DeSherlia.He said appellant talked to him and his brother Thomas in Iowa in October 1974, and they discussed coming to Huntsville and getting some of the appellant's personal belongings from the Johnsons and robbing them.

DeSherlia testified that he vaguely remembered that appellant had told him previously that the Johnsons had set him up on a criminal charge in Atlanta and that Clyde had kept over $500.00 in bond money and left him in jail.The witness said they came to Huntsville to rob the Johnsons, and no mention was made of killing them until the appellant shot Clyde Johnson.

James DeSherlia testified that the trio checked into a motel; went to the Johnson home and waited until after the two boys left the house; they were driving a dark green Mustang with Iowa license tags which they parked around the corner of the house; they entered the house armed with guns and seized the Johnsons; the Johnsons were tied up and their mouths taped; the trio put the victims in the Johnson's Cadillac and with Thomas DeSherlia driving, they went to a field out in the county.

James DeSherlia further testified that the appellant had them stop, and they all got out of the car; that he helped Lucy Johnson up an embankment and saw that appellant already had Clyde Johnson in the field; that appellant then shot Clyde Johnson in the head and told Thomas DeSherlia to kill Lucy Johnson; that Thomas shot Lucy with appellant's gun; that the witness was told to shoot them also, and he did.The trio then left the scene in the Cadillac, parked it near the Johnson home, and left in the Mustang.The witness said that he went to Arizona when he left Huntsville.On cross-examination, James DeSherlia admitted having previously been convicted and serving time in the penitentiary for burglary and for auto theft.

William Courtney testified that he lived about one hundred yards from the Johnson home.Around 8:00 P.M. on October 27, 1974, he entered his driveway and noticed a strange car parked in front of his house.It was a dark colored Mustang with Iowa license plates.Around 10:30 P.M., he noticed the car was gone.

Wayne McCarty testified that during October 1974, he was desk clerk at the Johnson Economy Inn Motel in Huntsville.He identified a registration card for rooms 310 and 326 dated October 27, 1974, and bearing the signature "Paul Nations" as registrant.The card indicated the residence of the registrant was Memphis, Tennessee, and that he was driving a 1967 Ford with a Tennessee license.No color or other description of the car was shown.

The witness also identified the motel's folio card for the rooms in question.The customer's copy of the card was still attached, which would "go to the guest upon his check out if he so chose to stop by the desk and pick it up."The motel, however, had a policy that registering guests must pay in advance by cash or credit card.

Mr. McCarty remembered seeing the DeSherlia brothers at the motel on the date in question and ascertaining from them that they were staying in either Room 310 or 326.However, he could not identify the appellant, and he did not know if appellant was at the motel or filled out the registration card.

An F.B.I. agent testified that the handwriting on the motel registration card (purportedly signed by Paul Nations) contained significant similarities to the appellant's handwriting.That indicated to him that the handwriting on the card was probably that of the appellant.However, he testified that in order to be positive, he would need to examine additional samples of appellant's handwriting.

Another F.B.I. agent testified that the fingerprints found on the motel registration card matched appellant's fingerprints.Therefore, the appellant at some time had handled the card.

After the trial court overruled appellant's motion to exclude the State's evidence, the defense put on one witness and then rested.Craig McLaren was serving time in the Madison County Jail on a first degree murder conviction.He testified that he was confined for several weeks in the same cell with the DeSherlia brothers.McLaren testified that during their joint confinement, he heard Thomas and James DeSherlia tell about how they killed the Johnsons, but they never mentioned the appellant as being involved.

The sole issue presented on appeal is whether the State presented enough independent evidence to corroborate the testimony of the accomplice, James DeSherlia.

I

Title 15, § 307,Code of Alabama 1940, provides:

"A conviction of felony cannot be had on the testimony of an accomplice, unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and such corroborative evidence, if it merely shows the commission of the offense or the circumstances thereof, is not sufficient."

The test to determine whether § 307, supra, has been complied with is set forth, in a landmark decision on this point of law, in Sorrell v. State, 249 Ala. 292, 31 So.2d 82(1947):

" . . . ' * * * the proper test in determining whether there was sufficient corroboration of the testimony of an accomplice, according to statutory requirements, is first to eliminate the evidence of the accomplice and then, if upon examination of all the other evidence there is sufficient inculpatory evidence tending to connect the defendant with the commission of the offense, there is sufficient corroboration.'. . . "

The above test has been explained in McElroy, Law of Evidence in Alabama, (1962), Vol. 3, § 300.01(5) as follows:

"Non-accomplice evidence of the defendant's guilt, to be sufficient corroboration of the accomplice's testimony to take the case to the jury, must tend to connect the defendant with the crime, i. e., point to the defendant himself as distinguished from other persons as the perpetrator of the crime; hence, non-accomplice evidence confirmatory of the way and manner in which the crime was committed but which is colorless and neutral insofar as the defendant's connection with the crime is concerned, is not sufficient corroboration to warrant submission of the case to the jury:

"Marler v. State, 68 Ala. 580(quoting Lord Abinger in Reg v. Farler, 8 C & P 106, 'A man who has been guilty of a crime himself will always be able to relate the facts of the case, and if the confirmation be only of the truth of that history, without identifying the persons, that is really no corroboration at all');Tompkins v. State, 7 Ala.App. 140, 61 So. 479;Alexander v. State, 20 Ala.App. 432, 102 So. 597;Lotz v. State, 23 Ala.App. 496, 129 So. 305."

II

It is necessary to review the non-accomplice evidence of the State to determine if it tends to connect the appellant with the commission of the crime.If such evidence merely shows the commission of the crime or circumstances of the offense, it is insufficient.Motes v. State, 20 Ala.App. 195, 101 So.2d 286(1924).This is because the accomplice knows the details of the crime when he testifies, and the law requires independent evidence (not merely repetitions of the circumstances of the crime) connecting the appellant with its commission.

We have often quoted from Sorrell v. State, supra, the following:

" . . . The corroboration necessary to support the testimony of an accomplice must be of some fact tending to prove the guilt of the accused.It is not sufficient if it is equivocal or uncertain in character and must be such that legitimately tends to connect the defendant with the crime.It must be of a substantive character, must be inconsistent with the innocence of the accused and must do more than raise a suspicion of guilt. . . . "(Citations omitted.)

A.

The State contends that the motel registration card corroborates the testimony of the accomplice that the trio were in a dark green...