Lloyd v. State, 5 Div. 215

• Citation: 53 Ala.App. 730,304 So.2d 232
• Decision Date: 01 October 1974
• Docket Number: 5 Div. 215
• Parties: Johnnie Frank LLOYD, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 232

304 So.2d 232

53 Ala.App. 730

Johnnie Frank LLOYD, alias v. STATE.

5 Div. 215.

Court of Criminal Appeals of Alabama.

Oct. 1, 1974.

Rehearing Denied Oct. 29, 1974.

Robert J. Hooton, Roanoke, for appellant.

William J. Baxley, Atty. Gen., and Leon Ashford, Asst. Atty. Gen., for the state.

SCRUGGS, Circuit Judge. ¹

On his first trial, the defendant was convicted of murder in the first degree and punishment was fixed at life imprisonment. Upon appeal to this court, his conviction was reversed and the cause was remanded. Lloyd v. State, 50 Ala.App. 646, 282 So.2d 85. The reversal was based upon the insufficiency of the evidence as to the guilt of the appellant.

On September 26, 1973, the defendant was re-tried. He was found guilty of murder in the second degree, and the jury established punishment at imprisonment in the penitentiary for twenty-five years.

Except as specified below, the witnesses in the second trial, with minor variations, testified substantially as they had testified during the first trial. We will, therefore, not lengthen this decision by a re-hash of the testimony.

Additional evidence was elicited from a witness identified in the first trial as being Alva Landrum but whose name on the second trial appeared as Avery Landreau. His additional testimony, in substance, was that when the defendant came to the witness's home that morning, the defendant acted as if he was in a hurry and 'sort of worried about something.' When the defendant was paying the witness for providing a ride for the defendant to LaFayette, the defendant attempted to pay with two one-dollar bills and some change. The defendant dropped some of the change upon the ground and did not pick it up. The defendant put the two bills back in his pocket and pulled out a 'little roll' of bills, removed a five-dollar bill therefrom, paid the witness, and received two dollars back in change. The witness was unable to determine the denomination of the money contained in the roll.

Additionally, a Deputy Sheriff, Johnny Walker, testified that his position with the Chambers County Sheriff's Department is that of investigator and that he was so employed on the day in September, 1972, when the defendant was tried for the murder of Luther Letlow, and, after the trial when he was escorting the defendant back to jail, the defendant made a statement. The jury was excused, and the witness testified on voir dire before the court that while he was en route with the defendant to the jail descending the stairs of the courthouse, and without any reward or hope of reward or inducement to the defendant to make a statement, the defendant, in a louder than normal voice, suddenly blurted out without being questioned, 'I done killed me one White son-of-a bith (sic) and I'm going to get me some more.'

On cross-examination, the deputy could not remember the time of the day other than he thought it was in the afternoon. No one else from the Sheriff's Department was with him at the time. The following then occurred:

'Q. Well, any, any other deputies bringing somebody along with him?

'A. Mr. Hooton, I had him in my custody carrying him back to the jail and---

'Q. --- that's what I'm asking you.

'THE COURT: All right. I think that's enough Mr. Hooton---

'MR. HOOTON: ---I'd like to go into the question of---

'THE COURT: You'll have opportunity to examine him further, cross examine him further. We have to go all over this again. The Court thinks that this was voluntarily made and the Court rules it is and it should go to the Jury.

'MR. HOOTON: If the Court please---

'THE COURT: ---let the Jury come out.

'MR. HOOTON: If the Court please, I object on the grounds I was not allowed to properly cross examine Johnny Walker on voir dire and I reserve an exception to that.

'THE COURT: You can have the exception. Bring the Jury out.

(Thereupon the Jury returned to the Courtroom at 2:55 P.M. and the trial continued as follows in the presence of the Jury.)

'THE COURT: All right, proceed, Mr. Wallace.

(Mr. Wallace thereupon continued his direct examination of the witness.)

'Q. Mr. Walker, you said after the defendant Johnny Frank Popcorn Lloyd had been tried and convicted for the murder of Luther Letlow and whil (sic) you were en route with the defendant to the jail---

'MR. HOOTON: If the Court please, I move for a mistrial. He's stating a fact that's not in evidence that this defendant was tried and convicted of the death of Luther Letlow. I ask for a mistrial on those grounds.

'THE COURT: Overruled.

'MR. HOOTON: Reserve it, I certainly do.'

On appeal, the defendant claims prejudicial error in six areas, but it will not be necessary that all of these areas be adjudicated at this time.

The defendant first contends that the trial court should have excluded the evidence upon the defendant's motion made at the conclusion of the State's evidence. While the evidence was inadequate on the first trial, we hold that the evidence was sufficient upon the second trial of this cause because of the additional testimony of the two witnesses above designated. In Finney v. State, 10 Ala.App. 39, 65 So. 93, it was stated as follows:

'The record presents an unusual case. . . . the circumstances connecting the defendant with the commission of the crime as set out in the bill of exceptions, that purports to contain all of the evidence, if not properly characterized as weak and lacking in force and effect to lead the unbiased mind to a conclusion of guilt beyond a reasonable doubt, in face of the positive testimony of the decedent's wife, are certainly not of such cogent force as to be impelling or impressive of the defendant's guilt of the crime charged against him. Yet they are sufficient to require a submission of that question...