Luschen v. State

• Decision Date: 16 October 1973
• Docket Number: 8 Div. 201
• Citation: 284 So.2d 282,51 Ala.App. 255
• Parties: Gary D. LUSCHEN v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 282

284 So.2d 282

51 Ala.App. 255

Gary D. LUSCHEN v. STATE.

8 Div. 201.

Court of Criminal Appeals of Alabama.

Oct. 16, 1973.

J. Robert Miller and Dan Moran, Huntsville, for appellant.

William J. Baxley, Atty. Gen. and Samuel L. Adams, Asst. Atty. Gen., for the State.

HARRIS, Judge.

On September 30, 1971, appellant was convicted of murder in the first degree and his punishment fixed at death. The record came here on automatic appeal. It was submitted on briefs in this Court on April 25, 1972, and, subsequently assigned to one of the circuit judges to prepare an opinion. The record was returned to this Court on September 11, 1973, sans an opinion.

Appellant was represented in the trial court by appointed counsel who represents him on appeal.

Appellant was jointly indicted with Randall A. Shields for killing Robert Marlin Caneer, Jr., by stabbing him with a knife. A severance was granted and appellant was put to trial. At arraignment he entered two pleas: (1) not guilty, and (2) not guilty by reason of insanity.

On August 10, 1971, Honorable David R. Archer, one of the circuit judges of Madison County signed an order transferring appellant to Bryce Hospital to be examined by a commission of three qualified doctors to determine his sanity. On September 8, 1971, Judge Archer signed another order directing the sheriff to obtain custody of appellant from Bryce Hospital and return him to the Madison County jail and there confine him until released by legal process.

On the early morning of May 5, 1971, the deceased was found in a ditch on a public highway in Madison County wrapped in a sheet and blanket. He had thirty-three (33) knife wounds in his body. Some of the knife wounds were in his back, some in his chest, and others on both arms. According to an Assistant State Toxicologist, the cause of death was 'hemorrhage produced by multiple and many stab wounds to the body, among which were injuries to the lungs and other major organs of the abdomen, including the liver and mesentery.' Several photographs showing the various stab wounds were introduced in evidence over objections of appellant that they would inflame the jury and were highly prejudicial.

According to the evidence the deceased was living in an apartment with four other young men. He was not gainfully employed. In 1969 he was expelled from school because he wore long hair. He was a known drug pusher as well as a drug addict. In the beginning he dealt with marihuana, LSD and mescaline. Later, and at the time of his death, he sold and took heroin.

On the night of May 4, 1971, preceding his death on May 5, the deceased sold a fifteen-dollar ($15.00) bag of heroin to Randall Shields and one Ray Young. Shields and Young split the heroin and 'shot it up'. All of this took place at the apartment where the deceased lived with the other boys. At this time the deceased also took a shot of heroin. He took three or four shots of heroin during the evening. Shields and Young left the apartment in Shields' car and went to Young's apartment. The deceased followed on his motorcycle. When they reached Young's apartment, Young and his wife had an argument. Young didn't get the best of the argument and decided to drive away. He got in his own car and after driving a short distance he lost control of the car. The door flew open and he fell out. He was carried to the hospital by his wife and Mrs. Shields, the wife of the co-defendant, in Shields' car. According to Young he could not recall the events of the night before except, vaguely, the argument with his wife. Shields and the deceased remained at Young's apartment. It was at this apartment that the killing occurred.

Around 1:30 A.M. on May 5, 1971, Mrs. Shields returned to her apartment to get some fresh clothes and her purse. Appellant and Shields were there. Appellant said to Mrs. Shields, 'You haven't seen me. You don't know me, and tell no one you saw me here today.' Mrs. Shields left and went over to the Young apartment to get Mrs. Young's purse and some clothes for Mr. Young. When she arrived she found the deceased at the Young apartment. He was sitting on the couch in the livingroom and had the stereo playing. She looked on the coffee table and saw three or four open plastic bags and it appeared that someone had just 'shot up' some heroin. This was the last time she saw Bobby Caneer alive. She left and returned to the hospital.

A search warrant was issued to search the Young apartment. This warrant was served on Young at the hospital and Young left the hospital with the police officer and a search of his apartment was conducted by several officers and Mr. Vann Pruitt, Assistant State Toxicologist. Blood stains were found on the couch in the livingroom, also on the floor, the walls, chairs, furniture, television set and on the inside of the back door. They found bloody towels and paper towels. An analysis of these blood stains was made and they were found to be Type O. The blood sample taken from the body of the deceased was also Type O.

The co-defendant, Randall A. Shields, appeared in court with his own attorney, Honorable Glenn Manning. Mr. Manning made the following statement in open court out of the presence of the jury:

'Randall Shields, your Honor, will waive or will testify as to any issues directly related to the charge under consideration at this time that is, the charge of homicide against Mr. Gary Luschen. He will not waive his privileges against self-incrimination as to any collateral issues, as to matters or things that might show the commission of some other crime than homicide, such as possession of drugs, something that is not related to this particular case.'

Thereafter the following occurred:

'THE COURT: All right.

'MR. LOFTIN: If he is asked those questions, will you interpose an objection?

'MR. MANNING: We certainly will.

'THE COURT: Mr. Manning, do you propose to be in the courtroom while your client is on the stand?

'MR. MANNING: Yes, sir.

'THE COURT: And he understands his rights? You have explained them to him?

'MR. MANNING: Yes, sir.'

As a witness for the state, Mr. Shields testified, in substance, that he was nineteen years of age and that on May 4, 1971, he lived in Apartment Number 2 on Minor Street; that he had known appellant about two months prior to May 4 and had known the deceased, Bobby Caneer, for several years; that on the night of May 4, he and Ray Young went to Caneer's residence for the purpose of buying heroin. During all of the years he had known Caneer, he had the reputation of being a dope or heroin dealer; that he had purchased dope from Caneer at least twenty times. Ray Young actually bought the pack of heroin from Caneer and they split it. Each used a syringe and needle and injected themselves. Shields and Young stayed at Caneer's residence about thirty minutes after injecting themselves. Young offered Caneer a place to stay for the night. They left in Shields' car to go to Young's apartment. Caneer followed on his motorcycle. Upon arriving at Young's apartment, Young and his wife argued and Young got in his car and drove away. About a half block from home, he wrecked his car and was carried to the hospital by Mrs. Young and Mrs. Shields in Mr. Shields' car. Shields and Caneer stayed at the Young apartment and listened to music.

A short time later, appellant came to this apartment and said to Shields, 'Do you want to do some heroin?' Shields answered affirmatively and went to the kitchen to get a spoon and some water. He did not witness the sale and purchase made between Caneer and appellant, but he and appellant took the heroin intravenously. Shields then left to go to his apartment and appellant followed. Caneer was then alone in the Young apartment.

Sometime later, probably around 2:00 A.M., Shields observed appellant to be extremely pale and wild-eyed. His movements were jerky and quick and he was acting wildly. Appellant told Shields that he was going back over to Ray's (Young) apartment and get his money back, 'that the heroin was no good and that I was going with him and I said no, I didn't want to go over there. And he said yes, you are going to go over there with me.' Appellant went into the kitchen and came out holding a butcher knife. They left and went to the Young apartment. Shields did not see Caneer when they walked in the apartment but he heard music playing. He went immediately to the bathroom and locked the door. A few seconds later, he heard Caneer say, 'Why, man, why'. About five minutes later appellant came to the bathroom door and said, 'Get out of here, man. You've got to help me.' When Shields opened the door, he saw appellant standing there with the knife in his hand and blood all over him. Appellant said, 'I killed him.' Shields heard Caneer breathe what he supposed was his last breath.

Appellant told Shields that he must help him clean up the place and get rid of the body. They mopped up the blood with pillows, towels and other cloth materials they found in the apartment. Appellant handed Shields a sheet and blanket and both men wrapped these around the body. Appellant got his car and backed it to the back door of the apartment and together they picked up the body and placed it on the floorboard of the backseat. They drove up on Monte Sano Mountain to the Bankhead Parkway where they removed the body from the car and laid it in or near a ditch. They continued up Bankhead Parkway and turned off at the Toll Gate Road, and took a gravel road leading to a water tower where Shields threw out the blood soaked things they had used to mop up the blood.

They returned to the Young apartment and attempted to finish cleaning up the blood using paper towels. These towels were put in a paper sack and appellant carried the sack with him as they drove from this apartment. They went to Shields' apartment and Shields asked appellant to leave. Appellant told Shields that he had better not tell anyone about this and if he did appel...