Lynn v. State, 4 Div. 183

• Court: Alabama Court of Criminal Appeals
• Writing for the Court: TAYLOR; Jack W. Wallace; TAYLOR
• Citation: Lynn v. State, 477 So.2d 1365 (Ala. Crim. App. 1984)
• Decision Date: 23 October 1984
• Docket Number: 4 Div. 183
• Parties: Frederick LYNN v. STATE.

Page 1365

477 So.2d 1365

Frederick LYNN v. STATE.

4 Div. 183.

Court of Criminal Appeals of Alabama.

Oct. 23, 1984.

Rehearing Denied Feb. 12, 1985.

Donald J. McKinnon, Clayton, for appellant.

Charles A. Graddick, Atty. Gen., and William D. Little and P. David Bjurberg, Asst. Attys. Gen., for appellee.

TAYLOR, Judge.

Capital murder; sentence: death by electrocution. On April 3, 1983, the Barbour County Circuit Court affirmed an order of the Barbour County Juvenile Court which granted a prosecution motion that Frederick Lynn be tried in circuit court, as an adult, for the February 1981 capital murder of Mrs. Marie Driggers Smith. This court affirmed that decision. Lynn v. State, [Ms. 4 Div. 161, June 10, 1983] (Ala.Crim.App.1983).

At the conclusion of a three-day trial, a Barbour County jury convicted Lynn of the capital offense. Following the mandatory hearings and findings of facts, the trial court adopted the jury's recommendation and sentenced Lynn to death, pursuant to § 13A-5-45, et seq., Code of Alabama 1975. From that conviction and sentence, Lynn appeals.

The character of this appeal and the subject matter of the underlying trial necessitate our brief recital of the pertinent facts. At trial, the State's case in chief was largely dependent upon the testimony of Garrett Marcus Strong, appellant's admitted accomplice. Strong had previously pleaded guilty to robbery in connection with the incident and had been sentenced to thirty years' imprisonment.

The State's evidence tended to prove that during the late evening hours of February 5, 1981, appellant and his accomplice surreptitiously entered Mrs. Smith's home, located at 539 South Randolph Street in Eufaula, Alabama. Lynn entered the house through a window and then opened the back door for Strong to go in. When Lynn opened the back door for Strong, he was already holding Mrs. Smith at gunpoint.

The intruders then forced Mrs. Smith to sit in a chair in the middle of the house. Lynn removed the elderly woman's wristwatch and gave it to Strong. He then demanded to know where Mrs. Smith kept her money and jewelry. When she denied having anything of particular value in the house, appellant took off one of the gloves he was wearing and handed it to Strong, ordering him to search the other rooms of the house.

Strong's search netted only "a few coins and a ring." Lynn expressed his displeasure at the meager find by stating, "That ain't nothing." He then laid his sawed-off shotgun on the couch and conducted his own search of the house, while Strong stood over Mrs. Smith. When appellant went back into the room where Mrs. Smith was seated, "she broke for the door" in an attempt to escape. Lynn stopped her from leaving the house and dragged her back to the chair. He told her that if she tried to run again he was going to kill her.

Strong testified that at this point, appellant began "poking" and "sticking" Mrs. Smith with a knife and "cutting her across the hand." Lynn then told Strong to go into the other room and turn up the volume on the television. Strong went into the room where the television was and turned up the volume "as loud as it would go." He testified that it was while he was in the other room that he heard a gunshot. Strong stated at trial that he ran out of that room and through the room where Lynn was with Mrs. Smith on his way out of the house. He said that as he ran past them, Lynn was standing in front of Mrs. Smith holding the sawed-off shotgun.

This is a difficult case. The shocking cruelty of the crime itself is rivaled only by the fact that appellant was merely sixteen years of age at the time of the murder. In his appeal, Lynn presents numerous issues for our review.

I

Appellant first contends that the testimony of his admitted accomplice, Garrett Marcus Strong, was inadequately corroborated to sustain a guilty verdict. Lynn claims that the trial court erred in failing to render a judgment of acquittal.

"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." Ala.Code (1975), § 12-21-222. The procedure commonly employed for determining whether sufficient evidence exists to corroborate the testimony of an accomplice is a "subtraction process." Thompson v. State, 374 So.2d 388 (Ala.1979); McCoy v. State, 397 So.2d 577 (Ala.Crim.App.1981); Kimmons v. State, 343 So.2d 542 (Ala.Crim.App.1977). It consists of eliminating the testimony given by the accomplice and examining the remaining evidence to determine if there is sufficient incriminating evidence tending to connect the defendant with the commission of the offense. Miller v. State, 290 Ala. 248, 275 So.2d 675 (1973); Ware v. State, 409 So.2d 886 (Ala.Crim.App.1981) (emphasis supplied). The necessary quantum of corroborative evidence in such a case was addressed most recently in Scott v. State, 460 So.2d 1364 (Ala.Crim.App.1983), reversed on other grounds, Ex parte Scott, 460 So.2d 1371 (Ala.1984). In Scott, the Alabama Supreme Court stated that the "corroborative evidence does not have to be very strong, or even sufficient to support a conviction, but merely must tend to link the accused with the offense," citing Miller v. State, supra (emphasis supplied). Our controlling authorities have consistently held that corroborative proof need merely tend to connect the defendant with the commission of the offense. See, e.g., Thompson v. State, supra; Miller v. State, supra; Sorrell v. State, 249 Ala. 292, 31 So.2d 82 (1947); Ross v. State 74 Ala. 532 (1883); Early v. State, 392 So.2d 548 (Ala.Crim.App.1980), cert. denied, Ex parte Early, 392 So.2d 551 (Ala.1981); Andrews v. State, 370 So.2d 320 (Ala.Crim.App.), cert. denied, Ex parte Andrews, 370 So.2d 323 (Ala.1979); Smith v. State, 45 Ala.App. 63, 223 So.2d 605 (1969); Moore v. State, 30 Ala.App. 304, 5 So.2d 644 (1941); Crumbley v. State, 26 Ala.App. 24, 152 So. 55 (1933).

Whether an accomplice's testimony is properly corroborated is a question of law for the trial court. Smith v. State, 230 Ala. 413, 161 So. 538 (1935); Reeves v. State, 34 Ala.App. 186, 38 So.2d 24 (1948). The duty of the court is to determine whether there is sufficient evidence which tends to connect the defendant with the commission of the crime, pursuant to the aforementioned test. Magouirk v. State, 49 Ala.App. 420, 272 So.2d 625 (1973); Miller v. State, supra; White v. State, 48 Ala.App. 111, 262 So.2d 313 (1972). If such evidence indeed exists, the court must submit it to the jury. It is then the jury's role to determine the weight and sufficiency to be accorded such evidence. Luther v. State, 47 Ala.App. 647, 259 So.2d 857 (1972); Smothers v. State, 38 Ala.App. 153, 83 So.2d 374 (1954).

In the case at bar, the trial court concluded that sufficient evidence corroborating the accomplice's testimony existed, and submitted the case to the jury. We agree. Trial testimony of various persons put Lynn and Strong together both shortly before and shortly after the crime. Although the mere association of the youths on the evening of the crime is not sufficient evidence to warrant submission of the case to the jury, it was properly considered. In White v. State, 47 Ala.App. 282, 253 So.2d 351 (1971), this court held that the defendant's presence with the accomplices immediately before and after the time of the alleged burglary and the fact that he was riding in a car alleged to have left the scene of the burglary, taken with the lateness of the hour, was sufficient to connect the defendant with the crime and to submit the case to the jury.

The record further reveals testimony regarding Lynn's possession of a sawed-off shotgun on the night of the murder both before and immediately following the killing. Once again, taken alone, this element would fail to provide sufficient corroborative evidence to warrant submission of the case to the jury. However, it was properly considered by the trial court in determining whether sufficient corroboration existed to submit the case to the jury. Bridges v. State, 52 Ala.App. 546, 295 So.2d 266 (1974).

At trial, a mutual friend of Lynn and Strong, Terry Green, testified that on the afternoon of the day of the murder he had observed appellant putting the sawed-off shotgun down his pants leg. This was consistent with Strong's testimony regarding the manner in which Lynn concealed the weapon on the night of the murder. Lynn asserts on appeal that this evidence raises no inference other than his possession of a sawed-off shotgun. Taken alone, this assertion might be true. However, given the totality of the circumstances and the consistency of other corroborative evidence, the trial court was correct to consider this evidence in reaching its decision to send the case to the jury.

Appellant also challenges the corroborative value of the testimony of Herbert Bouier. At trial, Bouier testified that Lynn approached him on the day after the murder and asked him to help get rid of a gun. Lynn's complaints regarding this testimony were more towards the sufficiency and weight of the evidence, rather than its corroborative worth. Consistent with the test for corroboration hereinabove set out, the trial court need only find that the evidence tends to connect the defendant with the crime. Appellant's desire to dispose of the weapon is tantamount to flight, which was held sufficiently corroborative in Freeman v. State, 41 Ala.App. 512, 138 So.2d 56 (1961).

On the whole, appellant's arguments as to this issue were related to weight of the evidence, rather than corroboration. It is within the jury's exclusive province to determine the weight and sufficiency to be accorded such evidence and not within the discretion of the court, unless the verdict is against the great weight of the...