Martz v. State

• Citation: 52 Ala.App. 200,290 So.2d 661
• Decision Date: 02 January 1974
• Docket Number: 8 Div. 384
• Parties: Ronald Lee MARTZ v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 661

290 So.2d 661

52 Ala.App. 200

Ronald Lee MARTZ v. STATE.

8 Div. 384.

Court of Criminal Appeals of Alabama.

Jan. 2, 1974.

Rehearing Denied Jan. 29, 1974.

Benjamin E. Pool, Montgomery, for appellant.

William J. Baxley, Atty. Gen., and Don C. Dickert, Asst. Atty. Gen., for the State.

BOWEN W. SIMMONS, Supernumerary Circuit Judge.

Appellant-defendant, an indigent, was indicted for murder in the first degree and convicted of murder in the second degree. Punishment was fixed at twenty years in the penitentiary and proper judgment therefor. This appeal followed.

The trial court appointed counsel to defend the appellant in the lower court. Different appointed counsel represents him on this appeal.

The defendant, on proper arraignment in the presence of appointed attorney, pleaded not guilty to the indictment which contained two counts. Both counts alleged the name of the homicidal victim to be Iva Nell Griffin. Count one charged the defendant with killing the deceased by beating her with his hands or feet or with both; the second count by beating her with a blunt instrument.

A qualified expert, a State Toxicologist, testified inter alia that the cause of the victim's death on March 21, 1971 was 'Hemorrhage produced by a laceration of the liver as a result of force exercised to the abdomen.'

This force, he testified '* * * produced a very massive rupture or star shaped laceration of the inside lobe of the liver which of course then would begin to hemorrhage.'

We state at the outset that the transcript of the evidence here filed and taken at the trial of the defendant was diminuted on motion of defendant's counsel.

The motion to diminute is limited to '* * * a transcript of those parts of the evidence or other proceedings as may be necessary to be transcribed to afford the Appellate Court with a record of sufficient completeness as a basis for a fair review of the following points insisted upon by Petitioner as errors:

1. Improper refusal of requested written charges.

2. Improper admission of photographs of victim.

3. Improper admission of articles taken from home of Appellant.

4. Improper sustaining of State objection to testimony of Robert Bradford concerning threats made toward victim by person other than accused.'

The trial court, pursuant to the motion, entered an order that eliminated the evidence of sixteen witnesses. The name of the defendant was not included in the omissions, but his evidence does not appear in the record. The oral charge of the court indicates that the defendant did take the stand.

Counsel for the appellant does not argue points one and two, supra. However, we have reviewed the refused charges; also we have examined the photographs of the deceased, which show the charred or seared condition of her body due to gasoline applied to her either before or after death and ignited.

There are forty-seven written instructions of which the court gave seventeen and refused thirty. These refused charges (except the affirmative charge) were either covered by the oral charge or given charges, or were incorrect, misleading or abstract. Title 7, § 273, Code of Alabama 1940, Recompiled 1958. The affirmative charge was correctly refused. We find no error in the refusal of these several charges.

The photographs of the victim's body, made and identified by the State Toxicologist, were relevant and material to the cause of death and condition of the victim's body, upon which, as we have stated, gasoline was poured and ignited, according to the evidence of the State Toxicologist. Proper predicate was laid. There was no error in admitting the photographs. Boulden v. State, 278 Ala. 437, 179 So.2d 20(7); Washington v. State, 269 Ala. 146, 112 So.2d 179(12), and cases cited.

We now address this opinion to point three, supra, and the contention of the appellant in his brief that certain articles taken from his home were the fruits of illegal search and seizure. The motion was heard and evidence taken before the trial judge, outside the presence of the jury.

It appears that five police officers, Detectives Brooks, Traughber, Edgar Thompson and Norman, on the afternoon of March 22, 1972, the day following the discovery of the victim's body, went to a residence owned by the appellant's father, at 1833 Southeast Oakwood in Huntsville, where Detective Brooks knocked on the front door. In response to this knock, an elderly gentleman, the father of the appellant, appeared, and a conversation ensued. Detectives Brooks, Edgar and Traughber were the only officers who went to the front door. Officer Brooks identified himself to the father who, in response to the officer's inquiry, stated that his son (the defendant) was there in the back room. The officer asked the father if they could come in and consent was obtained. The father escorted the officers to the room where the son was lying on the bed. The door of the room was open.

On motion to suppress, Officer Brooks testified he informed the defendant that he would like to talk to him about Iva Nell Griffin: 'But, before we ask you any questions, first let me advise you of your rights,' and then he read the card. The several facets of the Miranda warnings were read to him. The witness testified that the defendant was a prime suspect as the murderer of Iva Nell Griffin, and that he told the defendant he was 'a suspect in a murder case.'

One of the facets of the Miranda warnings and the answer thereto is as follows:

'* * * 'Do you understand that we are not threatening you or promising you anything in order to secure a statement from you' and the answer was, 'yes.' 'With these rights in mind, do you wish to talk to us?', his answer was he would talk to us."

It further appears that the officers never did inform the defendant in the bedroom that he was under arrest. However, the officer testified that he would not have permitted him to leave. A formal arrest occurred later. There was some clothing of a male person in the room. This clothing was in plain view. The defendant, in response to an officer's inquiry, told the officer that the clothing was his and that he had worn it the night before. He consented to go with the officers to the police station and authorized them to take the clothing along. This clothing was later delivered to the State Toxicologist for examination. No specific questions concerning the murder were propounded to the defendant in his room or in the residence. The defendant, on motion to suppress, denied the evidence of Detective Brooks with respect to the Miranda warnings and contended that no such warnings were given him. He also denied other phases of the officer's testimony as to what occurred in the room, and that he consented for the clothing to be taken.

The trial judge, at the conclusion of the hearing...