McQueen v. State, 3 Div. 792
| Decision Date | 07 February 1978 |
| Docket Number | 3 Div. 792 |
| Citation | 355 So.2d 407 |
| Parties | John Henry McQUEEN v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Bob E. Allen, Montgomery, for appellant.
William J. Baxley, Atty. Gen., and Eugenia D. B. Hofammann, Asst. Atty. Gen., for the State.
The appellant was indicted for the first degree murder of his mother. In response to the indictment he entered pleas of not guilty and not guilty by reason of insanity. Defense counsel's pretrial motion for a psychiatric evaluation was granted and the appellant was ordered to a state mental hospital for observation and evaluation. The record is silent as to the recommendations and findings of that hospital, however no contention has been advanced that the appellant was not competent to stand trial. At trial the appellant was found guilty as charged and sentenced to life imprisonment. He is represented by court appointed counsel both at trial and on appeal.
The evidence presented by the state leaves no doubt of the appellant's commission of the murder. Ms. Iola McQueen is a sister of the appellant. The deceased, Rosa Washington, was the mother of Ms. McQueen and the appellant. She testified that on May 11, 1976, the appellant was living with his mother. About one year before the murder the appellant had suffered a stroke and was not able to work. Ms. McQueen stated that the appellant talked to her over the telephone about "voodoo" and that he refused to eat his mother's food because she put "voodoo" in it. She further testified that the appellant only acted "strange" after he had been drinking and that he did drink "a lot".
Joann Berry lived next door to the appellant and the deceased in the same apartment house. On the morning of the crime she heard several shots coming from the apartment of the deceased. Ms. Berry testified that after she heard these shots, the deceased "came in my door kind of half staggering, and said, he done shot me". She said that "Sam (the appellant) done shot me". Ms. Berry left for a brief period to obtain help and when she returned found the deceased in her bathroom with blood running down her side. The appellant was sitting on the porch with a .22 caliber pistol in his hand and asked if "she" was in Ms. Berry's apartment. Ms. Berry further stated that the appellant had talked to her about voodoo and said that "mama had done fixed him in his throat * * * through cooking". The appellant stopped eating his mother's cooking and would buy "greens and different things" for Ms. Berry to cook for him. According to Ms. Berry, the appellant drank "real heavy" and acted "as normal as she was" when he was not drinking. Although the appellant "didn't act crazy all the time", Ms. Berry "could tell he wasn't just normal".
Officer Robert L. Ingram of the Montgomery Police Department investigated the shooting and found the appellant sitting on the porch to his apartment. When Officer Ingram approached the appellant, he told him that he "shot her and here is the gun". The appellant was given his Miranda rights and again told Officer Ingram that he had shot his mother and intended to shoot another subject if he could find him. An examination of the weapon revealed that although it had been fired a number of times it was fully loaded.
Expert testimony by Dr. Philip Lightfoot, a practicing physician in the city of Montgomery, revealed that the deceased sustained a bullet wound in the abdomen and suffered a great deal of internal bleeding. Dr. Lightfoot testified that the cause of death was complication resulting from surgery necessitated by the bullet wound.
Officer Ingram was recalled and stated that, in talking with the appellant, the appellant did appear confused in some ways but
Detective Kenneth Hitson of the Montgomery Police Department testified that he received a .22 caliber pistol from Officer Ingram and recovered several spent projectiles from the scene of the shooting. Detective Hitson recovered four spent rounds in front of the bushes in front of the house where the appellant was sitting. The appellant also told Detective Hitson that he had shot his mother and that he was looking for another man. The appellant showed him the approximate place he was standing in the house when the shots were fired. Hitson testified that in his opinion the appellant did not know what he was talking about and did not appear to know what was going on at police headquarters.
Following this testimony the state rested. The appellant's motion to exclude was denied. By agreement the appellant's records from Bryce Hospital were submitted as an exhibit.
Initially the appellant argues that it was error for the trial court to allow a state's witness to give hearsay testimony over defense counsel's objection. From the record
The question objected to did not seek hearsay testimony as any witness may testify to his personal observation. No further objection was made. There being no motion to exclude or strike, no request for a mistrial and no motion for a new trial, no preserved error appears in the record and we have nothing to review. Harris v. State, Ala.App., 347 So.2d 1363, cert. denied, Ala., 347 So.2d 1368 (1977), is controlling on this issue.
The appellant asserts that his motion to exclude the state's evidence was due to be granted because the state presented no evidence to prove or imply that the killing was deliberately or wilfully done.
From the testimony it is reasonable to conclude that the appellant actually intended to shoot the deceased. Intent may be inferred by the jury from the character of the assault, the use of a deadly weapon and other attendant circumstances. Gilmore v. State, Ala.Cr.App., 339 So.2d 116, cert. denied, Ala., 339 So.2d 121 (1976); Brown v. State, 142 Ala. 287, 38 So. 268 (1904).
In view of the fact that the appellant told Officer Ingram that he shot his mother and "here is the gun", it was not error for the trial court to admit that weapon, the spent projectiles, and the spent rounds into evidence without objection. Objections to the admission of evidence cannot be made for the first time on appeal. Nichols v. State, 267 Ala. 217, 100 So.2d 750 (1958); Daly v. State, 47 Ala.App. 681, 260 So.2d 412 (1972). A motion to exclude will not preserve error in the admission of evidence where no timely objection has been...
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