Moore v. State

• Decision Date: 01 October 1974
• Docket Number: 8 Div. 377
• Citation: 54 Ala.App. 22,304 So.2d 263
• Parties: William Earl MOORE v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 263

304 So.2d 263

54 Ala.App. 22

William Earl MOORE v. STATE.

8 Div. 377.

Court of Criminal Appeals of Alabama.

Oct. 1, 1974.

Rehearing Denied Oct. 29, 1974.

Benjamin E. Pool, Montgomery, for appellant.

William J. Baxley, Atty. Gen. and John S. Andrews, Asst. Atty. Gen., for the State.

W. J. HARALSON, Supernumerary Circuit Judge.

The appellant was charged with first degree murder. He was convicted of murder in the second degree and sentenced to twenty-five years imprisonment.

The testimony is voluminous, but we think a succinct statement thereof will be sufficient upon which to base our conclusions of law hereinafter set out.

On March 16, 1971, the appellant, with his family, lived in an apartment in a housing project on Mason Court in Huntsville, Alabama.

Sarah Fletcher, the mother of the deceased, A. T. Fletcher, Jr., lived in the same project across the street from appellant. Leon Moore, a brother of Sarah Fletcher, lived in her apartment.

During most of the day of March 16, 1971, the deceased had been in the company of Sammie Moore, Esmore Turner, Leon Moore, and for part of the day Larry Lacy had joined the group. These persons were used as witnesses in the case. It appears that later in the afternoon, Leon Moore came to appellant's apartment and told him that Sarah Fletcher wanted to see him in her apartment. In a few moments, appellant went over to the apartment. He was told Sarah had not sent for him but that Leon, acting upon the request of A. T. Fletcher, Jr., had told him that Sarah wished to see him in order to get him to the apartment. Testimony was presented showing there had been previous difficulty on March 13, 1971, between A. T. Fletcher, Jr., and appellant, and that there was bad feeling between the two. In a few moments the appellant and Fletcher gort into a scuffle, which was broken up by members of the family and several of the above-named friends of deceased. Shortly thereafter another scuffle broke out between the two, and it also was stopped by the other people present.

At this time, appellant left and the state's testimony shows that he told the deceased that if he put his hands on him or whipped him again, he would kill him or words to that effect.

Immediately after leaving Sarah Fletcher's apartment, appellant went to a sporting goods house, bought a shotgun and shells, and brought them back to his apartment. Later in the evening, around 9:30 p.m., the appellant's daughter came in from a neighbor's apartment, where she had been baby-sitting, and told appellant and his wife that the deceased and Leon Moore had come into the apartment and that she had run out of the back door and come home. The appellant procured his shotgun, loaded it, and went to his front door where he observed the deceased and Leon Moore coming from the apartment where the daughter had been baby-sitting. They were walking in the general direction of the small front porch to the appellant's apartment. After a few words were passed, three shots were fired by appellant, two of which were at close range, inflicting fatal wounds.

The state's testimony is that appellant said, 'I told you that I was going to get you.' The appellant's version was that he said to the deceased, 'A.T., you done ran over me. Why you trying to run over the children?', and further said, 'Do you know what you told me?', and A. T. replied, 'Yes, Man, I know what I told you.'

The deceased staggered several feet before falling to the ground, where he was later picked up by an ambulance and taken to a hospital although he was apparently dead at the time.

As the ambulance was loading the body of the deceased, two police officers arrived on the scene and began to investigate the surrounding circumstances. Appellant claims he had called the police. They talked with several bystanders including Sarah Fletcher who advised Officer Little that the appellant had fired the shots that killed her son. She accompanied the two officers to the apartment where appeallant was standing just inside the screen door, the solid or permanent door being opened. As the officers approached, Officer Little saw through the screen door that appellant was standing just inside with the shotgun in his hand, and he invited them to come in. The officer drew his gun but testified that he kept it in his hand by his side, which was apparently out of view of the appellant. As the officers and Sarah Fletcher entered, she again pointed to the appellant and stated he was the man who had done the shooting. The appellant, as they came in, handed the shotgun to Officer Little who in turn asked him if he had done the shooting. He replied that he had shot the deceased, and that he would shoot him again. He was then arrested and taken into custody by the two police officers and held until the detectives arrived. They took him to headquarters in a squad car. He was not given the Miranda rights until after he was arrested and after he had been turned over to the detectives and was either on his way to jail or had reached the jail.

Appellant urges a reversal on several grounds, the chief one of which seems to be that there was error on the part of the court in allowing, over timely objection of the appellant, his testimony to the police officer which was in substance that he had shot the deceased and would shoot him again. Appellant urges that the failure of the police officers to advise appellant of his Miranda rights before his statement with regard to the shooting was a clear violation of his constitutional rights and of the procedure laid down in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

We quote portions from the above cited case of Miranda, supra, which we think are pertinent to the issues in this case:

'More specifically, we deal with the admissibility of statements obtained from an individual who is subjected to custodial police interrogation and the necessity for procedures which assure that the individual is accorded his privilege under the Fifth Amendment to the Constitution not to be compelled to incriminate himself . . . By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way . . . The constitutional issue we decide in each of these cases is the admissibility of statements obtained from a defendant questioned while in custody or otherwise deprived of his freedom of action in any significant way. In each, the defendant was questioned by police officers, detectives, or a prosecuting attorney in a room in which he was cut off from the outside world . . . To summarize, we hold that when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning the privilege against self-incrimination is jeopardized.'

The interrogation by the police officer and appellant's answer were admittedly before the appellant was arrested or taken into custody. Insofar as the evidence shows the appellant at the time was not deprived of his freedom of action in any significant way. The further question then arises, had the investigation focused upon the...