Morrison v. State

• Decision Date: 17 July 1979
• Docket Number: 4 Div. 660
• Citation: 398 So.2d 730
• Parties: Jesse Lee MORRISON v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 730

398 So.2d 730

Jesse Lee MORRISON v. STATE.

4 Div. 660.

Court of Criminal Appeals of Alabama.

July 17, 1979.

After Remandment Nov. 20, 1979.

Rehearing Denied Dec. 18, 1979.

Donald J. McKinnon, Clayton, for appellant.

William J. Baxley, Atty. Gen. and J. Anthony McLain, Asst. Atty. Gen., for the State.

DeCARLO, Judge.

Jesse Lee Morrison was indicted by the Barbour County Grand Jury under § 13-11-2(a)(2), Code of Alabama 1975, for the intentional killing of Marguerite McClenny, committed during a robbery.

The indictment presented on February 13, 1978, reads as follows, omitting the formal parts:

"The Grand Jury of said county charge that, before the finding of this indictment, Jesse Lee Morrison, whose name is to the Grand Jury, otherwise unknown, feloniously took one trucker-type wallet containing five one dollar bills in currency of the United States of America of the value of five dollars and a set of keys and one silver one-half dollar of the value of one-half dollar, all of the total and combined value of five dollars and fifty cents, the personal property of Marguerite McClenny, from her person, and against her will, by violence to her person, or by putting her in such fear as unwillingly to part with the same, and while the said Jesse Lee Morrison, whose name is to the Grand Jury otherwise unknown, was engaged in robbing the said Marguerite McClenny, Jesse Lee Morrison, whose name is to the Grand Jury otherwise unknown, intentionally killed Marguerite McClenny, by shooting her with a gun or pistol, on or about February 4, 1977, contrary to law and against the peace and dignity of the State of Alabama.

"COUNT II

"The Grand Jury of said County further charges that before the finding of this indictment Jesse Lee Morrison, whose name is to the Grand Jury otherwise unknown, feloniously took one trucker-type wallet containing five one-dollar bills in currency of the United States of America of the value of five dollars and a set of keys and one silver one-half dollar of the value of one half dollar, all of the total and combined value of five dollars and fifty cents, the property of Marguerite McClenny, from her person and against her will, by violence to her person, or by putting her in such fear as unwillingly to part with the same, and while the said Jesse Lee Morrison, whose name is to the Grand Jury otherwise unknown, was engaged in robbing the said Marguerite McClenny, the said Jesse Lee Morrison whose name is to the Grand Jury otherwise unknown, unlawfully, and with malice aforethought, intentionally killed Marguerite McClenny, by shooting her with a gun or pistol, on or about February 4, 1977, contrary to the law and against the peace and dignity of the State of Alabama."

Two weeks later, on February 24, 1978, the appellant filed the following motions: for a continuance, a plea in abatement, a motion to quash the indictment, to quash the grand jury venire, for a psychiatric evaluation, for a change of venue, to suppress statement, and to make gun available. All of these motions were denied except the motion to make the gun available, which was granted.

Prior to presenting the State's case, the prosecution "nolle prossed" count two and proceeded with the prosecution on count one, which appears above, over the objection of the defense. On March 13, 1978, a jury was qualified and, after a one-day trial, the jury returned a verdict, finding the defendant guilty as charged in the indictment, and fixed his punishment at death.

The evidence in support of this indictment showed that W. C. McClenny, Jr., was married to the deceased, Marguerite McClenny, and testified that he operated the McClenny Furniture Company, in Eufaula, Alabama, on February 4, 1977.

According to McClenny, he went to his place of business on the date in question around 7:30 A.M. He stated that his wife came to the store that same day, sometime between 8:00 and 8:30 A.M., so that he and his son could be "out that particular day." McClenny stated that he and his son left the store about 9:20 A.M., after his wife returned from making the bank deposit. He said that she remained at the store to carry on the business. McClenny also said that, when he left the store that morning, there was a billfold in a "two-drawer file cabinet" in the store, which contained an "old silver half-dollar" and "five one dollar bills."

During the trial, he identified a key to a 1970 Chevrolet pick-up truck, a key to a 1971 pick-up truck and a padlock, all of which he said were stolen from his store on February 4, 1977. Further, McClenny said that these items were returned to him by Officer Tew of the Alabama Bureau of Investigation and Mr. Gatlin of the district attorney's office. He also stated that the billfold was empty when the officers returned it to him.

On cross-examination, McClenny stated that his wife was wearing two diamond rings and had sixteen dollars in her purse on the day in question. However, McClenny said that the rings and the money were not taken in the robbery.

William Claude McClenny III, the son of the deceased, stated that, on February 4, 1977, at approximately 1:40 P.M., he went to the family furniture business in Eufaula and found his mother lying on the floor behind the counter. According to McClenny, he at first thought his mother might have had a stroke but, when he moved her, he realized that she had been shot.

Further, he recalled that the billfold, which he identified in court, was kept in a "two-drawer file." McClenny said that, when he arrived at the furniture store, he discovered that the drawer was "half open."

Lamar Chapman, the Barbour County Coroner, testified that, on February 4, 1977, he went to the McClenny Furniture store in Eufaula, Alabama. According to Chapman, he examined Mrs. McClenny and found that "she was dead." Further, he said she had "two apparent wounds.... one in the upper left chest area and one in the abdomen."

Chapman testified that he was present when the toxicologist performed an autopsy on the body of Mrs. McClenny at the Chapman Funeral Home. He said that the cause of death was determined to be "(s)hock and hemorrhage due to two gunshot wounds in the chest area one in the chest area and one in the abdomen."

Corporal A. G. Tew, an investigator for the Alabama Bureau of Investigation, on February 4, 1977, testified that, on that date, he went to the McClenny Furniture store about 2:09 P.M. Upon his arrival, he saw the body of the victim in the office area of the store.

According to Tew, he found two .25 caliber "spent hulls" on the floor. One was found next to the deceased's right shoulder and the other approximately five feet away, under the store counter. Tew stated that the hulls were fired from a .25 caliber automatic and testified that a .25 caliber "live round," which had not been fired, was found near the left knee of the deceased.

During the trial, Tew identified an empty wallet which he said was discovered "in a sewer over in Chattahoochee Courts." He stated that, when he went to retrieve the wallet, he was accompanied by a Mr. Gatlin, an investigator for the district attorney, Sheriff Gilmore of Barbour County and the appellant, Jesse Lee Morrison.

Tew testified that, prior to going to the location of the wallet, he had a discussion with the appellant. He said that, during that time, he did not threaten, coerce, or promise the appellant anything in return for the information leading to the wallet. Tew testified that the appellant signed a Tew also identified a .25 caliber pistol, which he stated he had received from Sgt. Ardel Hardaway of the Columbus, Georgia Police Department on September 7, 1977. He acknowledged that the pistol had been in his possession and under his custody and control from the day Sgt. Hardaway turned it over to him.

waiver of counsel form at approximately 11:00 A.M., on September 19, 1977, seven months after Mrs. McClenny's death.

During cross-examination, Tew acknowledged that he had seen the appellant for the first time at the police department in Franklin, Tennessee. Tew said that, at that time, he was accompanied by Chief Brown of Eufaula and Gatlin, for the purpose of "extradicting Jesse Morrison back to Alabama."

According to Tew, they attempted to question the appellant on their return trip the next day but he refused to sign a waiver of counsel and stated that he did not wish to make a statement without a lawyer present.

Further, Tew testified that James Arthur Thomas had implicated the appellant in the robbery and murder. Tew said that he had received this information on September 3, 1977, at the police department in Rochester, New York. According to Tew, Thomas, while at the New York police station, admitted his involvement in the robbery of the McClenny furniture store.

Tew also testified that James Ellis Morrison, the brother of the appellant, had given him information concerning his brother's involvement in the robbery.

Detective Sgt. Ardel Hardaway of the Columbus, Georgia Police Department, testified that, on September 6, 1977, a man named George Washington came to the Columbus Detective Division and gave him a weapon, which he identified in court as State's Exhibit 26. He said the weapon was later turned over to Officer Tew, on September 7, 1977.

James Arthur Thomas testified that he had known the appellant, Jesse Morrison, for about "twelve or fifteen years." He recalled that, in June, 1977, he had gone with the appellant to the S & W Bar in Columbus, Georgia. Thomas testified that the bar was operated by a Mr. Washington and that they had gone there to sell a gun. According to Thomas, the appellant sold Washington a .25 caliber pistol, which Thomas identified in court as State's Exhibit 26.

Further, Thomas testified that, in April, 1977, shortly after he was released from jail in Rochester, New York, he had a conversation with the appellant in Thomas' home in Eufaula, Alabama. Thomas recalled the conversation,...