Murry v. State, 3 Div. 604

• Decision Date: 29 March 1983
• Docket Number: 3 Div. 604
• Parties: Paul Edward MURRY v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

Page 53

455 So.2d 53

Paul Edward MURRY v. STATE of Alabama.

3 Div. 604.

Court of Criminal Appeals of Alabama.

March 29, 1983.

Rehearing Denied May 3, 1983.

William W. Gobrecht of Skinner & Gobrecht, Montgomery, for appellant.

Charles A. Graddick, Atty. Gen., and Edward E. Carnes and P. David Bjurberg, Asst. Attys. Gen., for appellee.

TYSON, Judge.

Paul Edward Murry was indicted for the capital offense of murdering one Mary Pearl McCord, by shooting her with a pistol, while she was on active duty as a police officer for the City of Montgomery and was attempting to arrest Murry in violation of § 13A-5-40(a)(5), Code of Alabama, 1975.

The jury found the appellant "guilty of the capital offense as charged in the indictment."

Following a separate sentencing hearing, the jury recommended the trial judge "fix punishment at life imprisonment without parole."

The trial judge ordered a pre-sentence report and set another sentencing hearing. After the trial judge independently weighed the aggravating and mitigating circumstances applicable in this case, he rejected the jury's recommended sentence and sentenced the appellant to death. ¹

The first witness for the State was K.L. Johns, a police officer with the Montgomery Police Department. On January 5, 1982, at approximately 6:00 P.M., he and his partner were on patrol and heard over the police radio that an officer had been shot. They proceeded to Pauline and Traction Avenues and upon their arrival, saw two cars parked next to each other. One of the vehicles was a tan Malibu which appeared to them to be an unmarked police car. The tan vehicle was parked in the middle of the street facing north on Traction Avenue and the doors on both sides were open. A black and red Ford was parked along side the Malibu.

After Johns parked his patrol car, he went to the passenger side of the tan vehicle and found Officer Tony Burks sitting on the ground, wounded. Burks told Johns to "help Mary, help Mary." (R. 11). Johns then went to the driver's side of the vehicle and saw Officer Mary McCord sitting on the rocker panel with her head on the seat. He removed McCord from the car, laid her on the ground and put his hat underneath her head. At this point, McCord was still breathing and had a pulse, but her chest was covered with blood and she was not responsive.

Shortly thereafter, several other police units, the paramedics and Mayor Emory Folmar arrived at the scene. Burks told the officers he believed the suspect had gone to a certain house on Traction Avenue and Johns was instructed to stake out the front porch of that house. A few minutes later, Johns saw a black male whom he identified as the appellant walk up to the Mayor and say something like, "I did it; I killed her; you know, I shot her." (R. 15). He distinctly remembered the appellant say "I shot 'em." (R. 24). The appellant was then taken into custody.

Captain G.E. Murphy went to Traction Avenue after receiving a 1033 emergency traffic transmission and arrived there a few minutes after Johns. When Murphy arrived, he saw a patrol car, an unmarked detective vehicle and two persons lying on the ground. He proceeded to the passenger side of the tan vehicle and found Burks who instructed him to go see about Mary.

Murphy went to McCord and placed a jacket over her. McCord asked Murphy "to please don't let her die." (R. 32). Murphy then called the paramedics and stayed with her until they arrived. Shortly before the paramedics got to the scene, the Mayor arrived. Soon thereafter, the appellant walked up to the Mayor with his hands raised and said "I did it, Mayor; I shot 'em.... I swear I did it." (R. 34). The appellant was then handcuffed and turned over to Sergeant Albert.

Lisa Wiggins testified that on January 5, 1982, she got off work at Shoney's around 5:15 p.m. Her husband and a friend picked her up and the three proceeded to Traction Avenue to buy some marijuana.

They arrived there at approximately 5:30 or 5:45 p.m. and parked in a yard where several other cars were parked. There were several people standing around and her husband and friend got out of the car.

Soon thereafter, a beige car with two antennas on the trunk passed by and "everybody said there goes the heat." (R. 41). Her husband and friend got back in the car while everyone else went into the house. She then saw the vehicle's brakelights come on and they decided to leave because they thought the vehicle might be turning around.

Wiggins testified she did not see anyone selling marijuana on the street at this time, but she had on previous occasions.

As the three were leaving Traction Avenue, they heard noises that sounded like gun shots but her husband told her it was just firecrackers. They went to her mother's house, listened to the radio and learned that a woman police officer had been shot.

Wiggins said they did not get in touch with the police, but the police contacted them after hearing about them from someone else.

Ralph Connor, an investigator with the Montgomery Police Department was instructed to proceed to Baptist Hospital on the evening of January 5, 1982. He and his partner arrived at the hospital at the same time as the ambulance transporting the wounded officers. Connor went into the emergency room with Officer McCord and was present when she was pronounced dead at 6:40 p.m. by Dr. Moorehouse.

Connor remained in custody of the body until it was transported to the City Morgue and was present during the coroner's examination.

He then took custody of her personal belongings and her revolver and later turned them over to Lonnie Harden of the Department of Forensic Sciences.

When Investigators L.H. Brown and Hamner arrived at the scene, they took custody of the appellant from Sergeant Albert and were instructed to take him to headquarters. The appellant was placed in the patrol car and Hamner read him his Miranda rights.

The appellant said he knew his constitutional rights, stated he would be willing to answer questions and did not wish to have a lawyer at this time. Brown testified that no threats, promises, coercion or inducements were made to the appellant in an attempt to encourage him to make a statement.

The following testimony was given by Brown concerning the conversation between the appellant and himself during the trip to headquarters:

"A. I asked him what his name was, and he advised me it was Paul Edward Murry. And he told me he worked for the City Sanitation Department.

"Q. All right, sir. And did he say anything else?

"A. I asked him what had happened on Traction Avenue, and he told me that he had shot two people; that he thought they were trying to rob him.

"Q. All right, sir. And did he say anything else at this time?

"A. I asked him if he knew they were police officers, and he said no, that he wouldn't have done it if he had known they were.

"Q. And did he say anything else to you?

"A. Not that I recall." (R. 63).

When they arrived at headquarters, the appellant was taken to the Robbery-Homicide Division and was again advised of his Miranda rights by Hamner. The appellant stated he thought he had been shot. Brown removed some of the appellant's clothing and saw a wound but was unable to determine if such was a gunshot wound. The paramedics were called and they said the wound appeared to have been caused by a gunshot and they wished to take him to the hospital to be x-rayed.

Prior to the appellant being transported to the hospital, Brown swabbed the appellant's hands with a gun residue kit to see if he had fired a weapon recently. During this time the appellant made the following statement to Brown:

"A. During the time I was swabbing his hands, I asked him how he came to be shot with a small caliber weapon, and he stated that he had had a .22 in his right front pocket, and when he was approached by the black male and the black female, that he pulled his gun out, or attempted to pull it out, and it went off shooting himself. At this time, he stated that the black male told him to throw the gun in the ditch, which he did. Then he said he turned around and jumped the Even though the appellant claimed he thought he was being robbed, he never stated what was taken from him. The appellant also said he only fired one shot before he threw his gun (a .22) in the ditch.

black male and took his gun away from him and shot both of them." (R. 65-66).

Investigators Ingram and Billingsley then took the appellant to the hospital.

Investigator Stan Ingram was called to headquarters sometime after 6:00 P.M. on January 5, 1982. He was present when the appellant made the statement while Brown swabbed his hands and Ingram's testimony concerning that statement was basically the same as Brown's.

Sergeant Billingsley, Ingram and Officer Ward of the Sheriff's Department took the appellant to the hospital and on the way there, the appellant, after being advised again of his Miranda rights and without any threats, hopes, promises or inducements, made the following statement:

"INVESTIGATOR INGRAM: This is Investigator Ingram, Montgomery Police Department. Today's date is 1-5-82. The time is 7:46 P.M. The place will be in a police vehicle enroute from Police Headquarters to Baptist Hospital. Occupants of the vehicle will be myself, Investigator S.W. Ingram, Sergeant Danny Billingsley, Montgomery Police Department, and Investigator Ward with the Montgomery County Sheriff's Department, and Paul Murry.

"This taped statement will be in regards to the shooting of Police Officers Mary McCord and Tony Burks.

"Paul, do you understand that you are being investigated in the shooting of these two police officers?

"THE DEFENDANT: Yeah, I do. Yeah.

"INVESTIGATOR INGRAM: Yes, you do?

"THE WITNESS: Right.

"INVESTIGATOR INGRAM: Okay, I am fixing to read you your Miranda rights. Before asking you any questions, I must explain to you that you can remain silent, that anything you say can be used against you in Court, that you can talk...