Nunnally v. State, 30250

• Citation: 221 S.E.2d 547,235 Ga. 693
• Decision Date: 24 November 1975
• Docket Number: No. 30250,30250
• Parties: Alice Elizabeth NUNNALLY v. The STATE.
• Court: Supreme Court of Georgia

Page 547

221 S.E.2d 547

235 Ga. 693

Alice Elizabeth NUNNALLY v. The STATE.

No. 30250.

Supreme Court of Georgia.

Nov. 24, 1975.

Rehearing Denied Dec. 15, 1975.

Holcomb & McDuff, Robert E. McDuff, Terry E. Willis, Marietta, for appellant.

George Darden, Dist. Atty., B. Wayne Phillips, Asst. Dist. Atty., Marietta, for appellee.

UNDERCOFLER, Presiding Justice.

Mrs. Alice Elizabeth Nunnally was convicted of murder and concealing a death by a jury in the Superior Court of Cobb County and sentenced to life imprisonment for murder and to twelve months for concealing a death to run concurrently, and she appeals her convictions to this court.

At trial, the prosecution presented evidence to establish the following:

Late in the evening on July 11, 1974, Mrs. Elaine Calhoun filed a missing persons report on her husband, Lee Calhoun, with the Smyrna, Georgia, Police Department. A description of Lee Calhoun and his automobile was transmitted to all Smyrna police units. His automobile was located in the parking lot of the Belmont Hills Shopping Center about 2:20 a.m., July 12, 1974. At 4:45 a.m. on July 12, 1974, Patrick Nunnally reported to the Smyrna Police Department by telephone that there was a person shot at 2295 Robin Lane, Smyrna, Georgia.

Officers who responded to the call were met in the driveway of the home by Patrick Nunnally, son of the appellant who told them there was a body in the basement of the house and that his mother was inside the house in a hysterical condition. The officers went to the basement but were unable to locate a body or any signs of foul play.

They then talked with the appellant and her husband. Appellant stated that the victim, Lee Calhoun, had come by the home earlier on the morning of July 11, 1974, to pick up a pistol because he was going to his father's house and wanted to take the pistol with him. She related that she got the pistol (a Smith and Wesson, .38 caliber revolver) from the bedroom; that she and the victim were going to the basement; that as she went to hand the pistol to the victim, it struck a metal pipe in the basement discharging; and that it struck him. She stated that she passed out after the shot was fired and did not regain consciousness until later. Appellant then told the officers that the body could be located under some cardboard boxes against the north wall of the basement.

A homicide detective located the body under eight to twelve cardboard boxes stacked about 3 1/2 feet high, lying face down, wrapped in plastic and bound with nylon stockings. He also recovered a bullet from the basement floor.

Thereafter, appellant retrieved a .38 caliber Smith and Wesson revolver and a box of .38 caliber bullets from a dresser drawer in her bedroom. The revolver was not loaded and was wrapped in cosmoline treated paper in its original box. One bullet was missing from the box.

Laboratory tests indicated that the injury was inflicted at the base of the stairs about twenty feet from where the body was located, that the victim had neither handled nor discharged a firearm, and that the bullet found in the basement was fired from the pistol that the appellant surrendered to the officers.

Autopsy of the body revealed an absence of gross powder wounds or residue on the victim's shirt indicating the gun was at least three feet away from the body when it was discharged. The bullet entered the chest and traveled downward at a 30 degree angle. Death was caused by a gunshot wound between 8:30 a.m. and 11:00 a.m. on July 11, 1974.

Detectives interviewed the appellant at 10:00 a.m. on July 12, 1974. She related the following:

At approximately 10:00 a.m. on July 11, 1974, the victim came to her home on foot. He came in the house and went into the bedroom with her and helped her make up the bed. He inquired about a gun that she owned and said he wanted to take this gun with him to his father's house. She loaded the gun and together with the victim proceeded to walk down the stairs to the basement to go out into the back of the house to fire the gun into an embankment. As they were proceeding down the stairway into the basement, the victim turned and reached out for the gun and it accidentally hit a support beam and fired. At this point she blacked out. When she regain consciousness, the victim was dead. She then went upstairs, placed the revolver on the kitchen table, received a phone call from a relative in Rome, Georgia, concerning a sister who was ill, and blacked out again. Upon waking up, she took the shells out of the revolver and placed them in the shell box. She cleaned the revolver and put it back in its original box.

After that she went downstairs and put the victim's body on some large plastic sheets and bound him up with the plastic, some garbage bags, and some nylon stockings. She dragged the body to the place of concealment and covered it with the cardboard boxes. She then cleaned the blood from the basement floor with ammonia, washed the throw rug at the base of the stairs in the washing machine, and then cleaned herself. At some point after the shooting her sister and her sister's husband came by relative to visiting her sister in Rome but she did not want to go with them. She stated that she and the victim loved each other.

At approximately 2:00 a.m. on July 13, 1974, detectives again questioned the appellant. At this time she related that the victim had not come to her home on foot, but rather that he had called her and she had picked him up at Belmont Hills Shopping Center and he had lain down in the front seat of the car so he would not be seen by the neighbors. Again she related that they were going down the basement stairs in order to fire the gun in the back yard. She stated that the victim reached around with both hands and attempted to grab the gun from her, and she became afraid as she pulled back and fired the weapon. Appellant stated that she believed that the victim wanted the gun to fire.

An Atlanta police officer had purchased the weapon for the appellant and showed her how to use the weapon.

Sometime about midday on July 11, 1974, Lewis Reagin talked with appellant on the phone about thirty minutes about some church business. He noticed nothing unusual regarding her speech or manner.

Elaine Calhoun, widow of the deceased, testified that the conduct between appellant and her husband had become unusual in the last six months in that appellant, when present with the deceased, would often stare at him in a very uncommon manner.

The defense presented the following evidence:

The appellant testified in her own behalf that she had been acquainted with the victim and his wife for approximately ten years through membership in the church. She obtained the revolver from the police officer who had purchased it for her. She planned to make a gift of the revolver later to this same officer because he was supposed to move.

She related that on Thursday morning, July 11, 1974, she was working by herself at her home when the victim called and asked her to pick him up at Belmont Hills Shopping Center. When they arrived at her home, the victim volunteered to help her make the beds, and he noticed some packages she had wrapped for a luau and inquired as to whether or not she had obtained the gun. She stated that she had and showed it to him. He showed her how to load it. She and the victim were walking down the stairs into the basement. As she reached approximately the second or third step from the bottom he startled her by reaching back with his left hand and taking hold of her right hand, the hand which had the gun. She was not expecting him to do this and when he did, she pulled back and the gun went off. She had scratches on the back of her hand. She slipped on the step but was not sure whether she slipped just before or just after the gun fired. She heard the noise and as she reached for him, blood gushed all over her back, her hair, her mouth, and her neck. As he fell, she caught him and, under his weight, managed to lay him down at the bottom of the kitchen steps. Blood appeared to be everywhere and she lost consciousness. She could not remember what happened once she got the victim to the floor. She thought about calling an ambulance, but she was in shock, and the next thing she could remember was that the telephone was ringing and she went upstairs to answer it. When she answered the telephone, it was her brother-in-law who told her that her sister in Rome had been injured. After that, she did not remember what happened. She remembers sitting down on the floor and she remembers seeing blood all over her. Further, she remembers thinking about the victim and that he did not like blood. All she could think about at that point was cleaning the blood off the victim. She then removed his pants and washed the blood off his legs. After that, she put a piece of plastic under his head to keep it out of the blood. She raised him up and put plastic under him to get him out of the blood, moved him, and washed the bloody rug and bloody pants. All the blood did not wash out of the pants. After she moved the body she went back upstairs, took a shower and washed her clothes. The body was placed under some boxes in the basement after having plastic bags put around it. Appellant's other sister came by the house on her way to Rome and helped the appellant go to the bedroom and lie down. When appellant's son and husband came home that evening, she remembered that there was something she needed to tell them. She could not remember what it was, she had a feeling that she was crushed, and that there was something she was supposed to do. She knew that she needed to start supper. She could not open the basement door and could not go down to the basement but she did not know why. She and her husband went out to dinner and her son went to a ball game. Her husband went to a civic club meeting. She was in the house alone for approximately two hours that evening....