Parker v. State

• Decision Date: 25 November 1980
• Docket Number: 6 Div. 179
• Citation: 395 So.2d 1090
• Parties: Curtis Ray PARKER v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1090

395 So.2d 1090

Curtis Ray PARKER v. STATE.

6 Div. 179.

Court of Criminal Appeals of Alabama.

Nov. 25, 1980.

Rehearing Denied Jan. 20, 1981.

Bob E. Allen, Montgomery, for appellant.

Charles A. Graddick, Atty. Gen., and Samuel J. Clenney, III, Asst. Atty. Gen., for appellee.

LEIGH M. CLARK, Retired Circuit Judge.

A jury found appellant-defendant guilty of murder in the first degree of Lelia Martin by shooting her with a gun and fixed his punishment at imprisonment for life. He was sentenced accordingly.

The only express issue presented on appeal is as to the sufficiency of the evidence to support the verdict and judgment. The question was presented to the trial court by motion to exclude the evidence, a written request for the affirmative charge in favor of defendant and a motion for a new trial. The trial court overruled each motion and refused defendant's written request for the affirmative charge in his favor.

Any and all evidence tending to show defendant's guilt was circumstantial. A large part of the lengthy evidence pertained to the question of the corpus delicti exclusively. There is no contention that the corpus delicti was not fully established. Appellant contends, as he did on the trial, that the alleged victim was not killed by him. Most of the following resume of the evidence will pertain to that question.

The defendant and the victim lived within less than a block of each other in Birmingham, close to the northwest lineal segment of Center Street, which runs approximately northwest and southeast and divides areas that civil engineers have designated "North" and "South" from areas they have designated "West" and "Southwest" respectively, in their surveys, plats and street identifications of the city of Birmingham, which latter designations conform in general to compass directions. Mrs. Sheila Robinson testified that about 4:45 on Saturday morning, February 24, 1979, the victim came to her house, which was about two blocks from the victim's, and asked the witness to go to her laundromat and open it for her to wash some clothes, which she did. No one was with the victim at the time. She never saw the victim alive after that. The witness knew the victim well and had known the defendant about two months, having met him through his wife and having gone to hear him preach. She said that on the following Monday morning, the defendant came by her laundromat and asked, "Do any of you know the whereabouts of Mrs. Martin?" He did not receive an affirmative answer and then said that if they learned where she was to let him know.

Rosie Storey, who lived at 1621 Third Street, North, in the same neighborhood as Mrs. Martin, and had known her all of the life of the witness, testified that she saw her about 8:30 or 9:00 on the morning of Saturday, February 24, 1979, standing alone on a corner on Sixteenth Avenue. The witness further said:

"She (Mrs. Martin) was fully dressed. She had a pants suit on, a short coat on. She had a wig on and glasses, her purse and an umbrella."

William W. Logan testified that about ten minutes after eleven o'clock February 24, 1979, a woman whom he did not know but who was identified by him by a picture of her as Lelia Martin, came into a grocery store he operated in Blount County, stating that she wanted to buy beer. Upon being told that he didn't sell beer, the woman left. The witness did not see anyone with her.

John B. Cole, Jr., testified that he lived at Blount Springs, just off County Road 7, that on February 24, 1979, "a little before noon," he heard two "gunshot sounds" that came from the direction of a creek at which he had a pump house about a mile by road and three-fourths of a mile by air from where he was when he heard the gunshot sounds. He testified that on the following morning between 9:30 and 10:00 he went to the pump house with members of his family, passing the house of Mrs. Ercelle Hawes about half way between the home of the witness and the pump house, and while in the area of the pump house, a corpse was discovered in the creek. It was thereafter determined, and the evidence conclusively shows, that the corpse was the body of the alleged victim and that she had been shot three times in the head by a small caliber gun and that the three bullets were still in her head. The testimony of Mr. Cole continued as follows:

"Well, as I said, the little girls discovered a body and naturally we came over there. What I saw was this body laying face down, as I recall, in the water.... The water sort of .... the shallow part of the water that comes up where we pump the water out. It's not as shallow as it is out toward the middle of the creek. The body was lying right in this little shallow pool of water, just as you go in the pump house door.

"Q. And you said it was face down?

"A. As I recall it was.

"Q. Now, describe .... describe the body. Describe the wearing apparel or the clothes you saw there.

"A. Well, as I recall, the upper part of the body was covered, but the lower part of the body wasn't."

Mrs. Ercelle Hawes testified that on the morning of February 24, 1979, she left her house about 11:15 or 11:20 to go to a filling station to get some water and returned about thirty minutes later. She testified that while returning to her house and going in the direction of the pump house of Mr. Cole, which was about one-half mile beyond her house, she met an automobile coming from the direction of the pump house. She had known defendant in the past but had not seen him in many years. The automobile was driven by a man whom she did not recognize at the time, but she said she identified him afterwards as the defendant by pictures the officers showed her. She also identified him on the trial as the defendant.

There was undisputed evidence that the dwelling of the victim caught fire on the late afternoon of February 24, 1979. Evidence, if any, was scant as to the cause, the extent and the duration of the fire. The victim's daughter, who lived in Atlanta, came to Birmingham on the morning of February 26. She testified that defendant came to the home of her mother that morning (at which time she, and other neighbors apparently, had not learned of her mother's death) and talked with the witness. She said in part as follows:

"I was looking for my mother and he came over and we was looking around the house with my kids and he went inside the house with us. And after we came out of the house I had a conversation with him. He told me that maybe she had got hit by a car. I told him I had checked all the hospitals and he said maybe when the house caught fire she ran and jumped in the creek."

There was a stipulation between the parties to the effect that if an absent criminalist who had examined the body of the deceased were present to testify, he would testify that he ran "all kinds of tests, as to whether Mrs. Martin was drinking or not at the time she was killed," and "that she was not," that "her blood didn't have any alcohol in it" and "there was no other type of drugs."

It was shown by Dr. Joseph A. Embry, a pathologist, a witness for the State whose qualifications as an expert witness were admitted by defendant, that in performing the autopsy of the body of the victim, he made fingernail scrapings and found:

"Well, yes. The scrapings revealed, blue cotton fibers, red fibers, white fibers, clear fibers, red plate (that was with a fingernail file), black residue, sand and other debris."

Upon cross-examination of Dr. Embry, the following is shown:

"Q. Doctor, did you have occasion to examine or somebody with your staff some dirt that was provided to you?

"A. Yes.

"Q. All right, sir. Do you know where that dirt came from?

"A. Just by memo.

"Q. Well, you may testify from the memo. It's in the ordinary course of your business.

"A. It was from the mudhole if that's the dirt you are talking about.

"Q. Yes, sir.

"A. (Reading) 'One glass jar contained wet soil identified as from "mud" in homicide area.' There was also wet soil from 'creek tracks' in the homicide area.

"Q. I believe, Doctor, there was another quantity of soil.

"A. Right. Identified as from the automobile belonging to Curtis Ray Parker.

"Q. And what would that .... what were the results of that?

"A. The memo states, 'The laboratory examinations reveal the soil contained in item No. three, item No. four and item No. five (which are the soils I just described) to be generally similar. ......'

"THE COURT: I don't believe the Court Reporter got that.

"A. The three soils were .... the two from the mud hole and the creek track and from the automobile were generally similar with slight differences regarding color, microscopic appearance and density.

"Q. Would that mean, doctor, that those did not come from the same area?

"A. This is not my area of expertise.

"Q. But there was a difference in the dirt. That's what this says.

"A. It says a slight difference."

On redirect examination the witness continued:

"Q. Doctor, since Mr. Allen asked you about that slight difference, if an automobile passed over an area and picked up some dirt particles that would be similar to a controlled specimen, such as that in the jar, but proceeded to travel and spin up some additional soil, would that account for a slight difference?

"....

"A. It sounds reasonable to me.

"Q. It sounds reasonable, doesn't it, that that would account for a slight difference?

"A. Yes."

In addition to the evidence presented by the State on the contested issue of defendant's guilt or innocence of the undisputed unlawful homicide of the alleged victim as summarized above, the State introduced, without any objection by defendant, a twenty-seven-page statement by him in question and answer form. The statement had been obtained on March 1, 1979, by an officer of the Police Department of the city of Birmingham, who at the time was accompanied by an officer of Blount County. According to the police officer, who read the statement to the jury while...