Payne v. State, 7 Div. 274

• Decision Date: 23 April 1974
• Docket Number: 7 Div. 274
• Parties: Leverne PAYNE, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 877

293 So.2d 877

52 Ala.App. 453

Leverne PAYNE, alias v. STATE.

7 Div. 274.

Court of Criminal Appeals of Alabama.

April 23, 1974.

Burns, Carr, Shumaker & Davis, Gadsden, for appellant.

William J. Baxley, Atty. Gen., Montgomery, and Samuel L. Adams, Special Asst. Atty. Gen., Dothan, for the State.

HARRIS, Judge.

Appellant went to trial with retained counsel on an indictment charging him with murder in the first degree. Upon formal arraignment he pleaded not guilty. The jury found him guilty of murder in the second degree and fixed his punishment at fifteen years imprisonment in the penitentiary. The judgment and sentence were in accordance with the verdict of the jury. After conviction he was declared indigent and furnished a free transcript and one of his trial lawyers was appointed to represent him on appeal.

The killing occurred around midnight on July 22, 1973. The deceased was admitted to a local hospital and died shortly thereafter. About one o'clock a.m. on July 23, 1973, the coroner of Etowah County, Alabama, examined the body. He found three gunshot wounds. One was to the skull about an inch above the left eyebrow which ranged downward. Another one was in the chest about four inches below the right nipple. The third wound was in the right groin just in the pubic hair line. He testified that the deceased died from these multiple wounds associated with internal hemorrhage. Photographs of the body showing these wounds were admitted in evidence without objection. All of the entrance wounds were in the front side of the body. There were no powder burns in and surrounding these wounds showing the shots were not fired at close range.

The shooting took place just outside a Negro nightclub in Gadsden. Appellant and a friend, Fred Crawford, went to this nightclub in the early evening hours on the night of the shooting. They sat at a table and drank vodka until just before the trouble started. A few minutes before twelve o'clock appellant's sister and his girlfriend came to the club and sent someone in to tell appellant and Crawford to come outside. Crawford was appellant's sister's boyfriend.

According to the testimony of appellant's sister she saw appellant and Crawford come out the front door of the club and walk to where she and the other girl were standing near a parked car. She saw Crawford with a pistol which he was holding down by his side. She then saw the deceased emerge from a side door to the club and engage two men in a conversation. She observed the deceased looking in the direction of appellant and saw Crawford hand the pistol to appellant. She stated that a few minutes later she heard three shots and saw the deceased fall and everyone run from the scene. She did not see a pistol in the hands of the deceased and heard no words spoken by anyone prior to the shooting. She did not know the dead man before this night.

Appellant testified in his behalf and so did Crawford and several other witnesses. According to the testimony of appellant and Crawford, they went to this nightclub together arriving around ten o'clock p.m. Appellant was armed with a .22 caliber pistol. He did not personally know the deceased but had heard of him. The deceased had a bad reputation for violence in the community, ¹ and had a bad reputation for carrying a pistol. (Clinkscale v. State, 37 Ala.App. 593, 73 So.2d 244). The deceased came in the club shortly before midnight and had a pistol partially concealed in his pocket. The deceased walked over to the table occupied by appellant and Crawford and just stared at them with his hand on the pistol inside his pocket. No word was spoken by anyone present. While the deceased was standing over them, appellant took his pistol out and passed it under the table to Crawford. The owner of the club saw this movement and came to the table and told them he was not going to put up with any trouble in his place. The deceased then walked to the back of the club. About this time some boy came in the club and told appellant and Crawford they were wanted outside and they left. While they were talking to appellant's sister and his girlfriend near a parked car, they saw the deceased come out of a side door to the club and start talking to two men, but the deceased kept his eyes peeled in their direction. While appellant and Crawford were standing side by side, appellant claims the deceased had his hand on his pistol and he saw him make a sudden turn in his direction and was pulling his pistol. Appellant then took the pistol from Crawford and fired three times in rapid succession. After the shooting, everyone scattered. Appellant, Crawford, and the two girls left Gadsden and spent the night in a motel in Attalla, Alabama.

Appellant was arrested on a murder charge and was given the Miranda rights and warnings at the time of his arrest. He was carried to the detective room at Police Headquarters and before he was asked any questions, he was once again given the Miranda rights and warnings. He told the officers that he understood his rights and was willing to make a statement. He signed the following waiver form:

'WAIVER OF COUNSEL BY DEFENDANT IN CUSTODY

'I, Levern Payne, have been informed by the undersigned law enforcement officers, prior to being questioned by them, that I am suspected of the offense of 1st Degree Murder in Etowah County, Alabama, on the 22nd day of July 1973, and have been informed by them of my rights as follows:

'1. That I may remain silent and do not have to make any statement at all.

'2. That any statement which I might make may be used against me in court.

'3. That I have a right to consult with an attorney before making any statement and to have such attorney present with me while I am making a statement.

'4. That if I do not have enough money to employ an attorney, I have the right to have one appointed by the Court to represent me; to consult with him before making any statement; and to have him present with me while I am making a statement.

'5. That if I request an attorney, no questions will be asked me until an attorney is present to represent me.

'After having my rights explained to me, I freely and voluntarily waive my right to an attorney. I am willing to make a statement to the officers. I fully understand my rights to an attorney and I have (read--had read to me) this Waiver of Counsel and fully understand it. No threats or promises have been made to me to induce me to sign this Waiver of Counsel and to make a statement to the officers.

'This the 23rd day of July, 1973.

's/ Levern Payne

'All of the rights in the above Waiver of Counsel were read and explained to the above defendant by me and he freely and voluntarily waived his right to an attorney. No threats, promises, tricks, or persuasion were employed by me or anyone in my presence to induce him to waive his rights to an attorney and to make a statement without an attorney. He freely and voluntarily signed the above Waiver of Counsel in my presence after having (read--had it read).

'Name J. C. Couch

Title Sgt. Detective Division G.P.D.

'Witnessed by:

S/ Sgt. C. R. Beaird

_ _'

Appellant then made and signed the following statement:

'Date July 23, 1973 Page No. 1

'STATEMENT OF: Leverne Payne, Age 18, 500 No. 10th St., Gadsden, Ala. DOB: 1--20--55.

'On Sunday night, July 22, 1973, about 11:30 P.M. or something like that, me and Sonny Crawford went down by Leonard's place at 10th and Tuscaloosa. We went in there and sat down and this Robert Morgan went over to the bar and stood up just about to the bar and started looking at Sonny and he had his pistol about half way out of his pocket. I gave Sonny this gun that I had borrowed. It is a .32 left hand Willow, with 4 barrel, blue steel and brown plastic handles. I passed it to him under the table. My sister, Patricia Ann, and Louise Usher was standing out on the side and called us out. Me and Sonny went out the front door and Robert was standing between two girls and had his hand on his gun and was taking it out of his pocket. He had come out the side door. I told Sonny if you ain't gonna shoot I will, so I grabbed the gun from Sonny and shot three times. Then I ran through a little path between Avenue G and Evans Street. I dropped the pistol and kept running. Sonny caught up with me just as I was fixing to enter the path off Avenue G and told me that he thought I had killed the man. I told him I couldn't help it and I started running again. Me and Sonny went to Robert Baker's house in the 11th Street project and couldn't get him up. So after that we saw the two girls that had called us outside and we got in the car and went to Attalla. We stayed at Buck's Motel that night.

'I make this statement of my own free will and accord without any threats or promises of reward.

's/ Levern Payne

'Witnesses:

S/ Sgt. C. R. Beaird

S/ Sgt. J. C. Couch'

Fred Crawford further testified that the appellant jerked the gun out of his hand and shot the deceased without saying anything. No witness for the defense, except appellant, testified that the deceased did anything by word, act or movement to indicate he intended to pull his pistol and shoot appellant or shoot in his direction. As hereinabove stated, appellant had never seen deceased before the night of the shooting and no words had been exchanged between them during the entire evening. They were not even in close proximity to each other when appellant jerked the pistol out of Crawford's hands and gunned down the deceased. His claim of imminent peril is entirely suspect in the light of all antecedent...