Payne v. State

• Citation: 48 Ala.App. 401,265 So.2d 185
• Decision Date: 08 February 1972
• Docket Number: 8 Div. 38
• Parties: Charles Edward PAYNE v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 185

265 So.2d 185

48 Ala.App. 401

Charles Edward PAYNE v. STATE.

8 Div. 38.

Court of Criminal Appeals of Alabama.

Feb. 8, 1972.

Rehearing Denied March 28, 1972.

Fred Blanton, Birmingham, for appellant

MacDonald Gallion, Atty. Gen., and W. Mark Anderson, III, Sp. Asst. Atty. Gen., for the State.

ALMON, Judge.

This is an appeal from a judgment of conviction of murder in the first degree. The jury fixed the punishment at life imprisonment.

The State's evidence tended to show that on the night of May 16, 1967, the appellant was in the American Legion Hut on Triana Boulevard in Huntsville where drinks were being served. He was intoxicated and boisterous. John P. Wise, a part-time manager-bartender in the establishment, was present. One of Wise's apparent duties was to keep the peace and quiet, or in common parlance, serve as 'bouncer.' During the course of the evening Wise and appellant were involved in several minor altercations, which ended with appellant's being escorted out of the club by Wise. Shortly thereafter, someone reported some difficulty in the parking lot in front of the club and Wise went out to investigate. He returned and then when another similar report was made to Wise, he again went outside. Shortly after Wise left on this occasion, one customer who was standing at the bar started out the front door but was pulled back by someone who said, 'Don't go out there now.' This witness testified that while the front door was opened briefly he saw Wise and the appellant standing in the parking lot talking. A few minutes later three shots or 'booms' were heard by the people inside and shortly thereafter Wise's body was found in the middle of the street in front of the club. He had been killed by three blasts from a shotgun. When his body was discovered, the appellant was not at the scene.

No one saw the shooting but a taxi driver testified that on the night in question he picked the appellant up in front of the American Legion Hut and as he started to pull off, the appellant told him to stop and got out. The appellant then walked over to what appeared to be a 1957 Chevrolet, opened the trunk, and took out what the taxi driver thought was a rifle. Two men then emerged from the front door of the club, one in front of the other. The first man got into the cab and asked to be taken downtown. The other, who was about Wise's size, addressed himself to the appellant and said, 'Put that up before the law gets here.' The taxi driver then pulled off and when he was about a block away he heard what sounded like two rifle shots. On returning from downtown, the taxi driver observed a crowd in front of the club, saw an ambulance, and Wise's covered body.

After the police arrived and had begun securing the scene, two automobiles, one driven by an off-duty police officer and the other driven by appellant, were involved in a head-on collision on Triana Boulevard, directly in front of the American Legion Hut. Several witnesses identified the appellant as the possible killer and he was arrested. A Remington automatic .12 gauge shotgun was observed lying on the back seat of appellant's automobile, a 1956 Chevrolet. There was some testimony that the appellant grabbed the shotgun immediately after the accident and that the arresting officers took it away from him. Three .12 gauge shells were removed from the gun and four .12 gauge sheels were found on the appellant when he was searched. Three Winchester Super X Mark 5, .12 gauge Naught Buck shotgun shell hulls were found lying near the body.

A state toxicologist was qualified as an expert in firearms identification. Based on microscopic comparisons of those shell hulls found at the body and others fired from the appellant's gun, it was his opinion that the three sheels found at the scene were fired from the shotgun found in appellant's possession. It was also his opinion that the shots were fired from a distance of about fifteen feet.

The corpus delicti in a homicide prosecution, and evidence sufficient for a conviction for the crime of murder, may be establish through circumstantial evidence. Brooks v. State, 248 Ala. 628, 29 So.2d 4; Rowe v. State, 243 Ala. 618, 11 The appellant argues that there should be a reversal of the case because of a denial of his motion for a change of venue. The basis of this motion was that appellant's family had a reputation for crimes of violence in Madison County and that newspaper coverage of the crime had been such that the appellant could not receive a fair and impartial trial.

So.2d 749; McDowell v. State, 238 Ala. 101, 189 So. 183. Such circumstantial evidence is sufficient if its effect on the jury's mind is to produce a conviction of the guilt of the accused beyond a reasonable doubt. Hall v. State, 40 Ala. 698; Brooks v. State, supra; Coleman v. State, 276 Ala. 513, 164 So.2d 704, reversed 377 U.S. 129, 12 L.Ed.2d 190, 84 S.Ct. 1152, (on other grounds). We have carefully examined the evidence and are convinced that it was sufficient to take the case to the jury and warrant the verdict returned.

In support of this motion, the appellant introduced several newspaper articles from the local papers concerning the event and other articles ranging back over a period of fifteen to twenty years which dealt with crimes other members of appellant's family had been involved in. The appellant also introduced the criminal records of ten members of appellant's family and the affidavits of twenty-eight people who stated that they did not believe the appellant could receive a fair trial in Madison County. Of these twenty-eight affiants most were from the appellant's rural community and all were personal acquaintances.

In rebuttal, the State subpoenaed several witnesses who had not talked to anyone about the case. These witnesses testified that they had either never heard of the appellant or that they had read something about the case in the newspapers. Only one of these witnesses had ever heard of appellant's family and she did not associate the family name with violence. All felt the appellant could receive a fair trial in Madison County. The State also introduced evidence which tended to show that the appellant or his counsel had instigated at least some of the publicity by calling the local paper and requesting a photographer be present when the appellant was released on bail, and then making a special trip back to the courthouse and posing for the pictures.

Newspaper publicity does not necessarily constitute grounds for a change of venue. Littlefield v. State, 36 Ala.App. 507, 63 So.2d 565, cert. den. 258 Ala. 532, 63 So.2d 573; Collins v. State, 234 Ala. 197, 174 So. 296.

Whether a motion for a change of venue should be granted is a matter addressed to the sound discretion of the trial court and will not be disturbed except for gross abuse. Littlefield, supra; Mathis v. State, 280 Ala. 16, 189 So.2d 564, cert. den. 386 U.S. 935, 87 S.Ct. 963, 17 L.Ed.2d 807; Cobern v. State, 273 Ala. 547, 142 So.2d 869. And the mere belief of the appellant or of his witnesses that he cannot receive an impartial trial is insufficient to entitle him to a change of venue. Patton v. State, 246 Ala. 639, 21 So.2d 844; Lee v. State, 246 Ala. 343, 20 So.2d 471; Mathis, supra. The burden of showing this to the reasonable satisfaction of the court is on the appellant. Mathis, supra; Tiner v. State, 271 Ala. 254, 122 So.2d 738; Boutwell v. State, 279 Ala. 176, 183 So.2d 774. After a careful examination of the record before us, we do not think appellant met that burden. We hold, therefore, that the motion for a change of venue was properly denied.

Appellant's motion for a continuance was overruled. The basis for this motion was that he attorneys for appellant had insufficient time to evaluate a psychiatrist's report and prepare an adequate defense.

According to the allegations of the motion, this written report was given to defense counsel on October 19, 1967, after some four months of observation of the appellant by the psychiatrist. The motion It is settled law that the matter of the granting or refusing of a motion for continuance is largely within the sound discretion of the trial court and the exercise of such discretion will not be disturbed except for gross abuse. See 6A Ala.Dig., Criminal Law, k586. We find no error in the denial of this motion.

for continuance was made the following day. This was some twenty-five days before the trial of the case on November 13, 1967.

The trial judge refused to give the jury several written requested charges on the law of self-defense. One witness, who was sitting at a table in the American Legion Hut, testified that he saw the deceased walking toward the front door and that to the best of his knowledge the deceased was carrying a billy club. Then three or four minutes later the witness heard shots. This was all the evidence with reference to appellant's claim of self-defense.

Appellant was not in his home or other place in which he was relieved of any duty to retreat. The evidence tended to show that he had every opportunity to leave the scene, but instead waited outside until the deceased came out of the night club. Teague v. State, 120 Ala. 309, 25 So. 209.

In the absence of evidence tending to show both that the appellant was in actual or apparent imminent peril and that he was unable to retreat, it is assumed that he was not in such peril and that he was able to retreat. It necessarily follows that the accused has the burden of producing evidence warranting both of such findings and that the discharge of that burden is one of the conditions precedent to his being entitled to having his claim of self-defense submitted to the jury. Naugher v. State, 105 Ala. 26, 17 So.2d 24; Cosby v. State, 269 Ala. 501, 114 So.2d 250. The trial judge was therefore correct in refusing to give these requested written charges.

Since appellant did not receive the death penalty, there is no merit in his claim...