Perkins v. State
| Decision Date | 03 August 1990 |
| Docket Number | 1 Div. 972 |
| Parties | Michael PERKINS v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Barry Hess, Mobile, for appellant.
Don Siegelman, Atty. Gen., and Margaret S. Childers, Asst. Atty. Gen., for appellee.
The appellant was convicted of the murder of his wife and was sentenced to 20 years' imprisonment.
The appellant alleges that the trial court erred by denying his motion for judgment of acquittal on the grounds that the State failed to present sufficient evidence to sustain his conviction. He further alleges that the trial court erred in denying his motion for the affirmative charge at the conclusion of the evidence.
However, the State presented sufficient circumstantial evidence from which a jury could reasonably find that the evidence excluded every other reasonable hypothesis but that of guilt. Cumbo v. State, 368 So.2d 871, 874 (Ala.Cr.App.1978), cert. denied, 368 So.2d 877 (Ala.1979). The victim was killed by a gunshot wound to her head in the bedroom of her home. The State presented evidence that the appellant and the victim were alone in the house when she died. Moreover, the State presented the testimony of a neurosurgeon who stated that although the victim's wound could have been self-inflicted, it would have been difficult for the victim to inflict such a wound.
The State also introduced evidence tending to show a consciousness of guilt by the appellant through testimony concerning a number of contradictory statements that he made concerning his conduct during the incident and concerning the victim's reasons for allegedly committing suicide. The ambulance driver, who was present at the scene to attend to the victim, testified that the appellant told him that the victim had locked herself in the bedroom and had shot herself. However, when the police entered the home, they found that a coffee table and some artificial flowers had been turned over, another small table had been broken, a .22 caliber pistol was lying on the end of the couch with a clip next to it, and another clip was lying on the floor under a table by the couch. The bedroom door was open and three holes had been knocked in the top of the door. A .25 caliber pistol was lying partially under the bed and another .25 caliber pistol was lying on the floor on the other side of the bed. The gun found on the right side of the bed was subsequently identified as the weapon that caused the victim's death. That gun had been purchased by the victim. The .22 caliber gun in the living room was not loaded, but the second gun found in the bedroom was loaded.
A nurse at the intensive care unit where the victim was admitted testified that the appellant told her that he had had an argument with the victim and that she had locked herself in the bedroom. The nurse also testified that, on the night of the shooting, she observed the appellant holding the victim's hand and saying that he did not mean to "do this" to her. The nurse further testified that she saw the appellant later in that same week. She testified that this time in recounting the shooting, he told her that he and his wife had been having an argument and were scuffling over her purse. He stated that the victim took the gun out of her purse, went into the bedroom, locked the door, and shot herself. She testified that he told the nurse that he was going to sleep on the couch when he heard a gunshot in the bedroom and that he kicked the door down and found the victim after she had been shot. The day after the shooting, the appellant went to the police station and gave a statement indicating that he and his wife had an argument. After they went to bed, the appellant stated that he got up and went to the couch. Shortly thereafter, he stated, the victim entered the living room, instructed the appellant to shoot her or, in the alternative, she would shoot herself. She then threw a .22 caliber gun at him. He stated that she ran back down the hallway and entered the bedroom. He stated that he heard a pistol cock, ran down the hall, hit the door to knock it open, and then observed the victim shoot herself.
The appellant's daughters both testified that the appellant had initially made statements indicating that he had "done it," but quickly changed his statements to indicate that the victim had "done it." A friend of the victim testified that she had heard the appellant say that it was all the victim's grandmother's fault and that "[t]he same thing that was done to [the victim] should be done to her."
The State also presented evidence that the appellant gave inconsistent statements concerning the victim's reasons for committing suicide. He told the police that the victim believed that he was having an affair with a younger woman. He told the nurse that the victim was depressed over one of her daughter's pregnancies. He told his pregnant daughter that the victim thought that she might have had cancer.
The State also presented evidence that the victim had previously told a friend that if anything ever happened to her, she would like her friend to tell police that her husband had threatened that if she ever attempted to leave him, he would put a gun to her head and kill her, making her death appear to be suicide. The friend testified that the victim had told her that she planned to leave the appellant.
The State also presented testimony from the appellant's former wife that in 1981 he threatened to kill her with a .22 caliber gun in their bedroom, by holding the gun to her head. She testified that he threatened her in this manner four or five times before they divorced.
The State presented sufficient circumstantial evidence to submit to the jury. "The inference from consciousness of guilt to 'guilty' is also available in evidence." 1A Wigmore, Evidence 173 (Tillers rev.1983). Although the coroner testified that the victim's wound was consistent with a self-inflicted wound and the neurosurgeon testified that it would not be impossible to inflict such a wound on one's self, a jury might reasonably find, from the evidence presented, that the evidence excludes every other reasonable hypothesis but that of guilt. The question is not whether the evidence actually excludes every such hypothesis, but whether a jury might reasonably so conclude. Cumbo v. State, supra, at 874. Therefore, the trial court did not err in denying the appellant's motion for the affirmative charge at the conclusion of the evidence.
The appellant argues that the trial court erred in allowing the appellant's former wife to testify that, six years prior to the instant shooting, the appellant had pressed a .22 caliber pistol to her head, in the same spot at which the victim's wound was inflicted and had threatened to kill her. She also testified that this incident had occurred in their bedroom, while they were alone, and that he had exhibited the same behavior in the same manner on four or five other occasions.
The record indicates that, during the opening statement by the prosecution, the defense counsel requested a sidebar conference at which he objected to the prosecution's making any statement to the jury concerning the statements of the appellant's former wife concerning the appellant's prior bad acts. The State argued that the testimony was admissible as an exception to the exclusionary rule, in that it tended to show motive, scheme, or intent. The defense counsel objected on the ground of remoteness and because the prejudicial effect of the testimony outweighed any relevance. The trial court responded that the defense counsel's objection went to the weight to be accorded the evidence and not its admissibility. The trial court then stated that, before the appellant's former wife testified, the attorneys for both sides were to submit briefs on their positions. Subsequently, the trial court concluded that the cases cited by the appellant in his brief were distinguishable. The appellant's former wife was allowed to testify concerning the appellant's prior bad conduct.
The appellant's prior misconduct was not too remote to be admissible. Cf. Ex parte Cofer, 440 So.2d 1121, 1124 (Ala.1983) (). Pride v. State, 473 So.2d 576, 578 (Ala.Cr.App.1984). In Brewer v. State, 440 So.2d 1155 (Ala.Cr.App.1983), this court held that the passage of seven years precluded the offense from being considered part of the res gestae of the prior offense, and noted that 440 So.2d at 1159. Thus, as indicated by the trial court, the seven-year span between the prior bad acts by the appellant and the instant charged offense should be considered by the jury in weighing the evidence, rather than affecting its admissibility.
The prior bad acts by the appellant were admissible in the present case under the identity exception to the exclusionary rule.
...
To continue reading
Request your trial
-
Jackson v. State
...admitted direct evidence," it was properly admitted as an exception to the general exclusionary rule. Id. Moreover, in Perkins v. State, 580 So.2d 4 (Ala.Cr.App.1990), the State properly admitted evidence that the defendant, who was charged with murdering his second wife, had previously thr......
-
Turner v. State
...7 Ala. App. 43, 61 So. 54, 57 (1912) (on rehearing).' Leverett v. State, 462 So.2d 972, 976-77 (Ala.Cr.App.1984)." Perkins v. State, 580 So.2d 4, 10 (Ala.Crim. App.1990). We refuse to find any plain error Moreover, the trial court gave the following instruction: "When a defendant is placed ......
-
Hagood v. State
...law is well established that a hypothetical question asked of an expert must be based upon facts that are in evidence. Perkins v. State, 580 So.2d 4 (Ala.Crim.App.1990); Winton v. State, 563 So.2d 22 (Ala.Crim.App.1990). The facts upon which the opinion is based may also be reasonably infer......
-
Siler v. State
...years before the T.J.H.'s murder the event is too remote and therefore inadmissible is without merit. "This court, in Perkins v. State, 580 So.2d 4[, 7-8] (Ala.Cr.App.1990), stated the following regarding the concept of " 'The appellant's prior misconduct was not too remote to be admissible......