Perry v. State

• Decision Date: 26 June 1984
• Docket Number: 1 Div. 724
• Citation: 455 So.2d 999
• Parties: Steve Camron PERRY v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 999

455 So.2d 999

Steve Camron PERRY v. STATE.

1 Div. 724.

Court of Criminal Appeals of Alabama.

June 26, 1984.

Rehearing Denied July 31, 1984.

Certiorari Denied Sept. 21, 1984

Alabama Supreme Court 83-1284.

Thomas M. Haas and Christopher Knight, Mobile, for appellant.

Charles A. Graddick, Atty. Gen., J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.

TYSON, Judge.

Steve Camron Perry was indicted for the intentional murder of one Horace Junior Goodwin, "by shooting him with a gun", in violation of § 13A-6-2, Code of Alabama 1975. The jury found the appellant "guilty of murder" and following a sentencing hearing, the trial court fixed punishment at life imprisonment.

Jimmy Johnson testified that in February of 1982 he was employed by the Baldwin County Sheriff's Department. He stated that at approximately 11:12 p.m. on February 4, 1982, he received a call to go to Patrick's Landing on the Tensaw River. He stated that when he arrived he found the deceased, Horace Godwin. He stated that he was the first officer at the scene and he proceeded to secure the area and recover evidence. He stated that he recovered a cap, which had Bulldog Mack Truck written on the front of it, from the inside of the houseboat. He further stated that he recovered, from the end of the wharf, a gray hood with bloodstains on it. He also found some tape which had been used to tie the hands of witnesses to the shooting, and some cartridge cases, one of which was found inside the houseboat. He stated that he turned this evidence over to Investigator Thomas Nunley.

Phyllis Godwin testified that she was the wife of the deceased. She stated that on February 4, 1982, she, Horace, and a few friends decided to go to Patrick's Landing on the Tensaw River. She stated that she and her husband owned a houseboat which they kept at Patrick's Landing. She stated that they arrived at the houseboat, at approximately 8:00 p.m., along with Cecil Wilson who rode with them. She said that Tony Godwin, the deceased's brother, Willard Carter and Kim Josie were already at the houseboat when they arrived.

Mrs. Godwin testified that she and her husband carried approximately 100 Dilaudid pills and more than one pound of marijuana with them to the houseboat. She stated that earlier that afternoon she and her husband had injected some Dilaudid while at their home in Cantonment, Florida. She further stated that after arriving at the houseboat the group drank approximately three or four beers and smoked approximately three "joints" of marijuana.

She testified that at approximately 10:00 p.m., a man knocked on the door to the houseboat and asked for the location of Greer's Landing. She stated that the man had on a baseball cap, jeans, a T-shirt, and a hooded sweatshirt. She further stated that this man had a mustache and was not very tall. She identified the appellant as the man who came to the door. She also stated that this man left and returned approximately thirty minutes later with another man.

She testified that the two men pushed open the door and both had a pistol in their hand. She said the appellant stated "you know what we're here for and we're going to get it" upon gaining entry into the houseboat. She said that the appellant then told his companion to tape everybody up. She stated that the man taped the hands of Tony, Cecil, and Willard. She stated that during this time Horace was trying to talk the men out of doing this act. She further stated that the men took the Dilaudid pills out of her purse. At this point she said the appellant told his companion to tape Horace's hands, but Horace would not let him do so. She said Horace tried to grab the guns from the appellant, they struggled for a moment, and appellant's companion told him to shoot Horace. She stated that the appellant pushed Horace to the floor and shot him. She stated that the men ran out the door and Horace jumped up and ran after them. She stated that Horace caught the men at the end of the pier and was then shot again. She stated that the men then entered a small white car and drove away. She then went and called an ambulance. She stated that they were going to take Horace to the hospital, but the tires on both pickup trucks were slashed and the keys missing.

Mrs. Godwin further testified that she identified the appellant in a photographic lineup, and later in a live lineup. She also stated that she identified the appellant's accomplice in another live lineup.

Dr. Leroy Riddick testified that he was a forensic pathologist. He stated that he performed an autopsy on Horace Godwin. He stated that Mr. Godwin died as a result of a gunshot wound to the chest. He testified that a very small amount of Dilaudid was found in Mr. Godwin's body fluid and no alcohol was present.

Thomas Nunley testified that he was employed as a criminal investigator for the Baldwin County Sheriff's Department. He stated that he was called to the scene of the shooting on February 4, 1982, and while there, Deputy Johnson turned over to him evidence which was found there. He stated that he took this evidence to the lab in Mobile, Alabama.

Officer Nunley testified that on February 6, 1982, he took Willard Carter and Tony Godwin to the Pritchard Police Department to view some mug books. He stated that both of these men picked the appellant's picture out of the books as being the man who shot Horace Godwin. He stated that until this time there was no suspect in the case. He stated that he subsequently went to the appellant's home, recognized him from the picture Mr. Carter and Mr. Godwin picked out, and immediately read his Miranda rights to him. He said the appellant was then taken to the Mobile Police Department. He stated that the appellant was placed in a lineup and that both Mr. Carter and Mr. Godwin, at different times, identified him as the man who shot Horace Godwin. He said the appellant was then advised that he had been identified and was arrested. He further stated that the appellant agreed to be placed in the lineup.

Walter Crook testified that he was employed as a detective for the Baldwin County Sheriff's Department. He stated that on February 6, 1982, he conducted a photographic lineup with Kim Josie and Mrs. Godwin. Both women identified the appellant as the man who shot Horace Godwin. He further stated that he conducted another photographic lineup on February 8, 1982, with Cecil Wilson. He stated that Mr. Wilson identified the appellant as the man who shot Horace Godwin.

Tony Godwin testified that he was the brother of Horace Godwin and that he was at Patrick's Landing on February 4, 1982, when his brother was shot. He stated that the appellant came to the houseboat at approximately 10:15 p.m., asking for directions to Greer's Campgrounds. He stated that the appellant returned with another man at approximately 10:45 p.m. He stated that the appellant and his companion entered the houseboat without knocking and that each of the men had a gun. He stated that the appellant's companion taped him up and made him lie on the floor. He stated that the man then taped the hands of Cecil Wilson and Willard Carter.

Mr. Godwin testified that the men started going through Mrs. Godwin's purse. He said that the appellant then told his companion to tape Horace up but Horace would not let him do so. He stated there was a struggle, the appellant's companion said to "shoot him," and the appellant did. He said the men ran out the door and he heard another gunshot. He stated that by the time he got outside the men were driving away in a car and his brother was lying on the wharf.

Cecil Wilson, Willard Carter, and Kim Josie all testified and they told essentially the same story about the shooting as did Tony Godwin.

The appellant did not testify in this case, however, he offered a number of alibi witnesses. These witnesses testified in essence that the appellant was at home on February 4, 1982, from 6:30 p.m. until after 10:30 p.m.

I

The appellant contends that the trial court erred in refusing his written requested charges on lesser included offenses. Specifically, the appellant argues that the State presented evidence from which the jury could find a lesser verdict than murder. He contends that his request for charges on manslaughter and criminal negligent homicide should have been granted. We disagree.

A charge on a lesser included offense should not be given when there is no reasonable theory from the evidence to support such a proposition. When the evidence clearly shows the appellant is either guilty of the offense charged, or innocent, the charge on a lesser included offense is not necessary or proper. Daly v. State, 442 So.2d 143 (Ala.Crim.App.1983); Phelps v. State, 435 So.2d 158 (Ala.Crim.App.1983); Gwin v. State, 425 So.2d 500 (Ala.Crim.App.1982), writ quashed, 425 So.2d 510 (Ala.1983); Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982); Cooper v. State, 364 So.2d 382 (Ala.Crim.App.), cert. denied, 364 So.2d 388 (Ala.1978). "A defendant is likewise not entitled to charges on lesser included offenses when he denied committing the crime itself." Daly v. State, supra; Wesley v. State, 424 So.2d 648 (Ala.Crim.App.1982); Williams v. State, 377 So.2d 634 (Ala.Crim.App.) , cert. denied, 377 So.2d 639 (Ala.1979); Parker v. State, 337 So.2d 1378 (Ala.Crim.App.1976). Further, a court may properly refuse to charge on lesser included offenses when it is "clear to the judicial mind that there is no evidence tending to bring the offense within the definition of the lesser offense." Phelps v. State, supra; Wesley v. State, supra; Chavers v. State, 361 So.2d 1106 (Ala.1978).

The State's evidence made out a prima facie case of an intentional killing and was in no wise refuted by the appellant. The appellant offered only evidence of alibi. The requests for instructions on lesser included offenses were properly refused in absence of any rational basis to support...