Perry v. State

• Decision Date: 17 June 1994
• Court: Alabama Court of Criminal Appeals
• Parties: Leon PERRY, alias James Williams v. STATE. CR 93-182.

Page 71

647 So.2d 71

Leon PERRY, alias James Williams v. STATE.

CR 93-182.

Court of Criminal Appeals of Alabama.

June 17, 1994.

Rehearing Denied Aug. 19, 1994.

Ginette Dow, Bessemer, for appellant.

James H. Evans, Atty. Gen., and Steve Willoughby, Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

The appellant, Leon Perry, was indicted for the intentional murder of Harold Watkins, Jr. A jury convicted him of the charged offense and he was sentenced as a habitual felony offender to 30 years' imprisonment. Three issues are raised in this direct appeal from that conviction.

I

The appellant contends that the evidence was insufficient to support his conviction because, he says, the State failed to prove that he had the requisite intent to kill Watkins.

The State's evidence tended to show that, on the morning of December 27, 1991, Larry McGee, Ledford Bolar, and Harold Watkins, Jr., were visiting Dorothy Hall at her residence in Brighton, Alabama. At some point, the appellant knocked on Ms. Hall's front door. Ms. Hall testified that either Bolar or Watkins jokingly told the appellant that he was not wanted there. Bolar testified that Watkins said, "There goes Leon. We don't want his mouth." R. 57.

The appellant continued to knock on the door and, after a short period of time, someone let him in. Ms. Hall testified that the appellant "came in in a rage" and complained to Bolar and Watkins "about playing with [him] so much," but she did not hear the appellant make any threats. R. 39, 45. McGee stated that once the appellant was inside the house, he began cursing Bolar and Watkins and told the two men that he was going to kill them. R. 25-26, 33. According to Bolar, the following occurred once the appellant entered Ms. Hall's residence:

"[The appellant] said, 'Why didn't you let me in?' Harold Watkins said, 'We don't want to hear your mouth.' [The appellant] said, 'This is not your house.' Harold said, 'This is not your house.' [The appellant] said, 'I don't want this child to be playing with me.' Dorothy Hall hollered, 'Cut that out.' That was the end of that." R. 57.

The appellant remained in Ms. Hall's residence a short time, then left in the truck in which he had arrived. Bolar stated that after the appellant left, he and Watkins went out on the porch to talk. Within five to ten minutes, the appellant returned. Bolar testified that the appellant "hopped out of the truck with his rifle," then "[a]imed it in the air and shot it." R. 59-60. He stated that the appellant then came through the gate at the edge of the yard and "started talking. [The appellant] said, 'Who is doing all of the talking now?' He said, 'Who is the baddest?' " R. 59. Bolar said that the appellant then "aimed [the rifle] at Harold Watkins and shot him." R. 60. When asked if Watkins had "any kind of weapon on him," and if he saw Watkins "pull any kind of weapon," Bolar responded, "No." R. 62. After shooting Watkins, the appellant left the scene in his truck.

Although neither McGee nor Ms. Hall witnessed the shooting, both testified that they saw the appellant return, that he had a rifle or a shotgun at that time, and that they heard two shots fired. McGee also testified that after he heard the first shot, he heard the appellant say, "You bad, you bad now, you bad now," then he heard the second shot. R. 28.

Sergeant James Duke of the Jefferson County Sheriff's Department investigated the shooting. He testified that while he was at the scene, he received a radio message that the appellant wanted to turn himself in. Sergeant Duke stated that he then went to the address given to him, which was the residence of the appellant's mother-in-law, and spoke with the appellant. Duke testified that when he asked the appellant where the rifle was, the appellant replied that it was in the truck. The appellant then accompanied Duke to a truck parked in front of the residence, where Duke found a Winchester .30-30 rifle that had been recently fired. Duke acknowledged on cross-examination that when he first arrived at the appellant's mother-in-law's residence, the appellant let him in, saying, "I did it. I did it, but I didn't mean to." R. 95.

The appellant testified in his own behalf and admitted that a shot from his rifle killed Watkins, but he denied that he had any intention either to shoot or to kill Watkins. His defense appears to have been a mixture of self-defense and accident. ¹

The appellant testified that he had had trouble with Watkins and Bolar during the six months prior to the shooting because "[t]hey would sit in front of [his] mother's house and sell drugs" and he would have to "run them away." R. 139. He stated that while he was in Ms. Hall's residence on the morning of the shooting, Watkins and Bolar were "picking at [him]," saying "We are going to get you, we are going to mess you up." R. 145. The appellant said that when he left Ms. Hall's residence, he went to his brother's house for a short time, then started home. He then remembered that he was supposed to haul some coal for Ms. Hall, so he went back to her house.

The appellant gave the following version of the shooting: Watkins and Bolar were inside Ms. Hall's house when the appellant returned. As the appellant got out of his truck, Watkins and Bolar "r[a]n out [onto the sidewalk] like they were coming at [him]." R. 147. The appellant "grabbed [his] rifle," which he kept "[o]n the back of the seat on the top part in the window" of his truck and fired into the air. R. 147, 144. Watkins and Bolar said, "We are going to mess you up." R. 148. Watkins "had one hand reaching in his pocket like he was going to get his gun." R. 150. The appellant then cocked his rifle "and was bringing it back up to shoot in the air, and as [he] brought it back to shoot into the air, it went off." Id. When the appellant realized that he had shot Watkins, he panicked and left.

Intentional murder is defined as intentionally causing the death of another person. Ala.Code 1975, § 13A-6-2(a)(1). It is undisputed that the appellant caused the death of Harold Watkins. The only question remaining is whether there was sufficient evidence from which the jury could have concluded that the appellant intended to cause Watkins' death.

The appellant complains in his brief that "[t]he State did not present any direct evidence at trial which could have established the element of intent to murder." Appellant's brief at 10. However, as the appellate courts of this state have repeatedly observed:

"Intent, 'being a state or condition of the mind, is rarely, if ever, susceptible of direct or positive proof, and must usually be inferred from the facts testified to by witnesses and the circumstances as developed by the evidence.' Pumphrey v. State, 156 Ala. 103, 47 So. 156 (1908); Hamilton v. State, 283 Ala. 540, 219 So.2d 369, cert. denied, 396 U.S. 868, 90 S.Ct. 134, 24 L.Ed.2d 121 (1969)."

Cook v. State, 409 So.2d 965, 968 (Ala.Cr.App.1981). The Alabama appellate courts have also repeatedly held that intent to kill may be inferred from an accused's use of a deadly weapon. E.g., Sparks v. State, 261 Ala. 2, 4, 75 So.2d 103, 105 (1953); Barnes v. State, 571 So.2d 372, 374 (Ala.Cr.App.1990); Benton v. State, 536 So.2d 162, 164 (Ala.Cr.App.1988); Breeding v. State, 523 So.2d 496, 500 (Ala.Cr.App.1987).

In the present case, the State's evidence that the appellant left Ms. Hall's residence after a verbal altercation with Watkins, that he returned a short time later armed with a rifle, and that he was aiming at Watkins when he fired the fatal shot was sufficient evidence from which the jury could reasonably infer that the appellant intended to kill Watkins. See Crews v. State, 616 So.2d 392, 393-94 (Ala.Cr.App.1993) (testimony of three witnesses "that they had seen [defendant] with [a] shotgun on the day of the shooting" and testimony of eyewitness "that he saw [defendant] point the gun at [the victim] and shoot her in the abdomen" sufficient to support conviction for intentional murder). The somewhat conflicting testimony of the State's witnesses and the appellant's claims of self-defense and accident simply created questions of fact for the jury to resolve. See, e.g., Brown v. State, 588 So.2d 551, 559 (Ala.Cr.App.1991) ("the resolution of conflicting testimony [is] for the jury's determination"); Waddle v. State, 473 So.2d 580, 582 (Ala.Cr.App.1985) ("where there is a conflict in the evidence, the inferences to be drawn from the evidence, the weight of the evidence, and the credibility of the witnesses are all questions for the jury"); Quinlivan v. State, 627 So.2d 1082, 1087 (Ala.Cr.App.1992) ("[t]he issue of self-defense invariably presents a question for the jury"); Maddox v. State, 370 So.2d 1111, 1114 (Ala.Cr.App.1979) ("[i]n a prosecution for murder it is for the jury to determine the claim of the accused that the shooting was accidental"), cert. denied, 370 So.2d 1115 (Ala.1979).

II

At trial, the State introduced seven photographs of the victim that had been taken after the shooting. One of the photographs was taken at the scene; the other six were taken at the pathologist's direction during the autopsy. The appellant argues that the trial court erred in admitting the photograph taken at the scene (State's Exhibit 3) and two of the photographs taken during the autopsy (State's Exhibits 8 and 11). He asserts that these photographs "did not shed any light on the issues being tried," that they "had no probative value," and that they "were calculated to prejudice [him] in the eyes of the jury." Appellant's brief at 12.

"Photographs are admissible if they tend to prove or disprove some disputed or material issue, to illustrate or elucidate some other relevant fact or evidence, or to corroborate or disprove some other evidence offered or to be offered. Baldwin v. State, 282 Ala. 653, 213 So.2d 819 (1968). The fact that a photograph is gruesome is not grounds to exclude it as long as the photograph sheds...