Pounders v. State

• Decision Date: 27 May 1975
• Docket Number: 8 Div. 593
• Citation: 314 So.2d 123,55 Ala.App. 204
• Parties: Buford J. POUNDERS, Jr. v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 123

314 So.2d 123

55 Ala.App. 204

Buford J. POUNDERS, Jr. v. STATE.

8 Div. 593.

Court of Criminal Appeals of Alabama.

May 27, 1975.

Walter L. Allen, Montgomery, for appellant.

William J. Baxley, Atty. Gen., and Sarah M. Greenhaw, Asst. Atty. Gen., for the State.

W. J. HARALSON, Supernumerary Circuit Judge.

Appellant was tried and convicted in the lower court for murder in the first degree and his sentence fixed at life imprisonment in the penitentiary.

On arraignment he plead not guilty and not guilty by reason of insanity.

On October 7, 1973, appellant filed a petition, before trial, under the provisions of T. 15, § 428, Code of Alabama, 1940, Recompiled 1958, for the court to make a determination as to whether or not the appellant was insane and capable of standing trial under the indictment returned against him and if so, that he be transported to Bryce Hospital for treatment pending his return to sanity, etc.

This petition as set for hearing on October 19, 1973, before the court. In addition the court ordered the examination of the appellant by a psychiatrist, Dr. Joseph Glaister of Birmingham, on November 2, 1973. After an oral hearing before the court and the further consideration of the report of the psychiatrist of his findings upon his examination of appellant, the court on November 8, 1973, denied appellant's petition and set the trial on the merits for November 26, 1973. The testimony before the court upon this matter has been carefully examined and we find no error in the action of the court in overruling the motion.

The transcript of the proceedings in this case from beginning to end contains over 375 pages, although appointed counsel filed a no-merit letter in this cause, the court has attempted to give its careful consideration to the entire record.

At the conclusion of the testimony offered by the State, the appellant made a motion to exclude on the grounds that the cause of the death of the deceased had not been established; the State had failed to make out a prima facie case as charged in the indictment; and that Nancy Rebecca Pounders met her death by means other than charged in the indictment, which charged she was shot by appellant with a pistol. The motion was overruled by the court.

After the verdict of guilty, appellant filed a motion for a new trial, which appears to set out the salient features of his contention as to any error appearing in the trial. This motion was also overruled by the court.

The statement of facts as set out in the brief of the State is a fair and lucid account of the testimony in substance which appears in the transcript and is hereby adopted by the court as follows:

'Mrs. Elizabeth Hurd, mother of deceased, Nancy Rebecca Pounders, testified that her daughter and appellant were divorced. After the divorce they lived together for a while, but at the time her daughter was killed, she and their two children were living apart from the appellant, and she and appellant had not lived together for several months. Mrs. Hurd also testified that her daughter worked at Pasquales.

'Mrs. Lucille Murks testified that she owned a beauty shop located in the same shopping center as Pasquales. On the afternoon Nancy Pounders was shot, she saw appellant at the shopping center. He stood in front of her shop for about twenty minutes. She later heard a shot and as she opened the door of her shop, she saw Nancy Pounders fall down, then she heard two other shots. She also saw appellant standing in the area where Nancy Pounders was shot.

'Mr. Royce Spry, Sr., coroner of Lauderdale County, testified that he went to the shopping center after the shooting. He examined the body of deceased and determined that she was dead. There were two small bullet wounds, one in the upper back and one in the hip region.

'Mrs. Theo Belvin testified that her car was parked in the shopping center parking lot. As she was walking to her car she passed deceased and appellant and heard deceased tell appellant 'Go away and leave me alone. I don't have anything to say to you.' Mrs. Belvin got into her car and turned to look at the couple. She saw appellant grab deceased and deceased pull away. Then appellant got out a gun and shot deceased three times.

'Malon Jones, Jr., a special agent for the Bureau of Alcohol, Tobacco, and Firearms, testified that he was at the shopping center and heard three shots. He saw appellant in the parking lot and saw him lay down a gun. As Mr. Jones arrived at the scene of the shooting, he heard appellant say, 'Oh my God, honey, what have I done to you?' Mr. Jones began looking for the gun and appellant stood up and pointed to a car, and said, 'There is the gun. Call the police.' Mr. Jones identified himself as a law enforcement officer, then grabbed appellant and made him lie down on the trunk of a car until police arrived.

'For defense, Dr. Howard Lee Miller, a clinical psychologist testified that by order of the court, he saw appellant at the Mental Health Clinic in Florence. He diagnosed him as a latent schizophrenic with depressive and hysterical features. Appellant told Dr. Miller that he remembered arguing with his wife and he remembered nothing else until he was eventually standing over his wife after she was shot and he was holding the gun. Dr. Miller stated that in his opinion appellant was telling the truth about the incident, including the part about the loss of memory. Dr. Miller also testified that based on the tests, interview, and his training and experience, the shooting by appellant of his wife would not be consistent with a premediated, planned aforethought murder.

'On cross-examination Dr. Miller testified that he could not say whether appellant was afflicted with a disease of the mind at the time he killed his wife.

'Dr. Joseph Glaister, a psychiatrist, testified that appellant's sister was a patient of his and in his opinion she was schizophrenic.

Dr. Glaister also stated that this disease tends to run in families.

'Appellant testified that he had been hospitalized numerous times and had several operations.

'He stated that he did not remember how many times he shot his wife, but remembered the other incidents. He was taking medication at the time for headaches. He had the gun with him for protection. He was afraid that a man he had heard his ex-wife was dating would try to harm him. That afternoon he attempted to talk to his ex-wife about the children. She became mad and began cursing him and told him he was not going to get the children or see them. Appellant then stated that she said, 'I will kill you anyway.' Nothing else was said.

'Appellant further testified that he did not go to the shopping center with the intention of killing his wife and that he did not remember shooting her.

'On rebuttal, Dr. Samuel David Morrison, a psychiatrist at the University of Alabama in Birmingham, testified that he interviewed and examined appellant. Dr. Morrison stated that in his opinion appellant was sane at the time he shot his wife.

'Mrs. Hurd was recalled to testify in rebuttal and stated a few months prior to the shooting, Nancy was at her house and appellant came over. On that occasion, she saw appellant hit her daughter two or three times. Mrs. Hurd told appellant to leave and if he didn't she would call the police. Appellant at the time stated that if she called the police, all of them would leave there with the undertaker. He also said that Mrs. Hurd and Nancy were just alike--neither had any sense.'

A consideration of the voluminous testimony, as it appears in the transcript, clearly shows that a jury question was presented by the testimony offered by the State and the appellant. The motion to exclude was properly overruled by the court.

On the morning of the trial the appellant moved for a continuance on the ground that his father, a material witness, was unable to be present and testify because of illness. It further appears that this situation had been known by appellant's attorney for some time, but was only brought to the attention of the court on the morning of the trial when there were a great number of witnesses and jurors present for the trial. It further appears that the testimony of the father would relate only to appellant's sanity and would have been largely cumulative. It is well settled that the...