Reese v. State

• Decision Date: 26 February 1980
• Docket Number: 6 Div. 156
• Citation: 381 So.2d 107
• Parties: George Warren REESE v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 107

381 So.2d 107

George Warren REESE v. STATE.

6 Div. 156.

Court of Criminal Appeals of Alabama.

Feb. 26, 1980.

Benjamin Daniel, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., M. Clayton Humphries, Jr., Asst. Atty. Gen., for appellee.

TYSON, Judge.

George Warren Reese was charged by indictment with the first degree murder of one Russell Dewitt McWhorter "by stabbing him with a knife" (Volume II, R. p. 262).

The jury returned a verdict of guilty of murder in the first degree and fixed punishment at life imprisonment. The trial judge then set sentence in accordance with this verdict.

From the denial of the appellant's motion to exclude the State's evidence and the overruling of his motion for a new trial, challenging the weight and sufficiency of the State's evidence, the appellant prosecutes this appeal.

Mr. Dewitt McWhorter stated that he resided at 213 Willos Street, Trussville, in Jefferson County, Alabama, on the night of Friday, January 26, 1979, and was the father of Russell Dewitt McWhorter. Mr. McWhorter explained that his son had just finished high school and was employed at Anderson Electric Company in Leeds. He stated that his son lived at home with him, and he last saw his son alive about 8:30 on Friday evening, January 26, 1979. He stated that he saw his son's body shortly after midnight that same evening, just off Willow Lane in the Roebuck section of Birmingham, Jefferson County, Alabama. He stated that he identified his son's body at that time.

Carla Reid stated that she was presently living in Houston, Texas, with her mother and her sister, Cindy, and that she and her sister had formerly lived in Birmingham with their aunt, Nina Evans, during the fall of 1978 and the winter of 1979. Carla Reid stated that, on Friday evening, January 26, 1979, she rode to a bar and lounge known as Al's Cross Roads with a friend of her sister named Kim Cope. Carla stated that the girls did not have dates that evening, and after being at the lounge a short time she spoke to a young man by the name of Russell McWhorter, who walked up to her as she was watching the band play and introduced himself. She stated that she also knew the appellant, Warren Reese, and had been dating Warren over the two month period prior to January 26, 1979. She stated that Warren Reese was accompanied that night by his friend, Robert Magro. Carla stated that she had only talked with Russell McWhorter about five minutes when Warren Reese gestured for her to come to him. He asked her who the guy was and she replied that she did not know, that she had just met him. Reese stated, "Well, why are you talking to him?" Carla replied, "I was just standing there and he spoke to me and started the conversation." Carla related that Warren Reese then stated, "Well, I don't like him talking to you," then later told her, "Well, I'm gonna beat his butt."

Carla Reid related that shortly thereafter Warren told her he and Robert Magro were going to ask Russell if he wanted to go outside and smoke a joint. She stated that Warren then went to get Robert Magro, who was playing pool. Carla stated that she spoke to Russell while Warren was gone, and in a few minutes Warren reappeared with Robert Magro. She then saw Russell McWhorter leave Al's Cross Roads with Warren and Robert, and a fourth male, a friend of Russell's, named Kelley Latta, who was dating Russell's sister.

Carla Reid stated that Warren Reese was wearing blue denim jeans and had on faded earth shoes, and Russell also had on jeans with a light beige shirt or jacket. Carla stated that she and her sister, Cindy, remained at Al's Cross Roads and did not see Warren Reese until the following day, Saturday, January 27, 1979. She said she received a telephone call from Warren Reese, that he asked her to go out with him that evening, and stated that Robert Magro wanted to take Cindy out also. She stated that the two boys picked them up shortly after 8:00 at her aunt's home and they were in Robert Magro's black Buick automobile. Carla stated that she was fourteen years of age and that Cindy was seventeen. She stated they rode with the boys to a place called Spats, in Homewood, where they went in and the boys ordered some drinks. Carla stated that a man spoke to her and she replied, "Well, how are you?" About that time Warren walked up, slammed the drinks on the table, and asked who the man was. She told him that she did not know who he was, but that she had seen him once before. Carla stated that Warren grabbed the man and shoved him against the wall. A Homewood policeman came up about that time, and she, Warren, Cindy, and Robert decided to go some other place. Upon getting into Robert Magro's automobile, Warren stated that he wanted to go to Brother's Music Hall, but Cindy insisted that they all four go to Al's Cross Roads. Robert spoke up and said that since he was driving they would go to Al's.

While driving to Al's, Carla stated she asked, "Did you hear about this guy getting stabbed down by the Cross Roads last night?" Cindy replied, "Yes, he got stabbed five or six times, or something like that." Carla then said, "I hear he is dead. That's bad, because somebody killed him." She said that Warren then said, "He is dead?" She said he seemed surprised, but he then clapped his hands and said to her, "He won't talk to you anymore." Carla stated that neither she nor Cindy had a chance to finish their drinks earlier at Spats because of Warren's conversation with the man, but after they got to Al's the boys bought them another drink. She stated that, soon after they arrived at the Cross Roads, Warren and Robert left. From the record (R. pp. 39-42):

"Q. Now, you said that Warren had to leave the Cross Roads.

"A. Yes.

"Q. Why did you have to leave the Cross Roads?

"A. Because he hit me.

"Q. When?

"A. See, it had been about twenty minutes after we got there and I was standing there watching the band and he was standing there beside me, behind the light stage stuff and he was mad because my sister hadn't come back yet

"MR. GWIN: I object and ask that it be excluded, Judge.

"THE COURT: All right. Disregard that, ladies and gentlemen.

"Q. Don't go into what somebody may have been mad about something, okay?

"A. Okay.

"Q. Did you have words about something?

"A. Yes, sir.

"Q. An argument or something?

"A. Yes.

"Q. What happened when you had the argument?

"A. He hit me really hard.

"Q. Where?

"A. Right in my face.

"Q. Which side?

"A. Right here (indicating). I didn't even see him hit me, I just saw stars.

"Q. Where did you go?

"A. I went to the bathroom. This guy caught me and I went in the bathroom.

"Q. How long did you stay in there?

"A. I stayed in there about fifteen minutes, crying.

"Q. When you came out was Warren still there?

"A. Yes. A whole bunch of girls and him and the cops was standing outside the girls' bathroom waiting for me to come out.

"Q. After that occurred, he had to leave?

"A. Yes. The cop asked me if I wanted to put him in jail or bar him. And, I said, I will just bar him, he can't come back in.

"Q. In other words, bar him for the night, put him out?

"A. Keep him out.

"Q. Okay. There was an off-duty officer working there?

"A. No. He was on duty.

"Q. I mean, he was in uniform?

"A. Yes.

"Q. But, there is always an officer working there, isn't there?

"A. Yes.

"Q. I think you have already answered this. When he left you didn't go outside?

"A. No.

"Q. You don't know what happened outside?

"A. No.

"Q. Now, let me ask you this. How many times had you ever been out in this car of Robert Magro's with Warren?

"A. Just once.

"Q. Just that night?

"A. Just that night.

"Q. During the time that night either the night before or that night, while you were with either Warren Reese or Robert Magro, or in the presence of either one of them, did you ever see either one of them with any kind of a weapon?

"A. No.

"Q. Did you ever see any kind of a weapon on the following night while you were in Robert Magro's car?

"A. No.

"Q. Do you recall when you found out that this person who had been killed was Russell McWhorter?

"A. Yes. It was Saturday night before we went out.

"Q. Before you went out?

"A. Yes.

"Q. Did you realize at that point that that was the person that you had talked to and met the night before?

"A. I was kind of, but I wasn't sure about it, you know. I was surprised.

"MR. BARBER: Your Honor, that is all I have of her at this time. But I would reserve the right to recall her.

"THE COURT: All right."

On cross-examination, Carla stated that she and Cindy had formerly lived in Clearwater, Florida, with their mother, but that Cindy had come to Birmingham to be with her aunt about three months before she came because their mother was ill. She stated that they were then living in Houston, Texas, with their mother. Carla stated that the night of Saturday, January 27, 1979, was the only time that she and her sister double-dated with Warren and Robert, and that she had no particular plans to meet the boys the previous night when they saw them at Al's Cross Roads. She stated that they had ridden over there with Kim Cope. She stated that Warren and Robert came in on Friday night between 10:00 and 10:30 and that it was just a short time later when Warren saw her talking with Russell McWhorter and gestured for her to come to him. She stated that she only had one Jack Daniels and Coke before meeting Russell McWhorter and speaking to him. She stated that Russell did not buy her a drink, and it was just a few minutes later that he and Kelley Latta left with Warren Reese and Robert Magro.

Carla Reid further stated that, prior to Friday, January 26, she had not seen Warren threaten any other person or strike anyone, and that he had not struck her before. She stated that she had only seen him get mad once, and that was with a former roommate, also named Robert.

Carla was asked if she, on Saturday night, after coming out of the ladies' bathroom, saw either Warren or Robert again, and she ...