Retowsky v. State

• Decision Date: 01 June 1976
• Docket Number: 8 Div. 746
• Citation: 333 So.2d 193
• Parties: William Edward RETOWSKY v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 193

333 So.2d 193

William Edward RETOWSKY v. STATE.

8 Div. 746.

Court of Criminal Appeals of Alabama.

June 1, 1976.

Jack Livingston and Ronald A. Drummond, Scottsboro, for appellant.

William J. Baxley, Atty. Gen., and Carol Jean Smith, Asst. Atty. Gen., for the State.

TYSON, Judge.

The appellant was indicted for first degree murder of his wife, Lonnie S. Retowsky, 'by beating her with his fists and choking her with a cord.' The jury found the appellant guilty of murder in the first degree and fixed punishment at life imprisonment. The trial court then entered judgment in accordance with this verdict.

Walter Simmering testified that he lived in Scottsboro, Alabama, and was employed at the Revere Cooper and Brass Company. He testified he was the father of Lonnie S. Retowsky, the deceased. Mr. Smimmering testified the appellant and the deceased were married in 1958 and moved to Scottsboro in 1968 where his son-in-law, the appellant, was also employed by Revere Copper and Brass. He stated that the appellant and the deceased had three children. He testified that the appellant and deceased had been separated in September 1974, but that in December 1974 during the Christmas holidays, they had made a trip to Baltimore, Maryland, where they each had visited some relatives and returned to Scottsboro just before the first of the year. Mr. Simmering stated that he last saw his daughter alive on the last Sunday in December 1974.

Gerry Cook testified that he had known the appellant about four years and also knew the deceased, his wife Lonnie. He testified that on New Year's Eve 1974--75, he went to a party at the V.F.W. Club in Scottsboro. He testified he saw the appellant and his wife there at the party and that they were dancing. He testified that later, the appellant and the deceased, his wife Lonnie, and a girl by the name of Judy, who worked at the same Holiday Inn where the deceased was employed, all came over to an apartment, No. 115, Carriage House Apartments. Cook stated that at this particular time, the appellant, W. E. 'Bo' Retowsky had moved into the apartment with one Fennie Ping. He testified that when he arrived at the apartment, the girl Judy was asleep on the couch and that the appellant and his wife were talking and having some drinks. He said he stayed there about an hour and had a drink and that when he left about 4:00 A.M., Mrs. Retowsky was still alive.

On cross-examination he testified that he had been with the Retowskys and had had some drinks with them at the V.F.W. Club prior to going over to the apartment.

Fennie Ping testified that he lived at 385 Mitchell Drive, Hollywood, Alabama, and was employed by Revere Copper and Brass. He testified that he had known the appellant and his wife for about ten years and that after the appellant had separated from Mrs. Retowsky that the appellant moved into an apartment which they shared at the Carriage House Apartments in September 1974. Ping testified that he saw the appellant on the night of December 31, 1974, and that he stated he was going to take his wife to a dance at the V.F.W. Club. He testified he went back to his apartment about 10:00 that night, and the appellant was not there and that he did not return to his apartment until about 10:00 the following morning and that he found police officers there.

Judy Dawson Kay testified that she worked at Wilma's Beauty Shop and at the Holiday Inn in Scottsboro. She testified that after getting off work at 10:00 on the night of December 31, 1974, she went to the V.F.W. Club dance with the appellant and Lonnie Retowsky. She testified that they had several drinks and danced there until after midnight and then went to an apartment at the Carriage House Apartments. She said she had a drink and that she next remembered dozing off to sleep on the sofa. She said that a Gerry Cook had come by for a short time, but that she had gone to sleep and that she waked up the following morning about 9:20 on January 1, 1975; that she walked into one of the bedrooms and saw the body of a person which was covered with blood; that the bed and bed clothes were bloody and blood was on the walls. She stated that there was a cord around the neck of the body. She said that at first she could not tell who it was so she telephoned the police department and asked for her father, who was a city police officer, and she told the police where she was and that 'someone is dead.'

Keith Smith testified that he was a captain with the Scottsboro Police Department on January 1, 1975. He testified that in response to a telephone call, he went to Apartment No. 115, Carriage House Apartments, shortly before 10:00 on the morning of January 1, 1975. He testified he was accompanied by Officer Truman Dawson. He stated that upon arriving at the apartment, they were met by a reserve officer, Potter, and that one Judy Dawson Kay was sitting on the steps to the apartment front door which was open and that she was almost hysterical. Smith said he walked into the living room and into a bedroom where he discovered a body partially covered with a sheet and that the bed and covers on the bed were spattered with blood; there was blood on the walls on the rug and other furniture. He testified there was a cord around the neck of the body which was tied very tight with a bow-type knot. He testified that he then telephoned for his police photographer and other officers and that they then made photographs of the scene. Smith testified that he left the apartment for a short time and went to police headquarters and that upon arrival there, one of the officers introduced him to the appellant, W. E. 'Bo' Retowsky. He stated that the first thing he did was to read the appellant a Miranda-type warning and cautioned him that he did not have to make any statement or say anything at all. He stated that the appellant stated to him immediately after he gave him this warning, 'I think I killed my wife.' Smith stated that he then placed the appellant under arrest for first degree murder and then returned to the apartment to complete his investigation at the scene.

Captain Smith then testified that he had the appellant brought to his office at 12:15 noon time on January 1 and there for a second time, read the appellant a Miranda card warning and advised him he did not have to make any statement whatever and that if he wished to stop talking that he had the right to do so; that he had secured an attorney for him and that there had been no promises, hopes of reward, threats or any type abuse whatsoever administered to the appellant. At this time he took down a recorded taped interview with the appellant which was typed up and that Officer Earl Bishop was present with him during the interview.'

After the jury was excluded in accordance with Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, both the pre-Miranda and Miranda predicates were inquired into before the trial court determined the statement of appellant to be voluntary. Captain Smith testified that he was first introduced at police headquarters to the appellant by Police Officer John Childress and that the appellant did not appear to be intoxicated, but appeared rather to be in deep thought and that he had come to police headquarters voluntarily and turned himself in. The appellant's interview is fully set forth on pages 83--87 of the record with reference to their activity at the apartment, we find the following in the interview:

'MR. RETOWSKY: We come back from the dance, me and Lonnie, Judy, I don't know her last name.

'MR. SMITH: Judy; could it have been Judy Dawson, used to be Dawson?

'MR. RETOWSKY: Yes, she is a Dawson; her father is a policeman, or fireman, or something; and we danced and drank; and Gary (sic) Cook came in; and Lonnie started; she got mad at me and started trying to hit me, and all. I was laughing at her; then Cook left; and me and her went into the bedroom; she hit me; I started hitting her and choking her and hitting her and choking her; I think I put a cord around her throat; honest to God, I don't know; I think I did but I don't know.

'MR. SMITH: What were you hitting her with?

'MR. RETOWSKY: My hand.

'MR. SMITH: Did you use anything else?

'MR. RETOWSKY: I don't think so.

'MR. SMITH: Okay, how many times would you say you hit her?

'MR. RETOWSKY: I honestly don't know.

'MR. SMITH: Okay, can you tell me why you were in Fennie Ping's room instead of your room?

'MR. RETOWSKY: She didn't want to go into my room because she said I had other people in there.

'MR. SMITH: Said you had other people in there?

'MR. RETOWSKY: Yes.

'MR. SMITH: Who was in there?

'MR. RETOWSKY: She didn't mean that; she meant.

'MR. SMITH: Oh, because you have had other people in there in the past?

'MR. RETOWSKY: Yes.

'MR. SMITH: I see; okay, what were you and her fighting about?

'MR. RETOWSKY: Just fussing, nothing in particular.

'MR. SMITH: Nothing in particular?

'MR. RETOWSKY: She said, one thing she said, she would, if she asked, I would come right back; and I told her as much as I cared for her, I wouldn't come back cause she had hurt me so bad. Just, really, I don't know what we were really fighting about.

'MR. SMITH: How long have you lived with Fennie Ping, shared an apartment with him?

'MR. RETOWSKY: About the middle of September or the first of November.

'MR. SMITH: Okay, what kind of cord did you tie around her neck?

'MR. RETOWSKY: I don't know; I don't even know if I did; I think I did.

'MR. SMITH: You don't remember?

'MR. RETOWSKY: I don't; I think I did but I'm not sure.

'MR. SMITH: Okay, let me show you a piece of cord and ask you if it, if you remember if this could be the cord that you used to tie around her neck?

'MR. RETOWSKY: I don't know.

'MR. SMITH: Okay, you don't remember?

'MR. RETOWSKY: No.

'MR. SMITH: Okay, you just remember?

'MR. RETOWSKY: I think I did.

'MR. SMITH: You think this is?

'MR. RETOWSKY: I don't.

'MR. SMITH: You think you remember tying something around her...