Rogers v. State

• Decision Date: 03 October 1978
• Docket Number: 6 Div. 377
• Citation: 365 So.2d 322
• Parties: Richmond Preston ROGERS, Jr., alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 322

365 So.2d 322

Richmond Preston ROGERS, Jr., alias v. STATE.

6 Div. 377.

Court of Criminal Appeals of Alabama.

Oct. 3, 1978.

Rehearing Denied Oct. 31, 1978.

Larry Waites and Charles E. Caldwell, Birmingham, for appellant.

William J. Baxley, Atty. Gen., and James L. O'Kelley, Asst. Atty. Gen., for the State, appellee.

DeCARLO, Judge.

Richmond P. Rogers, Jr., was indicted by the Jefferson County Grand Jury for first degree murder in the shooting death of Hollis Lindley. Following a jury trial on October 14, 1976, Rogers was found guilty and sentenced to life imprisonment.

The evidence presented at trial established that about 1:00 A.M., on March 9, 1976, Rogers went to the bar area in the Back Door Lounge in Birmingham, presumably to talk to his wife. After discovering that his wife was not there, he ordered a drink and made a telephone call.

Rogers then went down a hall to the door of a back-room in the lounge where he thought his former wife, Nancy Morgan, was working. He asked to be admitted, and according to Rogers, was told by Hollis Lindley that he could not enter. Rogers said Lindley hit him in the stomach and threw him out of the lounge. When Rogers tried to re-enter the club a struggle between the two men ensued, during which time Lindley was shot and killed.

On the night in question, Patricia Nix, the bartender at the Back Door Lounge, testified that Lindley called to her from the foyer of the club and asked her; "Do you know this guy?" She replied: "No." She said that the man with Lindley in the foyer was Rogers and that he was bent over, making weird noises and saying that he wanted to come in and make a telephone call. Subsequently, Rogers attempted to enter the club and Lindley told her to call the police.

According to Nix, as she turned to leave, she heard a "smack" which sounded like someone being slapped in the face. She said she then heard someone say: "If you move or if you make another move, you're dead . . . " Further, she said that shortly afterwards, she heard a shot. Nix remembered that she hit the floor, crawled to the corner, and remained there until Cargile, a bar patron, crawled over to her. They then, together, left the lounge to hunt a policeman.

Richard Ayers testified that he along with Rogers, Lindley, a waitress, and several other customers, were at the Back Door Lounge at the time of the shooting. According to Ayers, as he sat at a table having a drink, Rogers got up, went through some swinging doors, and used the telephone. He was gone approximately ten minutes, returned to the bar and subsequently left the building.

After the appellant left, Lindley came in, gave some keys to the waitress and told her to lock up. Lindley then left but returned shortly thereafter and asked the waitress to "come here." She went over to where Lindley was standing near the back door. Ayers heard Lindley ask; "Do you know this guy?" and the waitress replied: "No." Lindley then told her to call the police. According to Ayers, Lindley and Rogers were arguing. Rogers insisted on using the telephone while Lindley kept telling him that he was trying to close up and that he would have to use the telephone outside.

Ayers testified that as he was going to the restroom, he saw Lindley restraining Rogers from coming inside. Ayers stated that while he was in the restroom he could not understand what was being said but did recall hearing a "lick passed and a scuffle."

Ayers said that, he heard a shot a few seconds after he left the bathroom. He said he thought at first it was a firecracker and as he continued to walk down the hallway he saw the appellant step in the doorway and walk toward him with a gun in his hand. According to Ayers, he told the appellant, "everything will be alright," and the appellant replied, "okay." Ayers said he walked on by Rogers and went into the lounge. Ayers testified that Hollis Lindley was lying face down in the doorway at the time.

Clark Cargile, another bar patron, testified that he was sitting at the bar when Hollis Lindley, the victim, asked the waitress; "Do you know this guy?" Cargile said that he assumed Lindley was referring to the appellant.

Cargile recalled, as Lindley was trying to close the outside door, the appellant made a request to use the telephone. Lindley told appellant that they were closing and that he could use the telephone outside. Cargile then heard a thud that sounded "like somebody falling or pushing against a wall." Cargile said he looked to his left and saw that one man had another by the shirt while the other had his right hand across the first man's waist.

According to Cargile, at that point, he heard one of the men say, "you m- f-, if you make one move you're dead." He saw a flash, from what he thought was the muzzle of a gun, and then heard an explosion. Cargile said that he "squatted down" behind the bar and subsequently crawled out the side entrance of the lounge with Pat Nix and a Mr. Garbart.

Officer R. M. Stidham of the Birmingham Police Department testified that on the morning of the shooting, at approximately 1:00 A.M., he was informed by a citizen that there had been a shooting at the Back Door Lounge. Stidham went to the lounge and as he entered the rear door of the lounge he stumbled across a body lying on the floor.

Stidham said he then returned to the outside so that his "walkie-talkie" could transmit and asked for additional policemen to proceed to the scene. In a few minutes, Sgt. Whisenhunt of the Birmingham Police Department arrived and Stidham informed him of what he had found. About that time, Stidham said they noticed a "subject on the other side of the East Lake Auto Sales," located just across the street from the building where the Back Door Lounge was housed. According to Stidham, the subject appeared to be darting into an alley that separated the parking lot from the auto sales lot. Stidham yelled at the man to halt which he did. The appellant was identified as the man whom he and Sgt. Whisenhunt apprehended the night of the shooting. Stidham stated that the appellant did not offer any resistance and that while he was being searched he said: "I killed him, didn't I?"

Whisenhunt testified that in response to Stidham's call he proceeded directly to the Back Door Lounge. On his arrival he saw Stidham come from the rear of the building. Stidham informed him that a man had apparently been fatally shot and was lying in the door of the lounge. Whisenhunt said that, as Stidham was informing him of what had occurred, they both saw a man behind a building across the street. According to Whisenhunt they called to the subject and within seconds they apprehended the man whom they later learned to be the appellant.

Whisenhunt stated that a search of the man revealed a pistol in a shoulder holster. Whisenhunt said the man was not asked any questions but as he took the gun from the holster the man said: "I shot him and I would shoot him again if he isn't dead, when a man messes with your kids he should be shot."

Whisenhunt said the man did not say anything further until they took him to the East Lake Precinct, about fifteen minutes later. Whisenhunt said the appellant was read his Miranda warnings at that time. While Officer Stidham was filling out his report, the appellant said on his own volition that he had been following the victim around for a few weeks prior to the homicide, with plans to shoot him.

After having a few drinks at another lounge, the appellant went to the Back Door Lounge. He went to the club's back office where he thought the man he was looking for was located. The appellant went on in his statement and said that he pretended to be intoxicated and sick. He asked Lindley to help him. Rogers concluded his statement by saying that, when the victim came to assist him, he, Rogers, pulled a gun from his belt, placed it to the victim's head, and shot him.

Edward K. Alley, Jr., a police officer with the City of Birmingham, was involved in the investigation of the shooting at the Back Door Lounge. According to Alley, after completing his investigation at the Back Door Lounge, he and several other officers went to the East Lake Precinct where he saw the appellant, Richmond Preston Rogers. In Rogers' presence, Alley was asked by Officer Stidham what the victim's name was and told Stidham that the victim was Hollis Lindley. The appellant turned toward Officer Alley and asked: "Who?" The officer repeated the name of the victim, at which time the appellant said: "I don't know that man, I shot the wrong man." Alley said from that point on the appellant's whole demeanor changed. He seemed to be shocked and became quiet.

Several other police officers, including Whisenhunt, Alley, and Gaut, testified that the appellant, after having been transferred to the East Lake Precinct, made a series of statements of an inculpatory nature in their presence.

Officer J. A. Rose, an evidence technician with the Birmingham Police Department, testified that he took pictures at the scene of the shooting at the Back Door Lounge. He received two pistols, one from a holster on the victim's body and the other taken in the search of the defendant. Rose stated that the pistol taken from the defendant contained five live rounds and one spent one. He went on to say that he test fired the defendant's pistol and had given the test bullets to Sgt. David L. Higgins.

Sgt. David Higgins of the Birmingham Police Department assigned to the scientific investigation unit, testified that he made ballistic comparisons with the known bullets from the defendant's pistol and the bullet taken from the victim. It was his opinion that the bullets were fired from the same weapon.

Jefferson County Deputy Coroner, Jack R. Parker, testified that an autopsy was performed on the body of Hollis Lindley at which time a bullet was removed from the head area. He said there was a "penetration wound at the tip of the nose and there was no point of...