Rogers v. State

• Decision Date: 18 May 1982
• Docket Number: 8 Div. 557
• Citation: 417 So.2d 241
• Parties: Thomas Alan ROGERS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 241

417 So.2d 241

Thomas Alan ROGERS v. STATE.

8 Div. 557.

Court of Criminal Appeals of Alabama.

May 18, 1982.

Rehearing Denied June 29, 1982.

Don T. Terrell, Huntsville, for appellant.

Charles A. Graddick, Atty. Gen. and Charles M. Allen, II, Asst. Atty. Gen., for appellee.

HARRIS, Presiding Judge.

Appellant was indicted by a Madison County Grand Jury on a "felony-murder" charge under § 13A-6-21(a)(3), Code of Alabama 1975. Appellant was subsequently convicted for the offense and the trial court set a prison term of 45 years.

The state's first witness was the victim's mother. Her son was 31 years old at the time of his death. The witness gave her son's address and testified that the last time she saw her son alive was on October 27, 1980. The next time she saw her son was on November 11, 1980, after he had been killed.

The state called Doyle Kimbrell to the stand. The witness knew appellant and was at the victim's home the night of the victim's death. Kimbrell testified that, on the night of November 9, 1980, his sister, Melissa Long, and Marcia Rogers, appellant's ex-wife, woke him up. The three ran into a bathroom where they heard a door being kicked in. Kimbrell testified that he also heard a gun trigger click. While in the bathroom, the witness heard appellant ask if anyone was in the bathroom. The three then walked out of the bathroom. In the living room were Bud Barr and Eddie Lang, two accomplices of the appellant. The three were searching the house for the victim when Barr yelled that he had found the victim in a back bedroom. Appellant and Barr kicked in the bedroom door. The witness heard appellant say, "You'll whip my ________, will you." The witness then heard a gunshot.

Eddie Lang ran out of the house followed by Barr and appellant. The witness noted that guns were taken from a gun rack in the house. After the three men left, the witness walked to the bedroom and found the victim's body.

On cross-examination, Kimbrell testified that, although Barr was armed, appellant only had a stick when he went in to the bedroom and when he left.

The state's next witness was James Parker, a detective for the Huntsville Police Department. Parker arrived at the scene of the accident at approximately 11:45 p. m. He noted that the victim had a bullet hole in his back. The victim was dressed only in a pair of cut-off jeans. Parker also identified various photographs of the victim and photographs showing the use of force on the back door of the victim's house and the victim's bedroom door. A hearing was then held outside the presence of the jury to determine if appellant was adequately informed of his Miranda rights before he gave Parker a statement.

The state called Marcia Rogers, appellant's ex-wife, to the stand. Ms. Rogers was at the victim's house the night of the killing. Ms. Rogers essentially corroborated Doyle Kimbrell's testimony. However, Ms. Rogers testified that all three men were armed: appellant with a pistol, Barr with a shotgun, and Lang with a rifle. She also identified the shotgun and rifle as belonging to the appellant.

On cross-examination, Ms. Rogers stated that some of her fellow employees at a local bar had threatened harm to her if she did not testify.

The state's next witness was Melissa Lang, Eddie Lang's ex-wife. She was dating the victim and also was at the victim's home on November 9, 1980. She corroborated the previous testimony of the occurrences that night. Ms. Lang further testified that she worked in a local bar in Huntsville as did the victim and Ms. Rogers. She was at the bar when appellant and the victim had argued and fought in the club's parking lot.

Grant Day, the victim's roommate, was called to the stand. Day left his house on November 9, 1980, around 7:30 p. m. He remembered that the back door was locked. He had a shotgun and rifle in a gun rack in the house which were in the gun rack when he left. When he returned he noticed that the guns were gone. Day had not given appellant or his accomplices permission to enter his house or to take the guns on the night of the shooting.

Paul Kranca, a Huntsville police officer, was called to the scene at around 10:00 p. m. on November 9, 1980. He noticed that both the back and front doors were opened. He entered the house and found the victim in the back bedroom.

Paul Ballance, also on the police force, arrested the appellant in the early morning of November 10. He saw what appeared to be a patch of blood and human tissue on appellant's coat. At Barr's residence Ballance also found appellant's guns stuffed under Barr's mattress.

Dr. Joseph Embry was called to the stand. Dr. Embry worked for the State Department of Forensic Sciences in Birmingham. Dr. Embry performed an autopsy on the victim. He determined from the autopsy that whoever shot the victim was within three feet of the victim. At such a range, there is often a "blow back" of blood and tissue. The shot caused almost instantaneous death.

Greg Wilson, the victim's next door neighbor, was at home the night of November 9. That night he heard someone yell, "He's inside." He then heard a loud noise from inside the house which sounded like a concrete block being thrown against a storm door. A few moments later three men ran from the house. The witness heard one of the three say, "Good shot."

Deborah Tines, the manager of the local club where the victim worked, saw appellant arguing with the victim at her club on October 29, 1980. The victim was working as a doorman at her club. The victim and appellant went outside to the club's parking lot where a fracas ensued. The victim won the fight and appellant was told to leave and not to return. The witness later saw appellant in the club parking lot. Appellant was waving what appeared to be a pistol. Appellant asked for the victim, stating that he "had something for him."

Ron Adams, a Huntsville policeman, arrived on the scene at around 11:45 p. m. and noticed that the front door was open and that the back door was damaged and opened.

Brent Wheeler, a firearms criminalist, testified that wadding found on the victim's body was from a .12 gauge shotgun.

Roger Morris, a criminalist and serology coordinator for the Department of Forensic Sciences, analyzed the substances on the jacket appellant was wearing the night of the shooting. Morris detected the presence of blood and human tissue on the jacket.

Detective Parker was recalled to the stand. Parker talked with the appellant at the police station during the early hours of November 10. He advised him of his Miranda rights and asked if he understood them. He then asked if, with those rights in mind, he wished to talk. After appellant hesitated a few minutes because of the presence of other officers, the two moved to a more isolated area where appellant gave Parker a statement. Appellant told Parker that he only wanted to black the victim's eye and that he never intended to kill him. He claimed to have told the others that there was to be no shooting. Appellant further stated that he did not know that Barr was crazy and that Barr had shot the victim. He also stated that Barr was the one who kicked the back door in.

After the state rested, appellant presented his case.

Appellant called Eddie Lang to the stand. Lang denied that appellant or he ever returned to the club brandishing a pistol after appellant had fought with the victim. He also stated that the three of them were riding around together the night of the shooting and only went to the victim's house to talk with the girls there. They never intended to kill anyone.

Appellant took the stand in his own behalf. He had known Lang since 1976 but he had only known Barr since the night of the homicide. The three of them went to the victim's house to talk with Ms. Rogers and Ms. Lang. Appellant stated that they did not go to the house to commit a crime.

According to appellant, he and Lang knocked on the front door while Barr went around to the back. He and Lang walked through the unlocked door and they did not ask for the victim. He attempted to talk with his wife when she ran out of the house. After appellant had followed his wife out of the house, Barr yelled that he had found the victim. Appellant walked back to the victim's bedroom where Barr had the victim at gunpoint. As appellant hit the victim with his fist, Barr shot past appellant hitting the victim. Appellant panicked and all three ran out of the house. Appellant stated that he never heard anyone say, "Good shot."

Appellant denied on cross-examination that he had asked the victim to go outside and fight in a bar parking lot on October 29. He admitted that the victim beat him up, but he only returned to the bar to see why and he was not armed. Appellant also admitted that the shotgun Barr had belonged to appellant. He could not remember how Barr got his gun. Appellant stated that Barr on his own took the guns from the gun rack.

Appellant's last witnesses were character witnesses who testified that appellant had a good reputation in the community for truth and veracity.

Appellant first contends that the state, in failing to comply with the trial court's motion to produce, denied appellant a fair trial.

The relevant portion of the trial court's order reads:

"... It is therefore ordered by the Court as follows:

"1. At least four (4) days prior to scheduled trial date the State will produce and allow defense counsel to inspect and copy any statement previously made by the defendant. Such statement previously made is (A) a written statement signed or otherwise adopted by the defendant or otherwise approved by the defendant; and (B) a stenographic, mechanical, or other recording or a transcription thereof, which is substantially verbatim recital of an oral statement by the defendant; and (C) any note, memorandum or other instrument in writing made by any person which was made at the same time or about the same time as any oral statement of the...