Russell v. State

• Decision Date: 19 December 1978
• Docket Number: 6 Div. 749
• Citation: 365 So.2d 343
• Parties: James M. RUSSELL, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 343

365 So.2d 343

James M. RUSSELL, alias v. STATE.

6 Div. 749.

Court of Criminal Appeals of Alabama.

Dec. 19, 1978.

Joel L. Sogol, Tuscaloosa, for appellant.

William J. Baxley, Atty. Gen. and Jean Williams Brown, Asst. Atty. Gen. for the State, appellee.

HARRIS, Presiding Judge.

Appellant was convicted of murder in the second degree and his punishment was fixed by the jury at fifteen years in the penitentiary. At arraignment, in the presence of his counsel, appellant entered a plea of not guilty. Following sentencing, he gave notice of appeal. An appeal was ordered in forma pauperis, wherein appellant is represented by trial counsel.

Appellant was charged by indictment with the unlawful killing with malice aforethought but without premeditation and deliberation of James L. "Pop" Loden, by pushing, throwing or otherwise causing him to fall into a body of water or the Black Warrior River whereby he drowned.

Appellant alleges two points of error in the actions of the trial court: (1) That the trial court erred in refusing to charge the jury on the law of accomplices and (2) that it was reversible error to deny appellant's request to examine the portion of a police report used by a witness to refresh his recollection. The sufficiency of the evidence is also raised by means of appellant's motion to exclude the State's evidence and request for the affirmative charge, both of which were denied by the trial court.

The chief witness for the State was Gail Cooley. Ms. Cooley testified that, on September 10, 1977, she and appellant, along with "Pop" Loden, Cliff Holmes and Sonny Bishop, left the Crescent Rooms Hotel in Bessemer around 1:30 or 2:00 in the afternoon. The five left the hotel in Cliff Holmes' car and Sonny Bishop was driving. They stopped and bought beer and wine, and spent the afternoon "riding and drinking."

According to the testimony of Ms. Cooley, they ended up in Tuscaloosa and went to a "place on the river." Bishop told Ms. Cooley, appellant and Loden to get out of the car and he and Holmes drove down the road, leaving the three at the river. While they were sitting there drinking and waiting for the others to return, the deceased began complaining and appellant told him to shut up and that if he didn't shut up, he was going to throw him in the river. Ms. Cooley testified that Loden continued to complain and appellant jumped up, grabbed him by his ankles, dragged him over, and threw him in the river. She ran over, saw him in the water, and started screaming. At that point, Sonny Biship came running back to the river.

Ms. Cooley testified that after James Russell threw the victim into the river, he said, "Let him drown." Then he picked up his bottle of wine, walked back over to where he had been sitting, and continued to drink. Ms. Cooley testified that she was still screaming and that Sonny Bishop told her there was nothing they could do. She and Bishop walked back to the car and left with Cliff Holmes, leaving appellant at the scene. Later that night she reported the incident to the police and returned to the scene on the following day with Officer Don Lake, an investigator from Tuscaloosa County.

On cross-examination, Ms. Cooley denied having argued with the deceased, "Pop" Loden, that afternoon and stated that she did not hear appellant argue with Mr. Loden. She testified that she drank between twelve and fourteen beers during the course of the afternoon and that she was five feet, four inches tall, and weighed one hundred and forty pounds. She denied that she told Loden to shut up or she would have someone throw him in the river, and that appellant had actually said, "Let him swim," not "Let him drown." She stated that all five members of the group were "pretty drunk," and there were parts of the day she didn't remember at all.

Dr. Henry Santina, pathologist, testified that, on September 11, 1977, he performed an autopsy and identified photographs as those taken of the body at the postmortem examination. The external examination showed abrasions and contusions consistent with those which might be sustained rolling down a rocky embankment, and there was a bruise on the head. The cause of death was asphyxia, consistent with drowning. Blood and tissue samples were turned over to the State Toxicologist.

On cross-examination Dr. Santina testified that a person with a blood alcohol level of .23 would be quite drunk and that ability to swim would be substantially impaired. He further testified that consumption of twelve to fourteen beers in a three and a half hour period would affect the perception and coordination of a five foot, four inch tall, one hundred and forty pound female.

Jim Britton, State Toxicologist, testified that the results of the test on the blood sample received from Dr. Santina at the postmortem examination showed a blood alcohol level of .23, which would indicate intoxication. On cross-examination, Britton testified that a female weighing one hundred and forty pounds and five feet four inches tall would have a blood alcohol level of approximately .33 after consuming twelve to fourteen beers in three and one-half hours.

Ron Fulgham, Deputy Sheriff of Tuscaloosa County, testified that on September 11, 1977, around 2:45 a. m., he and another officer saw appellant, James Russell, at Daniel's Creek on the Warrior River. He appeared to be drunk. The officers took appellant to the Tuscaloosa County Jail, but he was not arrested. Appellant went with the officers voluntarily.

Don Lake, Deputy Sheriff of Tuscaloosa County, testified that he went to Daniel's Creek on September 11, 1977, around 8:00 a. m., with other officers and Ms. Cooley. Lake made photographs of the scene, including drag marks leading to the river embankment and down to the river. He was present when the body was removed from the river. Officer Lake identified a photograph taken at the postmortem examination as that of the body removed from the river.

Daniel Branton, son-in-law of the deceased, identified the photograph previously identified by Officer Lake and Dr. Santina as that of the deceased, Larkin Loden.

Gail Cooley was recalled for further cross-examination and denied telling Sonny Bishop on the drive back to Bessemer that appellant "must have pushed Pop in the river" because she didn't think she did.

Sergeant Tom Eddings, of the Jefferson County Sheriff's Department, testified for the defense that, some time after 1:00 a. m. on September 11, 1977, he saw Gail Cooley at the Bessemer Police Department. She appeared to be intoxicated and told Eddings what had happened the previous day between appellant and the deceased. Sergeant Eddings testified that Ms. Cooley had difficulty relating the facts and appeared confused. On cross-examination, Eddings testified that her story never varied as to who actually pushed Loden in the river.

The testimony of Henry "Sonny" Bishop was substantially the same as that of Gail Cooley regarding the events of September 10, 1977, except that he did not witness the alleged drowning. He further testified that Ms. Cooley told him that "she had told Pop to shut up or she was going to have Jim throw him in the river." It was Bishop's opinion that all those present, including himself, were intoxicated.

Appellant, James Russell, testified in his own behalf. His version of the events of September 10, 1977, was substantially the same as previous witnesses until the point at which he got out of the car at the river. It was appellant's testimony that he got out of the car, sat down, drank some wine, and went to sleep. The others returned and said they would be back later to pick him up. The next thing he knew, the deputies came to pick him up.

Appellant testified that he did not throw anyone into the river or see anyone thrown in the river, and that he was "pretty well intoxicated." On cross-examination, appellant testified that only he got out of the car at the river and that Gail Cooley and Loden left with the others.

Sonny Bishop was recalled for further cross-examination. He testified that appellant, Gail Cooley, and Pop Loden all got out at the river, and he and Cliff Holmes left together.

The State presented eyewitness testimony that appellant threw "Pop" Loden into the river, causing him to drown. The testimony of appellant controverted the eyewitness account. Conflicting testimony presents a question for the jury as to the defendant's guilt. The jury resolved this issue against the appellant. Morris v. State, 47 Ala.App. 132, 251 So.2d 629.

Appellant excepted to the Court's oral charge due to failure to charge on the law of accomplices and requested the following charges, which were refused:

"DEFENDANT'S REQUESTED CHARGE NO. 2

"I charge you, members of the jury, that you can not convict James Russell on the uncorroborated testimony of Gail Cooley."

"DEFENDANT'S REQUESTED CHARGE NO. 6

"The Court charges you, members of the jury, that the Defendant cannot be convicted upon the testimony of Gail Cooley unless corroborated by testimony of witnesses as to material elements of the offense, and that unless you find such corroboration you may not find the Defendant guilty based on that testimony of Gail Cooley."

Appellant contends the trial court erred in refusing requested charges 2 and 6.

The test for determining whether a witness is an accomplice is whether he or she could have been indicted and convicted for the offense charged, either as principal or accessory. Miller v. State, 290 Ala. 248, 275 So.2d 675. This determination is a question of law initially directed to the trial judge. Strange v. State, 43 Ala.App. 599, 197 So.2d 437. On the other hand, where there is conflicting evidence on the question of complicity, a question of fact is presented for the jury. Leonard v. State, 43 Ala.App. 454, 192 So.2d 461; Fairbanks v. State, 46 Ala.App. 236, 239 So.2d 908.

The only evidence presented at trial tending to show that Gail Cooley was an accomplice was...