Savage v. State

• Decision Date: 22 January 1980
• Docket Number: 8 Div. 162
• Citation: 380 So.2d 375
• Parties: Thomas Edward SAVAGE v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 375

380 So.2d 375

Thomas Edward SAVAGE v. STATE.

8 Div. 162.

Court of Criminal Appeals of Alabama.

Jan. 22, 1980.

Rehearing Denied Feb. 26, 1980.

John D. Clement, Jr., Joe M. Patterson, Jr., Florence, for appellant.

Charles A. Graddick, Atty. Gen., Sarah Kathryn Farnell, Asst. Atty. Gen., for appellee.

DeCARLO, Judge.

Assault with intent to murder; fifteen years.

The indictment, omitting the formal parts, charges:

"Thomas Edward Savage unlawfully and with malice aforethought, did assault Tommy Houston, with the intent to murder him, against the peace and dignity of the State of Alabama."

In support of this indictment the State presented the following evidence:

Steve Aldridge, an investigator with the Colbert County Sheriff's Department, testified that he investigated the shooting of Tommy Houston at the "Rock Club" in Colbert County. Aldridge stated that he arrived at the club about 10:15 P.M., but the victim, Houston, had already been taken to the hospital. The appellant, Thomas Edward Savage, was not at the scene, but he was seen by Aldridge at approximately 2:40 A.M., at the jail. Aldridge said that the appellant appeared to be "upset, shaken and appeared to have been drinking to me." Aldridge stated that no statement was taken from Savage at that time, but one was taken the following morning, September 17, 1977.

According to Aldridge, the statement by the appellant was voluntary and was given after he had been warned of his Miranda rights. Further, Aldridge said that the statement was read to the appellant and that he signed each of the three pages of the statement.

The contents of the statement revealed that appellant was with Arthur Malone, Queenie Malone and Sara Patrick on the night in question and that the Malones were arguing with the victim. According to the appellant's statement, when the Malones left, the victim started an argument with the appellant and said to appellant, "Why don't you carry your gray ass home." The appellant responded that he "didn't have to go home." At that point, Houston got a piece of iron pipe, about two feet long, from a nearby car and started toward appellant with the pipe raised in the air. The appellant warned Houston to stop, but he kept approaching. The appellant then reached into his pocket with his left hand, pulled out a pistol and shot Houston.

The appellant admitted in his statement that he had drunk about "one shot" of vodka before the incident and that he had drunk about three-quarters of a pint of vodka afterwards while he was waiting for the police to arrive.

Aldridge indicated that, after he saw the appellant at the Colbert County Jail, he was taken to the hospital where a blood test was made. The test revealed the presence of .20 percent ethyl alcohol in the appellant's blood.

During cross-examination Aldridge admitted that a statement had been taken from Sara Patrick on September 20, 1977, at the appellant's trailer. Following an identification of the statement by Aldridge, the defense attorney offered the statement into evidence, but it was not admitted after an objection by the State was sustained. Statements taken from Darien Armstead and Larry Armstead were also offered by the defense and were refused when objections by the State were sustained.

Robert James Mason was the operator of the "Rock Club" on September 16, 1977. Mason recalled that his attention was drawn to Tommy Houston when he "heard them outside cussing." Mason testified that he went outside to see what was happening when he heard Queenie Malone, also known as Baby Lou, and Houston outside the club arguing. After Mason tried to convince Houston to leave, Sara Patrick yelled at him from several feet away. According to Mason, Houston was walking away when she yelled, "You want something at me," and Houston replied, "You kiss my ass." The witness testified that, at that point, the appellant, who was with Sara Patrick, started toward Houston and said, "Say it again Nigger, say it again." Mason recalled that the appellant pulled a gun "when he got about half way." Mason stated that the appellant continued to say, "Say it again Nigger," then said, "G d it, say it again," and then fired the shot.

According to Mason, Houston took a piece of stick from a nearby truck after he was threatened by the appellant. Mason stated that Houston held the stick "down beside him." Mason acknowledged that Houston did not make any motion with the stick. Further, Mason said that he got between the appellant and Houston when the appellant came closer and that the three of them started moving in a circle. According to Mason, the appellant shot Houston as they were moving around. Mason testified that the appellant used his right hand to fire the gun and that the victim "never said a word."

According to Mason, the appellant was walking "pretty fast" to where the victim was standing. Mason stated, "Bubba Savage was after Tommy." After the shot was fired, the victim fell to the ground.

During cross examination, Mason denied ever having a gun battle with Houston and stated, "I haven't shot at anyone, If he did I didn't know it." Also, Mason admitted that he had been convicted of murder in the second degree.

Further, Mason denied that the victim, Houston, ever reached to get the stick "when Thomas first pulled the gun out."

Larry Armstead testified that he was at the "Rock Club" on the night of the shooting. He was standing outside with his brother, Robert Darien Armstead, when an argument in the parking lot between Houston and Queenie Malone was overheard. According to Armstead, Sara Patrick said to Houston, "something about I have a .38 colt" and Houston replied "Smith and Wesson make a whole lot of them." At that point, Sara Patrick made another comment and "Tommy cursed her." Armstead said that he did not know exactly what was said, but, after the exchange of words, the appellant walked quickly to where Houston was standing. At that point, the appellant repeated about three times "say it again nigger, say it again." Armstead stated that, when the appellant got about half-way to where Houston was standing, the appellant pulled a gun with his right hand. Armstead testified that the appellant and Houston were moving around in a circle and Jim Mason tried to part them. Armstead recalled that the appellant pushed Houston before shooting him. Armstead never saw Houston with any kind of stick or instrument.

Darien Armstead, Larry Armstead's brother, testified that, on the night of the shooting he also was at the "Rock Club," he and the Malones had had an argument approximately an hour after his arrival at the club. Houston was talking to them outside the club near the corner of the building. Armstead remembered that, when Houston completed his conversation with Malone, Sara Patrick made a remark, "I got a .38 and Tommy do you want some of it?" Armstead said Houston replied, "Smith and Wesson make a whole lot of them." According to Armstead, at that point, Patrick made another remark, and Tommy Houston replied, "Kiss my ass." The appellant approached Tommy Houston and said, "say it again nigger."

Armstead testified that he did not see a weapon in the hands of the appellant as he approached the victim. However, he did see the victim grab a stick while he and the appellant were moving in a circle. Further, he said the appellant continued saying, "Say it again" but the victim made no reply. According to Armstead, the appellant walked quickly to where the victim was, and "Bubba pushed him." At that point, the victim "got a stick off the back of the truck."

Armstead recalled that Houston never made any motion with the stick, but "it was down." Armstead did not remember seeing the appellant reach into his pocket for the gun. He remembered seeing only the gun when Tommy Houston was shot.

Approximately thirty-five minutes after the shooting, the appellant was seen by Armstead at his house talking to Armstead's father.

During cross-examination, the defense introduced a statement which had been made and signed by Darien Armstead and given to Officer Aldridge. The defense pointed out that Darien Armstead had previously stated to the police that Tommy Houston moved to the back of the truck and got a stick before advancing towards the appellant, twirling the stick. Armstead explained that he had made this statement but he meant only that Houston was moving the stick from side to side as he held it. Also, Armstead explained "(t)hat I'm saying he walked upon him like this you can walk towards somebody, you don't have to walk directly to them, you can walk up to somebody sideways."

Tommy Houston, the victim of the shooting, testified that as a result of the incident he was "paralyzed from the neck down." Further, he stated that he had never had any serious trouble with the appellant before the argument at the "Rock Club" and that he had known the appellant "almost all of his life."

Houston testified that Sara Patrick asked him "did I want some of this .38 or something," and he replied, "I told her Smith and Wesson made a bunch of them." According to Houston, she continued to taunt him and "I told her to kiss my ass and I turned around and walked off." According to Houston, he had no weapon at that time, and, within thirty or forty-five seconds after the verbal confrontation with Sara Patrick, the appellant fired the shot. Houston stated that, before the shot was fired, the appellant walked over to Houston and said "say it again nigger, say it again." Houston stated that he was first pushed by the appellant before he was shot. Houston said he never saw the gun when it was fired and that all he remembered was "I fell to the ground."

Houston did not remember moving in a circle, but recalled "I know he walked up to me and pushed me and I kind of turned. I guess that's maybe where they got the circle motion. When he pushed me I turned and I guess that's where I grabbed the stick." He testified that the...