Scott v. State

• Citation: 337 So.2d 1342
• Decision Date: 05 October 1976
• Docket Number: 1 Div. 704
• Parties: Robert Henry SCOTT v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1342

337 So.2d 1342

Robert Henry SCOTT v. STATE.

1 Div. 704.

Court of Criminal Appeals of Alabama.

Oct. 5, 1976.

Delano J. Palughi, Mobile, for appellant.

William J. Baxley, Atty. Gen., and Eric A. Bowen, Asst. Atty. Gen., for the State.

TYSON, Judge.

The appellant was indicted for second degree murder of Ervin Lee Black by shooting him with a .410 single barrel shotgun. The jury found the appellant guilty 'as charged in the indictment' and fixed punishment at ten years in the penitentiary. The trial court then entered judgment in accordance with this verdict.

Mobile Police Officer William C. Fowler testified that in response to a radio dispatch, he went to 353 Cherry Street, about 1:30 a.m., on the morning of October 26, 1975. Officer Fowler stated that upon his arrival, he found a black male lying 'face down' in the street 'almost in front of 353 Cherry Street' (R. 19, 20). Officer Fowler testified that the victim was alive and had been shot in the upper portions of both legs, but stated that their investigation revealed that 353 Cherry Street was not the spot where the shooting took place. Officer Fowler testified that blood imprints on the sidewalk made by tennis shoes, apparently worn by the victim, led them some six blocks to Davis Avenue where 'the trail got too faint' to track further (R. 22, 23).

Officer Nowland Ramsey, also of the Mobile Police Department, testified that on the evening of October 27, 1975, he was directed by Sergeant White of the Criminal Investigation Division to go over to the appellant's home 'to see if the boy (appellant) was there and to check for some evidence.' (R. 24).

Officer Ramsey testified that he did not obtain a search warrant before conducting his investigation, but stated he did receive permission to enter and search the premises from the appellant's sister and father (R. 23). Officer Ramsey stated that the appellant was not at home when he conducted his search of the appellant's bedroom which produced a coat and a .410 single barrel shotgun (R. 25, 26, 31, 34). Officer Ramsey testified he took custody of these two items and took them downtown to the Criminal Investigation Division (C.I.D.) of the Mobile Police Department (R. 27). Officer Ramsey further testified that he arrested the appellant at the appellant's home some forty minutes later after being notified by the radio operator that someone had called and told the police that the appellant was now there (R. 32, 33). Officer Ramsey testified that after arresting the appellant at his home, he took him directly to C.I.D. where he advised the appellant of his rights under Miranda, which were 'read back to him (appellant)' a second time by Sergeant Bowman before the appellant signed his waiver form (R. 34, 39, 182).

Raymond James testified that he was with the deceased, Ervin Lee Black, on the night and early morning in question. He stated that he and Black were at the Am Vets Club where they met a girl and her mother whom they tried to engage in conversation. However, the witness stated that the two 'girls' did not care to talk with them, and they then sat down at a table where the appellant was already seated. James stated that he and Black sat down at the table also, and that Black asked the mother of the girl for some of the wine which she had just purchased. James testified that she refused to give Black any of her wine, and that Black and the appellant 'went and put their dollars' on another bottle of wine (R. 49). James stated that the appellant would not allow Black to give him (James) any of the wine because 'I didn't put none (money) on it,' but that the appellant shortly thereafter offered one of his friends some of the wine. James testified that Black refused to let appellant's friend have any wine either, and, with this, an argument between Black and the appellant began. James stated that subsequently the appellant, the girl, and her mother got up from the table and left the Am Vets Club, and that he and Black began following them 'down the Avenue' where the appellant and Black continued their argument. The witness stated that several other people, including his brother, Andy 'Baby' James, intervened in the argument on behalf of Black. James testified that his brother, 'Baby,' and the appellant began to fist fight, and that Black and two others also 'were jumping in and fighting' the appellant (R. 50, 56). James testified that they 'beat him (appellant) down' and left him lying in a lot 'just off the sidewalk' (R. 60). James stated that he and Black then walked down to the Blue Room Club, to Black, 'You are the one' (R. 52). James back toward the Am Vets Club. James testified that as they were walking back, the appellant ran up behind them and said to Black, 'You are the one' (R 52). James stated that when they turned around, they noticed the appellant was carrying a shotgun under his coat, and that Black then told the appellant, 'Man that was not me, that was Baby . . ., if you think I did, you can go on and shoot, but that wasn't me' (R. 53). James stated he began moving away from the argument, and when he heard a shot, he turned around and saw Black fall. James stated he then ran home and called an ambulance which arrived about fifteen minutes later. James stated that he initially told the ambulance service to come to the corner of Davis and Gaston where Black was shot, but upon learning from Black's girlfriend that 'Charles and Hank' had carried Black to his home, he called back and told the ambulance service to pick Black up 'on back Cherry Street' (R. 64, 65).

Sergeant Ashville White of the Mobile Police Department testified that he was notified at his home around 7:00 p.m. on October 27, 1975, that Black had died from the gunshot wound he had received from the appellant. Sergeant White stated that he instructed Officer Ramsey to take the appellant in custody and bring him to C.I.D., which Officer Ramsey did about 9:00 p.m. Sergeant White testified that at 9:55 p.m. he 'reminded him of his rights' previously read to the appellant by Officers Ramsey and Bowman and stated that the appellant acknowledged that 'he fully understood his rights' (R. 70). Sergeant White stated that the appellant was 'willing to give me a statement,' and that no threats or promises, hope of reward, or other inducement of any kind were ever made to the appellant (R. 72, 76). Sergeant White testified that the appellant then gave him a statement in regard to his shooting the now deceased Ervin Lee Black.

After an extensive voir dire examination, during which Sergeant White was questioned by appellant's counsel, the district attorney, and the trial court, the trial court determined that the appellant's statement was voluntarily given, and this statement was admitted in evidence as State's Exhibit No. 4 (R. 75, 77). Sergeant White further testified that after the process of taking the appellant's statement was completed, he asked the appellant if he suffered any injuries from the beating he received from Black and his friends which required treatment by a physician, and the appellant answered, 'No.' Sergeant White testified he then stated to the appellant that 'the only thing then as a result of this beating that was really hurt was your pride,' to which the appellant acknowledged, 'Yes' (R. 86).

Dr. James E. Hassel, a resident surgeon at the University of South Alabama Medical Center, testified that he examined the body and signed the death certificate of the deceased. Dr. Hassel stated that Black had received a shotgun wound in the upper left leg and that some of the shot had passed completely through the leg and 'entered the medical aspect of the right leg' (R. 94). Dr. Hassel testified that it was his opinion that death was caused by 'complications of the kidney urinal celluar which was secondary to a period of shock because of the blood loss, and a lot of soft tissue injury which caused additional kidney injury' (R. 95). Dr. Hassel further explained in 'layman's terms' that as a result of the gunshot shot wound, Black had a great loss of blood which in turn dropped his blood pressure and put him a state of shock. Dr. Hassel stated that kidneys 'partially die' as a result of this trauma and are unable to properly function in order to remove potassium from the blood. Dr. Hassel stated that this 'chemical (potassium) got too high and this caused him to die' (R. 95).

On cross-examination, Dr. Hassel noted that because of the soft tissue injury, Black actually received 'multiple injury' to his kidneys in that the 'chemical from the muscles' also caused kidney damage (R. 97). Dr. Hassel pointed out that due to 'antibodies' in Black's blood, they had great difficulty in typing and matching his blood with blood units available to the hospital, and that this complication caused considerable but unavoidable delay in the treatment of Black's injury (R. 97).

Shiela Diane Scott, testifying on appellant's behalf, stated that she, the appellant, and her sister, Janice, left her home together on the night in question to join her mother who was down at the Blue Room Club. She stated that the appellant 'dropped them off' there, and that he told them he was going up to the Am Vets Club, but would return for them in about five minutes. She testified that when the appellant failed to return, they all went looking for him at the Am Vets Club where they found him asleep at a table. She stated that they awakened the appellant, sat down, and that her mother then ordered herself some wine. She testified that 'some boys' at the table 'tried to get some of my mama's wine'; that the appellant told them to 'quit trying to'; and that the appellant told Black if he wanted 'to get wine' that he would go in on a bottle with him (R. 104, 105). She stated that the appellant and Black purchased a bottle of wine together, and when a friend of the appellant's asked for some of their wine, Black refused to let him have any. She stated...