Sheffield v. State, 8 Div. 340
| Decision Date | 19 August 1980 |
| Docket Number | 8 Div. 340 |
| Citation | 392 So.2d 1233 |
| Parties | Curtis Ray SHEFFIELD v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Donald E. Holt and Joe M. Patterson, Jr., of Holt, McKenzie, Holt & Patterson, Florence, for appellant.
Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for appellee.
The defendant was indicted for the first degree murder of Robert C. Tate in a killing connected with an independent trucker's strike. A jury convicted the defendant of second degree murder and fixed sentence at thirty years' imprisonment.
Although the evidence is wholly circumstantial, it is sufficient to support the jury's finding that the defendant was guilty beyond any reasonable doubt.
The homicide occurred during the early morning of June 20, 1979, on Highway 72 near Tuscumbia. Shortly after midnight, a small number of men gathered outside the defendant's trailer. They were "carrying on" and drinking beer. Several of the young men present carried some old truck parts to the edge of the highway and attempted to throw them at passing trucks. Witnesses for the State testified that the defendant made statements that the striking truckers were not doing enough to help themselves, that "they were going to need some help from just plain country folk" and that "the (independent) truck drivers weren't doing enough to stop the trucks from that it was going to take someone else to show them that we really mean business." One witness stated that the defendant said that "he had something in the house that would shoot a radiator out or something."
After the defendant made these statements, he entered his trailer and returned with a lever-action rifle and a pistol. There was general talk of "going up and shooting some trailers and tires." One witness testified that the defendant was talking about shooting in fuel tanks. Several witnesses testified that the defendant cautioned to be sure and not hurt anybody.
Eyewitness testimony proved that the defendant and three other men went to the edge of a field near the highway. The defendant, with the lever-action rifle, and Roger Fuller, with a pistol, actually fired at several passing trucks. The defendant fired the last shot and then "it sounded like (a truck) was pulling off the side of the road." There was evidence that one truck other than the deceased's was struck by bullets while traveling in the same general area of Highway 72 and very close to the time when the deceased must have been shot according to the State's evidence.
The State proved that Robert Tate died from a single 30.30 caliber bullet fired from a 30.30 caliber Winchester lever-action rifle. The bullet entered the cab of Tate's truck right under the driver's windshield wiper and tore into his left leg. The severing of an artery and major vein caused massive bleeding which resulted in Mr. Tate's death.
In reviewing a conviction based on circumstantial evidence, this Court must view that evidence in the light most favorable to the prosecution. Cumbo v. State, 368 So.2d 871, 874 (Ala.Cr.App.1978), cert. denied, 368 So.2d 877 (1979). In stating the facts in this opinion, we have omitted some facts which would tend to mitigate the defendant's guilt; yet we have also omitted other facts which tend to implicate him. We have only attempted in our brief sketch of the State's evidence to show that there exists a reasonable theory from which the jury could have concluded that the defendant was guilty. Cumbo, 368 So.2d at 875. After carefully reviewing the evidence, we can only conclude that the jury's verdict is authorized and supported by the evidence. In the weight to be given evidence "courts and juries must use common sense, common reason, and common observation of the usual acts of men and women under given circumstances." Thompson v. State, 21 Ala.App. 498, 499, 109 So. 557 (1926).
The defendant argues that the trial court erred when it refused to permit him to impeach the testimony of Roy Dean Morris by showing, contrary to Morris' testimony, that Morris had seen or owned a certain stolen pistol.
Outside of the jury's presence, the defendant proved that in July of 1976 a .22 caliber pistol and a 30.30 caliber lever-action Winchester rifle were stolen from the residence of Sonny Barfield. This burglary was never solved. Ray Shikle, who originally traded the pistol to Barfield, testified that in November of 1976, about four months after the burglary, he saw the same pistol in the possession of Roy Morris. Under cross examination Morris denied any knowledge of the stolen pistol.
Whether Morris was ever in possession of the particular stolen pistol is of no probative value in determining the guilt or innocence of the defendant. It is not even contended or alleged that the stolen pistol or rifle was in any way connected with Mr. Tate's death. The defendant sought to prove that Morris was in possession of the stolen pistol in November of 1976. The murder occurred in June of 1979 but there is no contention that Morris still had the pistol. Considering all the circumstances, the possession of the pistol is so remote in time from the crime that its relevance and materiality rest in conjecture and speculation. White v. State, 380 So.2d 348, 350 (Ala.Cr.App.1980).
Refusing to allow a defendant to impeach a witness on an immaterial matter is not error. Johnson v. State, 365 So.2d 123 (Ala.Cr.App.), cert. denied, Ex parte Johnson, 365 So.2d 130 (Ala.1978). Eliciting immaterial testimony from a witness and then calling another witness to dispute the immaterial matter is improper impeachment. Weeks v. State, 346 So.2d 1181 (Ala.Cr.App.1977); Kilpatrick v. State, 51 Ala.App. 352, 285 So.2d 516, cert. denied, 291 Ala. 628, 285 So.2d 525 (1973); Englerth v. State, 43 Ala.App. 663, 199 So.2d 678, cert. denied, 281 Ala. 720, 199 So.2d 682 (1967); C. Gamble, McElroy's Alabama Evidence, § 156.01 et seq. (3rd ed. 1977). For these reasons, the action of the trial judge was proper.
The defendant next contends that the trial court committed error in refusing to allow a land surveyor to testify to the results of tests he made concerning the angles and heights a bullet would enter a truck from an area where footprints were discovered near Highway 72 where the deceased's truck left the road.
The defendant had a land surveyor go to the area of the crime, set his transit at three different positions and measure the path, angle and distance a bullet fired from each of those positions would travel and strike a truck traveling on the highway. The trial court allowed the testimony on the surveyor's tests and calculations at two positions at and near an "Army" billboard or sign near the highway. There was testimony that the defendant shot at the trucks in a location immediately next to this sign. This was the first position tested. Near this same sign, two 30.30 caliber rifle shells were found. This was the second position tested. The third position was in a ditch located on a bank of Highway 72 in an area where some footprints had been found. The significance, if any, of these prints was never established and there was no evidence to show that any shot was ever fired from this position.
Using the figures contained in a report of the state toxicologist, the surveyor concluded that bullets fired from each of the...
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