Sparks v. State, 7 Div. 633

• Decision Date: 30 October 1979
• Docket Number: 7 Div. 633
• Citation: 376 So.2d 834
• Parties: John Ellis SPARKS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 834

376 So.2d 834

John Ellis SPARKS v. STATE.

7 Div. 633.

Court of Criminal Appeals of Alabama.

Oct. 30, 1979.

H. Wayne Love, Anniston, for appellant.

Charles A. Graddick, Atty. Gen. and Jimmy L. DeBardelaben, Asst. Atty. Gen., for appellee, the State.

HARRIS, Presiding Judge.

Under an indictment charging murder in the first degree, appellant was convicted of murder in the second degree and the jury fixed his punishment at imprisonment in the penitentiary for a term of thirty years. He was represented by court appointed counsel and at arraignment pleaded not guilty and not guilty by reason of insanity. After sentence was imposed he gave notice of appeal and was furnished a free transcript. Trial counsel was appointed to represent appellant on this appeal.

On Sunday night, July 17, 1977, the deceased, Donna Madeline Tucker, and her date, Mark Martin, went to the Germania Springs Park located in Jacksonville, Calhoun County, Alabama. They arrived at the park around 10:30 p. m. As they entered the park they observed a man sitting at a picnic table. The couple passed the man at the picnic table and went about fifteen yards where they spread a blanket on the ground. The lights on the tennis courts were on and lighted up the park area. Mark and Donna did not see anyone else in the park at this time. While sitting on the blanket they were approached by the man they had seen at the picnic table and he asked for a cigarette. He was told they did not have a cigarette. At this point the man was within three or four feet of the couple. A few minutes later the man returned and asked for a match. He was again within three or four feet of the couple and he was informed they did not have a match. The man was described by Martin as wearing a red wool shirt, red cap and blue jeans.

No more than five minutes later this same man approached the couple for the third time. He came from the direction of a small footbridge in the park. Donna was the first to notice him. He was holding a small pistol and walked "real close" to them. The man ordered Martin and Miss Tucker to stand up. He held the pistol to Miss Tucker's head and instructed Martin to disrobe, so that he would not run away. Martin complied with the order. The man then ordered Miss Tucker to disrobe and she took her clothes off. He told Martin to move away and sit down and Martin sat on the blanket. The man told Miss Tucker to lie down on the blanket and put the pistol to her head while he ran his hands all over her body. She started crying and began praying for the man. The man then moved over to Martin and began fondling him. Martin got a good close-up look at the man while he was fondling him. The man then returned to Miss Tucker and fondled her again with the pistol pointed at her head. Miss Tucker screamed and the man slapped her. Martin stood up and the man stood up also. As Martin walked toward the man he backed away. Martin stepped between Miss Tucker and the man and told him he was not going to put another hand on her. The man then fired the pistol twice at Martin who fell and lost consciousness momentarily. The man shot Miss Tucker as she was lying on the blanket. After a few seconds Martin regained consciousness and saw the man fleeing from the park. Martin told the officers that, based on what he saw in the park before the shooting, and on those events alone, he could identify the man.

Following this heartless and bizarre shooting both victims were eventually transferred to the University Hospital in Birmingham where Miss Tucker died a few days later. Mr. Martin was paralyzed from his shoulders down. He remained in the hospital for over thirty days and was then transferred to Spain Clinic for therapeutic treatment and is now confined to a wheelchair.

Jacksonville Police Officers Thomas Fitch and Allen Hall arrived at Germania Springs Park between 12:30 and 12:45 a. m. on July 18, 1977. A maroon Monte Carlo automobile was in the parking lot with the keys in the ignition. The lights on the tennis courts automatically go out at midnight. Using flashlights the officers began looking around and discovered two nude persons lying in the picnic area. They had been shot. The male was conscious. The female was not. At this time the only light in the park was a mercury vapor light. The victims were identified as Mark Martin and Donna Tucker.

M. L. Kirby, Deputy Sheriff of Calhoun County, arrived at the scene at approximately 12:30 a. m. Mark Martin was lying on the ground and Donna Tucker was in an ambulance. Deputy Kirby next saw Miss Tucker at Cooper Green Hospital on July 22, 1977, and she was dead. Dr. James M. Buttram performed the postmortem examination.

Dr. Buttram, State Toxicologist, whose qualifications were admitted, testified that he performed the autopsy on Donna Tucker beginning at 2:30 in the afternoon on July 22, 1977; that Deputy Sheriff Kirby was present during the autopsy. The cause of death was determined to be damage to the central nervous system and hemorrhage within the cranial cavity as the result of a gunshot wound which entered the right top of the head and penetrated the right cerebral hemisphere of the brain. The autopsy surgeon removed two bullets from the head of Miss Tucker which were sealed in an envelope and given to Deputy Kirby to take to the Jacksonville laboratory.

Norma Barton testified that she knew appellant at the Pic 'N Pay Store in Oxford where he was employed. She was a customer. Appellant called her almost daily the next three weeks after she met him. This was before the shooting at Germania Springs Park. He asked her to go out with him but she never had a date with him. The week after the shooting appellant called Ms. Barton on the telephone and she recognized his voice and knew with whom she was talking. Appellant brought up the subject of the Germania Springs shooting and stated that he "didn't go any place any more because he was afraid the police would pick him up, that they had questioned him about the tennis courts." Appellant told Ms. Barton that he had been at Germania Springs that night playing tennis with some boys. Ms. Barton told appellant, "If you didn't do it, you don't have anything to worry about." Appellant responded, "But you never can tell." In this same conversation appellant stated, "You're probably lucky you didn't go out with me." Ms. Barton asked "Why," and appellant replied, "Well, because they came out and questioned me and I am an alleged sex murderer."

Terri Powell testified that she worked at the Pic 'N Pay Shoe Store in Oxford with appellant. On July 18, 1977, she had a conversation with him at the store. He told her he was at Germania Springs the night before, "where those people were shot," playing tennis with a married woman. He did not tell her the name of the woman.

Ms. Amanda Dennis, a school teacher, testified that she met appellant on Friday before the shooting Sunday night. They met in a restaurant in Anniston and talked about forty-five minutes to an hour. Appellant called her Saturday morning and again Sunday around 1:00 or 1:30 p. m. When he first called her Sunday he mentioned "going out Sunday night." She told him that she was not sure whether she would be at home and to call her later that day. Ms. Dennis told him she was going to play tennis but she was unable to find a partner and went to her mother's home instead. Appellant called Ms. Dennis's apartment a number of times that evening, approximately every twenty minutes. He spoke to Ms. Linda McCullough, Ms. Dennis's roommate. He also called Ms. Dennis's mother's home at about 8:30 p. m. but did not get to talk with Ms. Dennis. When she returned to her apartment at about 10:50 Sunday night the telephone was ringing. Ms. Dennis answered the call and recognized appellant's voice. They talked for about thirty minutes just general conversation. Appellant's voice seemed calm. Ms. Dennis did not play tennis with appellant, nor was she with him the Sunday night that the shooting occurred.

Officer W. E. Traylor, an investigator with the Alabama Bureau of Investigation, was one of the officers assigned to investigate the shooting at the park. On July 22, 1977, Traylor went to the shoe store where appellant was employed at approximately 1:00 p. m. to buy a pair of shoes. Appellant was not a suspect at that time. Traylor had known appellant since 1975 while he was investigating an unrelated crime. Appellant was not a suspect in that investigation. While Traylor was in the shoe store appellant initiated the conversation regarding the Germania Springs Park shooting. He told Traylor that he was at the park that night playing tennis with Amanda Dennis. Traylor told appellant that he needed to talk with him some more and would return when appellant was not so busy.

At approximately 4:00 p. m. that same day Traylor returned to the shoe store with Deputy Larry Amerson and they took a photograph of appellant to show Mark Martin for identification. Appellant was still not a suspect when they took his photograph. He further testified that the officers were taking photographs of everyone who was in and around the park that night and during the course of the investigation some 200 photographs were taken. On this occasion appellant gave the officers a detailed account of his actions on the night of July 17, 1977. Appellant stated that he picked up Amanda Dennis at 7:15 p. m. and they arrived at the tennis courts at about 7:30 p. m. They left the tennis courts about 9:00 p. m. and went to Chanelo's Pizza restaurant in Jacksonville, arriving at about 9:15. They left Chanelo's at about 10:00 p. m. and he took Amanda Dennis back to her car, a burnt orange colored Monte Carlo Chevrolet. She had left the car at Prichett's Jean Place in Jacksonville, on the square, while they played tennis. Appellant further stated that he left Jacksonville at 10:15 and went home. Appellant told Traylor he was driving his light blue Mercury that...