Starling v. State, 4 Div. 809
Decision Date | 20 January 1981 |
Docket Number | 4 Div. 809 |
Citation | 398 So.2d 337 |
Parties | Sam STARLING, alias v. STATE. |
Court | Alabama Court of Criminal Appeals |
James G. Clower of Clower & Watkins, Troy, for appellant.
Charles A. Graddick, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for appellee.
Second degree murder; sentence: fifty years' imprisonment.
The evidence presented clearly established that on September 3, 1979, the appellant shot T. J. Williams twice with a pistol which resulted in Williams's death. There was evidence that the appellant and the deceased had some difficulty earlier that day. There were some words exchanged including a threat on the part of the deceased to kill the appellant with a knife. The appellant walked away from the confrontation.
Later that evening the deceased started back to the appellant's house, but was stopped by a friend, Robert Copeland, and persuaded not to go there because appellant did not want the deceased at his house. However, a short time later the deceased went to appellant's house, climbed over the banister on the front porch, and advanced toward the appellant. The appellant pulled a pistol and shot him twice. No one saw a weapon on the deceased and none was found at the scene.
The appellant's defense was that of self-defense. However, testimony was presented from which the jury could rightfully conclude that the circumstances of the killing did not fall within the legal definition of self-defense. There was evidence that when the first shot hit the deceased he was knocked back over the banister and into the yard. Witness Gloria Jean Washington testified that when she heard the first shot and saw the deceased fall over the banister she ran from inside the appellant's house into the yard to aid the deceased. The deceased was lying on his back, and she tried to pick him up when the appellant fired a second shot which hit her in the arm and then penetrated the deceased's abdomen.
The State presented a prima facie case, and the jury did not believe the shooting was done in self-defense. Conflicting evidence always presents a jury question unless the evidence palpably fails to establish a prima facie case. Jones v. State, 54 Ala.App. 251, 307 So.2d 59 (1975); Higginbotham v. State, Ala.Cr.App., 346 So.2d 525 (1977).
Appellant contends that the trial court erred in not granting his motion for a new trial. The ground of that motion relied upon by appellant states:
The present issue arose when Robert Copeland, an eye-witness to the shooting, testified for the defense. He stated that the deceased was at the appellant's home earlier on the date of the shooting. He had led the deceased away from the appellant's home and warned him not to go back because the appellant did not want him there. The deceased, however, disregarded that warning and returned to the appellant's house. He climbed over the banister onto the front porch at which time the appellant shot him twice.
Copeland testified that the first shot knocked the deceased over the banister into the yard and that when the second shot was fired, "I guess he was in the yard." However, his testimony then became unclear as to whether the second shot was fired after the deceased was on the ground. He next said the two shots were in rapid succession. From the record:
Counsel for appellant did not claim surprise. He only made a comment that if the appellant had not read the statement it was not admissible. That comment was not made in the form of an objection. The prosecutor replied, "If I establish a prior and inconsistent statement I can ask him if he said this or not, if it please the Court," to which defense counsel replied, "Go ahead."
Grady Reeves, one of the police officers who investigated the shooting, was later called by the State as a rebuttal witness. Reeves testified that on November 14, 1979, he was present when Bruce Devane took a statement from Robert Lee Copeland. No coercion or duress was applied to Copeland to obtain the statement, and Copeland was not a suspect of any crime at the time. Reeves said Copeland gave the statement freely and voluntarily. Devane reduced the statement to writing in the presence of Reeves and Copeland. The statement was read back to Copeland who acknowledged that it was correct and signed it in the presence of Devane and Reeves.
The defense moved to exclude the statement without assigning any grounds, and the trial court overruled. Again, defense counsel failed to claim surprise. The statement, which was the same one which Copeland acknowledged on the witness stand as bearing his signature, was read into evidence. In pertinent part the statement was that the deceased:
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Jelks v. State
...raised the issue for the first time in his brief filed in this Court. We find no prejudicial error in the court's ruling. Starling v. State, Ala.Cr.App., 398 So.2d 337, certiorari denied, Ala., 398 So.2d 342; Johnson v. State, Ala.Cr.App., 364 So.2d 1187, certiorari denied, Ala., 364 So.2d ......
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Johnston v. State, 4 Div. 159
...of such statement. Scrafford v. State, 414 So.2d 179 (Ala.Cr.App.1982); Junior v. State, 411 So.2d 850 (Ala.Cr.App.1982); Starling v. State, 398 So.2d 337 (Ala.Cr.App.), writ denied, 398 So.2d 342 (Ala.1981); Walker v. State, 369 So.2d 814 (Ala.Cr.App.1978), reversed, 369 So.2d 825 (Ala.197......
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Waddle v. State, 8 Div. 896
...Mr. Scott and Miss Hicks of the appellant as the perpetrator of the crime established the State's prima facie case. Starling v. State, 398 So.2d 337 (Ala.Crim.App.1981). However, even if other evidence was presented that created some doubt as to the appellant's guilt, we have held that, whe......
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Wilhite v. State, 6 Div. 218
...the jury was justified in concluding that the killing did not fall within the legal definition of self-defense. Starling v. State, 398 So.2d 337 (Ala.Cr.App.), cert. denied, 398 So.2d 342 (Ala.1981). Conflicting evidence always presents a jury question and, provided the State establishes a ......