Strong v. State, 8 Div. 451

• Decision Date: 05 March 1974
• Docket Number: 8 Div. 451
• Citation: 291 So.2d 325,52 Ala.App. 237
• Parties: Nick Jones STRONG v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 325

291 So.2d 325

52 Ala.App. 237

Nick Jones STRONG v. STATE.

8 Div. 451.

Court of Criminal Appeals of Alabama.

March 5, 1974.

Harvey B. Morris, Huntsville, for appellant.

William J. Baxley, Atty. Gen., Montgomery, and Roger M. Monroe, Sp. Asst. Atty. Gen., Birmingham, for the State, appellee.

HARRIS, Judge.

On the night of November 9, 1970, the owner of an off-premise licensed beer package beverage store, located at 405 Dallas Avenue in the City of Huntsville, Madison County, Alabama, was shot twice with a .22 caliber pistol during an attempted robbery. Two black men entered the store around 8:30 p.m. and ordered a six-pack of beer. Present at the time was the store owner and one employee. Both were sitting in chairs when the men came in. The employee got up and turned to a beer cooler and leaned over to get the beer. He heard one of the men say, 'I want your money.' When he straightened up, he saw both men with drawn pistols. The store owner said, 'I don't have any money.' One of the men pointed a pistol at the deceased and pulled the trigger but the gun would not fire. He turned to his companion and said, 'Hand me that gun.' His companion handed him the gun and he pulled the hammer back and fired the pistol point blank at the deceased who was still sitting in his chair. He then started backing out the door and fired the pistol at the deceased who had not moved from his sitting position with his legs crossed.

For a better understanding of who was involved in this case, we look to the indictment which, omitting the formal parts, is as follows:

'The Grand Jury of said County charge, that before the finding of this indictment, Thomas Fuqua 'alias' Thomas Earl Fuqua; Charles Augusta Ward 'alias' Charles Augusta Ward, Jr., 'alias' Charles Agusta Ward, Jr.; William Carter; James Louis Toney and Nick Jones Strong, whose names respectively are unknown to the Grand Jury other than stated, unlawfully and with malice aforethought, killed Joe Bickley, by shooting him with a pistol, against the peace and dignity of the State of Alabama.'

The employee testified that after the shooting, the deceased said to him, 'He shot me, call the police and ambulance.' The employee called the police who, in turn, called the ambulance. When the deceased was placed in the ambulance, he was still breathing, but died shortly thereafter.

The police soon arrived and condjcted an investigation. They got a description of the two men from the employee, who said the men were about five-eight to five-ten feet tall, weighed around one hundred and fifty to one hundred and sixty pounds and both had an Afro hairstyle. The employee made a positive in-court identification of appellant as one of the men who came into the store the night of the shooting.

The employee also identified one of the participants in the crime from a number of photographs shown him by a police officer. Following this photographic identification, two police officers went to the home of Charles Augusta Ward at 206 Burn Avenue. They were informed by his mother that he was not at home. The officers left this address but parked a short distance away and watched the home. About thirty minutes later a car driven by James Louis Toney drove up and parked in front of the house. Ward was in the car on the passenger's side. The officers returned immediately and ordered both men out of the car and gave them a 'pat down'. A 'blank' pistol was found on the person of James Louis Toney. This pistol was described as a model V 22 bearing the name Volcania. It was made in Italy and is commonly called a starters pistol or blank pistol. The officers searched the automobile with Toney's permission and found a .22 caliber pistol under the front seat on the passenger's side. The officer smelled the pistol and it had the odor of gun powder and in his opinion had been fired recently. These men were given the Miranda warnings at the scene where they were found and were carried to the station house for further interrogation. They were again given the Miranda warnings and they were questioned about the attempted robbery and murder at 405 Dallas Avenue.

As a result of the information gained from interrogating Toney and Ward, appellant was arrested on November 20, 1970, at the K-Mart on North Parkway in the City of Huntsville. At the time of his arrest he was told that he was charged with Murder and was given the Miranda warnings. He was taken to Police Headquarters and again given the Miranda warnings. He signed a waiver of rights form called a 'pre-interview form'. He made an oral statement confessing the murder and implicating all the others named in the above quoted indictment. He was told that his statement was being taken in shorthand by a secretary of the Detective Division and that it would be transcribed by her. After the statement was transcribed it was presented to appellant who, after reading it himself, signed it in the presence of a detective and the secretary who took it in shorthand. The proper predicate was laid at trial and the confession was admitted in evidence. The confession is as follows:

'VOLUNTARY STATEMENT

(Under Arrest)

'DATE 11--20--70 TIME 4:15 p.m.

PLACE Huntsville Police Department

'I Nick Jones Strong, am 19 years of age and my address is 612 Pulaski Pike. I have been advised and duly warned by J. C. Brooks, who has identified himself as A Detective of the City of Huntsville, of my right to the advice of counsel before making any statement, and that I do not have to make any statement at all, nor incriminate myself in any manner.

'I Hereby expressly waive my right to the advice of counsel, and voluntarily make the following statement to the aforesaid person, knowing that any statement I make may be used against me on the trial or trials for the offense or offenses concerning which the following statement is herein made.

'I declare that the following statement is made of my own free will without promise of hope or reward, without fear or threat of physical harm, without coercion, favor or offer of favor, without leniency or offer of liniency, by any person or persons whomsoever.

'On 11--9--70 on a Monday night me, William Carter, and James Lewis Toney were at 109C Mason Ct. We were drinking wine. Thomas Fuqua came in. He said he needed some money. James Lewis and 'Baby Boy', Fuqua, went back by the back room in sort of a hallway. They started discussing something about money and they called me back there. The 'Duck', Charles Ward, came in. James Lewis asked Duck where he could find a gun. Duck said he would be back in about 30 minutes. He left and then came back. Fuqua kept saying he needed some money while Duck was gone. We all left and got in the car to go somewhere about hitting a place. Duck came up. We told him we were going riding around. He said he wanted to go. After Duck got in, we told him that we were going to try to get some money from somewhere. James Lewis asked Duck if he knew where he could get a gun. Duck said go down here and turn on Mitchell Drive. He said stop there in front of the feed place. The cab driver wasn't in. Toney pulled on down the street. Duck saw the cab driver pass and we blowed the horn trying to get him to stop. He didn't stop and Duck went down to the cab stand to get the gun. James Lewis went in the house in front of where the car was parked. I don't know who lived there or the number. James Lewis came back out and was waiting for Duck to get back. When Duck came back he had a gun.

We left there and went over to Duck's house to get some money. We sat in the car while Duck was in his house. He was in the house about 10 minutes. He came out and we were in the car and someone mentioned a beer store on Dallas. We parked down from the armory. Duck said he couldn't go because the man knew him. James Lewis handed me the gun and William Carter got out with me. We walked by the store first and turned around and came back. We went into the store. I asked the man for a 6 pack of Falstaff. One man went to get the beer then I told them I had rather have the money. The man that was sitting in the chair said someones come by and picked it up.

'I had a pistol in my hand and I pulled the trigger and it wouldn't shoot then I told William 'Hand me that gun'. He handed me the gun then I pulled the hammer back and pointed it at the fellow sitting in the chair and it went off. The gun went off again as I was backing out of the door. We ran back to the car. William was ahead. William got to the car first. I said let's go. James Lewis asked what happend (sic) and I said I shot in there. Duck said let me have my gun and I gave it to him. We left, took off. We went back to William's house in Mason Court. We all went in the house. The radio was on and the bulletin said the man had got shot at a beer store on Dallas St. It said the ages of the colored men were about 19 or 20 two of them. Duck left and got a pint of wine, which we drank. We played some records. Duck and James Lewis left. They didn't say where they were going. I spent the night with William. I think Thomas left. Around 12 or 1 o'clock we went to bed. This is all I remember about the case. END OF STATEMENT * * *

'I have read this statement consisting of 3 page(s), and I affirm to the truth and accuracy of the facts contained therein.

'This statement was completed at 4:40 P.M., on the 20th day of November 1970.

'WITNESS: Joyce Winsett /s/

WITNESS: J. C. Brooks /s/

/s/ Nick Jones Strong

Signature of person giving voluntary statement'

Mr. Van Pruitt, Assistant State Toxicologist, stationed in Huntsville, conducted an autopsy on the body of the deceased. His qualifications as a toxicologist and as an expert in ballistics were admitted by defense counsel.

He examined the body externally and noted the following injuries:

'Injury number one being a hole which measured one-quarter of an inch in its diameter and was located in the neck two inches above the level of the collarbone. There...