Sullivan v. State

• Decision Date: 16 August 1977
• Docket Number: 6 Div. 156
• Citation: 351 So.2d 659
• Parties: James H. SULLIVAN, Jr. v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 659

351 So.2d 659

James H. SULLIVAN, Jr. v. STATE.

6 Div. 156.

Court of Criminal Appeals of Alabama.

Aug. 16, 1977.

Rehearing Denied Oct. 4, 1977.

Arthur J. Hanes, Jr., for Hanes, Hanes & Bolin, Birmingham, for appellant.

William J. Baxley, Atty. Gen. and Barry V. Hutner, Asst. Atty. Gen., for the State.

BOWEN, Judge.

The appellant was indicted and convicted for murder in the first degree. Punishment was fixed at life imprisonment in the penitentiary. The appellant is most ably represented by Art Hanes, Sr. and Art Hanes, Jr. both at trial and on appeal.

In urging this court to order a reversal of his conviction, it is contended that the statements made by the appellant to law enforcement officers should not have been admitted because there was no showing of a voluntary, knowing and intelligent waiver of his right to remain silent. Additionally the appellant urges that it was reversible error for the trial court to admit the testimony of a law enforcement officer that the appellant would not make a statement.

The victim, Jill Scott (Webber), was a singer and entertainer in a Birmingham night club, The Forty Thieves. In February of 1974 Ms. Scott and Daryl James moved into Apartment 2005-G, Viewpoint (Longleaf) Apartments in Hoover, Alabama. Mr. James was a musician and the leader of the band in which Ms. Scott sang.

Scott and James cohabited until Mr. James moved out of the apartment around the first week of December, 1974, after they had some "difficulty" or "trouble". The appellant and Ms. Scott were married on December 19, 1974. The appellant is also a musician. Soon marital difficulties developed between the appellant and his wife.

In February, Ms. Scott told the appellant that she wanted a divorce because she thought their careers would be better as single people. She indicated that she may not stay with her present band and that the reason the appellant could not find work was because people were reluctant to hire him thinking that he was going to leave town with her.

During this same time, the appellant cut his beard so it would be easier to get a job and this angered Ms. Scott. She told the appellant that she could "make more money in one night by entertaining at private parties than (she) could by working all week with the band". The appellant then left the apartment for a couple of days only to return when Ms. Scott called him and told him that she didn't mean it and asked him to come back.

Ms. Scott's mother came to visit them and their arguments ceased for a time. However on the 5th of March, 1975, the appellant packed some of his clothes and left the apartment apparently because Ms. Scott again requested a divorce. That Saturday night the appellant spent in a Birmingham motel. He called some friends of his in Talladega County, Mr. and Mrs. Bob Rutledge, and went to spend a week with them in their home in the country because he "needed to get away for awhile and needed to talk to them". The appellant left without telling anyone of his whereabouts and his mother filed a missing person's report for him.

The appellant returned to Birmingham the following Sunday, March 27, 1975, and went to see Ms. Scott that night staying approximately two hours. Ms. Scott took the appellant to his parents' home where he was staying.

Monday Ms. Scott telephoned the appellant and told him that her sister and brother were going back home to Oshkosh, Wisconsin, on Thursday. Ms. Scott asked the appellant if he would like to go with them to the train station. The appellant agreed and made arrangements to borrow his father's automobile which was larger than his and would therefore carry more luggage.

On Wednesday the 26th of March the appellant met Ms. Scott at her apartment and together they went to the law office of Ferris Ritchey, a local Birmingham attorney. They signed the papers for the divorce. All of the evidence indicates that appellant did not want a divorce but signed the divorce papers because that was what Ms. Scott wanted. After that, the appellant and Ms. Scott returned to her apartment and had dinner together. About 8:00 that night the appellant left and returned to his parents' home.

On Thursday, by prearrangement, the appellant arrived at Ms. Scott's apartment about eleven A.M. to take her sister and brother to the train station. Because of the amount of luggage involved it was necessary to take two cars. Jan, Ms. Scott's sister, rode with the appellant and Jay, Ms. Scott's brother, rode with Ms. Scott. After the sister and brother were placed on the train, the appellant returned to Ms. Scott's apartment around 2:00 P.M. Not having a key, he waited about fifteen minutes for Ms. Scott to arrive. When she did, she stated that she had been to collect the money for the band which consisted of over one thousand dollars in cash. She was the bookkeeper for the band and this was a part of her regular duties. Ms. Scott then fixed a light lunch for herself and the appellant after which the appellant started moving his things out. He went by the Hoover Mall to an A & P grocery store and gathered some boxes to use in moving. When he returned to the apartment it was close to 3:00 P.M. It took the appellant about one hour to load his belongings into his automobile.

After packing, the appellant returned to the apartment and took a nap in the back bedroom while Ms. Scott counted and divided the money for the band in the front portion of the apartment.

According to the appellant's own testimony, suddenly he woke up and had the impression that he heard "hammering". He called for "Jill" but received no answer. He then walked into the front of the apartment and "thought" he saw Ms. Scott lying on the floor. Suddenly he was face down on the floor, stunned after having been struck from behind. As the appellant got up he turned and saw a man in Ms. Scott's room down on one knee and propped up against something. The appellant stumbled into the room, the stranger turned around and the appellant either tripped or was knocked down. The stranger left the room and the appellant grabbed him in the hall. A struggle ensued and the appellant realized that the stranger was armed with a pistol. At least two shots were fired during the struggle and the appellant grabbed the gun a couple of times but the stranger jerked it away. However at one time the appellant actually had control of the weapon. At that point he was knocked to the floor and almost lost consciousness or did, and he testified that it seemed as if he had a rag or a jacket over his head.

When the appellant got up he crawled over to Ms. Scott and noticed that she "didn't look right"; that something was "terribly wrong". The appellant screamed at her and then realized that she was dead. He testified that at that time he heard a car in the parking lot, jumped up and ran down the stairs. Although the appellant did not see the car, he got in his own car to give chase but discovered that he did not have his keys. He went back to the apartment and tried to get Ms. Scott to talk to him. From this point on the appellant testified that his memory fades and he has little, if any, recall of the events that followed.

On March 27, 1975, the day of the murder, Deputy William Bradford Miller of the Jefferson County Sheriff's Department was working the information desk at the county jail. At approximately six o'clock that evening he noticed the appellant come across the hall from the sheriff's office. The Jefferson County Sheriff's Office first learned of the death of Ms. Scott and the location of the body from information supplied by the appellant.

Upon investigation, Ms. Scott's body was found lying in the front portion of her apartment. A .22 caliber Colt automatic target pistol lay across the room on the floor. Ten ejected bullets and spent shell casings were found scattered throughout the apartment. One slug was discovered lodged in the door frame of a bedroom. In Ms. Scott's purse was found one hundred sixty-three dollars and some odd change. One thousand one hundred seventy-three dollars and thirty-seven cents lay on a table near the body.

Expert testimony established that Ms. Scott sustained six gunshot wounds: one was located six inches below the navel in the middle of the abdomen near the pubic mount and five were to the head. A "slit-type wound" on the inside of her right hand in the palm and a wound in the outside of her left thumb were classified as "defense-type" wounds. Ms. Scott also sustained a laceration "up in the hair" and a bruised area on her right knee and right leg and "some skin burns which apparently were the type caused by a bullet just grazing the skin on the left side of her chest". Time of death was estimated to be 2:45 P.M., March 27, 1975, although the actual time of death could possibly range from noon until 5:30 in the evening.

The murder weapon belonged to the father of the appellant who could not remember the last time he saw the weapon. Nine latent fingerprints were found on the pistol. One print was determined to be identical to the appellant's. No other prints were identifiable.

Deputy James A. Howell was an evidence technician for the Jefferson County Sheriff's Department. He matched the fingerprints and testified that he had known the appellant for about eight years. Deputy Howell testified that around the 28th or 29th of March he had two or three conversations with the appellant in the jail. The appellant never told him that he shot Ms. Scott but stated that "he should be dead", that he "couldn't stop him or something like that". Howell also stated that the appellant had a wound in the palm of his right hand which appeared to be from the rear sight of the pistol.

Witnesses for both the state and the defense testified that the appellant did not like guns. The following witnesses testified that the appellant had a good general reputation, a good reputation for truth and veracity, for nonviolence and that they would...