Tarver v. State, 4 Div. 504

CourtAlabama Court of Criminal Appeals
Citation500 So.2d 1232
Docket Number4 Div. 504
PartiesRobert Lee TARVER, Jr. v. STATE.
Decision Date10 June 1986

Robert P. Lane, of Phillips & Funderburk, Phenix City, for appellant.

Charles A. Graddick, Atty. Gen., and Mary Ellen Fike Forehand and William D. Little, Asst. Attys. Gen., for appellee.

TYSON, Judge.

Robert Lee Tarver, Jr. was indicted for the intentional murder of Hugh Sims Kite, during the course of a robbery, in violation of § 13A-5-40(a)(2), Code of Alabama 1975. The jury found the appellant "guilty as charged in the indictment" during the guilt phase of the trial. At the sentencing phase, the jury recommended the appellant receive a sentence of life imprisonment without parole.

The trial judge rejected the jury's recommendation at the sentencing hearing. He determined the aggravating circumstances outweighed the mitigating circumstances and sentenced the appellant to death.

The victim, Hugh Sims Kite, owned Kite's Store on Highway 165 in Cottonton, Alabama. On the evening of September 15, 1984, Jerry Ford, a ten-year-old boy, was helping the victim at his store. As the victim prepared to close the store, he told Ford to stand out front while he put some ice in the back of his truck which was parked behind the store.

While Ford was waiting in the front of the store, he heard two shots. Ford went around to the back of the store and called for the victim but he did not get an answer. Ford returned to the front of the store and remained there until Bennie Davis came by the store.

This same night, Cynthia Sue Howard and her husband were camping in a pasture south of the railroad tracks from Kite's Store. Around 9:15 p.m. (Eastern time), Howard saw some car lights in the pasture about 300 yards away. Some 30 to 45 minutes later, she heard four gunshots.

Bennie Davis testified that he stopped at Kite's Store on the night of September 15, 1984. After finding no one inside the store, Davis asked Ford where the victim was. Ford replied that he had heard some shots after the victim went behind the store.

Ford then got a flashlight for Davis and Davis went behind the store and found the victim lying on the ground. Davis contacted the police and remained at the scene until they arrived.

Sollie Pate, a deputy with the Russell County Sheriff's Department, testified that, on the evening in question, he was at his home which is about a mile from Kite's Store. At 10:30 p.m. (Eastern time), he received a call from the dispatcher that someone had been shot at Kite's Store. Pate went to the scene and, upon his arrival, he found no pulse on the victim. He then secured the scene and called for an ambulance, the coroner and the investigators. Pate saw some ice in the back of the victim's truck.

Lesley Vance, the Russell County Coroner, testified that he examined the victim's body at the scene. Vance found three gunshot wounds on the victim and determined the victim was dead.

Vance stated that the victim's wallet was found on his body and that there was money lying outside the victim's left pocket. Vance was later recalled to the stand and stated that his earlier testimony about finding the victim's wallet was incorrect. He stated that the victim's wallet was not found.

Raymond Smith, an investigator with the Russell County Sheriff's Department, testified that he took photographs of the scene and the victim's body. Smith felt something in the victim's right front pocket which appeared to be folded paper and change in the left front pocket. The victim's two rear pockets were empty and the left pocket had been turned three-quarters inside out. The inside part of the pocket had been pulled outside the opening of the pocket. Some money was found lying between the victim's left hip and knee. Next to the victim's left foot, Smith saw two credit cards, a Master Card and a Visa. The victim's wallet was not found.

Smith noticed shoe prints, with a distinctive tread design, leading away from the vicinity of the area where the victim was found. The prints led south from the store across the railroad tracks and onto a dirt road in a pasture which was owned by the victim. The shoe prints were also found leading from the pasture towards the store. The shoe prints were tracked to an area where Smith found scratch marks from a vehicle in the dirt. The scratch marks indicated that the vehicle had left at a high rate of speed. The tire prints led to the highway and it appeared the vehicle proceeded onto the highway in a southerly direction. Tire prints of all four tires could be seen and the tires all seemed to be different.

An attempt was made to locate shoes in area stores which had the same tread design as the shoe prints. These efforts were unsuccessful.

The tires of area vehicles and the parking lots of several country stores were checked in an attempt to locate similar tire prints to those found in the pasture. These efforts, too, proved to be fruitless.

While making a search of the pasture, Smith found a Salem cigarette butt in the grass area where the vehicle that made the tire prints had been parked. The butt appeared to be fresh because the ash of the cigarette was in good, complete condition and was lying right off of the end of the butt.

On October 11, 1984, Thomas Boswell, the chief investigator for the Russell County Sheriff's Department, received some information concerning this case from a Robert Jackson. Based on this information, Boswell asked Investigator Herbert Parker to locate Andrew Richardson.

Richardson was located and came to the Sheriff's office and made a statement. Following his statement, Richardson was arrested for the victim's murder.

Boswell then went to the residence of Esther Dennis and asked her about a gun. After Richardson, who had accompanied Boswell, made a comment to Dennis, she produced a Colt single shot revolver. The gun was unloaded.

Boswell also went to the home of Addie Upshaw, the occasional residence of the appellant. At Upshaw's residence, a Chevrolet automobile was found with a distinctive set of tires which had characteristics similar to the tire prints found in the pasture. The car was impounded and towed to the jail yard.

A search of Upshaw's home was made and a pair of Nike tennis shoes was found. The tread on these shoes looked similar to the shoe prints in the pasture.

Boswell testified that, on October 4, 1984, a request had been made to the Governor to authorize payment of a reward for information leading to the arrest of a suspect in the victim's murder. However, Boswell stated that Jackson never mentioned a reward. In fact, Boswell already had the name of the appellant along with 25 other names, when he talked to Jackson.

Boswell testified that Richardson has also been indicted for the victim's murder.

Esther Dennis testified that the appellant came to her house alone one Saturday afternoon and asked to borrow her gun. She lent it to him and he returned it about a week and a half later. Richardson was with the appellant when he returned the gun.

Dennis stated that she didn't remember if the gun was loaded when the appellant Dr. Thomas Gilchrist performed the autopsy on the victim. His examination revealed the victim had sustained a gunshot wound to the chest and two gunshot wounds to the right thigh. Gilchrist removed two bullets from the victim's body. The third bullet had exited the body. Gilchrist determined the victim's cause of death to be a gunshot wound to the chest.

borrowed it or if he borrowed it before or after the victim was killed.

Lonnie Harden, a firearms and toolmark examiner for the Department of Forensic Sciences, examined the two expended .38 bullets which were removed from the victim's body and test fired the gun which was obtained from Dennis. He determined that the two bullets had been fired through this particular gun.

Harden also examined the shirt and pants the victim was wearing on the night of his death. He found no gunpowder residue around the bullet holes in the shirt and pants. This indicated to Harden that the gunshots had been fired from a distance of in excess of 30 inches away.

Joe Edwards, a Phenix City police officer, assisted the district attorney's office in this investigation. He testified that, on the morning of September 16, 1984, he found a Budweiser beer can beside the tire tracks in the pasture behind Kite's Store. When he poured the beer from the can, it began to foam. This indicated to Edwards that the beer in the can was relatively fresh.

Gloria Walters, a latent print examiner with the Alabama Bureau of Investigation, lifted a latent fingerprint from the Budweiser can. This print matched the known fingerprint of the appellant's right thumb.

John Perdue testified that he is a trooper with the ABI and he assists law enforcement agencies in criminal investigations. He participated in the investigation of the victim's death. He stated that he was present during the interviews of Richardson and the appellant. During these interviews, he made notes that both Richardson and the appellant smoked Salem cigarettes.

Tellis Hudson, a criminalist with the DFS, assisted in the investigation. He examined the shoe prints found in the pasture and made photographs of the prints. He also made a plaster cast of one of the shoe prints.

Hudson stated that the shoe prints had an unusual tread design. He also said that part of the impression of the shoe print was probably made by the person's pants' legs being too long and dragging the ground.

Hudson compared the Nike tennis shoes to photographs of the shoe prints found in the pasture. He stated that the tread design of the tennis shoes was fairly similar to the design of the shoe prints but they did not match.

Hudson also examined and made photographs of the tire tracks in the pasture. He also examined the tires of the Chevrolet and made tire prints from these tires. By comparing these tire prints to photographs...

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