Thompson v. State

• Decision Date: 21 March 1978
• Docket Number: 1 Div. 885
• Parties: Lawrence THOMPSON v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 757

356 So.2d 757

Lawrence THOMPSON v. STATE.

1 Div. 885.

Court of Criminal Appeals of Alabama.

March 21, 1978.

A. Holmes Whiddon, Mobile, for appellant.

William J. Baxley, Atty. Gen., and Milton E. Belcher, Asst. Atty. Gen., for the State.

HARRIS, Presiding Judge.

In April of 1975 appellant was indicted for the offense of burglary in the second degree. When his case was called for trial he made application to be treated as a Youthful Offender. This application was granted and appellant waived a jury trial and pleaded guilty to being a Youthful Offender. He was sentenced to three years in the custody of the Director of the Department of Corrections. This sentence was suspended "pending the good behavior" of appellant for a period of three years. This order was made on May 8, 1975. In addition to suspending appellant's sentence the trial court assessed a fine of one hundred dollars against him and also the court costs.

On May 27, 1977 the State, through the District Attorney's Office of Mobile County, moved that appellant's probation be revoked on the ground that he had violated a valid condition on which the probation was granted. Specifically, the motion for revocation alleged that, on March 7, 1977, appellant was arrested on a charge of murder in the first degree and that this charge was then pending in the Circuit Court of Mobile County.

The revocation hearing was held on September 20, 1977, and appellant was duly notified to appear and show cause, if any, why the suspension of the execution of the sentence imposed on him on the 23rd day of June, 1975, should not be revoked.

At the revocation hearing appellant was represented by counsel. Mike Reynolds testified for the State that he was appellant's probation officer and that he filed a delinquency report on appellant on May 3, 1977. This report was admitted into evidence without objection. Reynolds further testified that appellant had also been charged with assault with intent to murder on August 1, 1977. The delinquency report is as follows:

"DELINQUENT CHARGE OR CHARGES

"Subject is charged with violating the following conditions of his Probation:

"CHARGE # 1: New arrest for the offense of Assault With Intent to Murder:

"On August 1, 1977, the probationer was arrested by Officer T. Barbour of the Mobile Police Department and charged as styled above. Detective Frank Woodward conducted the follow-up investigation. On September 9, 1977, Thompson waived examination in District Court and was bound over to the Grand Jury on $1000 bond.

"The details of the offense are essentially as follows:

"At approximately 9:15 a. m., on July 29, 1977, Sgt. Ralph Dueitt of the Mobile Police Department was stopped at Water and Government Street by a black male. He advised Sgt. Dueitt that he had been shot. The black male proceeded on to Government and Broad, but could drive no further. An ambulance was dispatched to the foregoing location.

"At the University Medical Center, the victim was identified as Michael Weathington. He told the investigating Officers, Woodward and Barbour, he had been shot by one Lawrence Kidd (the probationer) in the parking lot of Bender's Shipyard on South Royal Street. The victim stated he knew Kidd well.

"The victim further stated Kidd (Thompson) was involved in the shooting death of his brother in March of this year. (See attached copy of Delinquency Report dated 3-3-77.)

"The victim stated he saw the probationer at Bender's this morning. Kidd (Thompson) pointed a pistol at him, the victim, at which time he leaped from the car. Thompson fired one shot that struck him in the right leg.

"Thompson surrendered himself at the Mobile Police Department on August 1, 1977.

"The witnesses in this case are:

"Michael Weathington, complainant

"Sgt. F. Woodward, primary investigator

"Sgt. G. Presnall, statement from Thompson

"Officer T. Barbour, patrol unit assigned to original call "The above was transcribed from the report of Sgt. Woodward.

"SUBJECT'S STATEMENT:

"Thompson stated the victim pointed a gun at him in the Bender's lot, and that he, Thompson, ran away. He made no mention of any shots fired.

"CHARGE # 2: Failure to Report as Directed:

"Thompson has been sparodic about monthly reporting. He missed March and April of 1976. I indicated that July 27, 1977, was his first actual report of this year.

"It appears that the probation rule concerning reporting no later than the third working day of each month has little significance for Thompson.

"SUPERVISION SUMMARY:

"On June 23, 1975, Lawrence was fully instructed in the rules of probation.

"On August 4, 1975, he was employed at Alabama Dry Docks.

"On February 6, 1976, he reported that he had quit his job.

"On May 3, 1977, a Delinquency Report was issued.

"On May 12, 1977, he was living with his mother, unemployed.

"On July 27, 1977, he reported his employer was the Alabama State Docks.

"RECOMMENDATION:

"It is recommended a hearing be held to determine if sufficient evidence exists to revoke probation.

"Signed and dated in Mobile, Alabama, this 20th day of September, 1977.

/s/ Kenneth M. Reynolds

"Kenneth M. Reynolds

"State Parole & Probation Supervisor

"KMR/cg"

The probation officer further testified that he investigated the facts surrounding the murder charge and the charge of assault with intent to murder. He ascertained the murder victim was one Michael Weathington and there had been a shoot-out at a nightclub known as the Jolly Spot involving this appellant and several others, all armed with weapons.

The charge of assault with intent to murder was related to the participants in the shoot-out in which Weathington was killed.

Appellant testified and admitted that he was charged with murder and also assault with intent to murder all growing out of and related to the shoot-out at the night spot. At this point the hearing was interrupted by the trial judge for the purpose of advising appellant of his constitutional rights not to give incriminating evidence against himself. He advised appellant that any testimony he gave of an incriminating nature could be used against him in the trial of the two cases pending against him. Appellant told the court that he understood his rights and was aware that the District Attorney could use any statement he made showing his involvement in the murder case and the assault with intent to murder case pending against him.

Appellant then testified that some people "ambushed" him and some of his friends the night that Weathington was killed but that he did not shoot at the deceased, saying "I didn't even have a gun."

On cross-examination he stated that his name was Lawrence Thompson but that he was also known as Lawrence Kidd. He said he knew a boy named "Knot" whose real name was Gerald Barnes and they were present at the Jolly Spot where the shooting occurred. At this time appellant objected to any further questions. The Court sustained the objection and would...