Thornton v. State

• Citation: 369 So.2d 63
• Decision Date: 27 March 1979
• Docket Number: 3 Div. 853
• Parties: Jasper THORNTON v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 63

369 So.2d 63

Jasper THORNTON v. STATE.

3 Div. 853.

Court of Criminal Appeals of Alabama.

March 27, 1979.

George W. Cameron, Jr., Montgomery, for appellant.

William J. Baxley, Atty. Gen., and Willis E. Isaac, Asst. Atty. Gen., for the State, appellee.

TYSON, Judge.

The appellant was indicted for the first degree murder of one Johnny Easterly "by shooting him with a pistol." The case was tried with the State being represented by the District Attorney and by special prosecutors, and the appellant had competent counsel appointed for him by the court. The jury returned a verdict of guilty of murder in the second degree, fixing punishment at ten years imprisonment. The trial judge set sentence accordingly. From the denial of his motion to exclude and the refusal of his request for the affirmative charge, each challenging the evidence, the appellant prosecutes this appeal.

James R. Hamm testified that, on July 10, 1977, about 6:00 p. m., he and his family were traveling east on the Southern Boulevard in Montgomery, Alabama, in the area near the Cleveland Avenue intersection where Hamm witnessed a shooting involving the appellant and another man. This took place on the grassy median of the Southern Boulevard. As he approached the scene of the shooting, Hamm saw the appellant walking from a green Cadillac, containing a woman and two children, which was stopped in the opposite lane of traffic. Hamm observed the appellant with a chrome pistol held down behind his leg so that it was concealed from the other man's view. At this point, Hamm estimated that he was between fifteen and twenty feet from the scene. According to Hamm, the appellant approached the other man, who was standing on the median near a motorcycle, raised the pistol and fired once from about ten feet. As Hamm drove past the scene, he saw the appellant get into the Cadillac and drive away toward the west. The other party, Johnny Easterly, fell to the ground mortally wounded. Mr. Hamm stopped a passing motorist who called the police on his citizens' band radio. Hamm did not recall seeing the deceased with any kind of weapon when he was shot.

Mrs. Victoria Hamm, wife of Richard Hamm, testified that she was riding with her husband on July 10, 1977, when she witnessed the shooting in question. Mrs. Hamm's testimony was substantially the same as that of her husband concerning the sequence of events. Mrs. Hamm identified the appellant as the person whom she saw fire the pistol.

William E. Snell testified that, on the afternoon in question, he was traveling east on the Southern Boulevard when he witnessed a shooting which transpired on the grassy median between the two lanes of traffic. Mr. Snell's testimony was substantially the same as that of Mr. and Mrs. Hamm, who previously testified. Mr. Snell stated that, when the appellant shot, the deceased was removing his helmet from his head. Mr. Snell did not see any weapons in the deceased's hands.

Officer R. A. Rambo, a patrolman with the Montgomery Police Department, testified that, on the afternoon of July 10, 1977, he and his partner, Officer T. D. Jones, answered a police radio message directing them to proceed to the intersection of the Southern Boulevard and Cleveland Avenue to investigate an automobile accident involving a disturbance with a gun. As Officer Rambo arrived at the scene, he noted that three police units were already present and a paramedical squad was beginning to attend to the victim. Officer Rambo ascertained that the victim was one Johnny Easterly, a black male about twenty-five or twenty-six years of age. Various photographs taken at the scene of the shooting showing the location of the deceased's motorcycle and skidmarks made by appellant's automobile were admitted into evidence during Officer Rambo's testimony. Officer Rambo spoke with a man named Bradshaw at the scene who had witnessed the collision between the automobile and the motorcycle. Officer Rambo did not search the area for weapons, nor did he attempt to question the victim of the shooting. Officer Rambo's on-the-scene investigation was limited to the circumstances surrounding the traffic accident which had occurred.

Richard A. Roper, State Toxicologist, testified that he examined the body of Johnny Easterly on July 12, 1977. Dr. Roper was shown to possess the requisite training and experience to express his professional opinion as to the effect of injuries on the human body. In the opinion of Dr. Roper, Johnny Easterly's death was the result of massive hemorrhage caused by a gunshot wound to the abdomen which severed a major blood supply to the lower limbs. Several photographs taken by Dr. Roper during the course of the post mortem examination were admitted into evidence by the trial judge on the State's motion.

Officer W. T. Sheriff, Jr., a patrolman with the Montgomery Police Department, testified that, about 7:00 p. m., on July 10, 1977, he stopped an automobile matching the description given to the police of an automobile allegedly used by the appellant to flee the scene of the shooting. Officer Sheriff identified the appellant as being the driver of the automobile. Passengers in the automobile included appellant's daughter and his wife, Gloria Easterly Thornton, who was the deceased's ex-wife. The appellant was stopped by Officer Sheriff in the area of appellant's home, traveling in a direction opposite from that in which one would travel to arrive at Police Headquarters. Officer Sheriff arrested the appellant and confiscated a chrome plated, hammerless .38 caliber revolver, matching the general description of the weapon given to police by witnesses to the shooting. The proper chain of custody having been established, the trial judge admitted into evidence the revolver seized and identified in court by Officer Sheriff. Officer Sheriff recalled that the revolver contained two spent rounds in its chambers when he obtained possession of same.

Dr. Ronald K. Montgomery testified that he performed an emergency surgical operation on one Johnny Easterly at Jackson Hospital in Montgomery on the evening in question. Dr. Montgomery was qualified on the stand as an expert in his field. Dr. Montgomery recalled that the deceased was in a state of shock when he was first examined. During surgery, the deceased experienced a serious drop in blood pressure. Subsequently, the patient died on the operating table despite efforts to restore a normal heart rate. Dr. Montgomery was clear to the conclusion that death was the result of massive internal bleeding caused by a single gunshot wound to the abdomen.

Ms. Virginia Giles testified that she was the deceased's grandmother. On cross-examination, it was brought out that she hired special prosecutors to handle the State's case.

Ms. Mary Boung, the deceased's sister-in-law, identified State's exhibit fifteen as being a photograph of the deceased. On cross-examination, the defense inquired about the deceased's prior acts of violence and reputation in the community. It was shown that the deceased had served a prison sentence for killing a man, and that he had shot Gloria Easterly Thornton when she was his wife.

Detective J. M. Duncan of the Montgomery Police Department testified that he participated in the investigation of the incident in question. Detective Duncan established that the shooting occurred within Montgomery County.

The State then rested its case. The appellant's motion to exclude was denied, whereupon the defense presented its case to the jury.

The case for the defense consisted of the testimony of some thirty witnesses, twenty-three of whom testified as to the appellant's good character and reputation. From this testimony, it appeared that appellant was employed at the City Garage where he painted municipal automobiles, including those of the police. The evidence of appellant's good character and reputation consisted of the testimony of five fellow workers, nine friends and nine police officers. No issue being made, we will not detail this evidence.

Gloria Easterly Thornton, wife of appellant, testified that she had formerly been the wife of the deceased. Mrs. Thornton was married to the deceased for six years, from 1971 until 1977, when she was divorced and subsequently married the appellant. It appears from the testimony that, during Mrs. Thornton's marriage to the deceased, he served some portion of a prison sentence, probably beginning in 1973.

Mrs. Thornton stated that she was with the appellant in his automobile on the afternoon of the shooting incident in question. Mrs. Thornton indicated that the deceased, while riding a motorcycle, pulled up beside the appellant's automobile on the passenger side as they were driving east on the Southern Boulevard. Mrs. Thornton testified that the deceased said to her from his motorcycle, "I'm going to get you, bitch" (R. p. 104). At this point, the appellant increased the speed of the automobile and the deceased trailed behind the appellant. Then, the appellant came to an abrupt halt, whereupon the deceased collided with the rear of the appellant's automobile. Without placing the automobile in parking gear, the appellant jumped out and fired a shot at the deceased who avoided being hit by the gunfire. The appellant then got back into his automobile as it began to roll away. Mrs. Thornton stated that the appellant drove to the next place where he could cross the median, made a 180o left turn, and approached the deceased, who was standing on the median near his disabled motorcycle. The appellant stopped his automobile and, armed with a pistol, walked toward the deceased. The appellant told the deceased, ". . . (I)f your (sic) going to do anything to her (Mrs. Thornton), you do it now" (R. p. 105). Then, the appellant shot the deceased, got back into his automobile and drove away.

Mrs. Thornton testified that, as a result of threats made to her and her daughter by the deceased, she went to the police, who...