Twilley v. State

• Decision Date: 26 March 1985
• Docket Number: 6 Div. 341
• Citation: 472 So.2d 1130
• Parties: Randy Gerald TWILLEY v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1130

472 So.2d 1130

Randy Gerald TWILLEY v. STATE.

6 Div. 341.

Court of Criminal Appeals of Alabama.

March 26, 1985.

Rehearing Denied April 23, 1985.

Certiorari Denied June 21, 1985

Alabama Supreme Court 84-815.

Stephen J. Pettit, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., and Jane LeCroy Brannan, Asst. Atty. Gen., for appellee.

PATTERSON, Judge.

The appellant, Randy Gerald Twilley, was indicted for the murder of James McGuire in violation of § 13A-6-2, Code of Alabama 1975. Trial resulted in a conviction of manslaughter and a sentence of ten years in the penitentiary. This appeal followed.

Evidence for the State tended to show that on June 19, 1981, a group of people from Jefferson County drove to Bailey's Bridge on Smith Lake in Winston County to fish at night from the bridge. The persons constituting the group were friends, and had frequently gone on such fishing trips to Bailey's Bridge in the past. There were several children in the group. The group carried lawn chairs and fishing equipment as well as lanterns. The lanterns were used for light on the bridge, and some were lowered near the water to attract fish.

As one automobile load of the group, which included Eddie and Charles Trammell, approached the bridge they came upon a vehicle parked in the middle of the road with both its doors open. A man, who was later identified as the appellant, was standing in the road near the vehicle urinating. This group got around appellant and after some conversation with him continued on to the bridge and began setting up their equipment for fishing. Shortly thereafter they were joined by others in the group, namely, Jim Bates and his son Todd, Billy Burchfield and his son Scott, Keith Trammell, and Jim McGuire. Jim Bates's father and mother had already arrived and were fishing, as were Jim Bates's brother, Reverend Wayne Bates, and Wayne's wife and children. All of the group had arrived at the bridge by 9:30 P.M.

Five or ten minutes after the group that included Eddie and Charles Trammell arrived at the bridge, appellant drove up and parked on the bridge. He was accompanied by O'Neal Blackwood and Nelson Key. They had been driving around the county together and drinking alcoholic beverages. There was a stray dog on the bridge, and appellant asked the group if the dog belonged to them. Eddie Trammell told him "no," whereupon appellant stated that if the dog did not belong to anyone he was going to throw it off the bridge. He threw the dog off the bridge into the lake, and stated, "If that had been my dog and somebody throwed it in the lake, I would have throwed their ass in the lake too." He also stated to Eddie Trammel, "If you don't like it, I'll throw your big ass in." Appellant, Blackwood, and Key were drinking liquor from a bottle. When the bottle was not being passed around they kept it sitting on the hood of their automobile. Appellant and Key were "drunk."

Another automobile arrived at the bridge carrying Michael Crowe and his brother Billy Crowe. The Crowes were accompanied by a small child. Appellant began taunting Billy Crowe by telling him that Key was going to throw him off the bridge. Billy Crowe attacked Key, beating him until he was unconscious. Key was so drunk that he could not defend himself. Appellant watched the assault and did nothing to interfere. The Crowes and appellant were generally harassing, vexing, and annoying the group of fishermen. They were walking around among the fishermen, telling them that they were not going to catch any fish, "mouthing off," and using profanity. They were "making fun" of one of the fishermen for wearing shorts. Appellant and Billy Crowe approached Jim McGuire, and Crowe asked McGuire if he wanted him to lower McGuire's lantern into the water. McGuire said that he did not. Appellant said to Crowe, referring to McGuire, "He's a son of a bitch, ain't he?" After standing around McGuire for a few minutes, appellant said to Crowe, "Come on. We'll come back and get the son of a bitch later." Appellant and the Crowes returned to their vehicles and started to leave, whereupon appellant called out, "Don't none of you son of a bitches leave. We'll be back in about thirty minutes." Appellant, Blackwood Key, and the Crowes drove away in their vehicles. A short time later appellant and the two Crowes returned together in one vehicle. Appellant was driving. Michael Crowe began playing a guitar, saying that he would "sing up some fish." All three men were "hollering and cursing." One of the three set a whiskey bottle on top of the automobile.

Appellant and the Crowes walked to where Jim McGuire was fishing. McGuire had a hunting knife in a scabbard attached to his belt. Billy Crowe asked McGuire what he was doing with the knife and McGuire answered, saying that every fisherman needs a knife. Billy Crowe then said, "If you want to play with weapons, I'll go to my car and get my three-fifty-seven." He walked toward his automobile, but immediately returned, and suddenly grabbed McGuire's knife from McGuire's belt. McGuire said, "Just give me my knife back. We are just up here fishing with some kids and we'll go on home." Michael Crowe said, "Hey, let's go on and leave these guys alone. They ain't causing no trouble." Billy Crowe said, "No, I'm going to kill this mother-fucker." Then appellant grabbed McGuire by the hair and bent him backwards. Billy Crowe then stabbed McGuire with the knife, and appellant, who was holding McGuire, let him sink down onto the bridge. McGuire called out to his friend Jim Bates, "They've cut me. Jim, they've cut me." Bates ran toward McGuire and yelled for someone to get the tag number of the automobile in which appellant and the Crowes had arrived. Appellant asked Bates, "Do you want some of this too?" The knife had fallen to the ground and either appellant or one of the Crowes picked it up. It was never found. Appellant bent the tag of the vehicle down to obscure the number, but one of the fishing party bent it back up and got the tag number. Appellant and the Crowes got into their vehicle and left the scene. Shortly thereafter Jim McGuire died as a result of the stab wound.

Appellant testified in his own behalf. He stated that he did not remember stopping on the highway near the bridge and urinating, but admitted that he could have. He said, "I ain't saying I didn't and I ain't saying I did." He admitted that he was drinking. He denied throwing the dog off the bridge, and stated that O'Neal did it. He denied threatening to throw anyone off the bridge. He denied saying that they would come back and get McGuire later. He denied cursing, vexing, and harassing the members of the fishing party. He testified that he grabbed McGuire as Billy Crowe struck him with the knife, and stated that he was attempting to pull McGuire backward away from the knife to prevent him from being stabbed. He testified that although he grabbed him, he did not grab him by the hair. He stated, "I grabbed him to help him." He stated that he did not remember telling anyone that if they did not stay back they would get some of the same. He denied bending his tag down. He denied knowing what happened to the knife.

Appellant raises four issues on appeal.

I

We will consider appellant's first and third contentions together, as they involve similar legal principles. Appellant's first issue is stated in his brief as follows: "Did the trial court erroneously admit testimony that appellant threw a dog off of a bridge on a separate visit to the scene several hours before the homicide?" His third issue is stated as follows: "Did the trial court erroneously admit testimony that appellant may have urinated on a public highway one-half mile from the scene several hours before the homicide?"

Appellant argues that the admission of the testimony concerning the incidents constituted reversible error, and violated a basic rule that evidence of offenses not charged in the indictment and having no connection therewith is inadmissible. Appellant contends that the testimony was introduced by the State in an attempt to obtain a conviction by showing, through unrelated acts, that appellant was a "depraved, aberrant individual." The State argues that the testimony concerning the throwing of the dog off the bridge and urinating in the highway was admissible as being part of the res gestae, and part of the continuous transaction, which tended to shed light upon and explain the homicide.

While the general rule is that evidence of separate crimes is inadmissible where the only probative function of such evidence is to show bad character, or an inclination or propensity to commit the type of crime for which accused is being tried, Mason v. State, 259 Ala. 438, 66 So.2d 557 (1953), if the accused's commission of another crime or misdeed is an element of guilt, or otherwise tends to prove his guilt, then proof of such other crimes or misdeeds is admissible. Cheatham v. State, 431 So.2d 1350 (Ala.Crim.App.1983); Watson v. State, 398 So.2d 320 (Ala.Crim.App.1980), cert. denied, 398 So.2d 332 (Ala.1981), cert. denied, 452 U.S. 941, 101 S.Ct. 3085, 69 L.Ed.2d 955 (1981); Sparks v. State, 376 So.2d 834 (Ala.Crim.App.1979); C. Gamble, McElroy's Alabama Evidence, § 69.01(1) (3d ed. 1977).

This court has recognized several well defined exceptions which allow evidence of other crimes to be presented during trial.

In McElroy at § 70.01(12), we read:

"(a) General exclusionary rule applicable in homicide

"The general rule which excludes evidence of prior and subsequent crimes, when their only probative value is to show in the defendant a tendency or disposition to commit the now-charged crime, is applicable when the accused is being prosecuted for homicide. If the evidence of other criminal acts does not fall within one of the exceptions to this general exclusionary rule then it is not to be admitted,

"(b) Res gestae; one continuous transaction; inseparable crimes

"The pr...