Usrey v. State

• Decision Date: 27 May 1986
• Docket Number: 7 Div. 291
• Citation: 527 So.2d 725
• Parties: Margie Lee USREY v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 725

527 So.2d 725

Margie Lee USREY v. STATE.

7 Div. 291.

Court of Criminal Appeals of Alabama.

May 27, 1986.

Rehearing Denied Aug. 12, 1986.

Betty C. Love, Talladega, for appellant.

Charles A. Graddick, Atty. Gen., and Jean Alexandra Webb, Asst. Atty. Gen., for appellee.

LEIGH M. CLARK, Retired Circuit Judge.

A jury found this appellant guilty of the murder of her husband, Jerry Merrell Usrey, as charged in an indictment returned by the Grand Jury on October 21, 1983. According to the statement of the facts contained in brief of counsel for appellant, which is conceded to be "substantially correct" in brief of counsel for appellee, the following occurred:

"On May 12, 1983, at approximately 8:04 P.M., in Sylacauga, Alabama, the defendant, Margie Lee Usrey, called a neighbor, Jeannie Davis and stated to her that she had shot her husband, Jerry Usrey. Miss Davis summoned her roommate, Mary Hosey, and the two went to the Usrey residence, which was located some seventy-five feet away. When they arrived they discovered the body of Jerry Usrey in a bedroom of the Usrey trailer, whereupon Jeannie Davis called the Sylacauga Police.

"Officer Marty Batson of the Sylacauga Police Department was dispatched to the scene in response to Miss Davis' call. One of the women other than the defendant met Officer Batson at the door of the residence and advised him that there had been a shooting inside and that, in her opinion, the subject was deceased. After being advised of this, Officer Batson entered the premises without obtaining either a warrant or the consent of Mrs. Usrey. Upon entering the trailer, Officer Batson secured the scene. Officer Batson testified that after securing the scene he was no longer under any fear or apprehension that some unidentified person might be loose in the trailer. Upon securing the scene, Officer Batson called "At trial the photographs taken in the search of defendant's residence and the projectiles removed from the body of the deceased were received into evidence over defendant's motion to suppress and over contemporaneous objection raising the issue of the constitutionality of the searches and seizures. Defendant was convicted of murder on March 27, 1984."

his station, reported the homicide, and requested the detective division, a photographer, and the chief. During the next four hours Officer Batson and others participated in a warrantless search which involved opening closets and chests of drawers, and looking under clothing and beds. During the search evidence was seized and photographs were taken of the interior of the trailer and its contents. The body of the deceased was transported to Cooper Green Hospital in Birmingham, Alabama, where Dr. Joseph Embry performed an autopsy upon the body on May 13, 1983. During the course of the autopsy Dr. Embry recovered six projectiles from the body of the deceased. The only warrant obtained by police in this case was issued on May 16, 1983, three days after the autopsy and four days after the initial search of defendant's residence.

Two issues are presented in brief of counsel for appellant, which we now proceed to consider.

I.

By appellant's first issue, the contention is made in brief of her counsel that the trial court committed error "in admitting evidence seized during an autopsy of the body of defendant's deceased spouse" consisting of six bullets removed during an autopsy performed upon the body of the deceased by Dr. Joseph Embry "over objections challenging the seizure of items on constitutional grounds," which projectiles were identified as having been fired from the weapon seized at defendant's residence.

In support of the first issue of appellant, her counsel argues that "The law of Alabama vests in a surviving spouse a possessory interest in the remains of a deceased spouse" and cites Rehling v. Carr, 295 Ala. 366, 330 So.2d 423 (1976), and Southern Life & Health Insurance Co. v. Morgan, 21 Ala.App. 5, 105 So. 161 (1925). Response is made in brief of counsel for appellee to the position taken by counsel for appellant that appellant's Constitutional argument is totally irrelevant as the autopsy of Jerry Merrell Usrey was authorized under § 15-4-2, Code of Alabama, 1975, which states:

"(a) When a coroner has been informed that a person is dead in the county and that such person died without being attended or examined by a legally qualified physician, the coroner shall forthwith proceed to the place where the dead person is lying, examine the dead body to ascertain the cause of death, and report same in the same manner as inquests are reported.

"(b) When a coroner is unable to determine the cause of death, he may summon any physician or surgeon, who shall make an external post mortem examination of the dead body and report his opinion of the cause of death to the coroner in writing.

"(c) If the surgeon or physician is unable to determine the cause of death from an external post mortem examination and the coroner has reasonable cause to believe the deceased came to his death by unlawful means, the coroner may in such cases order any physician or surgeon to perform an autopsy or internal examination on the dead body, and report the findings of such autopsy to the coroner in writing."

Counsel for appellee further states:

"Section 15-4-2, in combination with the Tenth Amendment of the Constitution of the United States, authorized the autopsy performed on Jerry Merrell Usrey. Therefore, the trial court was correct in allowing the six (6) bullets removed from the victim's body into evidence."

We agree with the position taken by counsel for appellee and conclude that the first issue presented by appellant is not well taken.

II.

The only other issue presented by appellant is captioned in brief of counsel for appellant as follows:

"THE TRIAL COURT ERRED IN ADMITTING PHOTOGRAPHS TAKEN DURING A WARRANTLESS SEARCH OF DEFENDANT'S RESIDENCE CONDUCTED AFTER THE PREMISES HAD BEEN SECURED AND ALL OCCUPANTS ACCOUNTED FOR."

Counsel for the respective parties on appeal are in disagreement as to whether the warrantless search of defendant's residence coupled with the taking of photographs of various places and articles in the residence "exceeded the scope of the exigencies that would have justified a warrantless search." Counsel for appellant argues, "Clearly the warrantless photography which occurred on the premises after the scene had been secured and all persons accounted for was outside the scope of the exigent circumstances which justified the initial intrusion" and that "as such the photographs taken during the four-hour warrantless search of the premises were due to be suppressed as being evidence seized in contravention of the defendant's rights under the Fourth and Fourteenth Amendments to the Constitution of the United States. Thus the trial court committed error in allowing the photographs into evidence." Counsel for appellee responds by stating:

"Furthermore, the seizure of the evidence of this case was justified because the police officers were confronted with an exigent circumstance wherein the evidence might have been surreptitiously removed. The seizure and photographs were necessary to preserve the evidence. Roaden v. Kentucky, 413 U.S. 496 [93 S.Ct. 2796, 37 L.Ed.2d 757] (1973); Billingsley v. State, 402 So.2d 1052 (Ala.Crim.App.1980), reversed on other grounds, 402 So.2d 1060 (1982); Love v. State, 377 So.2d 8 (Ala.Crim.App.1979). Wherefore, the trial court was correct in allowing the photographs into evidence."

We agree with the position as taken by counsel for appellee and decide appellant's second issue adversely to appellant.

The judgment of the trial court should be affirmed.

The foregoing opinion was prepared by Retired Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under the provisions of § 6.10 of the Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

AFFIRMED.

All the Judges concur, with BOWEN, P.J., concurring in result only.

ON APPLICATION FOR REHEARING

LEIGH M. CLARK, Retired Circuit Judge.

Contemporaneously with the filing of the application for rehearing and the brief of appellant's counsel in support of said application, said counsel has also filed what purports to be a motion pursuant to Rule 39(k), A.R.A.P., and "move this Court to add the following statement of facts to its opinion on rehearing," with which we comply to the following extent:

"The only testimony concerning an examination by the coroner of the body of the deceased was the following:

"Q. And did you examine the body of the deceased at that time?

"A. I did.

"Q. Was the body in the same condition then as it was when you first observed it at the trailer in the presence of Sergeant Marty Batson on May 12, 1983?

"A. It was.

"Q. And did you see the body and turn the body that was identified to you as being Jerry Usrey over to Linda Tampling who works with you?

"A. I did.

"Q. And when the body was turned over to Linda Tampling, was it in the same condition as it was when you first saw it at the trailer on May 12, 1983?

"A. It was. [RT 378]

"On cross-examination the following testimony was elicited:

"Q. All you actually did then is go out to the scene, check the body, pronounce the man dead, and you left?

"A. Yes, ma'am. [RT 382]"

The remaining five paragraphs of said "Motion to Add Statement of Facts" consist largely of contentions or argument by appellant's counsel instead of an additional or corrected statement of facts, as to which we respectfully decline to comply, although we consider such argument in connection with our determination of appellant's application for rehearing, as shown by the following opinion.

Appellant's attorney presents two issues in support of the application for rehearing which we state and discuss.

I.

The first issue presented in brief of counsel for appellant is as follows:

"WHETHER THIS COURT ERRED IN HOLDING THAT THE STATE WAS...