Vander Wielen v. State
| Decision Date | 06 April 1971 |
| Docket Number | 1 Div. 58 |
| Citation | 251 So.2d 240,47 Ala.App. 108 |
| Parties | Louise VANDER WIELEN v. STATE. |
| Court | Alabama Court of Criminal Appeals |
MacDonald Gallion, Atty. Gen., and Richard F. Calhoun, Asst. Atty. Gen., for the State.
Louise Vander Wielen appeals from a conviction for murder in the second degree for the killing of her husband Charles Vander Wielen.
Appellant was jointly indicted with her son, Tommy Davidson, but a severance was granted and appellant was tried separately.
The facts are substantially as follows:
On the morning of May 21, 1968, the body of Charles Vander Wielen was found in the front seat of his automobile which had run off Interstate Highway 10 in Baldwin County Alabama. Death had resulted from a massive hemorrhage to the brain caused by a blow inflicted by a blunt instrument.
The appellant and her son, Tommy Davidson, were arrested by Mobile County Sheriff's deputies on May 28, 1968. They were interrogated and appellant gave a written statement describing the killing of Charles Vander Wielen by Tommy Davidson, allegedly in defense of himself and appellant. On approximately May 30, 1968, a search of appellant's residence was conducted, which produced evidence which, together with appellant's written statement, was introduced in evidence by the state.
The appellant testified that immediately prior to Tommy Davidson's striking Mr. Vander Wielen with a baseball bat the deceased had placed a gun to her head and stated he would give her one minute to say what she had to say. When Tommy struck the first blow she fled from the house. She offered character witnesses in her behalf and evidence of prior threats on her life by deceased.
Defense counsel excepted to this portion of the court's oral charge:
Counsel insists in brief that since Tommy Davidson was a guest in his mother's house he was under no duty to retreat.
In Thomas v. State, 13 Ala.App. 50, 69 So. 315, the court said:
'If the defendant was a guest of the owner or occupants of the house, there by Tommy Davidson was married and living in his own home. He came unannounced to his mother's house to borrow her automobile: But even if he could be said to be a guest under Thomas, supra, he had no right to stand his ground as against the lawful occupant of the house. We find no error in the court's charge.
pre-arrangement with them on their invitation, while in the house in that capacity[47 Ala.App. 111] the law armed him with the right to defend himself Against an unlawful assault from outsiders, he being free from fault, and to employ all necessary force to protect his own life or his person from grievous harm. From this purpose and under these circumstances, he was armed with the same rights of self-defense as if he had been the owner of the house, As to all persons except its lawful occupants; in other words, to that extent this house was his castle for the purpose of defense, and if without his fault he was assaulted there By an intruder, the law imposed on him no duty to retreat therefrom, but he had the right to stand his ground and defend himself even to the taking of the life of his assailant.' (emphasis supplied.) See also Valentine v. State, 19 Ala.App. 510, 98 So. 483; Simmons v. State, 22 Ala.App. 126, 113 So. 466.
Requested Charges 31 and 35 were properly refused. They ignored Tommy Davidson's duty to retreat and were otherwise faulty.
Appellant contends the affidavit for a search warrant of her house at 4083 Alice Drive, Theodore, Alabama, is wholly inadequate and that it was error to introduce evidence seized as a result of said search.
The appellant testified in support of her motion to suppress that while she had paid the rent and was entitled to occupy the house at the time of the search, all her clothing and furniture had been removed from the house and that at the time of the search she was living in Florida. This evidence was sufficient to warrant the trial court's finding that the house had been abandoned by the appellant and to justify the conclusion that appellant lacks standing to challenge the legality of the search. Parman v. United States, 130 U.S.App.D.C. 188, 399 F.2d 559. Nor can it be held, as urged by appellant, that a finding of abandonment is foreclosed until the paid rent period has expired. Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668. Feguer v. United States, 302 F.2d 214 (8th Cir. 1962).
Defendant's witness Colin Douglas Willis was asked if he knew deceased's reputation for carrying a pistol. The witness answered, 'Yes, sir; I heard he carried a pistol.' The state objected and moved to exclude the answer. The court sustained the objection and granted the motion to exclude the answer.
A defendant who admits the killing but claims to have acted in self defense, is entitled to show that deceased was in the habit of carrying a pistol or other deadly weapon. Of course, the evidence must also show that defendant had knowledge of the habit of deceased in carrying weapons. Clinkscale v. State, 37 Ala.App. 593, 73 So.2d 244, and cases there cited. As was said in Sims v. State, 139 Ala. 74, 36 So. 138, the
But even defendant's knowledge of deceased's habit of carrying weapons would not have been pertinent here. She denied the killing and testified Tommy Davidson struck the fatal blows.
Appellant moved to suppress her written confession on the ground that it was involuntary. A voir dire hearing was conducted outside the presence of the jury. A proper predicate was laid as to threats, inducements, etc. Taylor Wilkins, Sheriff of Baldwin County testified that before she made the confessory statement he advised 'Before we ask you any questions, you must understand your rights.
the defendant of her constitutional rights and read to her a statement of her rights to have an attorney present, after which she [47 Ala.App. 112] signed a 'Waiver of Rights.' The warning read to defendant and the waiver, State's Exhibit 30, reads:
'You have the right to remain silent.
'Anything you say can and will be used against you in Court.
'You have the right to talk to a lawyer for advice before we ask you any questions and to have him with you during questioning.
'If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish.
'I have read this statement of my rights and I understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing. No promises, threats or inducements have been made to me and no pressure or coercion of any kind has been used against me.
SIGNED /s/ Louise Vander Wielen'
Defendant's written statement reads in pertinent part as follows:
'Q. On the night of May 20, 1968, which was a Monday night, did anyone visit you and your husband at your home?
'A. No one but my son Tommy.
'Q. Do you recall about what time it was that Tommy came to your house?
'A. To the best of my knowledge it would be 9:00 or 10:00 P.M.
'Q. Was Tommy's visit to your house a pleasant one?
'A. No. My husband and I were having an argument.
'Q. Did Tommy's arrival at your house seem to agravate things?
'A. No sir, not as I know of because I was scared to death.
'Q. Why were you so afraid?
'A. Because he had done got on me, slapped me around and said he was going to kill me.
'Q. Was Tommy there when these threats were made to you?
'A. Yes sir.
'Q. Did anything happen between Mr. Vander Wielen and your son Tommy?
'A. Tommy tried to talk to my husband and calm him down but I don't recall everything that was said. I remember him saying that he didn't want to break up a marriage.
'Q. After Tommy talked with your husband did anything else occur?
'A. The best I remember my husband got madder and madder and told him he would do to me what he wanted to and it wasn't anybody's business.
Tommy said didn't he know there was a law against it and he said damn the law.
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