Walker v. State, 6 Div. 696

• Decision Date: 20 April 1982
• Docket Number: 6 Div. 696
• Parties: Vincent WALKER v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1083

416 So.2d 1083

Vincent WALKER v. STATE.

6 Div. 696.

Court of Criminal Appeals of Alabama.

April 20, 1982.

Rehearing Denied May 18, 1982.

Certiorari Denied, July 23, 1982

Alabama Supreme Court 81-713.

Mark B. Polson, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., and Bill North, Asst. Atty. Gen., for appellee.

HARRIS, Presiding Judge.

The appellant was indicted and convicted for the murder of Terry Dewayne Diayck by shooting him with a shotgun in violation of Alabama Code § 13A-6-2 (Supp.1977). The trial court fixed his punishment at twenty years in the state penitentiary. At arraignment, in the presence of counsel, appellant pleaded not guilty. He is represented on this appeal by the same court-appointed counsel who represented him at trial and has been furnished with a free transcript.

Mary Catherine Diayck testified that the victim in this case was her son. Through her testimony the state established the corpus delicti.

Sergeant Albert Wallace of the Birmingham Police Department testified that he went to an address in Birmingham located at 2332 Tenth Court South, Apartment 7, at approximately 10:20 p.m. on June 23, 1980. Sergeant Wallace observed that the victim had been shot in the forehead and "his head more or less exploded." He stated that the wound was consistent with wounds inflicted by a shotgun and was of a type reasonably calculated to cause death. Sergeant Wallace identified State's Exhibit 1, a photograph of the victim, as accurately depicting the body as he observed it.

Billy Limbaugh testified that the victim was his roommate at the above address on June 23; that their apartment was upstairs. Limbaugh stated that he was talking to a girl named Linda on the telephone when he heard a noise at the door. Limbaugh testified that as the victim went to answer the door, the door "was slung open and ... two black males entered the door with a shotgun." The man with the shotgun was approximately six feet tall and slender. The other man was shorter and had a medium build. The two assailants directed the shotgun towards the victim and said, "Give me the money, MF." Limbaugh testified that the victim, who was standing in front of the door, "grabbed the shotgun and tried to take it away from them." At that point a struggle ensued between the victim and his assailants and "all three of them fell out of the door." Limbaugh stated that, as he was coming out of his chair by the telephone, he had eye-to-eye contact for a couple of seconds with the shorter man. "I saw a surprised look on his face .... And then he had a dazed look on his face." Limbaugh testified that, after he had taken two steps, the gun went off. Limbaugh next saw the victim's body lying in the hallway. "His head was gone, most of it was gone." The assailants ran from the scene and the police were notified. Limbaugh stated that he could not "positively" identify either of the black males.

On cross-examination Limbaugh testified that the night prior to the killing his truck had broken down in Woodlawn and that three black males had taken him home. They took him home in a light colored Buick. Limbaugh stated that the black males came inside his apartment and he paid them five dollars from his wallet. He estimated there were between three and four hundred dollars in his wallet at the time and that the black males saw the money. Limbaugh "felt like the tall one ... with the shotgun, resembled the driver of the Buick." He thought that appellant was one of the other black males who had been in the apartment the previous night. Limbaugh also saw a light colored Buick leave the scene after the victim was killed. He heard the two men yell, "We will get you," as they left in the Buick.

Limbaugh stated that he had made a positive identification of appellant as one of the two assailants on prior occasions, but that he had never been "a hundred percent sure." Limbaugh reiterated that on the night in question appellant had a "shocked look on his face ... [H]e was surprised to see me coming--standing up and come forth." Limbaugh admitted that he had been shown photographs at family court a week or two after the shooting, but that he had not identified appellant. He later learned that appellant's photographs had been included in the group he was shown. Limbaugh testified that he really had not been interested in selecting a photograph at that time because he was under psychiatric care "because of the shock and everything."

Limbaugh further testified that he met a young woman, Jackie Moore, for the first time the night of the murder. "I saw her in the hallway, downstairs hallway in my apartment." Limbaugh stated that Ms. Moore was upset.

During redirect examination Limbaugh testified that he based his identification of appellant "on his face, the look on his face when I saw him in the apartment that night."

Detective James Parker of the Huntsville Police Department testified that, on the afternoon of June 24, 1980, he, Detective Jim Crumrine and Detective Larry Brewer went to an address located in Huntsville at 1900 Magnum Drive looking for appellant. He observed a partially opened garage door and someone running from the garage into the house. Appellant was later found inside the house hiding in a closet. Appellant was placed under arrest at that time. The testimony of Detective Jim Crumrine was substantially the same as that of Detective Parker.

Ms. Jackie Ann Moore testified that, after she left work at "Burley Earl's" on June 23, she arrived at the apartment of a friend named Ronald at 9:00 or 9:30 p.m. Ronald's apartment was located in the alley of 10th Court South behind Limbaugh's and the victim's apartment. Ms. Moore stated that she left Ronald's apartment about 10:00 p.m. and that, as she tried to open the door to her car, appellant placed a shotgun in her side. Appellant told her, "I know you seen it, I know you know and I am going to get you." Ms. Moore stated that she turned around, appellant "slid" the gun "into my stomach, and I went to my knees." Appellant was approximately one-half of a foot away from the witness. Ms. Moore testified that, while she was on her knees appellant said the "JA of my name, Jack," and that the other man in the background called, "Vince, come on Vince." Appellant then "turned around and took off running." Ms. Moore testified that she next ran to the "Wooden Nickel" across the street and that some friends later walked her back to the scene to tell her story to the police. She later went to the police station where she picked out the appellant's photograph.

Ms. Moore further stated that she knew appellant from the 13th Place runaway house, that she knew him personally from January to February of 1980. She stated that she told the police "Vincent Walker's" name when she walked back to the scene that night. She further testified that the night of the murder there were several lights "shining off the apartment building" where her car was parked. Ms. Moore denied going to Ronald's apartment to obtain marijuana.

Sergeant Wallace was recalled and testified that he saw Ms. Moore on June 23 and during the early morning hours of June 24. He stated that Ms. Moore gave him the name of the man who pulled the shotgun on her on that occasion.

Following Sergeant Wallace's testimony the state rested its case and appellant's motion to exclude was overruled. Appellant's sole defense was alibi. He denied being in Birmingham the night of the murder, claiming instead to have been in Huntsville.

Ms. Mary "Shelby" James testified for appellant that she was Jackie Moore's half cousin and was also a counselor at the 13th Place runaway house for abused and neglected children. Ms. James stated that Ms. Moore had lived for a time at 13th Place because of "problems at home." Ms. James stated that Ms. Moore's general reputation in the community and her general reputation for truth and veracity were bad. Ms. James testified that she also knew appellant from 13th Place.

Ms. James testified that she saw Ms. Moore around 1:30 a.m. on June 24, 1980, when she left the police station. Ms. Moore told her that she had been to some apartments across from the "Wooden Nickel" and that appellant "had stuck a gun into her." Ms. Moore also told her she had gone to the apartment "to try to get a joint."

Following Ms. James' testimony Billy Limbaugh was called by appellant. His testimony for the defense did not add significantly to his testimony for the state.

Ms. Chris Humphrey, a social worker with the Department of Pensions and Security, testified that appellant was at Harris Home in Huntsville in May of 1980. She stated that appellant was transferred from Harris Home to Birmingham on May 30, to the family court's cottage. Ms. Humphrey testified that she met appellant at the Trailways Bus Station in Birmingham and that, when he got out of the car at family court, "he ran away."

Following Ms. Humphrey's testimony and certain voir dire testimony, Ms. Jackie Moore was called as a witness by appellant. Her testimony as a defense witness will be discussed later in this opinion.

Irvin John Plummer testified that he had employed appellant in Huntsville, that appellant had worked half a day on June 23. He later saw appellant that night in front of the Rocket Quikstop in Huntsville between 9:30 and 9:45. Plummer stated that appellant smiled, called his name and waved when he passed by.

Richard Harris testified that he was employed with appellant and that he, too, saw appellant in Huntsville on June 23, around 8:15 p.m. Then around 9:00 p.m. he saw appellant on the road to the basketball court.

Robert Thompson also stated that he saw appellant in Huntsville around 9:00 p.m., on June 23, that he (Thompson) was with Richard Harris when he saw appellant.

Ms. Robbie D. White testified that she was an official court reporter in Judge Joseph Jasper's courtroom and that she took shorthand notes of appellant's habeas corpus...