637 So. 2d 229 | Ala. Crim. App. | 1994
The appellant, Tommy Jerome Cook, was convicted of murder, a violation of §
The state's evidence tended to show that on October 12, 1991, Kelvin Stokes died as a result of a shotgun wound to his leg. Dr. Joseph Embry, a forensic pathologist, testified that Stokes died from a shotgun wound to his left thigh, which severed a major artery and caused him to bleed to death. Embry further stated that he found 403 shotgun pellets in the victim's body and a small caliber bullet in his left knee.
Victor Hollis, a friend of the victim's, testified that at approximately 6:00 p.m. on the evening of the murder he and the victim were in the front yard of the victim's mother's house. The appellant drove up in front of the house in a car with Quan Cook and another man. The appellant got out of the car and asked where he could find Cephus Redwine. (Redwine testified that before the murder he had stolen some speakers out of the appellant's car. He also stated that Kelvin was with him when he later sold the speakers.) Hollis stated that Quan then shouted "there is the m_____ f_____," got out of the car, and opened the trunk and got a shotgun. He said that both Quan and the appellant started shooting at Kelvin. Kelvin ran, and Quan and the appellant got in the car and chased him. Hollis testified that the next time he saw Kelvin, Kelvin was in his brother's — Greg Stokes — yard and Kelvin had suffered a bullet wound to his thigh.
Greg Stokes testified that on the evening of the murder, he heard shooting and looked out and saw the appellant in his yard, pointing a .22 rifle in the air. He said that he also *230 saw Quan Cook holding a shotgun and he saw Kelvin in front of Cook, holding the barrel of the shotgun away from him and downward. Stokes said that he went to call his mother and that he then heard a gunshot. He testified that when he returned to the porch, he saw his brother on the ground.
Alan Stokes, another brother of the victim, testified that on the evening of the murder he saw three young males shooting at his brother. He identified one of the young males shooting at his brother as the appellant.
Derrick Brown testified that he was standing on the corner of Grasselli Avenue, near the site of the murder, around 6:00 p.m. on October 12, 1991, when the appellant, Quan Cook, and Lee Snow drove up beside the curb in an automobile. Brown testified that the appellant got out of the car and that he was carrying a .25 caliber pistol. Brown testified that the appellant asked him if he knew where Kelvin Stokes was and told him that he intended to shoot Kelvin. Brown stated that when Quan opened the trunk he saw a shotgun and a rifle. Brown also testified that he later saw the appellant and that the appellant said, "I told you I was going to shoot Kelvin."
The appellant testified in his own behalf and stated that he was not arguing with Kelvin. He said that he got the rifle out of the trunk for protection and that he did not shoot anyone.
"(a) A person commits the crime of murder if:
"(1) With intent to cause the death of another person, he causes the death of that person or of another person. . . ."
Specifically, the appellant contends that there was no evidence to show that he intended to cause the death of Kelvin Stokes.
Benton v. State," 'Because the element of intent, being a state of mind or mental purpose, is usually incapable of direct proof, it may be inferred from the character of the assault, the use of a deadly weapon and other attendant circumstances.' Johnson [v. State,
390 So.2d 1160 ] 1167 [(Ala.Cr.App.), writ denied,390 So.2d 1168 (Ala. 1980)]."
Here, there was testimony that the appellant stated that he was going to shoot Kelvin. Also, the appellant was armed with a deadly weapon. There was sufficient evidence presented for the jury to find that the appellant intended to kill the victim. Any conflict in the evidence presented was for the jury to resolve. Brown v. State,
Furthermore, as Judge Bowen stated in Thomas v. State,
"It was . . . unnecessary for the charging instrument to incorporate the principles of the complicity statute by reference. See Stokley v. State,
254 Ala. 534 ,49 So.2d 284 (1950). '[A]ll person concerned in the commission of the crime, whether they directly commit the act constituting the offense, or aid and abet in its commission, must be indicted, tried and punished as principals.' Johnson v. State,405 So.2d 149 ,153 (Ala.Crim.App. 1981) (emphasis in [Johnson])."
452 So.2d at 902.
Officers Charles Hubbard and Roddy Howell and Ms. Gwendolyn Cook, the appellant's mother, testified on voir dire concerning the circumstances surrounding the seizure of the rifle from Cook's residence. The record reflects that early in the morning of October 13, 1991, officers of the Birmingham Police Department went to the house where the appellant was living with his mother. Officers Hubbard and Howell testified that Ms. Cook opened the door and that they told her that her son was a suspect in a murder investigation and that they wanted to speak with him. Ms. Cook said that her son was asleep in his bedroom. The officers then asked Ms. Cook if they could come into the house and look around. The officers stated that Ms. Cook said that they could look around and take anything they needed for the investigation. While the officers were walking through the house they saw a .22 caliber rifle lying on the sofa. Ms. Cook told the officers that they could take the gun.
Ms. Cook testified that the officers knocked on the door and asked to speak with the appellant because he was a suspect in a murder investigation. She said that she let the officers in the house but that she did not give them permission to search her house. She also contradicted the officers' testimony, stating that the rifle was not on the sofa but was under the sofa.
After hearing the testimony the trial court allowed the rifle to be received into evidence.
"A person may consent to a search without a warrant and thereby waive any protection afforded by the Fourth Amendment to his right of privacy." Ex parte Wilson,
" '[W]hen conflicting evidence is presented on the issue of the voluntariness of a consent to search and the trial judge finds that the consent was voluntarily given, great weight must be given his judgment. This finding will not be disturbed on appeal unless the appellate court is convinced that the conclusion is palpably contrary to the weight of the evidence. Even where there is credible testimony to the contrary, if the evidence is fairly capable of supporting the inference that the rules of freedom and voluntariness were observed, the ruling of the trial judge need only be supported by substantial evidence and not to a moral certainty. Sullivan v. State,
340 So.2d 878 ,880-881 (Ala.Cr.App.), cert. denied,340 So.2d 881 (Ala. 1976).' "
592 So.2d at 1074, quoting Weatherford v. State,
The trial court's ruling is supported by the evidence presented at trial.
The appellant further argues that his mother did not have the authority to consent to the search. However, Ms. Cook had the authority to consent to a search of the common areas of the house. United States v. Matlock,
For the foregoing reasons, the judgment in this cause is due to be affirmed.
AFFIRMED.
All the Judges concur.
