549 So. 2d 611 | Ala. Crim. App. | 1989
The appellant, Johnny Lee Hellums, was convicted of capital murder, in violation of §
The facts tended to show that the appellant and his wife, Diane Hellums, had been living in a mobile home on County Road 34 between Winfield and Fayette up until December 31, 1986. On this date they separated. Living in the home with the couple were Teresa, Mark, and Steve Corbin, Diane's children by a previous marriage, and Michael Hellums, the appellant's son by a previous marriage.
On the evening of January 3, 1987, Jimmy Morrison, the brother of Diane Hellums, went to the home of the appellant. It was decided that Mr. Morrison would take his two children and two of Mrs. Hellums's children to the skating rink. The appellant agreed to pick up the children after the skating rink closed. Before the group left, two of Mrs. Hellums's children requested that the appellant approach their mother and plead with her to return to the family home.
Later that evening, Jimmy Morrison saw the appellant at Morrison's mother's residence. Mr. Hellums asked Mr. Morrison if he would accompany him to town, and Mr. Morrison agreed. They each enjoyed one beer on the trip to Fayette.
Once in Fayette, the appellant drove to Terrace Park Apartments, where he saw his wife's car parked. Both Mr. Hellums and Mr. Morrison were aware that Diane Hellums's relative by marriage, Sadie Lynn Milligan, lived at those apartments with Willis Pennington and their children. Morrison told the appellant not to "go in and say nothing to Diane and make her mad because she's fixing to come home."
Nevertheless, Mr. Hellums got out of his car and went to the apartment where Milligan and Pennington lived. Before getting out of the car, the appellant took a gun out of his car and put the gun in the back of his pants under his shirttail and vest. Mr. Morrison, who remained seated on the passenger side of Mr. Hellums's car, saw the appellant knock on the apartment door and then enter the dwelling.
Once inside the apartment, the appellant saw his wife, Milligan, Pennington, and Ms. Milligan's three-month-old baby sitting on *613 the couch. After a brief conversation with his wife in the den, the appellant and his wife went into the kitchen and again talked. They were discussing the possibility of Mrs. Hellums's returning to the marital home.
Shortly thereafter, Mrs. Hellums went back into the den and sat back down on the couch. Milligan, Pennington, and the child were still sitting on the couch. The appellant again asked Mrs. Hellums to return home. She refused.
At this point, the appellant pulled the gun from his pants and shot his wife in the chest. He next shot Willis Pennington in the leg and then he shot Sadie Milligan in the chest. He then left the apartment.
Jimmy Morrison, who was still waiting for the appellant in the car, heard the three shots. He got out of the car and as he approached the apartment, he was met by the appellant. Hellums handed the gun to Morrison and said, "Jimmy, I shot Diane, Willis, and Sadie." Morrison handed the gun back to Hellums and they went into the apartment.
Once inside, the appellant called the police. He indicated to the dispatcher that "We've had a killing" and "I shot them." The police quickly arrived and Johnny Hellums was placed under arrest and taken into custody at the Fayette County Sheriff's Department. Diane Hellums and Sadie Milligan each died of a single gunshot wound to the chest. Willis Pennington recovered from his wounds.
The appellant raises two issues on appeal.
The testimony in question is as follows:
"Q Danny, do you recall being in the —
"MR. JOHNSON: I might say to preface this, Your Honor, what I'm offering here is not a hearsay statement and it's not for the purpose of merely impeaching Michael Hellums, this is further testimony in rebuttal.
"THE COURT: Okay.
"Q Danny, do you recall being in the automobile on a trip with Johnny and Michael shortly before this incident?
"A (Witness nods affirmatively.)
"Q Where were you all going?
"A Houston, Mississippi.
"Q Do you know when that was?
"A It was on Thursday night.
"Q That was on Thursday night before the killing on Saturday?
"A Yes, sir.
"Q Was there any conversation there in the car with you and Johnny Hellums and Michael between Johnny and his son Mike?
"A Yes, sir.
"Q Tell the jury what they said to each other, please.
"MR. COLVIN: Your Honor, we object to what Michael —
"MR. HOLLINGSWORTH: We object to what Michael said, Your Honor, as being hearsay.
"THE COURT: Michael or Johnny?
"MR. JOHNSTON: It's a conversation that the defendant engaged in, Your Honor.
"MR. COLVIN: With his son Michael. He's trying to solicit testimony from Michael who has been on the stand.
"MR. JOHNSTON: We've given him the time and place and who was present and we're offering to show what the defendant said.
"THE COURT: Overruled.
"A We were — my dad had told Johnny that Diane —
*614"MR HOLLINGSWOTH: Object, Your Honor, to what his dad had told anybody.
"THE COURT: Sustained.
"Q Just leave that out and tell us what was said there in the defendant's presence and what he said, not what somebody you understand had told him.
"A Johnny had told Michael he ought to blow his head off for wrecking his marriage.
"Q He said that there in the car?
"A Yes, sir.
"MR. JOHNSTON: That's all, thank you.
"MR. HOLLINGSWORTH: Your Honor, we're going to object to that, it has nothing to do with the charges pending for the defendant. We move for a mistrial. It's immaterial and irrelevant.
"MR. JOHNSON: Your Honor, it has to do with the marriage.
"MR. HOLLINGSWORTH: It's a threat made against somebody totally different, if it's true at all. It has nothing to do with the victims.
"THE COURT: I'll overrule the objection.
"MR. JOHNSON: Not from this witness, Your Honor.
"THE COURT: Do you wish to cross-examine?
"MR. COLVIN: No, sir."
The appellant cites Voudrie v. State,
It is the opinion of this court that Michael Hellums was sufficiently connected to the deceased to render the testimony admissible. Not only was Michael the stepson of Dianne Hellums, but up until the time of the marital separation, the two lived in the same home, along with the appellant and the deceased's other children as a family. There was also testimony which referred to the fact that the reason Diane Hellums left the appellant was because of her displeasure with the intimate relationship that had developed between her daughter Teresa and Michael Hellums. Thus, sufficient connection was shown.
The threats made in the case at bar can be compared to the threats made in Balentine v. State,
Moreover, the court in Voudrie, supra,
This principle of law was relied on in Gregg v. State, 17 So. 321,
Assuming, arguendo, that the admission of the testimony was error, it was at most error without injury, as it does not appear that the error complained of has probably injuriously affected any substantial right of the appellant. Johnson v.State,
The following colloquy occurred during the cross-examination of Donny Hellums:
"Q Mr. Hellums, you know his reputation in Arkansas as well as here; right?
"A Yes, sir.
"Q All right. Have you ever heard that his girlfriend up there was killed, stabbed to death?
"A I was in the Navy when that took place.
"Q You've heard that she was stabbed to death there in Arkansas; didn't you?
"A Yes, sir.
"Q Do you think that helped his reputation?
"A I don't know. I don't know if it helped or hurt either one under the circumstances. You don't know what circumstances was there, you know.
"MR. HOLLINGSWORTH: Your Honor, we're going to object.
"MR. COLVIN: The witness has already stated he has no knowledge of that.
"MR. JOHNSTON: No further questions.
"THE COURT: He stated he heard it. I overrule the objection.
"MR. JOHNSTON: Nothing further, Your Honor.
"MR. COLVIN: You can come down.
"Could we have about two minutes, Your Honor?
"THE COURT: Yes.
"(Recess.)
"MR. HOLLINGSWORTH: Your Honor, subject to us making a couple of objections on the record, we rest.
"MR. JOHNSTON: We've completed our rebuttal, I think, Your Honor, but suppose we give the jury some time and just take this few minutes before twelve to see what motions we have and then maybe we will be ready to argue right after lunch.
"THE COURT: You can be in recess until one o'clock. Recall my instructions to you concerning any discussion of the case while you're away from here at lunch.
"(Jury not present.)
"MR. COLVIN: As to the testimony of Donny Hellums, we move for a mistrial on the grounds that the highly prejudicial effect of the testimony elicited from the witness as to any prior instance or assaults or murders done in Arkansas on the defendant's ex-wife and that that's not material and it's prejudical to the defendant to have that introduced and move to strike it.
"THE COURT: He did testify as to his reputation for peace and quiet; didn't he?
"MR. COLVIN: He did. *616
"MR. JOHNSTON: Yes, sir, and I asked him if he knew that in Arkansas as well as here.
"MR. HOLLINGSWORTH: He answered no, too. I wasn't there is what he said.
"MR. JOHNSTON: No, sir, he said he knew his reputation, but —
"MR. HOLLINGSWORTH: He said he wasn't there when all that took place.
"THE COURT: He would not have been able to testify that he knew.
"MR. HOLLINGSWORTH: There's no connection between Johnny Hellums —
"THE COURT: This must be hearsay testimony, all of this must be hearsay testimony, even though we've had people testify incorrectly to their personal knowledge. Character evidence is by its nature and must be hearsay.
"MR. HOLLINGSWORTH: But to be character evidence doesn't it have to be connected somehow or another with a person whose character is in question?
"MR. JOHNSTON: You can impeach a character witness by asking him if he's heard of specific instances of bad action or character by the person whose character he's vouching for and that's what I asked.
"MR. COLVIN: I agree, but he asked the witness about an incident that happened to somebody else and in which the defendant was not involved. You just asked about a former relation of the defendant that had had something bad happen to her and the jury is going to be left with the impression —
"MR. JOHNSTON: Why didn't you ask him about it?
"MR. COLVIN: He already stated he didn't know about it, he was gone.
"MR. JOHNSTON: He answered he had heard about it. You ask him what he heard.
"MR. COLVIN: Can we just interpose that objection and make that motion?
"MR. HOLLINGSWORTH: I did object, Your Honor, if you recall at the time that was said and you overruled.
"(Lunch.)"
The trial court never actually ruled on either of the motions. Without an adverse ruling on the motion to exclude or motion for a mistrial, this court is not presented with an issue to consider on appeal. Breedlove v. State,
Based on the foregoing, the judgment of the trial court is due to be, and it is hereby, affirmed.
AFFIRMED.
All the Judges concur.