Before Sullivan, P.j., McRAE And Smith, JJ.
The opinion of the court was delivered by: Sullivan, Presiding Justice
DATE OF JUDGMENT: 05/09/97
TRIAL JUDGE: HON. ROBERT WALTER BAILEY
COURT FROM WHICH APPEALED: WAYNE COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 11/19/98
MOTION FOR REHEARING FILED:
¶1. Alberta Carter was indicted by the Wayne County Grand Jury during the January Term 1997, for the murder of Willie Mildred Hundley. On May 8, 1997, the jury found Carter guilty as charged, and Circuit Court Judge Robert W. Bailey sentenced her to the mandatory life sentence. Carter appeals to this Court, assigning as error the trial court's admission of hearsay testimony and prior criminal conduct, refusal of a lesser included offense instruction on manslaughter, the prosecutor's misinforming the jury on the law during closing argument, and denial of her motions for a new trial or JNOV. Finding no merit to Carter's claims, we affirm her conviction and sentence in this case.
¶2. On Thanksgiving Day, November 28, 1996, Alberta Carter, her boyfriend Melvin Luke, her brother Jerry Cooley, and his girlfriend Willie Mildred Hundley were riding around in Cooley's brother's truck drinking bootleg whiskey and beer. Cooley and Carter got into an argument, because Cooley wanted some of Carter's whiskey, and she wouldn't give him any.
¶3. Three or four minutes later, they pulled the truck over to the side of the road for Carter and Hundley to go to the bathroom. The two women went to the back of the truck while Cooley and Luke stayed inside. Cooley testified that he heard Hundley yell, "Alberta!" and heard a gunshot, so he went to the back of the truck to investigate. When he approached, he saw Carter put something in the front of her pants that he thought was a gun and pull her shirt over it. Carter testified that she was only tucking her shirt into her pants and didn't have a gun. Cooley said that Carter told him that someone had been shooting at her and Hundley. He testified that Carter looked at him and said, "bitch," and then went back to the truck and drove away. Carter denied calling Hundley a bitch and said she didn't remember telling Cooley that someone had been shooting at them. She testified that when she and Hundley got out of the truck, they got into an argument, because Hundley wanted to go back into town to get more to drink, and Carter didn't want to drive back to town. When Carter and Luke drove off, Cooley found Hundley lying in the bushes and discovered that she'd been shot.
¶4. Luke testified that he was drunk and asleep, woke up when he heard gunshots, but then went back to sleep again because he'd been drinking too much. He said that when they drove off, Carter told him that she had killed the girl. Carter denied killing Hundley, and denied telling Luke that she'd shot anyone. Her story was that Cooley and Hundley were alive and well when she drove away. Luke also testified that although he didn't see her with a gun that day, he knew that Carter regularly carried a .38 caliber pistol, the same caliber of the bullet recovered from Hundley's body.
¶5. Cooley flagged down a passing motorist, Darryl Williams, and told him that "his wife" had been shot. Williams stopped and called 911. While on the phone with the emergency dispatcher, Williams asked Cooley what had happened, and he replied, "My crazy-ass sister shot my wife." Deputy Sheriff Michael Patton was called to the scene, arriving about ten minutes after the shooting. When Deputy Patton asked Cooley who had shot Hundley, Cooley told him that his crazy sister shot her. Sheriff Farrior also questioned Cooley at the hospital that night around 7:00 about what had happened, and Cooley told him that Carter had shot Hundley. Cooley was intoxicated ...