Supreme Court of Vuginja

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1 / N TlE Supreme Court of Vugnja TRCHMJND RECORD NO LVN EDWRD DOUGLS BROWN, ppellant, v. COMMONWELTH OF VRGN, ppellee. JONT PPENDX Robert E. Evans KZER, PHLLPS & PETTY 615 Church Street Lynchburg, Vrgna Counsel for ppellant Jerry P. Slonaker ssstant ttorney General Crmnal Dvson 108 North Eghth Street Rcnmond, Vrgna Counsel for ppellee LWYERS P, NTNG COMPNY 71h & F,.nklln Bldg. lch onct, Vrgna ( CW

2 TBLE OF CONTENTS 1. ndctment found at the November Term 1980 of the Crcut Court of Campbell County 2. Moton for Separate Trals fled November 7, rragnment orders fled November 10, ndctment found at the January term 1981 of the Crcut Court of Campbell County. 5. Moton to llow Evdence fled December 11, ppendx Page Memorandum Regardng Moton to llow Evdence fled January 12, 1981 (Excludng attachments) 7. Convcton Order fled January 23, Order to Establsh n the Record Moton, Rulngs and Objectons, fled February 23, ssgnment of Error Testmony of Norma Brown from tral transcrpt at pages 64, 71 through 80, and 94..

3 N THE CRCUT COURT OF BELL COUNTY, VRGN The Grand Jury charges that:. NOVEMBER TEBM, 1980 On or about ugust 22, 1980, n the County of Campbell LVN EDWRD DOUGLS. BROWN, unlawfully and felonously dd kll.and murer nn E. r\ ubbaj;d,,. n volaton of Secton of the Code of Vrgna as punshable y Secton of the Code of Vrgna, aganst the peace and dgnty of the Commonwealth. SECOND COUNT e Grand Jury charges 'that: On or about: gust 22?!980, n the County of Campbell, DOUGLS BROWN, lawfullydfelonously dd ue a frarm whle comm a felony of murde n.volaton of Secton of. the Code of Vr na, aganst the peace and.dgnty.of the Commonwealth. THRD COUNT The Grand Jury charges that: On or about Ugust 22, 1980, n the County of Campbell, LVN EDW DOUGLS BROWN, unlawfully,.elonously and malcouslr dd shoot and case bodly harm o lfprma H. Bown, wth ntent, to 1m, dsfgure, dsable kll n volat.f S.et.l8.2-Sl of the Cod of Vrgna, peace and dgnty of the Commonwealth. FOURTH COUNT The Grand Jury charges that: -- = On or about ugust 22, 1980, 1ft the County of Campbell, LVN EDW DOUGLS BROWN, unlawfully 1 nd felonously dd Use a frarm whle commt,ng a felony of malcous woundng n volaton of Secton of the Code of Vrgna, aganst the peace and dgnty of the Commonwealth. THS NDCTMENT found at the November Term, 1980 of the Crcut Courf of Campbell County on the evdence bf P. G. Terry, wtness sworn and sent to, the Jury by the Court. 001.

4 MOTON FOR SEPRTE TRLS / TO THE JUDGE OF THS HONORBLE COURT: represent as follows: lvn Edward Douglas Brown, heren defendant, would respectfu y (1) That defendant s advsed that the Commonwealth wll present to the Grand Jury at the November term 1980 of ths Court a four count ndctment whch charges the defendant n separate counts wth the murder of nna E. Hubbard, the use of a frearm whle commttng murder, the malclus woundng of Norma H. Brown, wfe of defendant, and the use of a frearm whle commttng the felony of malcous woundng. copy of the proposed ndctment s attached hereto. (2) That Secton , Code of Vrgna, as amended, provdes that n crmnal cases hband and wfe shall not be allowed to be called as a wtness aganst the other wthout the consent of the other, except n the cas of a prosecuton fqr an offense commtted by one aganst the other and certan other exceptons not relevant to ths case. (3) That at the tme of the offenses stated n the ndctment t: and at present, defendant and Norma H. Brown are husband and wfe. (4) That defendant asserts hs rght under Secton Code of Vrgna and expressly refuses to consent to hs wfe beng called as a wtness aganst hm n the tral of the charge that the defendant dd murder nna E. Hubbard. (}02

5 (5) That regardless of the logc of the mandate of Secton Code of Vrgna, t s the law n the Commonwealth of Vrgna on ths pont and the defendant has a legal rght to prevent the testmony of hs wfe aganst hm n the tral of defendant for the murder of nna E. Hubbard:. (6) That to permt the. Comonwealth to nclude n one ndctm+t separate counts of malcous woundng by defendant of hs wfe and murder by defendant of nna E. Hubbard and to. then permt the Commonwealth to try all counts together n one proceedng s to permt the Commonwealth to crcumvent the clear dctates of Secton and to use the testmony of defendant a wfe aganst hm n the tral of an offense not aganst the wfe. (7) That to strp defendant of a rght and prvlege expressly granted hm by the General ssembly of Vr.gna by means of tryng two offenses at one tme s unjust, n volaton of Rule 3: 13(b) of the Rules of the Supreme Court of Vrgna, and deprves defendant of due process of law. (8) That juste requres separate trals of frst, counts 1 and 2, and second, counts 3 and 4 of sad ndctment. WHEREFORE, defendant moves ths Court to set for separate trals frst counts 1 and 2 of the ad ndctment whch deal wth the alleged murder of nna E. Hubbard and second, counts 3 and 4 of the sad ndctment whch deal wth the alleged malcous woundng of Norma H. Brown. 14' Respectft.lly submtted, LVN EDWRD DOUGLS BROWN By Of Counsel Robert E. Evans, p d. KZER, PHLLPS & PETTY P. 0. Box 1138 Lynchburg, Vrgna

6 BuO\ 21 PGE 785 VRGN: n the Crcut Court of the County of Campbell on Monday, the loth day of Noer, 180 PRESENT THE HONORBLE Norman K Moon :r,judge.. COMMONWELTH OF VRGN. vs B MURDER LVN EDWRD DOUGLS BROWN ame BROWN --Mour d_e_r_ ---- On. ths the loth day of November 1980 the ttorney tor the Commonwealth. and LVN EDWRD, who stands 1ndcted. of a felony, to-wt: who appeared n Court wth hs counsel, Robert E. Evang.. Whereupon the accused was duly arragned, and afjer be advsed by hs counsel, entered hs plea of Not gult to the ndctment, whch plea was tendered by the accused J person. f Ths case s set for tral n ths Court on November 14, 1980 OlHaCJmHKDDKXDJJn%X) cand the accused s remanded to jal.) (DJXlmltll1X»X'XDleX tjxzd--.. r. moa)tjoa

7 BOO 21 PGE 7 86 VRGN: n the Crcut Court of the County of Campbell on Mnday, the loth day of November, PRESENT THE HONORBLE Norman K. Moon,,JUDGE... COMMONWELTH OF VRGN vs B USE OF FRERM N CMMSSON.OF FELONY JytN EDWRP DOUGLS BROWN.. On ths the loth day of November came the ttorney tor the Commonwealth and LN EDWRD DOO,LS B.lOwWN&.Y.--- who stands ndcted o:r a felony, to-wt:.,. n commsson ofa felony: who appeard n Court wth hs counsel, Robert E. Evans Whereupon the accused was duly arragned, and af,er beng advsed by hs ounsel, entered hs plea of Not qult} to the ndctment, whch plea :as tendered by the accused 19 person. Ths case s set for tral n.ths Court on the non't January term (and. the accused s remanded to jal.) <am U11»BUx nr5

8 N THE CRCUT COURT OF CM;PBELL COUNTY, VRGN JNURY TERM, 1981 The Grand Jury charges that: On or about ugust 22, 1980, n the County of Campbell, LVN EDWRD DOUGLS BROWN, durng the felonous and malcous shootng of Norma H. Bro!. wth ntent to mam, dsfgure, dsable or kll her, unlawfully and felon sly dd kll and murder nna B. Hubbard, n volaton of Secton of.th Code of Vrgna as punshable by Secton of the Code of Vrgna, aganst the peace and dgnty of the Commonwealth.,The Grand Jury charges that: SECOND COUNT On or about ugust 22, 1980, n the County of Campbell, LVN EDWRD DGUGLS BROWN, durng the felonous d malcous shootng of Norma B. Bro wth ntent.to mam, dsfgure, dsable or kll her, unlawfully and felonosly dd use a frearm whle commttng a felony of murder n volaton of Sect of the Code of Vrga, aganst the peace and dgnty of the COUDlonwealth. THS NDCTMENT found at the January Term, 1981 of the Crcut Court o Campbell County on the evdence of P. G. Terry, wtness sworn and Jury by the Court.. 006

9 MOTON TO LLOW EVDENCE TO: THE JUDGE OF THS HONORBLE COURT The Commonwealth of Vrgna represents as follows:. 1. That on November 10, 1980, the defendant, lvn Edward Douglas Br, was ndcted and the Grand.Jury returned a true bll on the ndctment wh conssted of four counts aganst defendant, beng murder of nna E. Hubbard,. \ use of a frearm whle commttng murder, malcously woundng Norma H. BrT, and use of a frearm n the malcously woundng of Norma H. Brown. 2. That on November 10, 1980 your Honor heard a moton of the defendan for separate trals of the murder charge and the malcous woundng charge and a moton to lmt the evdence n the seprate trals; that n the tra of the defendant on a charge of murderng nna E. Hubbard there be no comme of the alleged malcous woundng of Norma Brown and n the tral of the alleged malcous woundng of Norma H. Brawn there be no comment of the all murder of nna E. Hubbard. That n accordance wth the hearng on the mot n, a separate tral on the malcous woundng of Norma B. Brown was tred on November 14, 1980 n whch the evdence was lmted 4S to the alleged murde of nna E. Hubbard. 3. That n the tral of the malcous woundng of Norma B. Brown, there was evdence of two prevous threats of the defent to k111 hs wfe, No H. Brown, pror to the malcous woundng and.rder on ugust 22,-1980; tha ths postve evdence wth other evdence refutes any other evdence that defendant bad any other ntent but to shoot hs wfe and dd shoot her wth. that ntent and klled her mother, nna E. Hubbard, n the process. That th jury by ts verdct of gulty of malcous woundng dd not beleve defendanj's testmony that hs wfe had hollered for the hdden man wth the gun to shoot defendant. 001

10 4. That the prncple of transferred ntent where the defendant has the ntent to kll somebody and causes the death of another s establshed n Vrgna law. Wllams v. Commonwealth, 128 Va. at 717, 104 S.E. at 859. Snce ths s a case of transferred ntent the evdence of Norma H. Brownl' beng the only wtness to the defendant's comng nto the house and hs ctons taken toward her after prevous threats are almost vtal to the Commonweal h to prove the murder of nna E. Hubbard. 5. That n the case of Jenkns v. Commonwealth, 219 Va. 764, 250 S.E. 76 (1979) where defendant klled another wth a shotgun blast fred at hs wfe, the Court sad at page 767, 'le defendant was orgnally also char!ed wth the attempted murder of hs wfe, the Commonwealth elected not to pros cut.. ths offense and that charge was dsmssed pror to tral on the charges fol whch defendant stands convcted. The defendant was brought to tral under ndctments chargng hm wth the murder of Wlburn and usng a frearm n he commsson of that felony. Nether of the ndctments charged that defenda t commtted an offense commtted aganst the wfe, so nether was a prosecut n for an offense commtted aganst the wfe. Therefore, Mrs. Jenkns was lncompetent to estfy aganst her husband." n the case at hand the Commonw alt bas not dsmssed the malcous woundng case of. Norma B. Brown but has tr d ths case on November 14, 1980 and the defendant was found gulty of the malcous woundng of hs wfe. t. was qute clear that the shots fred wee ntended to wound or kll Norma H. Brown but klled nna E. Hubbar. Therefore, the Cnwealth moves the Court to allow Norma H. Brown to testfy aganst the defendant, her husband - lvn Edward Douglas Brown, n the murder case of nna E. Hubbard snce allows such a prosecuton for an offense commtted by one aganst another whch are the essent al facts of ths case because of the transferred ntent.. ocs., Respectfully tl.,

11 MEMORNDUM REGRDNG MOTON TO LL 1 w EVDENCE The Commonwealth has offered n support of ts moton to allow the wfe of the defendant to testfy n the defendant's tral on a charge of murderng nna E. Hubbard, the ca.se of State v. Brley, 53 NJ 498, 251 2d 442 (1969) The defendant submts that ths case was tred under a statute sgnfcantly dfferent from that n force n Vrgna. s shown on the ttachm t, a copy of the Brley opnon and an LR 3d annotaton on the subject, at page 814, the New Jersey statute provdes tha the spouse shall not testfy unless the accused s charged an offense aganst the spouse. The Vrgn statute, provdes that a spouse may testfy only n the case of a prosecuton for an offense commtted by one aganst the other Defendant submts that the Vrgna statute restrcts such testmony to the Vrgna tr. whch prosecutes the offense comtted aganst the spouse and ts language s not as broad as the New Jersey statute whch arguably permts testmony n a prosecuton of an offense aganst a thrd party. The Brley case essentally justfes ts decson on a publc polcy argument. The defendant submts that such a ratonale for the decson was ttachment B, rejected n Jenkns v. Commonwealt1:l n whch the court emphaszed that the lack of logc supportng the rule mght be cause for the legslature to change the law but not for the Supreme Court of Vrgna to make that ch_ange. 009

12 .!. Certan other cases from other jursdctons are dscussed n the annotaton contaned n ttachment. The major case s the Calforna case, People v. Pttullo, whch s dscussedon pages 827 and 828 and to a great extent n the New Jersey Brley decson. Defendant would submt that ths Calforna case s of no assstance to ths court because the applcable Calforna statute.provded that the wfe could testfy n all trals nvolvng offenses aganst not only the spouse but thrd partes, all arsng from one transacton. ll of the cases cted n support of.the Commonwealth r s motons nvolved cases where the offense aganst the spouse and the thrd partes were tred together n one proceedng and we beleve ths dstngushes them from the present matter before ths court. The West Vrgna case, State v. Woodrow, on page 828 of ttachment, and the Texas case Robns v. State on page 824 of ttachment, support the defendant 1 s contenton that hs wfe should not be permtted to testfy at the tral of the defendant for the alleged murder of nna E. Hubbard. n both these cases, the court found that the homcde.of the thrd party was one dstr t crme and the offense aganst the spouse was another dstnct crme and that a close connecton n tme and crcumstances dd not make the crme aganst the thrd party an offense aganst the person of the spou.se. The common law rule s stated on page 822 of the ttachment, that nether a husband or a wfe s a competent wtness n a crmnal prosecuton agr st. the other unless the crme charged s an offense aganst the person of the spous.: = testfyng. The Vrgna statute extends ths common law rule only to stuatons not applcable to ths case. Defednant submts that all exceptons to the common law rule must be strctly construed and therefore Secton should be nterpreted to permt a spouse to testfy only n a tral whch can result n a convcton of a spouse for an offense aganst the person of the other. nto

13 The old Vrgna case whch permtted a spouse to testfy was Davs v. Commonwealth a copy of whch s attached hereto and desgnated 11 C 1 '. n ths case the tral was on an ndctment whch charged that the defendant posoned a well wth the ntent to harm a named ndvdual 11 and other persons". The evdence at the tral ndcated that the defendant 1 s spouse was wthn the group desgnated 11 and other persons. 11 Therefore, the offense charged was one aganst the person of the spouse an she properly testfed. The Jenkns case, attachment B, reveals that the Supreme Court of Vrgna has at least mpledly supported defendant 1 s poston. n Jenkns, the court reaffrmed the prncple that unless a defendant can be convcted at a tral of an offense aganst hs spouse, the spoue may not testfy n that partcular tral. The fact that the Commonwealth has ncluded n the ndctment that nna E. Hubbard was murdered durng the commsson of a malcous woundn ' aganst defendant's spouse does not change the nature of the prosecuton whc wll take place n ths court. The only offense for whch defendant can be convcted n ths tral s the murder of nna E Hubbard. aganst the spouse and the surplusage added to the ndctment does not chang the nature of the offense to be tred. Respectfully submtted, LVN EDWRD DOUGLS BROWN By Of Counsel Robert E. Evans, p.d. KZER, PHLLPS & PETTY 615 Church Street Lynchburg, Vrgna :11

14 1: r: ;: 1 VRGN: n the Crcut Court of the County of Campbel on.frday the 23rd day of January, 1981 PRESENT :! F j! ' The Honorable Norman K. Moon, Juqe.,, COMMONWELTH OF VRGN:. vs B tlpdn N NDCTMENT FOR MURDER!:.: LVN EDWRD DOUGLS BBOWN (D.O.B )., Ths day came the ttorney for the commonwealth and l 11 f Edward Douglas Brown who stands ndcted of a felony, tc?-wt:, 11 Murder, _appeared n Co.urt and lfas '.led to the bat n.the :-custod of the'.jalor of ths Court, accompaned by hs COWlse, E. Evans..-. and peaded not guty to the '!ndctment, whch plea was j by the accused n person, who requested tral by jury. The accused was arragned n ths Court on November fl.,! " ; p Jl j h t' ;,. : :[ 0 lj The. Court then mpanelled twenty qualfed jurors, free from excepton for the tral of the defendant, n the manner provded by law. Whereupon the ttorney for the Commonwealth and the attorney for the defendant each alternately exercsed ther rghts to strke the names of #our venremen from the panel, as provded by law, and the remang twelve jurors, consttutng the jury for the. tral of the defendant, were dul sworn. fter openng statements, the Court and jury heard the evdence presented by the Commonwealth and the defendant. 012

15 fter hearng the evdence, the nstructons of the Court ;! and argument of. counsel, the jurors were sent to the jury roam to consder ther verdct. hey subsequently returned ther verdct n open Court, n the followg words: "We the jury fnd the defent, lvn Edward Douglas Brown,. gulty of mw:w!er 1: n the second degree as charged n the ndctment and fx hs punshment at ten (10) years n the pententary. a r! :.!: p The ttorney for the defendant. then moved the Court to r set.asde the verdct for reasons stated to the record, whch L. ;J moton was. overruled, to whch rulg the defendant Y counse, L excepted.!: :!! The Court then askd f the defendant desred to ake a!j statement or _-to advance any reason why jugment should not he! pronounced. The defendant havg declned, the Court fnds! ' defendant lty of murder n the second degree, as cbged ;; :. the ndctment, sentenced the defendant to confnement n the H pententary of ths Commonwealth for the term of ;.and adjudges defendant the costs assessed n ths case. J ' 1 1 defendant s allowed credt for the tme spent n : ll tral. -:a; 1:. fter pronouncng sentence, the court advsed the defendant :; of the rght to petton for an appeal to the Supreme Court of 1 : J ;! Vgna and of the rght to proceed n forma paupers and to a ; l ;; " j! j: tl J! the assstance of Court apponted coqnsel. The Court certfes that at all tmes durg the tral of ths case the defendant was peronally present, and counsel was lkl wse personally present and capably represented the. defendant. : The Commonwealth s to recover of the defendt. ts costs. y r.., t n ths behalf expended n the amount of $ nd the sad lvn Edward Douglas Brown s remanded to jal The -

16 ORDER WHERES, at the January term 1981 of ths Court. the Grand Jury charged that on or about ugust 22, 1980, n the County of Campbell, Vrgna, lvn Edward Douglas Brown, durng the felonous and malcous shootng of Norma H. Bown, wth ntent to mam, dsfgure, dsable or kll her, unlawfully and felonously dd kll and murder nna E. Hubbard, n volaton of Secton of the Code of Vrgna as punshable by Secton of the Code of Vrgna, aganst the peace and dgnty of the Commonwealth. WHERES, the Commonwealth fled a oton to llow n Evdence at the tral of the aforesad ndctment, the testmony of Norma H. Brown, wfe ol defendant, on the grounds that the sad tral consttuted a prosecuton for an offense commtted by one spouse aganst another pursuant to Secton of the Code f Vrgna. The Commonwealth and the defendant fled memoranda concernng the moton to allow evdence and the Court ruled that the sad Moton to llow Evdence was granted. WHERES, the defendant fled a Moton to Dsmss that porton of the above stated ndctment whch charged a malcous woundng by defendant of hs spouse on the grounds that sad porton was a second prosecuton of defendant for the malcous woundng of hs wfe and such a prosecuton was n volaton of the prohbton aganst double jt!opardy contaned n the Consttutons 9f the Unted States of merca and the Commonwealth of Vrgna. The defendant and Commonwealth fled memoranda concernng ths moton and ths Court ruled that the Moton to Dsmss a porton f the ndctment 014

17 due to former convcton was dened. WHERES, defendant was tred upon the sad ndctment on January 23, 1981, by a jury, was convcted, and sentenced to ten years confnement n the pententary. Defendant fled a ldoton to Set sde the Verdct on the grounds that the tral consttuted a second prosectuon of defendant for malcous woundng of hs spouse and was n volaton of the above stated prohbton aganst double jeopardy, whch moton was dened. WHERES, at the tme of each rulng by the Court on the above state Motons. defendant duly noted hs objecton and excepton to the rulng of the Court and stated as grounds for sad objecton the matters contaned n the Motons and memoranda fled by defendant. WHERES, defendant has heretofore fled a Notce of ppeal from the judgment of ths Court entered January NOW, THEREFORE, ths order s entered to establsh n the record of ths case, the varous motons fled by the partes, the rulngs of the Cour on sad motons, and the objecton and excepton by defendant to sad rulng ENTER: Judge SK FOR THS: Rc-f:a:rt :. L: ; R--o-b-er_t E_._E_v_an s_,-p--.d KZER, PHLLPS PETTY 615 Church Street Lynchburg, Vrgna SEEN: E. Bruce Harvey ttorney for the Commonwealth 01.5

18 SSGN:MENT OF ERROR The tral court erred n ts rulng that defendant's wfe could testfy aganst hm n ths case pursuant to of the Code of Vrgna.

19 l.,. 1 cartrdres were fred n the rfle to the excluson of any other. n COURT Can he be excused, Your Honor? Yes, thank you, sr. HRVEY 0 0 Brown?. ll rght, Norma Bro'm. You are Norma H. Brom? Yes. t.fuen vrere you Marred to defendant, lvn March 20, March 20, 1977? Yes O.K. When were you separated? n July of 19RO. Tell us what happened on ugu'st ' :., :.! ' l L!. 'H... t ' : jn m... : am speaknp of events that occurred that-- 0. K. 'tvent up to vst 'tl th a frend up at Mrs. Martha Clark's house-- Excuse me dd you leave from nne Hubbard' Rght --to go un there? t.1ho was at nne Hubbard's you left?... : l. ;,'j. ' l. ',!. l!

20 .,... r. ': ' ' t :. t' Rght. 0 nd you came back, she was-- Yes, she \-las gong on home then. 0 ll rght, and you came on downstars? who was downstars when you got there? Ma, Nkk and hm. lvn Bro'toJn, your daughter-- My daughter, Nkk. Now ;. 1- : l l.. '.,. f '. 1 -: :! :. : ' -.Nkk and nne Hubbard. Rght. s that rht? Yes. 0 Now just tell us brefly how long lvn Hubbard was there before he left. No more than ten mnutes. No more than that. No more than ten mnutes? No more. nd just brefly, what was the dscusson about? Oh, he was talknr nd playny wth the baby and gave hm some blls. the electrc bll and house payments and thnp.s lke that. Dd he gve any money o your daughter? Yes, r thnk he gve her a dollar for some chewng eum or -somethng. 71 l :. ::. = :. : t.. -#, "! '.. :J :!.!. t 9 1 ' 11 f::. tll ' J; 1. : f

21 ..-.. _ 4_;,. :. ".. :t. :, ( '., 1. 4 ' 1 n ll rght, dd you all get nto any argument or anythng? as to sohrety or-- or anythng? No, we dd not argue. Was your husband,-what was hs condton Hs--? What was hs condton as to hs drnkng Well, he had had a drnk but he wasn't ntoxcated. q He defntely wasn't ntoxcated? No, he was not. ll rght. What was unusual about hs appearance or anythng?.har wasn't combed. No. upstars? upstars. Well, he had on some bg overalls and hs Dd he ndcate any anger at that tme? nd how long after he left dd you come Oh, rght after he came upstars, came., Why 4_d you come upstars? had to get somethng out of the bedroom.! l; t t ' l t r. t

22 ,: o!!:. ;. l.; ll! '! ' :!!, ;,. r ' ;, \, u ' '. tl \ l rl ',, \ ' 1: lo!' :t. ;.; '1 Out of the bedrooo? Yes nd just tell us when you came upstars just what you dd. O.k. when came upstars saw that the storm door wasn't all the way closed When you say the storm door, where s that located? 0 n Rp.ht at the entrance. Rp.ht at the entrance? Uh, huh. The storm door, dd you have to o through to- 0 --to get to the front door, uh, huh. nd was the front door shut? No, the front door sttayed open. 0. Sp the storm door wasn't--t attracted your attenton? \ Thy dd that attract your attenton? No, t was open, you know t had a jar n t and vou could see that t wasn't closed.. closed. J Yeah, and all you had to do was-- Yeah, just pull the latch and t would come Dd the storm door have a wndow n t? Well, -- mean, can you see through t? 73.. j.! ' r. \'.... l' l ; ; : f t.',, : : J. :; f J1.! :. ' l,.,.! t..,;,.,, f:l :.!, t : l :. :!. - j; - ' : '. f - 1:. :.J 1t- ; ': :. ',.. 1:,: : t!1!!. 1! ' f J '

23 rx mmnzr - :t ',, f :; l :1 l., lt j t Yeah, t had a glass n t. You could see through t. s torrn wndow. nd so you went over to the storm door-- Yes. somethng lon 0 lon?,. _ --to close t? nd what dd you observe'? saw hm runnng back to the house. You saw who runnng? saw lvn runnng back to the house wth n hs hand. He was runnn? Yeah he was runnng. nd what dd t seem lke he had n hs hand? don't know but know t wasabout ths couldn't tell what.t was. 0. K. nd what dd you do? ran nto the bedroom. tfuy? 'Because do somethnr. to me. () He had p,one out and then-- fgured he was comng n there to Yeah, and he come runnn back n there wth., sometnp n your hand lke that? No't-1 -ha t d.d you do? ran nto the bedroom and shut the door '! t J t : :. : - l' ;.: - - ' '. ' - " ".. _J ;: P'.,..4 : ! J : ' t ;

24 J '. ' What about the storm door? For one thnp, the storm door doesn't lock but the "tvood door do lock. ddn't thnk to shut and to lock t. You ddn't pull ths door shut and lock t? No, ddn't thnk to shut the wood door and lock t. just ran. n You just ran and nto where? nto the bedroom door. (1 lfua t knd of door was ths? t.jood door. n t had a lock on t? Well, t don't l lork, t s an old door, t don' t "t lork. 0 nd you just shut t? Yeah, and just held the knob. 0 nd dd vou stay at ths sde of the door? Yeah f!!.,. '! f L ' ; ; r. nd you held the knob? l!h, huh. ll rght, and just tell us what happened. nd he t as pullnr. one way and l'ras pullng Rnother, and naturally he just-- -. Dd he say anythnp, --to ooen the door or : j. t.... :,. 1 ;! ' :, 11 : l Ht 1 r ; t. j

25 ., 1 l - Yeah, he pulled t from Me. He got t open. ll rght, and when he got t opened, what dd you do? saw a gun. Dd he have a pstol or ths knd of a gun? That knd of gun, t was long. 0 Ths s what you saw hm wth? Or sornethny. lke that.!,_ ' l:. :- '.. nd dd he have t n hs hand or what? Yeah, he had t up. :' "! 'C='.-: 0 Up? What dd you do? started hollerng. You started hollern? Yeah. Was t loud? Yeah, hollered loud. _,.:. - :. '. - Dd you contnue that? Yes, hollered and that s when hollered -. loud enough for mama to come up stars. 0 nd you sad nne Hubbard came upstars? o1. d your daughter come up? Yeah she caoe upstars. ll r.ght. and just tell us where they came nd.what haopened between all of you that were there J!.j r t. 1 1 t, l.!,.. :t J " l ),., e. t t

26 -em e r rn act -'* re wm w 'M'#bertBj ' \ l j J O.K. when they came upstars, they come upstars there was a bg char rght here and they had yot rht there n the char. ll rght, you say the char, s that the char along here or there? t s rf!.ht besde the steps. 0 Rght besde the steps as you go down? Rght. O.K. and there s a char along there. Uh, huh. sho1 you Commonwealth's Exhbt 4. n the bedroom lookng toward the front door, what char are you talkn about? steps are back here. rght here? Ths s the char rght here, you see the You say the char --s t the straght char t s the bg char. Oh. the bg char? O.K. and what part of the char were they n? They were lke rght here n front of the char and was close to my dauyhr because was tryng -to nd :1here was lvn s tandnp,? He was standng near the cot, near daddy's cot. ()24 1- : l r,. r!,.,,. - --!: ;! ; ' :.! - -.!. ;. '. - : :lj -:r :. ':'. f. :..: f. '!. t 1 ' J 1,.!'. : ] {.; J.# ' :

27 1:! :t ;r,, 'j : j! lvn? He was near your daddy's cot? Yes. Was he here or n the mddle or Yhere? Well. sort of n the mddle lke. He was alon here or dd he go over there? No, he dd not go over there, he stayed there. Dd you hear vour randmother say anythng to. :.' f L r t t ' t L! Yes, she sad she wasn't gong to have that n her house. O.K. and tell us what haoened after that. Well-- n Were you stll hollerng? was stll tryng to get the door open and that s 1hen he JlOt my arm and fell-- {. see. --and he kept on shootng. He was standng over here? Yes 0 \, " nd your grandmother was nea the char? ll of us were rr.ht there. near the char-- ll.;ht.. --by the dor. nd he started shootng from there? Uh, huh. that know of j.,, ;

28 . '.,! j., ' '! jl, h. bullets? nd you lvere-- t the door, was trynp. to open that door. TrynR to open that door? Uh, huh. O.K. and dd he shoot you before you fell? Yes. Rght here n my arm. nd you fell then, dd you get any other ddn't feel any more. - l! j ; Dd any graze your head or anythng? Yes but ddn't feel t then, but when.,. got up and smelt somethng. you know, and just dd lke that and rny har 't las hurnedo nd was that whle you were stll down or- No, that was when had gotten up. c1m, you fell-- ll rght, before that frst bullet ht your Rght. ll rght, dd you har any more bullets? YES. t was about 5 or 6 more bullets, just P.onr one rht after the other. nd v1hat happened to your mother? 79 ()26

29 Mother fell on me. () That s your grandmother? j l - -,#-:1_.,! ;. ' :.,. 10,.-.,. Yes. She fell on you? Yes, she fell. tfuen fell, mama 1as stand up, and he kept on shootng and rna fell rght on me, and then he left. nd were you up when he left? No, was stll dol when he left. Of course, your grandmother was down, too? She -1as just lke that. n see. nd he ddn' t He ddn't coe do-.;m too, uh, huh. come O'rer to-- over to do nothne. he left had to get up to see f my baby was all g -. l rpht, knew rna was shot. O.K. ths--to the nht of July 8, that s thp npht vou separated.from hm? Yes, thnk t was the frst Saturday n July, don't. know the exact date. Just tell us the crcumstances that hapened that nght left hm because he was drnkng and he come do-.;-m t.o th e and he pulled hs gun out and he --- B. f) ()27

30 - : ;_ j " ', ' a :4 l Nrs. Brown? know about fve years or more. n How long have you been back down here? bout fve years. 0 Now when you were sayng that--tellng the jury about what happened, dd understand you at the tme you were ht t struck n the art!l, shot n the arm,. vou were standn n ths doorway? Yes, uas near the doorway. Was the door open or? t was partally open.!! -! 0 nd whch sde of the door were you on? The Were you on ths sde or the-- Oh, the lvng room sde. nd at that pont you say you were standng bv the sde of the door, your grandmother was over here hv the char-- Rght. () nd lvn was over here bv the by ths cot? Rr.ht. - nd you say the frst shot struck you?.y.es..nd that the second shot grazed your head? -, 93 {)28

31 - 1 - t. j, t J, thnk t was, but an not for sure. Now t was the frst shot that ht you n the arm? Yes, because fell. nd you say these shots came n rapd successon-- One v1ould stop and, you know, --! '" ' t just ban, bang, lke that? Yes. n. nd dd hear you say rght after the shootng was over that you saw lvn go out of the door. Rght. He left rght after the shootng? Yes. nd you ddn't see anythng happen. You are calm now but you don't knon what happened after you fell dom? Rght. You ddn't see anythn? No. n \Tll you tell the ju_ry how many -1ays you can ret nto Mrs. Hubbard's house. C! There s three ways for gettng n. O.K. wll you tell us where they are? 94 ()29! -,.!