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State v. Durham7/26/1999
ially fatal wounds.
The appellant also presented proof at trial, including the testimony of several family members. Kara Higgins, the appellant's and the victim's daughter, testified that, on September 30, 1996, the day before the murder, the appellant telephoned her home. Mrs. Higgins testified that the appellant sounded intoxicated. She further testified that, although her father drank regularly, he usually did not become intoxicated. However, she conceded that, at the time of the murder, her father was receiving Social Security disability benefits due to his alcoholism.
Dallas Higgins, the appellant's son-in-law, also testified on behalf of the appellant. He testified that, on the day prior to the shooting, he visited the appellant's residence at his wife's request. When Mr. Higgins arrived, the appellant appeared intoxicated. Mr. Higgins testified:
"He was sitting there drinking beer and he told me that he had eat valiums and he said he had plenty of beer, that his wife had brought him beer, that the refrigerator was full of beer, and Mr. Durham opened the refrigerator door and showed me the beer. . . . He seemed sad. He seemed depressed. . . . "He never -- to me never mentioned his wife or nothing like that. . . . He really wasn't upset. He was just lonely, wanting somebody to talk to . . . ."
Mr. Higgins identified the rifle and the shotgun recovered by the police from the appellant's blue Ford Mustang. Mr. Higgins stated that the guns had hung on the wall in the appellant's house for many years and had been covered with dust. He believed that the guns belonged to the appellant's son, Kevin. He had never seen the appellant with any guns and, to his knowledge, the appellant did not hunt.
The appellant next called his sister, Kathy Gail Bouton, to testify on his behalf. She testified that she visited her brother in the early evening on the day of the murder. When she arrived at the appellant's home, the appellant was seated at the kitchen table, and a bottle of pills was on the table beside him. The label on the bottle indicated that it contained "Diazepam" and that a prescription for ninety pills had been filled the previous day. Ms. Bouton testified that there were twenty-three pills remaining in the bottle. She stated that the appellant denied ingesting the missing sixty-seven pills but admitted that he had been drinking beer and whiskey. Ms. Bouton testified that the appellant appeared intoxicated to her, because she knows him. She admitted that the appellant might have appeared sober to a stranger.
The appellant conversed with his sister, confiding that he missed his wife and wanted her to return home. Ms. Bouton and another sister, Norma Jean Freeman, testified that the appellant believed his wife was having an affair. However, Ms. Bouton conceded that, although the appellant was depressed, he was calm and did not appear angry on the night of the murder. Ms. Bouton left her brother's home at approximately 8:15 p.m.
Jim Hamilton, a pharmacist, testified that his pharmacy dispensed medications to the appellant on September 30, 1996, including Indomethacin, an anti-inflammatory drug, Metoprolol, an anti-hypertensive drug, and Diazepam, an anti-anxiety drug. Mr. Hamilton stated that Diazepam is commonly referred to as Valium. He confirmed that his pharmacy dispensed ninety 5 milligram tablets of Valium to the appellant on the day prior to the murder.
Additionally, Mr. Hamilton testified that Valium can cause mental confusion, and ingesting Valium together with alcohol will increase the effects of both the Valium and the alcohol. However, the pharmacist further testified that the appellant had been regularly
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