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State v. Rush5/5/1995
WHICHARD, Justice.
Defendant was indicted for one count of first-degree murder, was tried noncapitally and found guilty, and was sentenced to life imprisonment. We find no prejudicial error.
At defendant's trial, the State presented evidence that tended to show the following:
Bryan Bobbitt testified that defendant and the victim, Timothy Strickland, were his neighbors. On 18 June 1993, Bobbitt's father hosted a neighborhood cookout, which defendant attended. Defendant and Bobbitt left the cookout around midnight and sat down on the road outside to finish their beers. About thirty minutes later, Strickland drove up in his car and joined them. Bobbitt testified that defendant and Strickland had a history of animosity; that night tension began to build between them. Bobbitt was too intoxicated to recall much of their conversation, but he remembered Strickland accusing defendant of always "hiding behind his gun or knife." Defendant usually carried a .38-caliber Derringer on his belt, and he had it with him that night. Defendant responded to Strickland's comment by handing his gun and pocketknife to Bobbitt. Defendant then stood up, retrieved the weapons from Bobbitt, and left for home.
According to Bobbitt, defendant returned in ten minutes. He was carrying a .9-millimeter semiautomatic pistol. He knelt in front of Strickland and pointed the gun at him. He stated, "Do you think this is a game, do you think I'm playing with you," and shot Strickland
once in the forehead. Defendant then went home to call the police. Bobbitt did not see Strickland grab or lunge at defendant.
On cross-examination Bobbitt testified that defendant was disabled as a result of a roofing accident. He had a limp and could not run. Strickland was twenty years younger than defendant, had studied martial arts, and had a reputation for being violent when drunk. Strickland was intoxicated the night of the murder. Bobbitt admitted that his memory of the night was impaired because he had been intoxicated.
Deputy Sheriff Katrina Seitz was working as a 911 dispatcher during the early morning of 19 June. She testified she received a call at 1:45 a.m. from defendant that she recorded. The trial court admitted the tape recording and a written transcript of the call; the tape was played to the jury. During the 911 conversation, defendant told Seitz he had shot someone. He gave his name and address and agreed to cooperate with police when they arrived.
Dr. Frank Avery, a pathologist, testified that the victim had one bullet wound to the back of his head and another to his left leg. The victim's blood alcohol level was .17. On cross-examination Dr. Avery stated that the wounds could have been caused by the same bullet if the victim had been sitting and was shot first in the head. He further stated that, contrary to Bobbitt's testimony, the victim could not have been facing defendant when he was shot.
Deputy Sheriff Walt Martin testified that he responded to the 911 call placed by defendant. When Martin arrived, he saw the victim in the road and defendant standing on his porch. Martin asked for the gun, and defendant stated that it was inside. Defendant gave Martin permission to retrieve the gun and the pocketknife from the kitchen table. Martin did so.
Deputy Sheriff Robert Bizell testified that he interviewed defendant on the porch the morning of the shooting. Defendant was calm and polite. He admitted shooting the victim. He invited the officers to search him for other weapons. A search revealed no weapons.
Deputy Sheriff Dennis Currin met defendant outside his house at 3:00 a.m. He directed defendant
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