Wiggins v. State

Citation193 So.3d 765
Decision Date02 May 2014
Docket NumberCR–08–1165.
Parties David H. WIGGINS v. STATE of Alabama.
CourtAlabama Court of Criminal Appeals

Alabama Supreme Court 1131511.

Connie Cooper, Phenix City; Bryan A. Stevenson, Randall S. Susskind, Marc Shapiro (withdrew 10/12/2012), and Stephen Chu, Montgomery, for appellant.

Troy King and Luther Strange, attys. gen., and Stephanie E. Reiland and Tina Coker Hammonds, asst. attys. gen., for appellee.

BURKE

, Judge.

The appellant, David H. Wiggins, was convicted of murdering Kyle Cavins during the course of a robbery, an offense defined as capital by § 13A–5–40(a)(2), Ala.Code 1975

, and for robbing Jonathan Beasley, a violation of § 13A–8–41, Ala.Code 1975. The jury recommended, by a vote of 10 to 2, that Wiggins be sentenced to death for the capital-murder conviction. The circuit court followed the jury's recommendation and sentenced Wiggins to death for the capital-murder conviction and to life imprisonment for the robbery conviction. This appeal followed.

The State's evidence tended to show the following. On October 29, 2005, police were dispatched to the B & E Auto Shop (“the shop”) in the Ft. Mitchell community after Kyle Cavins's body was discovered. Daryl Powell, a sergeant with the Russell County Sheriff's Department, testified that he was the first officer on the scene and that Cavins's body was lying on the ground near the entrance to the shop. The medical examiner, Dr. Stephen Bourdreau, testified that Cavins had been shot in the right hip, the chest, and the right ear. The shots to the chest and the ear were fatal shots, Dr. Bourdreau said, and Cavins died as a result of multiple gunshot wounds

.

Bryan McGinnis, Wiggins's nephew, testified that he worked at the shop with Wiggins and that on October 28, 2005, McGinnis brought his deer rifle, a .35 mm Marlin, to the shop to have the sights repaired for the start of deer season. He said that when he left to go home that day he forgot the rifle and that a box of ammunition was near the rifle. He said that he did not believe that the rifle was loaded and that it was his habit to leave it unloaded. (R. 775–76.)

Brian Sizemore testified that he owned the shop, that he had worked on October 28, and that McGinnis, Cavins, and Wiggins had also worked that day. He said that McGinnis's .35 mm rifle was put in an old Pontiac along with Sizemore's .22 rifle. When he left the shop that day, he said, he drove his car into a ditch and called Cavins for help. At around 11:00 p.m. Cavins came with a tow truck to give him a tow and took Sizemore's vehicle back to the shop.

Sgt. Grove Goodrich with the Russell County Sheriff's Department testified that he was dispatched to the shop on October 29, 2005, to investigate the death. He said that when he arrived at the scene Cavins's body was on the ground and his personal possessions, such as driver's license, etc., were scattered all around him.

Katherine Richert, a firearms and tool-marks examiner with the Alabama Department of Forensic Sciences, testified that she tested the projectiles recovered from Cavins's body and the gun identified as belonging to Bryan McGinnis and said that the shots that killed Cavins were fired from that gun.

Kristen Maturi, a forensic biologist with the Alabama Department of Forensic Sciences, testified that she conducted analysis on the stains found on a pair of blue jeans, a T-shirt, and a washcloth identified as belonging to Wiggins. The substance on each item was blood, Maturi said, and the blood on the jeans and shirt matched Cavins's blood. The blood on the washcloth was consistent with Wiggins's DNA, Maturi said.

Jonathan Beasley testified that when he entered his hunting cabin in Phenix City on October 30, a man he identified as Wiggins held a gun on him and asked for his truck and a rifle. Wiggins, he said, took his 1993 Ford Ranger truck, his money, and some cigarettes.

Wiggins testified in his own behalf. He said that he had been friends with Cavins for about seven or eight months before Cavins's death. He said that on the day of the shooting he started drinking before noon and that he drank about 20 beers and he was also smoking “pot” and was intoxicated. Wiggins testified that he left the shop to take his nephew home and that he returned later in the evening. He testified that when Cavins came back to the shop with the tow truck he shot Cavins once, but he did not remember shooting him more than once. After he shot Cavins, he said, he left to get more “dope” and exchanged the vehicle he was driving for more “dope.” Wiggins said that he eventually ended up in a cabin in Phenix City on Saturday night, that the door was open and he entered, that he lay down on the bed to get some rest, and that when the cabin owner entered he thought it was the police. After he left the cabin in the owner's truck, he telephoned his mother, Wiggins said, and she convinced him to surrender to police. Wiggins testified:

[Defense counsel]: You're not here today to say that you didn't kill Kyle Cavins, are you?
[Wiggins]: No, I think that's obvious.
[Defense counsel]: You're not here to say that Jeremy Johnson killed Kyle Cavins, took his truck?
[Wiggins]: No.
[Defense counsel]: You did all that, didn't you?
[Wiggins]: Yeah, that's correct.”

(R. 1130.)

The jury convicted Wiggins of capital murder and robbery. A separate sentencing hearing was held, and the jury recommended, by a vote of 10 to 2, that Wiggins be sentenced to death. The circuit court followed the jury's recommendation and sentenced Wiggins to death. This appeal, which is automatic in a case involving the death penalty, followed. See § 13A–5–53, Ala.Code 1975

.

Standard of Review

Because Wiggins has been sentenced to death, this Court must search the record of the trial-court proceedings for plain error. See Rule 45A, Ala. R.App. P. Rule 45A

, provides:

“In all cases in which the death penalty has been imposed, the Court of Criminal Appeals shall notice any plain error or defect in the proceedings under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial right of the appellant.”

In discussing the scope of the plain-error standard of review, the Alabama Supreme Court has stated:

“To rise to the level of plain error, the claimed error must not only seriously affect a defendant's ‘substantial rights,’ but it must also have an unfair prejudicial impact on the jury's deliberations.” ' Ex parte Bryant, 951 So.2d 724, 727 (Ala.2002)

(quoting Hyde v. State, 778 So.2d 199, 209 (Ala.Crim.App.1998) ). In United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985), the United States Supreme Court, construing the federal plain-error rule, stated:

‘The Rule authorizes the Courts of Appeals to correct only “particularly egregious errors,” United States v. Frady, 456 U.S. 152, 163 (1982), those errors that “seriously affect the fairness, integrity or public reputation of judicial proceedings,” United States v. Atkinson, 297 U.S. [157], at 160 [ (1936) ]. In other words, the plain-error exception to the contemporaneous-objection rule is to be “used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result.” United States v. Frady, 456 U.S., at 163, n. 14.’

See also Ex parte Hodges, 856 So.2d 936, 947–48 (Ala.2003) (recognizing that plain error exists only if failure to recognize the error would ‘seriously affect the fairness or integrity of the judicial proceedings,’ and that the plain-error doctrine

is to be ‘used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result’ (internal quotation marks omitted)).”

Ex parte Brown, 11 So.3d 933, 938 (Ala.2008)

.1

Wiggins was convicted of both capital murder and the noncapital offense of first-degree robbery. In Ex parte Woodall, 730 So.2d 652 (Ala.1998)

, the Alabama Supreme Court held that a defendant who is convicted of both a capital offense and a noncapital offense; and is appealing those convictions, is not entitled to benefit from the plain-error standard of review on the noncapital conviction. In explaining its rationale for this holding, the Alabama Supreme Court stated:

“Because the defendant in this case was sentenced to death, we have complied with our obligation ... and conducted a plain-error review.[2 ] However, with respect to his attempted murder conviction, for which he received a sentence of less than death, we do not believe the defendant is entitled to benefit from our plain error review. We have found no Alabama decision dealing with the particular situation present here: a case in which plain error necessitated a reversal on a capital conviction and death sentence but in which the defendant was also sentenced to a term of imprisonment on another conviction. However, the defendant's sentence of imprisonment for his conviction of attempted murder does not implicate the same heightened degree of concern for reliability that attended his sentence of death for the capital conviction. It is well established that where a defendant receives only a prison sentence the plain-error doctrine is not applicable and an appellate court will not consider an alleged error that the defendant failed to preserve by making a proper and timely objection in the trial court. See Biddie v. State, 516 So.2d 846 (Ala.1987)

; Harris v. State, 347 So.2d 1363 (Ala.Cr.App.1977), cert. denied, 347 So.2d 1368 (Ala.197[7]). Indeed, it has been said that the plain-error doctrine ‘applies to death penalty cases, but not to other convictions .’ Pugh v. State, 355 So.2d 386, 389 (Ala.Cr.App.), cert. denied, 355 So.2d 392 (Ala.1977) (citations omitted) (emphasis added).

“Had the defendant been convicted and sentenced to a term of imprisonment on the attempted murder count but either acquitted or sentenced to life imprisonment...

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