Rogers v. State

Citation630 So.2d 88
PartiesEx parte State of Alabama. (Re David Walter ROGERS and Donnis George Musgrove v. STATE of Alabama). 1910002.
Decision Date17 April 1992
CourtSupreme Court of Alabama

James H. Evans, Atty. Gen., and Melissa G. Math, Asst. Atty. Gen., for petitioner.

Dwight L. Driskill, Birmingham, for respondents.

HOUSTON, Justice.

In a consolidated case, David Walter Rogers and Donnis George Musgrove were convicted of capital murder (the facts of the case are not at issue here) and were sentenced to death. In the Court of Criminal Appeals, they raised two issues--(1) whether they had been denied a fair trial because of the consolidation of their capital cases for trial and sentencing and (2) whether the trial court had erred in admitting evidence of flight that included evidence of unrelated collateral offenses. In a lengthy opinion, the Court of Criminal Appeals found no error regarding the consolidation of the defendants' capital cases and sentencing, but reversed because of the admission of flight evidence 630 So.2d 78. In its opinion, the Court of Criminal Appeals wrote:

"In the present case, when the chase occurred, no warrants had been issued against the [defendants] for the instant offense, nor had any concrete evidence been uncovered by the authorities to promote their apprehension in connection with this offense. Moreover, the flight occurred two months after the offense. Therefore, the [defendants] clearly could have had no knowledge that they were wanted for this offense, so as to have precipitated the flight. The [defendants] had escaped from work release and were travelling in a stolen vehicle. The prejudicial effect of the evidence concerning all of the collateral offenses is doubtless, while the probative value is extremely dubious. 'The only possible inference that can be drawn from such evidence is that [the defendants were] more likely to commit the offense charged than what might otherwise have been the case.' Ex parte Tomlin, 548 So.2d 1341, 1343 (Ala.1989) (... evidence that the defendant committed two drug-related offenses more than 10 years before the present charge was [held to be] too remote to satisfy the [requirement of] relevancy of the evidence). Because this evidence concerning the flight and collateral offenses connected thereto should not have been admitted at trial, this cause is reversed and remanded."

(Emphasis added.) Thereafter, the Court of Criminal Appeals overruled the state's application for rehearing, but granted the state's Rule 39(k), Ala.R.App.P., motion and issued an extended opinion. In the extended opinion, addressing the state's arguments concerning the Court of Criminal Appeals' holding on what the state contended were "erroneous findings of fact," the Court of Criminal Appeals again stated that "because of the prejudicial nature of this [flight] evidence, we cannot hold that its admission was harmless." Subsequently, the state petitioned for the writ of certiorari, which we granted in order to address the Court of Criminal Appeals' reversal of the convictions based on its holding that the trial court erred in admitting evidence of flight and evidence of the collateral offenses connected thereto.

The facts pertinent to a resolution of the issue in this case are as follows:

On September 28, 1986, the victim, Coy Eugene Barron, was killed by one of several bullets fired by the defendants. During the defendants' consolidated trial for the capital murder of Barron, over defense counsel's objection the state introduced evidence that on November 22, 1986, approximately two months after Barron was killed, a dramatic chase between the defendants and a state trooper occurred and that that chase ended in the capture of the defendants. The state's evidence showed that a state trooper, noticing a vehicle with only a "dealer's display tag" travelling in front of him, pulled alongside the vehicle, observed the driver and the passenger, and then signalled the driver to stop. The defendants sped away, with the state trooper in pursuit; he pursued them for approximately 30 miles, with the vehicles reaching speeds in excess of 100 miles per hour. According to the state trooper, during the chase the windows that had been previously rolled up had been rolled down; the passenger, holding what appeared to be a large handgun, moved to the rear seat of the vehicle and repeatedly fired the handgun at him. The automobile chase ended with the defendants' vehicle mired in mud in a pasture; the defendants fled on foot. Within minutes, 20-30 law enforcement officers arrived on the scene, walked to the vehicle, looked inside it, and saw two boxes of ammunition (.44 magnum and .357 magnum) on the floorboard. Thereafter, the officers searched the area, found the defendants, and took them into custody. An inventory of the contents of the vehicle produced a 9-millimeter semi-automatic pistol and a .25 caliber semi-automatic pistol in a metal ammunition box from the trunk of the vehicle; two empty 18-round clips for the 9-millimeter pistol; two partially filled boxes of ammunition (one box contained fourteen .44 caliber magnum bullets and one contained thirty-nine .357 caliber magnum bullets). When the inventory was conducted, three projectiles (or the portions of bullets known as bullet jackets) were removed from the right rear taillight assembly of the vehicle. Testimony established that the inside of the rear of the vehicle contained three marks, each approximately two inches long and a quarter inch wide, all within a 10-12 inch circumference, slightly off center, and located behind the right passenger side of the vehicle on the same side where the bullet jackets were recovered from the taillight area; and that "shiverous material" (pieces of lead smaller than bullets, or shivers) was found inside the vehicle. The Alabama Department of Forensic Sciences determined that the three bullet jackets recovered from the vehicle had been fired from the same barrel, but that the bullet that killed the victim had been fired from a different barrel. Further testimony established that the vehicle in which the defendants were travelling had been stolen; that both defendants were escapees from state work release programs (Musgrove had escaped in June 1986--approximately five months before the chase; Rogers had escaped in August 1986--approximately three months before the chase); and that around September 29, 1986 (approximately two months before the chase), the defendants had become named suspects in the capital murder case.

The defendants contend that in this case the evidence of flight was so remote from, or so unconnected with, the killing of Barron two months before the chase that its probative value was outweighed by its prejudicial effect. They base their contention on the fact that as armed escapees from work release programs travelling in a stolen vehicle, they faced the risk of reincarceration and criminal charges for escape, and their claim that this risk established other plausible explanations for their flight; on the fact that there was no evidence in the record that they knew that they were named suspects in the investigation of the underlying capital murder; and on the fact that their flight occurred two months after the underlying capital murder. They contend that these facts make the third inference of guilt discussed in Ex parte Jones, 541 So.2d 1052 (Ala.1989)--the inference of consciousness of guilt concerning the crime charged, drawn from consciousness of guilt--extremely weak, and therefore make the evidence of flight inadmissible.

The state contends that the reversal of the defendants' convictions based on this admission of flight evidence and evidence of collateral offenses by the defendants directly conflicts with the holding in Ex parte Jones, supra. The state also contends that the defendants' arguments to the contrary are based on a misreading of Ex parte Jones--that the inferences of guilt referred to by this Court in Ex parte Jones do not affect the admissibility of flight evidence, but affect only the probative value and the weight that evidence is due. Furthermore, the state contends that Ex parte Jones does not hold, as the defendants contend, that the remoteness of the flight compared to the charged crime affects the admissibility of the flight evidence; rather, the state contends that Ex parte Jones holds that the amount of time between the crime charged and the flight from apprehension is merely another factor for the jury to evaluate in determining the weight to give the evidence of flight--that remoteness of evidence goes to the weight to be given to the evidence rather than to its admissibility, and that that is an issue properly...

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52 cases
  • Arthur v. State
    • United States
    • Alabama Court of Criminal Appeals
    • 8 Marzo 1996
    ...equally in capital cases and non-capital cases." Rogers v. State, 630 So.2d 78, 84 (Ala.Cr.App.1991), reversed on other grounds, 630 So.2d 88 (Ala.1992) and Page 1067 cited therein. In a situation similar to that of the instant case, McCall v. State, 501 So.2d 496, 499-500 (Ala.Cr.App.1986)......
  • Reynolds v. State Of Ala.
    • United States
    • Alabama Court of Criminal Appeals
    • 1 Octubre 2010
    ...equally in capital cases and noncapital cases." Rogers v. State, 63 0 So. 2d 78, 84 (Ala. Crim. App. 1991), rev'd on other grounds, 630 So. 2d 88 (Ala.1992), aff'd on remand, sub nom. Musgrove v. State, 638 So. 2d 1347 (Ala. Crim. App. 1992), aff'd, 638 So. 2d 1360 (Ala. 1993), cert, denied......
  • Williams v. State
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    • Alabama Court of Criminal Appeals
    • 23 Agosto 1996
    ...equally in both capital cases and noncapital cases." Rogers v. State, 630 So.2d 78 (Ala.Cr.App.1991), rev'd on other grounds, 630 So.2d 88 (Ala.1992). "An invited error is waived, unless it rises to the level of plain error." Ex parte Bankhead, 585 So.2d 112, 126 (Ala.1991). If any error di......
  • Osgood v. State
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    • Alabama Court of Criminal Appeals
    • 29 Mayo 2020
    ...equally in both capital cases and noncapital cases.' Rogers v. State, 630 So. 2d 78 (Ala. Crim. App. 1991), rev'd on other grounds, 630 So. 2d 88 (Ala. 1992). 'An invited error is waived, unless it rises to the level of plain error.' Ex parte Bankhead, 585 So. 2d 112, 126 (Ala. 1991)."Willi......
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