Apicella v. State

• Decision Date: 25 February 2000
• Citation: Apicella v. State, 809 So. 2d 841 (Ala. Crim. App. 2000)
• Court: Alabama Court of Criminal Appeals
• Parties: Andrew Anthony APICELLA v. STATE.

809 So.2d 841

Andrew Anthony APICELLA v.STATE.

CR-96-2285.

Court of Criminal Appeals of Alabama.

February 25, 2000.

Opinion on Return to Remand April 28, 2000.

Opinion on Return to Second Remand June 30, 2000.

Rehearing Denied August 25, 2000.

Erskine R. Mathis, Birmingham, for appellant.

Bill Pryor, atty. gen., and Michelle Riley Stephens, asst. atty. gen., for appellee.

FRY, Judge.

In March 1995the appellant, Andrew Anthony Apicella, was indicted by a Jefferson County grand jury for the offense of capital murder, a violation of § 13A-5-40(a)(10),Ala.Code 1975.¹On May 24, 1996, after a jury trial, Apicella was found guilty of capital murder as charged in the indictment.After a sentencing hearing, the jury, by a vote of eight to four, recommended that Apicella be sentenced to life imprisonment without parole.On August 1, 1997, the trial court, after a hearing, overrode the jury's recommendation and sentenced Apicella to death by electrocution.On May 8, 1998, the trial court denied Apicella's motion for a new trial.This appeal followed.

In its sentencing order, the trial court made the following findings with regard to the facts of the crime:

"The homicides which were the basis for the charge as set out in this indictment occurred on October 16, 1994, between the hours of 12:30 a.m. and 11:00 a.m. at the Changing Times Loungeat 2400 12th Avenue North, Birmingham, Jefferson County, Alabama.The time of occurrence could only be estimated as one of the victims called his son at approximately 12:30 a.m. in the early morning hours of October 16, 1994, and the bodies were discovered at approximately 11:00 a.m. later that morning on October 16, 1994.When the police were called to the scene of the homicides it was determined that five (5)people had been murdered in an `execution-style killing' in that all five (5) of the victims were lying on the floor with either one (1) or two (2) shots to the back of the head.Several of the victims' wounds indicated the presence of powder stippling, showing that the shots were fired from a relatively close range.

"Several witnesses identified the Defendant and the codefendant as being at the lounge that night but each of those witnesses left before the occurrence wherein the homicides were committed.The witnesses testified that the Defendant was accompanied by another man who was subsequently identified as Stephen Porter Pilley, who was the codefendant in this case.

"During the autopsy of each of the victims in this case, bullet projectiles or bullet fragments were recovered from the head of each victim and were subsequently examined by the Alabama Department of Forensic Sciences.It was determined that two (2) different weapons were used in the homicides, one being a .25 caliber pistol and the other being a 9mm pistol.

"Dr. Greg Davis of the Jefferson County Coroner's Office performed the autopsy on each victim and determined that the victim Eddie Dodd received two (2) gunshot wounds to the head of intermediate range, one being of a 9mm bullet and the other a .25 caliber bullet and both wounds show evidence of powder stippling.Dr. Davis further testified that on the autopsy of Ms. Pamela Dodd that she received a .25 caliber bullet wound to the head and did not notice evidence of any powder stippling.Dr. Davis testified that on the autopsy of William Nelson, Sr. that he discovered two (2) gunshot wounds to the head, one being of an apparent 9mm and the other being apparently a .25 caliber.Both wounds had evidence of powder stippling present.He further testified that on the autopsy of James Watkins that there was presence of one (1) .25 caliber bullet wound to the head and did not testify as to the presence of any powder stippling.The last victim, Florence Adell Elliott, received two (2) bullet wounds to the head, both of them being of 9mm.

"Mr. David Higgins of the Alabama Department of Forensic Sciences testified that he examined the spent projectiles that were presented to him by the Jefferson County Coroner's Office and determined that two (2) of the 9mm projectiles had been fired through the same barrel and further that the .25 caliber bullets all had similar characteristics but he could not testify positively that they were fired from the same barrel.All of the .25 bullets were CCI Blazer and the 9mm were Glazer bullets.

"A pair of pants belonging to Apicella was recovered and examined for the presence of bloodstains and the examinations did reveal the presence of bloodstains in several areas on the pants.Ms. Littie Harper of the Alabama Department of Forensic Sciences performed an analysis on the bloodstains observed on the Defendant's pants and was able to determine bloodstains in several areas.One of the bloodstains was consistent with the blood of the victim, Eddie Dodd, and the bloodstain was characterized as a `transfer type stain.'Other stains were observed on the pants and were described by the witness as being consistent with high velocity stains and were observed on the right front thigh area of the pants with a few of the stains in the area below the knees.Ms. Harper could not establish as to the source donor of the bloodstains in this area.

"Further testimony from the State presented evidence that the defendantsAndrew Anthony Apicella and Stephen Porter Pilley were in the Crazy Eight Lounge in Libscomb, Alabama, on the same night as the murders and were observed in conversation with each other.Witness Dennis Smith testified that he overheard a conversation, wherein Andrew Apicella had his arm around Stephen Pilley, saying that he knew a way to make easy money and further that he could get the gun.Shortly after the conversation both Andrew Apicella and Stephen Pilley left the lounge.

"Witness Rhonda Hayes further testified for the State that Andrew Apicella came by her house in the early morning hours of October 16, she further testified that she saw the defendants with approximately $150.00 each and further that there were four or five $2.00 bills in their possession.The significance of the $2.00 bills is that one of the victims, Mr. William Nelson, Sr., had a habit of saving $2.00 bills and was in possession of several $2.00 bills on the occasion of this homicide.Rhonda Hayes further testified that the defendants were in possession of narcotics and that she shared the narcotics with both defendants on that night.

"The evidence presented by the use of photographs and a video of the scene indicated that the [Changing Times] lounge had been partially ransacked during the course of the commission of the homicides.[The] cash register [was] damaged and the contents removed.It was further indicated that apparently the possessions of the victims were removed from them as jewelry belonging to the victims was later turned over to the police by an attorney representing [Apicella]."

(Supp.R.p. 15-19.)

I.

Apicella contends that the trial court erred in denying his motion for a new trial.Specifically, Apicella claims that his conviction and his sentence of death are due to be reversed because Juror S.B., prior to deliberations in the guilt phase, "talked to an attorney friend regarding the case."(Apicella's brief to this Courtat p. 1.)

"[J]urors are prohibited from conducting independent investigations into any issue that arises during the trial of a case.Where juror misconduct has occurred, the question becomes whether the misconduct warrants a new trial.SeeHall v. State,348 So.2d 870, 875(Ala.Cr.App.1977)(`The ruling of the trial judge denying a motion for new trial will not be disturbed in the absence of a showing of abuse of discretion, and this Court will indulge every presumption in favor of the correctness of his ruling.')."

Reynolds v. City of Birmingham,723 So.2d 822, 824(Ala.Cr.App.1998).

During the hearing on Apicella's motion for a new trial, the trial court called Juror S.B. as a witness so that the prosecution and defense counsel could cross-examine him about his contact with Toby Roth, a local attorney.During cross-examination by the prosecutor, the following occurred:

"[Prosecutor]: And did you talk with Mr. Roth on occasions prior to rendering your verdict in this case?

"[Juror S.B.]: Yes.

"[Prosecutor]: Do you recall the subject of your conversation with Mr. Roth when you called him?

"[Juror S.B.]: Yes, I do.I asked him if he could give me any insight into the law of complicity, which was discussed in jury selection.

"[Prosecutor]: Okay.Prior to calling him, you had been made aware that the case depended in some part on the law of complicity otherwise known as aiding and abetting?

"[Juror S.B.]: That's correct.

"[Prosecutor]: And you had some questions about that, I take it?

"[Juror S.B.]: That's correct.

"[Prosecutor]: All right.Now, do you recall what Mr. Roth told you about the law of complicity?

"[Juror S.B.]: No, I don't exactly.It's kind of interesting.I called him, must have been around supper time, and his wife had not gotten home yet.So he was [tending to] his little girl.She must have been about nine months.He answered the phone and she was crying at the top of her lungs.So, I was asking him a question and he was trying to tend to her.And he'd try to give me an answer and then he'd stop.And then he'd try to come back and stopped.It was pretty obvious that he was preoccupied.

"The conversation probably lasted two and a half minutes before his wife came in.She came in from work and I heard her talking to him in the background.And I knew, you know, I'd better, for his sake, let him go.Didn't look like he was doing, you know, that great at that time.

"So, you know, I let him go and really didn't get into any substantive conversation.

"[Prosecutor]: Did he tell you anything about the law of complicity?

"[Juror S.B.]: The gist of the substance of the call, as I interpreted it, was that in some cases some people may be held responsible for other people's actions.

"[Prosecutor]:

...