Beard v. State

• Citation: 612 So.2d 1335
• Decision Date: 30 September 1992
• Docket Number: CR-90-1333
• Parties: James David BEARD v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1335

612 So.2d 1335

James David BEARD v. STATE.

CR-90-1333.

Court of Criminal Appeals of Alabama.

Sept. 30, 1992.

Rehearing Denied Nov. 25, 1992.

Certiorari Denied Feb. 26, 1993

Alabama Supreme Court 1920424.

Roger Dale Centers, Albertville, and Dale Fuller, Boaz, for appellant.

James H. Evans, Atty. Gen., and Andy Poole and Melissa Math, Asst. Attys. Gen., for appellee.

PATTERSON, Presiding Judge.

The appellant, James David Beard, was indicted during the August 1990 term by the grand jury of Marshall County in a two-count indictment for the offenses of murder, made capital because it was committed during a robbery in the first degree, in violation of § 13A-5-40(a)(2) (Count I), and of murder made capital because it was committed during a burglary in the first degree, in violation of § 13A-5-40(a)(4) (Count II). The indictment reads, in pertinent part, as follows:

"[Count I]

"The Grand Jury of said County charge that before the finding of this Indictment James David Beard ... did intentionally cause the death of another person, Jesse H. Pitts, by shooting him with a pistol and James David Beard caused said death during the time that James David Beard was in the course of committing a theft of an undetermined amount of lawful money or currency of the United States of America, a further description which to the Grand Jury is otherwise unknown, the property of Jesse H. Pitts, by threatening the imminent use of force against the person of Jesse H. Pitts, with intent to compel acquiescence to the taking [of] or escaping with the property, while the said James David Beard was armed with a deadly weapon, to-wit: a pistol, a further description which to the Grand Jury is otherwise unknown, in violation of § 13A-5-40(a)(2) of the Code of Alabama, 1975, as last amended....

"COUNT II

"The Grand Jury of said County charge that before the finding of this Indictment James David Beard ... did intentionally cause the death of Jesse H. Pitts, by shooting him with a pistol and James David Beard caused said death during the time that James David Beard knowingly and unlawfully entered or remained, or attempted to enter or remain, unlawfully in the dwelling of Jesse H. Pitts, with intent to commit the crime of theft, therein, and while effecting entry or while in the dwelling or in immediate flight therefrom, said James David Beard, was armed with a deadly weapon, to-wit: a pistol, a further description which to the Grand Jury is otherwise unknown, in violation of § 13A-5-40(a)(4) of the Code of Alabama, 1975, as last amended...."

At arraignment on February 4, 1991, the appellant pleaded not guilty. On April 13, 1991, a jury found him guilty of the capital offense of murder committed during a burglary in the first degree, as charged in Count II (§ 13A-5-40(a)(4)). After a sentencing hearing before the jury in accordance with §§ 13A-5-43 through -46, the jury, by a majority vote of eight to four, returned an advisory verdict recommending a sentence of life imprisonment without the possibility of parole. See § 13A-5-46(f) (providing, in part, that "an advisory verdict recommending a sentence of life imprisonment without parole must be based on a vote of a majority of the jurors"). Thereafter, the trial court held another sentencing hearing in accordance with §§ 13A-5-47 through -52, and on June 14, 1991, sentenced the appellant to death.

The state's evidence disclosed as follows. On Monday morning, February 26, 1990, the body of Jesse H. Pitts was discovered in his residence in Albertville, Marshall County, Alabama. He was a jeweler, was 72 years of age, had an artificial leg, and lived alone. His jewelry business and his living quarters were both located in the same residential-type building. His business, which was separated from his residence, was in the front portion of the building, and his living quarters or residence was in the rear of the building. His body was discovered by his housekeeper when she came to work on Monday morning. It was nude and face-down in a pool of blood in the hallway. His housekeeper had last seen him alive around 11:30 a.m. on Saturday, February 24, 1990.

An autopsy disclosed that the victim had three gunshot wounds: one in the abdomen, one in the chest, and one in the forehead. The wound in the abdomen indicated that that shot had not been fired from close range, and this wound would not have been fatal. The chest and forehead wounds indicated that the gun had been fired from close range. These entrance wounds were surrounded by powder burns or "stippling." The chest wound would have brought death within 10 minutes, and the forehead wound would have been "rapidly fatal." The cause of death was the gunshot wounds to the victim's chest and forehead. The bullets that caused the abdomen and chest wounds exited the body, and the bullet that caused the forehead wound was recovered from the victim's cranium. The condition of the body and the undigested food in the victim's stomach indicated that death occurred late Saturday night, February 24, 1990.

The evidence at the scene indicated that the victim was shot first while in what is referred to as the northeast bedroom and that, even though wounded, he moved from the bedroom into the hallway, leaving a trail of blood from the bedroom to the location where his body was found in the hall. Apparently five bullets were fired when the crime was committed. One bullet was embedded in the wall of the hallway, two bullets were embedded in the wall of the northeast bedroom, one bullet was found on the floor at the foot of the bed in the northeast bedroom where it had apparently hit the headboard of the bed and ricocheted to the floor, and one bullet was found in the victim's skull. All the bullets were recovered except one in the bedroom wall; it had fallen into the foundation of the building. The bullets were identified as having been fired from a .38 caliber pistol. The investigation at the scene also revealed a pair of women's yellow socks on the kitchen table; the victim's shirt hanging on a chair near the kitchen table; his trousers hanging on a bedpost in the bedroom where he usually slept; and a white towel on the bed in the northeast bedroom that contained semen stains and two pubic hairs.

When the victim's housekeeper first arrived at the victim's residence on Monday morning, February 26, 1990, she discovered that the jewelry shop was locked and that the burglar alarm was activated. She went from the front of the building to the rear, where the victim's living quarters were located. She found the back door partially open and the separate burglar alarm for the residential portion of the building not activated. It was unusual for the back door to be unlocked. Becoming alarmed, she went next door and got a young man to accompany her into the house, where she discovered the victim's body. There was no evidence of a forced entry into the house.

On the Saturday morning when she last saw the victim alive, the housekeeper observed him with a roll of from "four to five hundred" $100 bills. She also knew that he carried a new billfold, which contained his "papers" and that he kept a .38 caliber pistol lying on a cabinet in the kitchen. Several days before that Saturday that she last saw the victim alive, she observed him write the serial number of the pistol in his telephone book. He told her that if anything ever happened, she should tell the police where he had written the serial number. On the morning that she discovered the victim's body, she observed that the victim's wallet, money, and pistol were missing. She advised the investigators of the location of the serial number, and written in the victim's handwriting on the first page of the telephone book was "Charter Arms .38 Special, Serial number 666482."

On March 7, 1990, the police observed the appellant driving a U-Haul truck north on Interstate 59. Jason Childers was a passenger in the truck. The truck had been rented by the appellant's girlfriend, Tammy Blackburn. The police had a warrant for the appellant's arrest for a probation violation, so they stopped the truck and arrested the appellant pursuant to the warrant. The truck was taken to the Etowah County Sheriff's parking lot, where an inventory search of the truck was conducted. During the search, a .38 caliber pistol was discovered in a guitar case, and a box of .38 caliber live pistol cartridges was found in a brown suitcase. The pistol's serial number was "666482," and the pistol was subsequently identified as the victim's pistol. The appellant's fingerprints were found on two of the cartridges in the box. The state's evidence showed that the guitar and case and the brown suitcase belonged to the appellant.

An expended .38 caliber pistol cartridge was found in an automobile belonging to Terri Cranford, a friend or acquaintance of the appellant. The appellant and Tammy Blackburn had occasionally used this automobile and had possibly used it on the date of the commission of the crime. It was determined that this expended cartridge had been fired from the victim's pistol.

The bullets recovered from the scene of the crime, including the one recovered from the victim's cranium, were compared with bullets subsequently fired from the victim's pistol. The ballistics expert concluded that they had the same general lands characteristics, i.e., the same numbers and sizes of lands and grooves; however, there were insufficient specific characteristics to positively say that they had been fired from that pistol. Thus, the recovered bullets could have been fired from that pistol, but the expert could not positively say that they were. A forensic scientist found that the two pubic hairs found on the towel in the victim's northeast bedroom were consistent with pubic hairs of Tammy Blackburn. He stated that they were "very similar," but he could not make a positive identification.

Terri Cranford, in addition to identifying the guitar...