Beverly v. State
Decision Date | 31 May 1983 |
Docket Number | 8 Div. 701 |
Parties | Matthew BEVERLY v. STATE. |
Court | Alabama Court of Criminal Appeals |
Morris S. Dees, Jr., Montgomery, for appellant.
Charles A. Graddick, Atty. Gen., and Rivard D. Melson, Asst. Atty. Gen., for appellee.
The defendant was indicted and convicted for the capital offense involving the intentional killing and robbery of Scott Deroo. Sentence was life imprisonment without parole.
The defendant was indicted under Section 13A-5-31(a)(2), Alabama Code 1975, defining the capital offense of "(r)obbery or attempts thereof when the victim is intentionally killed by the defendant." The jury found the defendant "guilty of robbery in which the victim, Scott Deroo, was intentionally killed." The defendant was not indicted and convicted under what is now Section 13A-5-40(a)(2), defining the capital offense of "(m)urder by the defendant during a robbery in the first degree or an attempt thereof committed by the defendant." Section 13A-5-31 was repealed and replaced by Section 13A-5-40, effective July 1, 1981.
The defendant contends that the evidence adduced at trial is insufficient to support the conviction. He argues with considerable skill and diligence that there was "absolutely no evidence offered showing the victim was robbed."
Viewing the evidence and all inferences arising therefrom in a light most favorable to the State, we find that the prosecution completely and totally failed to prove that the defendant robbed Deroo of a backpack as alleged in the indictment.
The pertinent facts when considered most favorably towards the State reveal that on the tenth of April 1979 Melissa Hefner, age fifteen, and Scott Deroo, age nineteen, began hitchhiking from Superior, Wisconsin, to Tampa, Florida, to visit Deroo's mother. The defendant and his two companions picked up the two hitchhikers in Birmingham, Alabama, between 8:00 and 9:00 that night. Ms. Hefner had with her a green duffle bag containing her clothing. Deroo carried his personal items in an orange backpack.
The two hitchhikers returned with the defendant and his friends to Huntsville, Alabama, upon the defendant's offer of lodging for the night and because Deroo was unfamiliar with the way to Tampa from Birmingham. On the trip from Birmingham to Huntsville everyone smoked marijuana and drank beer. It is undisputed that "(a)t some point along the way, the duffle bag and orange backpack were placed in the trunk of the car to keep Appellant's friend Bubba from having to hold the backpack in his lap." (Appellee's Brief, p. 5).
Norman ("Bubba") Cook, Jr. testified:
....
The defendant's other friend, Jerry Lee Francis, testified that on their return from Birmingham to Huntsville the backpack and the duffle bag were placed in the trunk when they "stopped off the interstate to use the bathroom." He did not remember who placed this "stuff" in the trunk.
Arriving in Huntsville at approximately 1:00 a.m., the defendant drove to Bubba's residence and asked Bubba if he had any .22 caliber shells. Bubba went in his residence and searched but was unable to find any. When Bubba returned and said he could not find them, Jerry said, "Well, I have some, I'll give you a couple, I don't have a box but I'll give you a couple."
Jerry and the defendant then got into the car where the hitchhikers had been waiting and drove to Jerry's house. There, Jerry went into the house and returned and gave "six or seven bullets" to the defendant.
The defendant had made no mention of shooting Deroo to either Bubba or Jerry. Both Jerry and Bubba testified that the defendant had talked about shooting fish and "hunting and stuff and fishing" when they had been at Braham Springs earlier that day before they went to Birmingham and picked up the hitchhikers.
After receiving the bullets, the defendant returned to the car alone and drove off with the two hitchhikers still in the back seat of his automobile. Quoting from the Attorney General's brief:
When the defendant attempted to leave the station, his car would not start. The defendant paid an attendant to drive them to a friend's house where the defendant forced Melissa to spend the night.
The next morning the defendant drove his friend's Toyota to the Tenneco Station where he retrieved Melissa's duffle bag and Deroo's backpack from the trunk of his car and placed them in the Toyota.
Again, from the brief of the Attorney General:
When the defendant drove away, Deroo's backpack was in the back of the Toyota. Ms. Hefner was soon picked up by a passing State Trooper. The defendant was arrested at the friend's house where he had forced her to spend the night.
Two days later Deroo's body was found. On Deroo's wrist was a watch and $31.39 was found in his right front pocket. Nothing else was found in his clothing. His backpack was later found near the spot where the defendant had released Ms. Hefner. Even later, Deroo's social security card was found in the median of Highway 72.
The State proved that the murder weapon, a .22 caliber rifle, was purchased by the defendant in July of 1976.
The State also showed that a headband Deroo had in his back pocket when he was shot was found lying near the body at the shooting scene.
Under the indictment, the State had to prove robbery when the victim is intentionally killed. Section 13A-5-31(a)(2). As the trial judge instructed the jury, "By charging the Defendant under this category of a capital felony as it is described, the law casts upon the state the burden to prove beyond a reasonable doubt that the Defendant is guilty of the offense of robbery and of the offense of intentionally killing the victim of that robbery."
The three essential elements of common law robbery are: (1) the felonious intent, (2) force or putting in fear as a means of effectuating the intent, and (3) by that means, taking and carrying away the personal property of another from his person or in his presence, all of these elements concurring in point of time. The violence or putting in fear must precede or be...
To continue reading
Request your trial-
Connolly v. State
...accused is not guilty of capital robbery-murder where the intent to rob was formed only after the victim was killed. Beverly v. State, 439 So.2d 758 (Ala.Cr.App.1983). To sustain a conviction under § 13A-5-40(a)(2) for capital murder-robbery, the State must prove beyond a reasonable doubt: ......
-
Bradley v. State
...So.2d 128 (Ala.Cr.App.1983); Potts v. State, 426 So.2d 886 (Ala.Cr.App.1982), affirmed, 426 So.2d 896 (Ala.1983). Cf. Beverly v. State, 439 So.2d 758 (Ala.Cr.App.1983). Although an autopsy revealed no "evidence of trauma in genitalia area," the evidence was also sufficient to show that the ......
-
Hays v. State, 1 Div. 822
...thereof when the victim is intentionally killed by the defendant") as charged in the indictment. He relies upon Beverly v. State, 439 So.2d 758 (Ala.Cr.App.1983). In that case, Matthew Beverly was convicted of the capital offense involving the intentional killing and robbery of Scott Deroo.......
-
Ex parte Beverly
...victim was deprived of his property by force or fear as charged in the indictment. 2 This court denied certiorari. See Beverly v. State, 439 So.2d 758 (Ala.Cr.App.1983). In February 1984, the petitioner was charged in a four-count indictment with murder in the first degree, rape, kidnapping......