Billups v. State, No. CR-05-1767 (Ala. Crim. App. 11/13/2009)
| Decision Date | 13 November 2009 |
| Docket Number | No. CR-05-1767.,CR-05-1767. |
| Parties | Kenneth Eugene Billups v. State of Alabama |
| Court | Alabama Court of Criminal Appeals |
Appeal from Jefferson Circuit Court, (CC-05-1755).
The appellant, Kenneth Eugene Billups, was convicted of capital murder for the killing of Stevon Lockett. The murder was made capital because he committed it during the course of a first-degree robbery. See § 13A-5-40(a) (2), Ala. Code 1975.
After a sentencing hearing, by a vote of 7-5, the jury recommended that Billups be sentenced to imprisonment for life without the possibility of parole. The trial court overrode the jury's recommendation and sentenced him to death. Billups filed a motion for a new trial, which the trial court denied. This appeal followed.
Because this is a case in which the death penalty has been imposed, we have reviewed it for plain error. See Rule 45A, Ala. R. App. P. Although the lack of an objection at trial will not bar our review of an issue in a case involving the death penalty, it will weigh against any claim of prejudice the appellant may raise. See Ex parte Kennedy, 472 So. 2d 1106 (Ala. 1985). Rule 45A, Ala. R. App. P., 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 ... whenever such error has or probably has adversely affected the substantial right of the appellant. "
"[This] 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. Young, 470 U.S. 1, 15, 105 S. Ct. 1038, 1046, 84 L. Ed. 2d 1 (1985) (quoting United States v. Frady, 456 U.S. 152, 163 n.14, 102 S. Ct. 1584, 1592 n.14, 71 L. Ed. 2d 816 n.14 (1982)).
Misty McReath testified that the victim, Stevon Lockett, whose nickname was "T", was her boyfriend and that they were living together in December 2003. She also testified that, on the night of December 12, 2003, the victim was getting ready to go hunting the next morning. She further testified that she had bought the victim a handgun, which was later identified as a Highpoint 9 mm, and that the victim always had it with him.
McReath testified that, during the evening of December 12, 2003, the victim received several calls on his cellular telephone, but did not answer them because he did not want to go anywhere that night. However, later, he answered his telephone a few times, told her he "had to go make a run," and said he would be right back. McReath explained that, when the victim said he was going to "make a run," he meant that he was going to meet someone to buy or sell drugs. She also stated that the victim left between midnight and 12:30 a.m. and that he had his gun and $5, 400 with him. The State presented records from the victim's cellular telephone that showed several incoming calls from and outgoing calls to Billups's cellular telephone on December 12-13, 2003.
McReath testified that she had seen Billups on several previous occasions when the victim had bought drugs from him or sold drugs to him. She also testified that she had been to Billups's house on Old Springville Road with the victim. McReath testified that, one or two months before the victim was killed, Billups sold him something that was supposed to be cocaine but was actually sugar; that the victim and Billups had gone to the person from whom Billups had bought the substance, and the person made it right; and that the person told the victim to deal with him in the future rather than going through Billups.
The State presented evidence that, at approximately 3:15 a.m. on December 13, 2003, Officer Lincoln Blue of the Birmingham Police Department responded to a report about a pickup truck that was on fire in an alley in the East Lake area. Fire department personnel put out the fire and discovered the dead body of the victim in the back seat of the truck. Because it had been burned extensively, the victim's body was identified using dental records.
The State also presented evidence that, on December 16, 2003, four Hispanic men — 27-year-old Manuel Nunez, 25-year-old Rafael Salcedo, 24 year-old Enrique Marquez, and 20-year-old Wilbur Gomez — were killed at Osman Valladres's residence at Avanti East Apartments. Valladres and Pablo Stuart were able to escape from the apartment and reported the incident to law enforcement officers.
Osman Valladres testified that, on December 16, 2003, he and Pablo Stuart went to Billups's house on Old Springville Road to get some marijuana. When they went into the kitchen, Billups, his girlfriend, Quinton Parrish, and Charles Cooper pulled guns on them, duct taped their hands, and made them telephone some people and tell them to bring marijuana and cocaine to his apartment. They all then went to his apartment and telephoned the other people again. He testified that the men talked about robbing and killing the Hispanic men when they got there.
Valladres testified that two men came to the apartment, saw some money, and said they would bring the drugs. Later, four Hispanic men arrived with approximately thirty-five pounds of marijuana. Valladres testified that Billups and Quinton started shooting the four Hispanic men and that he ran out of the apartment and subsequently contacted law enforcement authorities.
Sergeant Robert Thompson of the Jefferson County Sheriff's Department testified that he responded to Valladres's apartment on December 16, 2003. He also testified that Billups became a suspect after he spoke to Stuart and Valladres, that he obtained a warrant to search Billups's residence at 5918 Old Springville Road, and that the warrant was executed on December 17, 2003. At that time, officers found the victim's Highpoint 9 mm handgun and some marijuana between a mattress and box spring in Billups's brother's bedroom. They also found duct tape that matched that described by Stuart and Valladres and papers related to Robina Catrina Courthers. Thompson testified that United States Marshals eventually located Billups in Iowa with Courthers. Finally, he testified that he was not looking for and did not see any blood when he searched Billups's residence on December 17, 2003.
Dr. Gary T. Simmons, a forensic pathologist for the Jefferson County Coroner/Medical Examiner's Office, performed an autopsy on the victim's body. He testified that the victim suffered six gunshot wounds to the head and face, including four to the left side, one to the right side, and one to the back of the head. He also testified that, based on his examination of the victim's body, he believed the victim was already dead when the fire started.
Simmons testified that he received the bodies of the four Hispanic males on December 16, 2003. He also testified that Nunez died of three gunshot wounds to the back of his head; that Salcedo died of gunshot wounds to his face and the back of his neck; that Marquez died of gunshot wounds to the back of his head, the back of his shoulder, his right back, his right hip, his left thigh, and his right arm; and that Gomez died of gunshot wounds to the back of his head, his right arm, his right chest, and his right wrist.
Officer David Rockett of the Birmingham Police Department testified that he assisted in executing a search warrant at Billups's residence at 5918 Old Springville Road on January 15, 2004. In the kitchen area, they found what appeared to be a bullet hole in the floor, an area where some of the linoleum flooring had been torn up, and an empty shell casing.
Carl Mauterer, a forensic biologist with the Alabama Department of Forensic Sciences, testified that, on January 14, 2004, he went to Billups's residence at 5918 Old Springville Road to search for blood evidence using luminol. While he was there, he observed evidence of blood on a wall, the floor, a chair, and a mop in the kitchen. There was also evidence of blood on some stairs, the floor, a pillow at the bottom of a stairwell from the kitchen to the basement, and a heater that was in the basement. Mauterer testified that DNA testing confirmed that the blood on the wall, heater, and floor matched the victim's blood.
Mitch Rector, a firearms and toolmarks examiner with the Birmingham Police Department, testified that five of the bullets that were recovered from the victim were fired from the same gun. He also testified that one of the bullets that was recovered from the case involving the killings of the four Hispanic men could not be positively identified as having been fired from the same gun, but it also could not be excluded.
William E. Moran, the firearms and toolmarks discipline chief for the Alabama Department of Forensic Sciences, testified that he examined the shell casing from Billups's kitchen, a shell casing from Valladres's apartment, and a Taurus 9 mm handgun a diver found in a lake and determined that both shell casings had been fired from that gun. He also testified that another bullet from the case involving the four Hispanic men had similarities to the bullets that were fired from the Taurus, but did not have enough microscopic detail for him to make a positive identification. Moran further testified that the remaining eleven shell casings from Valladres's apartment matched each other and had been fired from the same gun.
Charles Cooper testified that, on December 13, 2003, he went to Billups's house on Old Springville Road and saw Courthers on her hands and knees wiping blood off of the kitchen floor. He also testified that he asked Billups what happened, and Billups told him he had to kill the victim, whom he referred to as "T, " the night before. Cooper testified that Billups had blood on his hands and that Billups threw him two bags of marijuana he had gotten from the victim.
Cooper testified that, at another time, he, Billups, and Parrish were talking about what occurred with the victim. At that time,...
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