Buford v. State

• Decision Date: 26 March 2004
• Citation: 891 So.2d 423
• Parties: Octavious Corte BUFORD v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

891 So.2d 423

Octavious Corte BUFORD v. STATE of Alabama.

CR-03-0042.

Court of Criminal Appeals of Alabama.

March 26, 2004.

John C. Taylor, Huntsville, for appellant.

William H. Pryor, Jr., atty. gen., and Beth Slate Poe, asst. atty. gen., for appellee.

SHAW, Judge.

The appellant, Octavious Corte Buford, was convicted of two counts of capital murder, see §§ 13A-5-40(a)(2) and 13A-5-40(a)(4), Ala.Code 1975; one count of attempted murder, see §§ 13A-4-2 and 13A-6-2, Ala.Code 1975; one count of burglary in the first degree, see § 13A-7-5(a)(1), Ala.Code 1975; and one count of robbery in the first degree, see § 13A-8-41(a)(1), Ala.Code 1975. Following the verdicts, the State advised the trial court that it was not seeking the death penalty for the capital-murder convictions and the trial court sentenced Buford to life imprisonment without the possibility of parole for each capital-murder conviction. Following a sentencing hearing, Buford was sentenced to life imprisonment for each of the three remaining convictions; those sentences were to run consecutively.

The evidence adduced at trial indicated that on December 29, 1999, armed with handguns and a shotgun, Buford and two accomplices, Gabriel Dona Birdsong, and Lavoris Deshawn Hampton, also known as "Crusher," forced their way into the residence of Milton and Marie Hines, in Tanner, Alabama, where Milton, Marie, and several relatives and other guests were present.¹ According to the eyewitness testimony, Quentin Troupe, a friend of one of Milton and Marie's sons, had fallen asleep in a chair. The testimony indicated that Troupe awoke when the men came in and that, at that time, one of the intruders began firing his weapon. Troupe was shot four times and died as a result of his wounds; Bill Oscar Lee, Jr., another friend of one of Milton and Marie's sons, was shot once in the leg. The testimony indicated that the gunmen searched Troupe's pockets and asked the other individuals present in the house for their money before fleeing.

Lee testified that he recognized one of the men, who he knew as "Crusher," and said that he called out that name when he realized that the men were carrying firearms. According to Lee, Troupe, who had been asleep in a chair, woke up when the men yelled "get down" (R. 485); Lee testified that the man he recognized as "Crusher" shot and killed Troupe and then turned and shot him as well. Amber Kirby, the girlfriend of Milton and Marie's son, Travis, and Marie both testified that they heard Lee call out "`What's up, Crusher?'" (R. 463) or "`Crusher, what's up?' '" (R. 469), immediately before the gunshots were fired.

Lee further testified that he recognized Buford as one of the other gunmen, even though Buford's face was covered during the incident. Lee stated that he only knew Buford as "Ta-ta"; that he recognized Buford by his body shape, height, and weight; and that he learned Buford's real name from a newspaper article following Buford's arrest.

The evidence also indicated that one of the men fired two shots into a sports utility vehicle ("SUV") parked in front of the Hines residence — further testimony indicated that a pager discovered that night in the street next to the SUV belonged to Birdsong.² Additional testimony indicated that the men got into a Ford F-150 pickup truck and drove away. A neighbor followed the men as they fled in the pickup truck and was able to get a partial license plate number of the truck. Sylvester Jones, Jr., testified that he loaned his red Ford F-150 pickup truck to Birdsong's brother the day of the shootings; the license plate number of the truck corresponded with the partial license plate number of the getaway vehicle.

The State presented testimony that placed Buford, Hampton, and Birdsong in a red Ford pickup truck in Tanner shortly before the offenses were committed. Further, Rasheka Goode testified that Buford, Hampton, and Birdsong came to her house on the evening of December 29, 1999. According to Goode, Buford asked her for a T-shirt; she testified that Buford had what appeared to be a bloodstain on his shirt. Buford was taken into custody at his girlfriend's house approximately five to six hours after the incident and was questioned at approximately 2:30 a.m. on the morning of December 30, 1999; Hampton and Birdsong were arrested in Indiana approximately one week later.

I.

Buford first argues that the State failed to present sufficient evidence "to support a verdict of capital murder." (Buford's brief at p. 15.) Although he couches his claim in terms of the sufficiency of the State's evidence, his argument challenges both the weight and sufficiency of the State's evidence — in addition to arguing that the State did not present any evidence establishing that he had the intent to kill, Buford challenges the credibility of the State's witnesses and alleged inconsistencies in the evidence.

"`In determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution.'" Ballenger v. State, 720 So.2d 1033, 1034 (Ala.Crim.App.1998), quoting Faircloth v. State, 471 So.2d 485, 488 (Ala.Crim.App.1984), aff'd, 471 So.2d 493 (Ala.1985). "`The test used in determining the sufficiency of evidence to sustain a conviction is whether, viewing the evidence in the light most favorable to the prosecution, a rational finder of fact could have found the defendant guilty beyond a reasonable doubt.'" Nunn v. State, 697 So.2d 497, 498 (Ala.Crim.App.1997), quoting O'Neal v. State, 602 So.2d 462, 464 (Ala.Crim.App.1992). "`When there is legal evidence from which the jury could, by fair inference, find the defendant guilty, the trial court should submit [the case] to the jury, and, in such a case, this court will not disturb the trial court's decision.'" Farrior v. State, 728 So.2d 691, 696 (Ala.Crim.App.1998), quoting Ward v. State, 557 So.2d 848, 850 (Ala.Crim.App.1990). "The role of appellate courts is not to say what the facts are. Our role . . . is to judge whether the evidence is legally sufficient to allow submission of an issue for decision [by] the jury." Ex parte Bankston, 358 So.2d 1040, 1042 (Ala.1978).

Section 13A-2-23, Ala.Code 1975, provides, in part:

"A person is legally accountable for the behavior of another constituting a criminal offense if, with the intent to promote or assist the commission of the offense:

"(1) He procures, induces or causes such other person to commit the offense; or

"(2) He aids or abets such other person in committing the offense. . . ."

The Commentary following § 13A-2-23 states that "[e]ach person who joined [the] unlawful enterprise is responsible for the results whether committed by one or all, Carlisle v. State, 36 Ala.App. 241, 58 So.2d 638 [(1951)], cert. denied, 257 Ala. 282, 58 So.2d 641 (1952)."

"`[I]n Alabama, an individual who is present with the intent to aid and abet in the commission of an offense is as guilty as the princip[al] wrongdoer.' Price v. State, 725 So.2d 1003, 1055 (Ala.Crim.App.1997), aff'd, 725 So.2d 1063 (Ala.1998). `The words "aid and abet" encompass all assistance by acts, words of encouragement, or support, or presence, actual or constructive, to render assistance should it become necessary.' Henry v. State, 555 So.2d 768, 769 (Ala.Crim.App.1989). `The culpable participation of the accomplice need not be proved by positive testimony, and indeed rarely is so proved. Rather, the [the trier of fact] must examine the conduct of the parties and the testimony as to the surrounding circumstances to determine its existence.' Miller v. State, 405 So.2d 41, 46 (Ala.Crim.App.1981) (citation omitted). `The [trier of fact] is to determine whether the appellant's participation exists and the extent of it from the conduct of the parties and all the testimony presented.' Walls v. State, 378 So.2d 1186, 1191 (Ala.Crim.App.1979). `Such facts as the defendant's presence in connection with his companionship, his conduct at, before, and after the commission of the act, are potent circumstances from which participation may be inferred.' Sanders v. State, 423 So.2d 348, 351 (Ala.Crim.App.1982). However,

"`"[t]he mere fact that a person witnesses a crime does not make him an accomplice." Nelson v. State, 405 So.2d 392, 397 (Ala.Cr.App.1980), reversed on other grounds, 405 So.2d 401 (Ala.1981). "The mere presence of a person at the time and place of a crime is not sufficient to justify his conviction for the commission of the crime." Dolvin v. State, 391 So.2d 129, 133 (Ala.Cr.App.1979), reversed, 391 So.2d 133 (Ala.1980). However, "if presence at the time and place a crime is committed, in conjunction with other facts and circumstances, tends to connect the accused with the commission of the crime, then the [trier of fact] may find the accused guilty." Dolvin, 391 So.2d at 137. "[P]resence, companionship, and conduct before and after the offense are circumstances from which one's participation in the criminal intent may be inferred." 22 C.J.S. Criminal Law § 88(2)(d) (1961). Gibson v. State, 49 Ala.App. 18, 20, 268 So.2d 49 (1972).

"`. . . .

"`Although mere presence at the time and place of a crime is not sufficient to justify a conviction for the commission of that crime, presence is a factor to be considered by the [trier of fact] in determining the guilt of the accused because "mere presence does establish a `material fact, which is the opportunity of defendant to commit the offense.'" German [v. State], 429 So.2d [1138,] 1141 [(Ala.Crim.App.1982)].

"`To make one accused of a crime an accomplice, "the State must adduce some legal evidence implying that he either recruited, helped or counseled in preparing the [crime] or took or undertook some part in its commission. Criminal agency in another's offense is not shown merely by an exhibition of passivity."

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