Calhoun v. State

Citation932 So.2d 923
Decision Date29 April 2005
Docket NumberCR-00-0002.
PartiesJohn Russell CALHOUN v. STATE of Alabama.
CourtAlabama Court of Criminal Appeals

Jeffrey W. Salyer, Birmingham; and William J. Willingham, Talladega, for appellant.

William H. Pryor, Jr., and Troy King, attys. gen., and A. Vernon Barnett IV, Kristi L. Deason Hagood, and Andy Scott Poole, asst. attys. gen., for appellee.

McMILLAN, Presiding Judge.

The appellant, John Russell Calhoun, was convicted of four counts of capital murder for murdering Tracy Phillips during the course of a robbery, during the course of a burglary, during the course of a sodomy, and during the course of a rape. The jury recommended, by a vote of 10 to 2, that Calhoun be sentenced to death. The circuit court accepted the jury's recommendation and sentenced Calhoun to death.

The State's evidence tended to show that on May 8, 1998, Calhoun entered L.P.'s1 and Tracy Phillips's home in Talladega and shot and killed Tracy Phillips. L.P. testified that on the evening of May 8 her neighbor telephoned her to tell her that there was a man looking in the windows of her house. L.P. told her husband, Tracy, and Tracy went to check outside. When Tracy returned to the house Calhoun, who was wearing a stocking mask over his face, was following behind him with a gun. L.P. said that she knew that the man in the mask was Calhoun because he had been to their house that day and she had also seen him when she had been posting signs earlier that day for a yard sale she was having. L.P. said that she ran upstairs to one of the bedrooms to hide her daughter and her daughter's friend and locked the bedroom door behind her. Moments later, she said, Tracy yelled from behind the door that Calhoun had a gun to his head and that if she did not open the door Calhoun would kill him. She complied and Calhoun entered the bedroom. Tracy pleaded for their lives and offered him money and jewelry. Calhoun declined and told L.P. to take off her clothes, get on the bed, and spread her legs. L.P. complied. Calhoun pushed Tracy's head between his wife's legs, held the gun to the back of Tracy's head, and pulled the trigger. The coroner testified that Tracy died of a gunshot wound to the back of his head, which severed his brain stem.

After shooting Tracy, Calhoun dragged L.P. downstairs, where he raped, sodomized, and beat her. She said that at one point she struggled with Calhoun for the gun, he became enraged, and he pointed the gun at her and pulled the trigger, but the gun did not fire. Calhoun then raped her again and told her to get any money that she had upstairs. She refused to go back upstairs because her husband's body was there, but she told Calhoun that she had jewelry in a downstairs bathroom. L.P. gave him some jewelry, he threw some of it down, and he left. L.P. then telephoned emergency 911.

A person matching Calhoun's description was seen fleeing the murder scene. Neighbors also saw Calhoun's car near the murder scene. One neighbor telephoned emergency 911. Police issued a "BOLO" for Calhoun's vehicle. After police were unsuccessful in locating Calhoun's vehicle, Charles Hedrick, a sheriff in the Talladega County Sheriff's Department, went to the area where Calhoun's mother lived and found Calhoun's vehicle hidden in some bushes. The next morning police returned to the area and conducted an extensive search. Officer Wren Cooley of the Talladega Police Department spotted Calhoun in the area, pursued him on foot, but lost him. At one residence police obtained consent to search the homeowner's house and discovered Calhoun hiding under a bed.

Forensic tests showed that the blood found on Calhoun's discarded clothes was consistent with L.P.'s blood. DNA tests performed on semen collected from the victim was consistent with Calhoun's DNA. Also, during the struggle between L.P. and Calhoun the two bit one another. A bite-mark expert testified that there was an extremely high probability that the bite mark on L.P.'s neck matched Calhoun's dental impression and that the bite mark on Calhoun's arm matched L.P.'s dental impression.

The jury convicted Calhoun of all four counts of capital murder — murder committed during a robbery, murder committed during a burglary, murder committed during a rape, and murder committed during a sodomy.

At the sentencing hearing Calhoun presented the testimony of Dr. Alvin Sheeley, a psychologist. Dr. Sheeley testified that Calhoun was close to meeting the clinical definition of having an impulse-control disorder. The State presented testimony that Calhoun had two prior convictions for attempted rape in the first degree and one prior conviction for sexual abuse in the first degree. The jury, by a vote of 10 to 2, recommended that Calhoun be sentenced to death.

The circuit court held a separate sentencing hearing pursuant to § 13A-5-47(c), Ala.Code 1975, and sentenced Calhoun to death. This appeal, which is automatic when a defendant has been sentenced to death, followed. See § 13A-5-53(a), Ala.Code 1975.

Standard of Review

Because Calhoun has been sentenced to death, this Court must search the record for any plain error. Rule 45A, Ala.R.App.P., states:

"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, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial right of the appellant."

The Alabama Supreme Court in Ex parte Bryant, [Ms. 1990901, June 21, 2002] ___ So.2d ___ (Ala.2002), described the circumstances that will constitute plain error.

"`"`Plain error' arises only if the error is so obvious that the failure to notice it would seriously affect the fairness or integrity of the judicial proceedings."' Ex parte Womack, 435 So.2d 766, 769 (Ala.1983) (quoting United States v. Chaney, 662 F.2d 1148, 1152 (5th Cir.1981)). See also Ex parte Woodall, 730 So.2d 652 (Ala.1998). `"In other words, the 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.'"' Ex parte Land, 678 So.2d 224, 232 (Ala. 1996) (quoting United States v. Young, 470 U.S. 1, 15 (1985) (quoting in turn United States v. Frady, 456 U.S. 152, 163 n. 14 (1982))). `To rise to the level of plain error, the claimed error must not only seriously affect a defendant's "substantial rights," but it must also have an unfair prejudicial impact on the jury's deliberations.' Hyde v. State, 778 So.2d 199, 209 (Ala.Crim.App.1998), aff'd, 778 So.2d 237 (Ala.2000), cert. denied, 532 U.S. 907, 121 S.Ct. 1233 (2001). This Court may take appropriate action when the error `has or probably has adversely affected the substantial rights of the appellant.' Rule 45A, Ala.R.App.P. `[A] failure to object at trial, while not precluding our review, will weight against any claim of prejudice.' Ex parte Woodall, 730 So.2d at 657 (citing Kuenzel v. State, 577 So.2d 474 (Ala.Crim.App.1990), aff'd, 577 So.2d 531 (Ala.1991))."

___ So.2d at ___ (emphasis added).

Guilt-Phase Issues


Calhoun argues that the indictment charging him with murder committed during the course of a robbery, Count II, of the indictment, was not sufficiently specific to give him notice of the charged offense.

Initially, we note that Calhoun made no objections to the indictment. According to Rule 15.2(a), Ala.R.Crim.P. "Objections based on defects in the commencement of the proceeding or in the charge, other than lack of subject matter jurisdiction or failure to charge an offense, may be raised only by pretrial motion as provided in Rule 15.3." Rule 15.2(c), Ala.R.Crim.P., also provides that if no objection is made at the appropriate time the issue is waived. Because there was no objection we are limited to determining whether Calhoun's substantial rights were prejudiced. See Rule 45A, Ala.R.App.P.

Count II charged:

"The Grand Jury of said County charge that before the finding of this Indictment and on or about the 8th day of May, 1998, in the County of Talladega, Alabama, John Russell Calhoun, whose true name is to the Grand Jury unknown otherwise than stated, did intentionally cause the death of, to-wit: Tracy Phillips by shooting him with, to-wit: a pistol, and John Russell Calhoun caused said death during the time that John Russell Calhoun was in the course of committing a theft of, to-wit: jewelry or lawful United States currency, a better description of which is to the Grand Jury unknown otherwise than stated, the property of, to wit: Tracy Phillips or L.P., by the use of force against the person of Tracy Phillips or L.P., with intent to overcome his physical resistance or physical power of resistance or with intent to compel acquiescence to the taking of or escaping with said property, and at the time caused serious physical injury to the said Tracy Phillips, in violation of § 13A-5-40(a)(2), of the Code of Alabama."

(Emphasis added.) Calhoun specifically argues that the State's use of the disjunctive "or" denied him due process because, he says, by using the disjunctive the State failed to notify him of the offense for which he was charged. Calhoun cites the cases of Harrison v. State, 384 So.2d 641 (Ala.Crim.App.1980), and Andrews v. State, 344 So.2d 533 (Ala.Crim.App.), cert. denied, 344 So.2d 538 (Ala.1977), in support of this contention.

In Harrison, the defendant was charged with violating the Child Abuse Act. The indictment did not state the means by which the child...

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