Callahan v. State

• Decision Date: 05 July 1983
• Docket Number: 7 Div. 9
• Citation: 471 So.2d 447
• Parties: James Harvey CALLAHAN v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 447

471 So.2d 447

James Harvey CALLAHAN v. STATE.

7 Div. 9.

Court of Criminal Appeals of Alabama.

July 5, 1983.

Rehearing Denied August 16, 1983.

Wilford J. Lane and John Thomason, Anniston, for appellant.

Charles A. Graddick, Atty. Gen., and William D. Little and Edward Carnes, Asst. Attys. Gen., for appellee.

SAM TAYLOR, Judge.

James Harvey Callahan was tried and convicted, pursuant to § 13A-5-40(a)(1), Code of Alabama 1975, for the capital felony of kidnapping and, subsequently, murdering Rebecca Howell in Calhoun County, Alabama. After proper sentencing phase hearings before the jury and the trial court, the trial court noted the jury's majority verdict, by a vote of 10 to 2, in favor of the death penalty, and sentenced the appellant to death by electrocution.

Rebecca Howell was abducted from the Norge Village Washeteria in Calhoun County, Alabama, some time between, 12:30 a.m. and 1:30 a.m. on the morning of February 4, 1982. Her body was found about two weeks later floating in Tallasseehatchee Creek near Broughton Bridge, where it had become entangled in some brush. An autopsy revealed that Ms. Howell had been killed by asphyxiation due to an obstruction of her airway, consistent with smothering. Her hands had been bound with four strips of white duct tape. She had apparently been raped. Her body was found in blue jeans but without underpants, shoes, or socks.

Murray Knight, the victim's boyfriend, saw her around 11:15 p.m. on the night she was abducted. Ms. Howell had just gotten off work and was on her way to wash some clothes. She had planned to meet Knight afterwards.

Four blocks from Norge Village Washeteria, Jimmy Dunagan saw a woman with "long, brown or reddish hair" make a telephone call across the street from another washeteria at 11:40 p.m. He also saw a man in a truck, which he later identified as appellant's truck, watching the young woman in the telephone booth. When the woman left, the man followed her in his truck. Dunagan copied down the tag number of the truck, a number later found to be registered to the appellant.

A police officer on routine patrol saw Ms. Howell in the Norge Village Washeteria between 12:30 and 12:45 a.m. A passerby saw a man fitting appellant's description inside the washeteria at 1:00 a.m. apparently trying to "pick-up" a young woman. Susan Bragg, a fellow employee of Ms. Howell, passed by Norge Village Washeteria on her way home from work. She saw a green pick-up truck, which she later identified as appellant's truck, outside the washeteria and she thought someone inside the truck waved at her.

At 1:30 a.m., because Ms. Howell had not returned as expected, Murray Knight and some of his friends went to the washeteria to look for her. She was gone, but the clothes she had been washing were still there and one pair of wet blue jeans was on the floor. Ms. Howell's car was still parked outside. Knight called the police.

The appellant was arrested after a "stakeout" of his father's home on February 22, 1982, five days after Ms. Howell's body had been discovered. After the appropriate Miranda warnings were given and the standard "waiver of rights" forms were signed the appellant told Calhoun County Sheriff Roy Snead that he would help the authorities locate the victim's missing boots and purse. He explained to Snead that he had picked up Ms. Howell at the Norge Village Washeteria on the night she was killed and had driven her to his mobile home. He stated that later that night, while they were driving through the woods near the Tallasseehatchee Creek (where the victim's body was later discovered), Ms. Howell, in her bare feet, jumped out of his truck and ran off through the woods. He contended that he threw her boots out at that time.

A subsequent search for the missing boots in the woods near Tallasseehatchee Creek was unsuccessful. However, the appellant did, eventually, lead the authorities to the victim's missing purse. It was found behind a wood pile at the home of appellant's father-in-law. The appellant stated that he knew it was there because he saw someone put it there, but he never stated who that someone was.

The victim's missing boots were later discovered inside appellant's mobile home by appellant's sister and brother-in-law. They were turned over to the police.

In addition to the incriminating circumstances discussed above, appellant's fingerprints were found on a roll of gray duct tape discovered on the night of the abduction in the parking area outside the Norge Village Washeteria. During a search of appellant's home authorities recovered a strip of white duct tape of the same identical type as that used to bind the victim's wrists. They also discovered some strands of hair, consistent with the victim's head hair, on a mop, and some red carpet fibers identical to a red fiber found on one of the victim's socks. Dog hairs found inside appellant's truck were consistent with the hair from the victim's dog.

Because there was evidence that Ms. Howell had been raped before she was killed, a vaginal swab was analyzed. It was found to contain seminal fluid from a "group O" secretor of H antigens. Tests revealed that Murray Knight, Ms. Howell's boyfriend, is a non-secretor but that the appellant is, indeed, a "group O" secretor.

Furthermore, contrary to appellant's pre-trial statement to the authorities that Ms. Howell exited his truck and ran through In defense, the appellant challenged the validity of the search warrants for his truck and his mobile home, the voluntariness of his pre-trial statements, and the reliability of the hair, fiber and biological fluid comparisons. However he only took the witness stand, in his own behalf, to give voir dire testimony as to the voluntariness of his statements to the authorities. He did not present an alibi defense.

the woods near Tallasseehatchee Creek, the medical examiner testified that her feet and ankles were not scratched or cut as they would have been had she run through the thick underbrush in that area.

I

Initially, the appellant contends that the trial court erred in denying his motion for a change of venue. The appellant claimed at trial and argues on appeal that a change of venue was warranted because a majority of the prospective jurors in Calhoun County had been exposed to extensive pre-trial publicity and had learned many of the details of the instant offense and some of the details of appellant's background. At the pre-trial hearing on the motion for a change of venue, the appellant presented the results of a public opinion survey which showed that many of the citizens of Calhoun County had "preconceived notions of the appellant's guilt." Approximately 64 percent of those persons who agreed to be interviewed during the appellant's survey answered affirmatively when asked, "Do you believe from the things that you have read or heard that James Harvey Callahan is the person who murdered Rebecca Howell?"

The trial court gave the appellant much latitude in presenting his evidence during the change of venue hearing. The appellant, the state, and the trial court, itself, conducted thorough and sifting examinations of all the witnesses presented. Most of the testimony concerned the validity of the public opinion survey conducted by the appellant. It was revealed that the survey was directed by appellant's counsel, who hired four young women with no training and little or no experience in conducting public opinion surveys. These women conducted telephone interviews with 390 citizens of Calhoun County to determine the impact of the pre-trial publicity upon prospective jurors. The interviewers were instructed to obtain a designated number of responses from the various communities within the County to obtain a fair cross-section of the population, but they received little, if any, instruction as to how to randomly select their interviewees, what to do with incomplete surveys, and how to document non-responses. They were essentially independent from each other and, consequently, handled the selection of interviewees, the incomplete surveys and the non-responses in somewhat inconsistent manners. They did not use any systematic method of randomly selecting those persons called and the results obtained by the four interviewers were not verified in any way. There was no assurance against overlap among the callers and no concrete method used to insure that a particular person called actually lived within the area or community for which his response was needed.

The appellant presented Steve Hoffman, a statistician at Fort McClellen, Alabama, as an expert on public opinion surveys. He stated that, in his opinion, the survey was properly conducted, that it was 95 percent accurate and that it indicated that 64 percent of the population of Calhoun County had preconceived notions of the appellant's guilt due to pre-trial publicity. Upon further examination, however, he stated that he had never conducted a survey of this type, and that his earlier comments about the accuracy of the survey were based on the assumptions that the interviewers received training as to how to conduct the survey, that their results were verified and that the number of non-responses (those who refused to answer the survey) was not excessive. He eventually concluded that the survey was not perfectly scientific and was not conducted in the best manner. The state's expert witness, Glenn Browder, a professor at Jacksonville State University During the venue hearing the appellant also presented affidavits from several members of the local news media, affidavits which verified that the publicity surrounding Rebecca Howell's murder had been extensive.

testified that he had many years of experience with public opinion surveys, and had conducted 20 to 30 surveys similar to the one conducted by the appellant. He stated that he had taken courses, had taught courses, and had conducted training sessions dealing with public opinion...