Campbell v. State

• Citation: 508 So.2d 1186
• Decision Date: 25 November 1986
• Docket Number: 7 Div. 502
• Parties: Bobby L. CAMPBELL v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1186

508 So.2d 1186

Bobby L. CAMPBELL v. STATE.

7 Div. 502.

Court of Criminal Appeals of Alabama.

Nov. 25, 1986.

Rehearing Denied Jan. 27, 1987.

Certiorari Denied June 26, 1987

Alabama Supreme Court 86-644.

Randy Beard, Guntersville, for appellant.

Charles A. Graddick, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for appellee.

McMILLAN, Judge.

The appellant was convicted of the offense of conspiracy to commit murder done for hire, in violation of § 13A-4-3, Code of Alabama (1975), and was sentenced to a term of fifty years in the State penitentiary.

The Dreamers Teen Club, a nightclub or lounge, was a business of five partners: Ricky Gaskin, Steve and Judy Fowler, Steve Cleckler, and Jeff Sheffield. Differences of opinion and dissension arose among the partners concerning the Fowlers' management of the club, as well as personal problems concerning Steve Cleckler's relationship with Mrs. Fowler's sister. Ricky Gaskin testified that he met several times with Cleckler and told him that he wanted to get Mr. Fowler out of the club; after several meetings Gaskin informed Cleckler that he should speak to Lynn Johnson about getting rid of the Fowlers. Gaskin further testified that a rendezvous was arranged between Johnson, Cleckler, and himself and that by the terms of the arrangement agreed upon Gaskin and he would each have to pay Johnson $1,000. At the meeting, Cleckler and Johnson agreed that Christmas would be a good time for "it" to happen. Gaskin testified that Johnson told him to inform the appellant that he had a job to do; later, Johnson told the appellant that the job was to "take care" of the Fowlers. Gaskin further testified that he met subsequently with Johnson and the appellant and they discussed getting a gun and the disposal of the body. Soon thereafter, Gaskin again met with Johnson and the appellant and gave them his .357 Wesson pistol and Johnson indicated that the crime would take place on December 26.

The following is Gaskin's testimony as to the events of December 26: He received a telephone call from Johnson setting up a meeting and, at that meeting, the appellant outlined the plans for killing Fowler. The appellant stated that Lynn Johnson would call Fowler and ask him to go down to the club so that his game machines could be serviced, whereupon Fowler would be shot in the "bay" area of the club. The appellant Johnson, and Gaskin then went to the club to insure that no one was there and next went to an Arby's restaurant. Johnson told the appellant to go to the club and wait. He then called Fowler, telling him to go down to the club so that he could repair the game machines and divide the money. Johnson went to the club to tell the appellant that Fowler was on his way. Johnson and Gaskin then parked across the street and saw Fowler drive up without his wife, whereupon Johnson stated that they had to stop the murder because Mrs. Fowler knew that it was he who had called. However, before Johnson could get inside the club, they heard four shots being fired; Gaskin testified that he then observed Fowler lying on the floor. Gaskin and Johnson mopped the floor, put the body in a bag, and then Gaskin drove to Georgia to dispose of the mop, bucket, and body. Gaskin testified that he subsequently met with Johnson and the appellant and that the appellant attempted to disassemble the pistol used to murder Fowler; however, he eventually threw the gun off of a bridge. Gaskin indicated at trial that an agreement had been made pursuant to his role in the commission of this offense and that he had been indicted for conspiracy to murder Judy Fowler. Cleckler also testified for the State; he had been charged with conspiracy to murder Steve and Judy Fowler and had pleaded guilty.

I.

The appellant contends that it was reversible error to admit as evidence prejudicial matters alleging a separate crime of murder committed prior to the offense being tried. During the defense counsel's cross-examination of State's witness Gaskin, the following transpired:

"Q. Well, now Mr. Campbell ... ya'll hadn't talked about Mr. Campbell killing anybody up to that point had you? Up to that meeting.

"A. About Mr. Fowler?

"Q. About anybody?

"A. Yes, sir. Lynn told me something about possibly another crime.

"Q. What did Mr. Campbell say when you said, 'You've got to kill somebody,' we want you ... a job to do?

"A. He said, 'Okay.'

"Q. What were his exact words?

"A. I don't recall his exact words. He just agreed and said, 'Okay.' "

Later, on re-direct examination and after a bench conference in which the trial judge heard the arguments of both parties concerning the following subject matter, the prosecutor asked over objections:

"Q. Mr. Gaskin, I think the last thing that I asked you before we recessed was something about a crime that Mr. Johnson had mentioned to you?

"A. Yes, sir.

"Q. If you would, I wish you'd tell the court and the jury exactly what crime it was that Mr. Johnson had mentioned to you?

"DEFENSE COUNSEL: Object at this point, Your Honor, on the same grounds. It's prejudicial, irrelevant and immaterial to these issues.

"THE COURT: Overruled.

"Q. You can answer, Mr. Gaskin.

"A. Mr. Johnson told me that Mr. Campbell had killed a man by the name of Walls.

"DEFENSE COUNSEL: May we approach the bench?

(At the bench.)

"DEFENSE COUNSEL: Your Honor, I object to that and move it be stricken from the record and the jury be instructed to disregard it or in the alternative, move for a mistrial on the grounds that such statement is solely prejudicial, has no probative value and its sole effect on this defendant is to prejudice his rights in this case.

"PROSECUTOR: Our position is, Your Honor, it was brought out in cross and we're entitled to go into it on redirect.

"THE COURT: Motion denied."

"[O]n redirect examination, the object is to answer any matters brought out on the cross-examination of the witness by his adversary. Whether, on redirect examination, a party may elicit from his witness matters which do not rebut that which was brought out on cross-examination is within the discretion of the trial court." C. Gamble, McElroy's Alabama Evidence, § 439.01(1) (3d ed. 1977). The State argues that the defense counsel had opened the door to such questioning by asking on cross-examination whether Gaskin and Johnson had talked about "Mr. Campbell killing anybody up to that point." The prosecution also noted that the defense counsel did not request that Gaskin's response in which he referred to "possibly another crime" be stricken or that the jury be instructed to disregard the testimony.

In Williams v. State, 451 So.2d 411 (Ala.Cr.App.1984), where the prosecutor elicited testimony regarding "the appellant's alleged involvement in another murder, a theft and a scheme to kill his wife, [the trial court held that this testimony] was not improper. Defense counsel opened up these matters during his examination and therefore these matters were properly within the scope of the prosecutor's examination." Id. at 421. See also Adkins v. State, 481 So.2d 431 (Ala.Cr.App.1985) (wherein, on direct examination of a defendant in a rape case, he stated that he was driving the car while extremely intoxicated, and therefore he could not later object to the prosecutor's question on cross-examination as to whether he usually drove his family around while he was intoxicated). In Green v. State, 352 So.2d 1149 (Ala.Cr.App.1977), the defendant had indicated on direct examination that he was in trouble at the time of the incident which was the subject of the prosecution; he therefore "opened up the subject of the trouble he was in, thus permitting cross-examination with reference to such trouble." Id. at 1150.

Under the doctrine of curative admissibility, " '[i]f illegal evidence is introduced by one party and admitted, then the opponent has the right to introduce illegal evidence in rebuttal....' " Morgan v. State, 440 So.2d 1240, 1241 (Ala.Cr.App.1983), quoting Wyrick v. State, 409 So.2d 969 (Ala.Cr.App.1981), and the "appellant cannot [later] be heard to complain about exploration of the issue ... which he himself improperly injected into the trial." Id. "Rebuttal evidence, even evidence of prior crimes, is generally admissible within the sound discretion of the trial court. Vincent v. State, 231 Ala. 657, 165 So. 844 (1936); Jones v. State, [362 So.2d 1303 (Ala.Cr.App.1978) ]; Norris v. State, 429 So.2d 649 (Ala.Cr.App.1982)." Peterson v. State, 452 So.2d 1372 (Ala.Cr.App.1984). Although in the present case the State was not attempting to rebut the evidence offered by the defense counsel on cross-examination of the witness, but rather to expand on it, the defense counsel clearly opened the door to the State's subsequent questioning, as in the case of a rebuttal.

II.

The appellant claims that the trial court committed reversible error in failing to grant his motion for judgment of acquittal on the grounds that the State's case was based solely on the testimony of an accomplice. "A conviction of felony cannot be had on the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense, and such corroborative evidence, if it merely shows the commission of the offense or circumstances thereof, is not sufficient." Code of Alabama (1975), § 12-21-222. While Gaskin and Cleckler were clearly accomplices to the offense, State's witness Jeff Sheffield was not an accomplice as a matter of law. The testimony of Gaskin, Cleckler, and Sheffield indicates that Sheffield was never present when the hiring of the appellant to kill Fowler was discussed.

In his testimony, Sheffield admitted to having problems with the Fowlers management of the club, as well as personality conflicts with them. He indicated that he, along with Gaskin and Cleckler, had spoken to a lawyer, but to no avail. Sheffield stated that Gaskin told him that he had heard "down the grapevine...