Carruth v. State

• Court: Alabama Court of Criminal Appeals
• Writing for the Court: Shaw
• Citation: Carruth v. State, 927 So.2d 866 (Ala. Crim. App. 2005)
• Decision Date: 26 August 2005
• Docket Number: CR-03-0327.
• Parties: Michael D. CARRUTH v. STATE of Alabama.

927 So.2d 866

Michael D. CARRUTH v. STATE of Alabama.

CR-03-0327.

Court of Criminal Appeals of Alabama.

August 26, 2005.

Rehearing Denied October, 14, 2005.

COPYRIGHT MATERIAL OMITTED

Stephen Willis Guthrie, Birmingham, for appellant.

Troy King, atty. gen., and Stephen Shows, asst. atty. gen., for appellee.

SHAW, Judge.

The appellant, Michael D. Carruth, was convicted of four counts of capital murder in connection with the murder of 12-year-old William Brett Bowyer ("Brett"). The murder was made capital (1) because it was committed during the course of a kidnapping in the first degree, see § 13A-5-40(a)(1), Ala.Code 1975; (2) because it was committed during the course of a robbery in the first degree, see § 13A-5-40(a)(2), Ala.Code 1975; (3) because it was committed during the course of a burglary in the first degree, see § 13A-5-40(a)(4), Ala. Code 1975; and (4) because Brett was less than 14 years of age, see § 13A-5-40(a)(15), Ala.Code 1975. Carruth was also convicted of attempted murder, a violation of §§ 13A-6-2 and 13A-4-2, Ala. Code 1975, robbery in the first degree, a violation of § 13A-8-41, Ala.Code 1975, and burglary in the first degree, a violation of § 13A-7-5, Ala.Code 1975, with respect to Brett's father, Forest F. Bowyer ("Bowyer"). The jury unanimously recommended that Carruth be sentenced to death for his capital-murder convictions. The trial court accepted the jury's recommendation and sentenced Carruth to death. In addition, the trial court sentenced Carruth to life imprisonment for the attempted-murder, robbery, and burglary convictions.

In its sentencing order, the trial court made the following findings of fact, which are supported by the evidence, regarding the crimes:

"[I]n the evening and early morning hours of February 17 and February 18, 2002, the defendant, Michael David Carruth, and another person identified as Jimmy Lee Brooks, Jr.,¹ entered the home of Forest F. (Butch) Bowyer and his son William Brett Bowyer, while the home was occupied by both Forest F. (Butch) Bowyer and his son William Brett Bowyer. William Brett Bowyer was twelve (12) years of age.

"[Carruth] and [Brooks] entered the Bowyer home under the guise of being narcotics officers. The Bowyers were handcuffed and taken to a remote road construction site in rural Russell County, the vicinity of the ultimate murder site, where the elder Bowyer was questioned concerning a safe [that, based on Brooks's former employment with Bowyer, Carruth and Brooks believed Bowyer had containing $100,000]. The mode of transportation was a white Ford Crown Victoria that had a security shield between the front and back seats.

"The Bowyers were taken back to their home in order for Forest F. (Butch) Bowyer to get money for [Carruth] and [Brooks]. While there, [Carruth] slapped the elder Bowyer. [Brooks] found money[, approximately $47,000] and a .38 caliber Smith and Wesson revolver.

"[Carruth] and [Brooks] transported the Bowyers back to the road construction site, this time to the murder site. [Carruth] walked Forest F. (Butch) Bowyer away from the car and cut him on the [right side of his] neck [and he said, `that's sharp, isn't it?'] [Carruth] shortly thereafter cut Forest F. (Butch) Bowyer's throat. [Brooks] also cut Bowyer's throat. [Carruth] then sat on Forest F. (Butch) Bowyer and told him to `go to sleep.' It was during this period of time that the child, William Brett Bowyer, asked [Carruth] and [Brooks] not to hurt his daddy. The response to the child from [Brooks] was that he needed to be concerned about himself, not his dad.

"The defendant, Michael David Carruth, told [Brooks] `I've done one, now you do one.' At this point, [Brooks] shot the child in the head. When a gurgling sound came from the child, [Brooks] commented `the little M.F. doesn't want to die' and shot him two (2) more times in the head. The child, William Brett Bowyer, fell into a shallow grave [that Carruth and Brooks had dug earlier]. The father, Forest F. (Butch) Bowyer, was thrown on top of the child. [Carruth] and [Brooks] laughed and joked as they threw dirt on the dead child and his father, covering them in the shallow grave."

(C. 704-06.) After Carruth and Brooks left the scene, Bowyer dug himself out of the grave and flagged down a passing motorist for assistance. He later identified both Carruth and Brooks as the perpetrators of the crimes.

I.

Carruth contends that the trial judge, Albert L. Johnson, erred in not recusing himself from presiding over Carruth's trial because, he says, Judge Johnson exhibited personal bias toward him when ruling against Tri-County Bonding Company ("Tri-County"), a company for which Carruth worked, in two bond-forfeiture cases. According to Carruth, Judge Johnson's demeanor and conduct in the forfeiture cases, as well as some off-the-record comments Carruth says Judge Johnson made to him at another time, would lead a reasonable person to question whether Judge Johnson harbored a personal bias against him or lacked impartiality.

In his motion for recusal, Carruth alleged that Judge Johnson had presided over two bond-forfeiture hearings involving Tri-County — one involving Mack Devon Knight and the other involving Keith Allen Butts — and that Judge Johnson improperly forfeited both bonds and told Carruth, who was representing Tri-County at the hearings, that Tri-County would be out of business until the money was paid. Carruth also alleged that Judge Johnson treated another bonding company, Weeks Bonding Company ("Weeks"), differently than he treated Tri-County; specifically, he alleged that Judge Johnson allowed Weeks "to turn a defendant into the Sheriff's custody ninety (90) days after the bond forfeiture was finalized," commended Weeks for returning the defendant to court, and "never ordered Weeks Bonding Company out of business until the money was paid." (C. 100.)

Carruth was the only witness to testify at the evidentiary hearing on the recusal motion; he also introduced several documents relating to the bond-forfeiture hearings involving Knight and Butts. The evidence at the hearing indicated that in October 1999 conditional forfeitures were entered against Tri-County when Knight and Butts failed to appear in court. Tri-County filed answers to the conditional forfeitures in November 1999 — Carruth had prepared both answers. In the Knight case, Tri-County alleged in its answer that Knight was incarcerated in Georgia and that a detainer had been lodged against him by the Russell County Sheriff's Department; attached to the answer was a letter to Tri-County from Ruth Hollins, an employee of the Russell County Sheriff's Department, stating that Knight was currently in the Muscogee County jail in Georgia and that Russell County would be notified upon his release. In the Butts case, Tri-County alleged that it had been unable to find Butts. Judge Johnson scheduled bond-forfeiture hearings for both cases for March 7, 2000.

Carruth appeared as a representative of Tri-County at those bond-forfeiture hearings. At the forfeiture hearing for Knight, Carruth told Judge Johnson that Knight was then incarcerated at Hayes State prison in Georgia, but he presented no documentation from the State of Georgia verifying that fact. In response, Judge Johnson stated: "Well, like I just ... told Weeks Bonding, by closing today I'm going to have something in this file saying what you're telling me ... or by nine o'clock in the morning I'm going to have $5,000 or you're not going to be operating at 9:01.... Simple as that." (C. 2595.) At the forfeiture hearing for Butts, Carruth told Judge Johnson that Tri-County had been looking for Butts but had been unable to find him. In response, Judge Johnson stated "I want $7,500 by noon today, or I'll issue an order to stop you from operating." (C. 2614.) Judge Johnson issued final bond forfeitures against Tri-County in both cases following the hearings on March 7, 2000. Tri-County paid both bonds on March 31, 2000. On April 17, 2000, Carruth located Butts and returned him to jail; no further action was taken in that case to get the forfeiture set aside. However, Tri-County, through its attorney, filed a motion to set aside the forfeiture in the Knight case, and a hearing was held on that motion on June 20, 2000. At the hearing, Carruth again appeared as a representative of Tri-County and told Judge Johnson that Knight was still in prison in Georgia; the prosecutor confirmed that Knight was in prison in Georgia. Judge Johnson then stated:

"All right. I'm going to again show that, let the record reflect, that I have nothing in the file to indicate from any law enforcement agency in the State of Georgia saying that he's incarcerated, and I think that prudence would require me to have that. But because you filed an answer and the State has verified that Mr. Knight is, indeed, in the State of Georgia, I'm going to set the forfeiture aside at this time.

"But I'm telling you, from this point forward, if I do not have the affidavits, then I'm not going to set them aside."

(C. 2603-04.) At this point in the hearing, Carruth stated that he had a copy of a certification from the State of Georgia regarding Knight's incarceration and that he would bring a copy to the court. The clerk then informed Judge Johnson that a copy of the certification was in another file. The case action summary from the Knight case indicates that a copy of the certification from the State of Georgia regarding Knight's incarceration had been faxed to the court on March 9, 2000, two days after the first bond-forfeiture hearing. On June 28, 2000, Judge Johnson issued an order setting aside the forfeiture in the Knight case and ordering that Tri-County be reimbursed.

At the recusal hearing, Carruth testified on direct examination that he believed Judge Johnson was biased against him based on statements he said Judge Johnson had made to him off-the-record and based on Judge Johnson's demeanor at the...