Crowe v. State, 6 Div. 9

• Citation: 435 So.2d 1371
• Decision Date: 05 July 1983
• Docket Number: 6 Div. 9
• Parties: Billy W. CROWE v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1371

435 So.2d 1371

Billy W. CROWE v. STATE.

6 Div. 9.

Court of Criminal Appeals of Alabama.

July 5, 1983.

Rehearing Denied Aug. 2, 1983.

E. Clint Smalley, III and Russell T. McDonald, Jr., Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., and Bill North and Ed Carnes, Asst. Attys. Gen., for appellee.

HUBERT TAYLOR, Judge.

Appellant was indicted under § 13A-5-31(a)(2), Code of Alabama 1975, for robbery or attempts thereof, during which the victim was intentionally killed. The jury returned a verdict of guilty of the capital offense charged in the indictment. After a hearing on aggravating and mitigating circumstances, the jury returned a verdict fixing the appellant's sentence at life imprisonment without parole. Subsequently, the trial court sentenced appellant to life imprisonment without parole.

Seventeen-year-old Todd Bates testified he was fishing with a group of fifteen men, women, and children at Bailey's Bridge in Winston County, Alabama, on June 19, 1981. Included in the group were Todd's father, Jim Bates, and Mr. Bates's friend, James (Jim) McGuire. When the group of fishermen arrived at the bridge around 9:30 p.m., there were already present several strangers. The strangers were sitting on their automobile hood and appeared to be "drinking." Among this group was one Randy Twilley.

After approximately twenty-five minutes, another group of several more strangers arrived. Included in this group were the appellant and his brother, Michael Crowe. They disembarked their vehicle, which they had parked on the bridge with the other two groups' vehicles, and picked up a passing dog and threw it off the bridge.

After a while, a fight broke out between appellant and a member of Twilley's group over a torn shirt. During the fight, appellant repeatedly slammed his opponent's head against the side of the bridge. When the fight was over, appellant and Randy Twilley approached James McGuire and attempted to place a lantern, with which McGuire was fishing, into the water. When McGuire indicated the lantern was fine where he had placed it, appellant began to yell to him. Appellant called McGuire "Big Ears," and told him to "go back to the cornfields where he came from."

After this episode, Twilley convinced the appellant to leave, telling him they would come back and get McGuire. They left in their automobiles at approximately 10:00 p.m.

The Bates group continued to fish from the bridge until around 11:30 p.m., when appellant's group returned in Twilley's automobile. Todd Bates was within seven or eight yards of James McGuire at this point. Twilley stopped his vehicle behind Todd in the center of the roadway.

Appellant, Twilley, and Michael Crowe got out of the automobile and, with Michael playing a guitar, began to loudly "sing to the fish." Todd heard another automobile approaching, and at his suggestion, Twilley moved his vehicle out of the way. The three then continued to generally annoy or "bug" Todd's group about their fishing, by singing and pestering them with questions.

As Michael continued to sing and play the guitar, appellant and Twilley again approached James McGuire. Appellant, observing that Mr. McGuire had a hunting and fishing knife in his pants pocket, asked McGuire why he carried the knife. When McGuire explained that hunters and fishermen carry knives, appellant stated, "If you want to get your weapons, I'll go to my car and get my .357."

Appellant made several steps toward Twilley's vehicle, and then turned and ran up to Mr. McGuire. As appellant ran up, he reached around McGuire, who was facing out toward the water fishing, and took the knife from Mr. McGuire's pocket.

Todd testified he watched as appellant brandished the knife at Mr. McGuire. He could see the blade reflecting in the light from four lanterns on the bridge which the men were using while fishing. Todd described the ensuing events as follows:

"After he took the knife out, he was flashing it around and stuff, and when he took the knife out, Jim turned around and said, 'We don't want to cause no trouble. We're just up here fishing with the boys.' He said, 'We'll get our stuff together and leave you all alone.'

"Q Okay. Did Jim, at this time, still have anything in his hand?

"A Yes, sir, still had his fishing rod.

"Q All right. And then?

"A And then Michael Crowe told Billy, he said, 'Come on. Let's don't cause no trouble. Let's leave them alone.' That is when Billy said, 'No, I'm going to kill this mother fucker.'

"Q Okay. What happened next?

"A After that, Twilley grabbed him.

"Q All right. Grabbed who?

"A Jim.

"Q How did he grab him, if you know?

"A He grabbed him by the back of the hair and bent him back.

"Q All right. Did he grab him from behind?

"A Yes, sir.

....

"A After he grabbed him and bent him back, Crowe was standing right here--(Indicating.)

"Q By 'Crowe,' who do you mean?

"A Billy Crowe. He come around and cut him right there and stabbed him. (Indicating.)"

The appellant backed away after stabbing Mr. McGuire and yelled at Mr. Bates to get Mr. McGuire "to the hospital that he just loses his temper." One of appellant's group yelled for him to get the knife, which had fallen to the pavement, and the appellant went forward and got the knife. Todd, at his father's instructions, went and observed Twilley's vehicle tag number, despite Twilley's efforts to push Todd down and to bend the tag out of sight. The appellant's group then got into their vehicle and fled.

Scott Burchfield, another seventeen-year-old member of the fishing party, testified he was among the Bates fishing group. His testimony largely substantiated Todd's account. He did not observe the stabbing, however, although he did see appellant brandishing the knife at McGuire before the stabbing occurred. Neither did he hear all the statements made, nor could he match the voices with the persons who were speaking.

Billy Burchfield, Scott's father, testified similarly to Scott. He did, however, actually see the appellant take the knife from Mr. McGuire and stab him with it. Mr. Burchfield stated there was a full moon that night and that the victim had a lantern directly in front of him. He testified that after Crowe's group left, they placed Mr. McGuire in an automobile and rushed him to the hospital.

Dr. Josefino Aguilar, a State forensic pathologist, testified he examined the body of James McGuire on June 20, 1981. The body evidenced one stab wound which was inflicted by a single-edge knife. The path of the blade passed through the middle of the chest, perforated the tip of the heart and cut into the covering of the lung. On the surface of the body, over the stab wound, there was a blue bruise or contusion. This indicated the handle of the knife had reached the skin with sufficient force to cause the bruise. The direction of the wound was from front to back and slightly upward. In Dr. Aguilar's opinion, Mr. McGuire died as a result of a stab wound to the left side of the chest.

Brian Trammell, another member of the fishing party, testified and substantiated the details of Todd Bates's testimony.

Chief Deputy Jack Gilliland of the Winston County Sheriff's Department testified he traveled to Houston, Texas, in June of 1982 to obtain custody of the appellant from the Sheriff's Department there. He stated appellant signed a waiver of extradition on the day on which the extradition hearing had been set.

At the conclusion of the State's case, appellant's motion for a judgment of acquittal was denied. Appellant then rested without presenting any evidence on his behalf.

At the sentencing hearing following the guilt phase of the trial, the State presented evidence that appellant committed the intentional killing while under a sentence of imprisonment in the State of Alabama. The appellant called several character witnesses, including his mother, who testified to his good reputation as to violence.

I

Appellant argues the trial court erred in denying his motion for a change of venue based upon prejudicial pretrial publicity. While he asserts that the publicity surrounding the murder of Mr. McGuire was prejudicial in itself, he alleges that "special circumstances" connected to his case led to far more damaging publicity.

On July 7, 1982, Deputy James W. Taylor was shot and killed at the Winston County Jail. The press in wide-spread and extended publicity, reported that authorities believed Deputy Taylor was killed by family and friends of the appellant during an attempt to free appellant from the jail, where he was awaiting trial for the McGuire murder. Appellant has not been arrested or charged for that incident.

Appellant argues that the publicity surrounding the murder and funeral of Deputy Taylor, and the widespread man hunt for his assailants, compounded the public prejudice already engendered by the publicity surrounding the McGuire murder.

The defendant bears the burden of demonstrating that an impartial and fair trial, which will result in an unbiased verdict, can not be had at the present locale. A showing of actual prejudicial influence upon the jury must be made by the defendant to warrant a finding of error in the trial court's refusal to grant a motion for a change of venue. The ruling of the trial court on such motion will not be disturbed on appeal absent a showing of abuse of discretion. Ex Parte Magwood, 426 So.2d 929 (Ala.1983).

The existence of widespread publicity alone does not indicate that a defendant can not receive a fair trial. Anderson v. State, 362 So.2d 1296 (Ala.Cr.App.1978); Magwood v. State, 426 So.2d 918 (Ala.Cr.App.1982), aff'd, 426 So.2d 929 (Ala.1983). Rather, it is the prejudicial effect of the publicity upon the venire, which has made an impartial trial and unbiased verdict impossible, that the appellant must demonstrate to the trial judge. Speigner v. State, 367 So.2d 590 (Ala.Cr.App.1978), cert. denied, 367 So.2d 597 (Ala.1979). The proper manner for ascertaining whether adverse publicity...