Davis v. State

• Decision Date: 28 July 1987
• Docket Number: 7 Div. 417
• Citation: 536 So.2d 110
• Parties: Jimmy Wayne DAVIS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 110

536 So.2d 110

Jimmy Wayne DAVIS v. STATE.

7 Div. 417.

Court of Criminal Appeals of Alabama.

July 28, 1987.

Rehearing Denied Jan. 26, 1988.

Certiorari Granted July 22, 1988 Alabama Supreme Court 87-530.

George N. Sims and Hank Fannin, Talladega, for appellant.

Charles A. Graddick, Atty. Gen., William Little and Martha Gail Ingram, Asst. Attys. Gen., for appellee.

McMILLAN, Judge.

The appellant, Jimmy Wayne Davis, was indicted on four counts for the capital crime of murder committed during the course of a robbery in the first degree, § 13A-5-40(a)(2), Code of Alabama (1975). The appellant was found guilty of the capital offense as charged in the indictment, and the jury returned a recommendation of a death sentence. The trial court conducted a sentencing hearing and thereafter sentenced the appellant to death by electrocution.

The appellant, Jimmy Wayne Davis, often stayed with Mae C. McGill, the victim, at her residence, which was located in Sylacauga, Alabama. The appellant and his son, Lane Davis, ate dinner at the residence of Mae C. McGill on September 3, 1984. The appellant and Mae McGill made plans to go out for drinks after dinner. Pursuant thereto, Mae McGill drove Lane Davis to a cousin's house at approximately 6:00 p.m. Later that night, Mae McGill was hit in the head with a hammer or blunt object and shot twice with a.25-caliber pistol as she lay in bed. One of the bullets passed through her heart and caused her death. There was also evidence that two diamond rings, credit cards, a checkbook, a .25-caliber pistol, and a 1984 blue and white Cadillac were taken from the victim.

The appellant checked in at a Holiday Inn in Ruston, Louisiana, on September 4, 1984, shortly after 8:00 a.m. He indicated on the hotel's form that he was driving a 1984 Cadillac with a license plate later identified as that of the victim. The appellant then drove to Bernice, Louisiana, in an attempt to see his wife, June Davis. One of the appellant's sons, who lived with June Davis, testified that the appellant was driving Mae McGill's Cadillac. He further testified that he would not allow the appellant into his mother's trailer. He also stated that when his mother learned that the appellant was looking for her, she moved in with some friends until the time she learned of the appellant's arrest. The appellant returned to the Holiday Inn after his unsuccessful attempts to contact June Davis. Thereafter, he called Kathleen Trahan, a person whom he had previously lived with in Scott, Louisiana. The appellant drove to the residence of Kathleen Trahan in Scott, Louisiana, on September 5, 1984. Kathleen Trahan received a telephone call from one of the appellant's sisters after being contacted by the appellant. The appellant's sister informed her that the appellant had killed a woman in Alabama. She testified that she became extremely frightened. She also testified that the appellant threatened to shoot her son if she did not go with the appellant. She further testified that the appellant told her that he had killed the woman by shooting her in the chest, hitting her on the head with a hammer, and " 'stuff[ing] her with a pillow to make sure she was dead.' " He also told Kathleen Trahan that, " 'if I [the appellant] could have found my wife, I would have killed her too.' "

Lane Davis, who had been unable to reach Mae McGill, became concerned about her and went to her house. He broke a window in her house in order to gain access, and found the body. The Sylacauga Police Department was contacted and began its investigation.

The appellant left Scott, Louisiana, with Kathleen Trahan and her two children and drove to Las Vegas, Nevada, in the victim's Cadillac, arriving in Las Vegas on September 11, 1984. The appellant asked Kathleen Trahan, upon their arrival in Las Vegas, to pawn one of the rings taken from the victim for $500. The ring was ultimately recovered by the Sylacauga Police Department. The appellant had previously been using the credit cards of Kenneth McGill, one of the victim's former husbands, to pay for his hotel rooms. The appellant, Kathleen Trahan, and her two children stayed at the Western Six Motel in Las Vegas. The appellant asked Kathleen Trahan on September 12, 1984, to sell the other ring that he had taken from the victim. Trahan sold the ring to a jewelry store for $1200; she kept $200, without informing the appellant, and gave the remaining $1000 to him. Later the same evening, Trahan requested that the appellant take her out on the "Strip." She drove to a casino, where she was later able to escape from the appellant, return to the hotel for her children, and leave Las Vegas.

Kathleen Trahan followed a police car to the police department in Wickinburg, Arizona, on September 13, 1984, at approximately 6:00 a.m. Immediately thereafter, the Sylacauga Police Department was contacted. The Las Vegas Police Department was then notified and they gained access to the appellant's hotel room, where they found him lying in bed. He was then arrested.

I

The appellant argues that the trial court erred in refusing to grant his motion to exclude and in charging the jury on the issue of murder during robbery in the first degree. The appellant contends, in support of his argument, that the evidence indicated that the theft occurred after the murder and that the theft was committed in contemplation of the appellant's flight from the scene of the shooting. However, contrary to the appellant's argument, the record indicates that the trial court did not err on these grounds and that the State proved a prima facie case of murder during robbery in the first degree. According to § 13A-5-40(a)(2), "[m]urder by the defendant during a robbery in the first degree or an attempt thereof committed by the defendant" is a capital offense.

"The crime of robbery when the victim is intentionally killed is a single offense beginning with the act of robbing or attempting to rob and culminating in the act of intentionally killing the victim. The offense consists of two elements, robbing and intentionally killing." Magwood v. State, 494 So.2d 124, 148 (Ala.Cr.App.1985), affirmed, Ex parte Magwood, 494 So.2d 154 (Ala.1986), cert. denied, Magwood v. Alabama, 479 U.S. 995, 107 S.Ct. 599, 93 L.Ed.2d 599 (1986), citing Baldwin v. State, 372 So.2d 26 (Ala.Cr.App.1978), affirmed, 372 So.2d 32 (Ala.1979), vacated on other grounds, 448 U.S. 903, 100 S.Ct. 3043, 65 L.Ed.2d 1133 (1980). "The only time element which must be established under § 13A-5-40(a)(2), Code of Alabama 1975, is that the State must prove the intentional murder occurred during the course of the robbery in question." Clark v. State, 451 So.2d 368, 372 (Ala.Cr.App.1984). The taking of the property need not occur prior to the killing. Id. In Clark this court stated:

" 'In Cobern v. State, 273 Ala. 547, 142 So.2d 869 (1962), the Alabama Supreme Court held that the fact that the victim was dead at the time the property was taken would not militate [against a finding of] the crime of robbery if the intervening time between the murder and the taking formed a continuous chain of events. See also Baker v. State, Ala.Cr.App., 344 So.2d 547 (1977). In the instant case, the intervening time, if any there be, formed a continuous chain of events.'

Clements v. State, 370 So.2d 708 (Ala.Cr.App.1978), aff'd, in pertinent part, Ex parte Clements, 370 So.2d 723 (Ala.1979). See also Bufford v. State, 382 So.2d 1162 (Ala.Crim.App.), cert. denied, 382 So.2d 1175 (1980).

"At the time the three opinions cited above were rendered, our present capital statute was not in effect. However, the rationale of those cases is sound and will be here applied to the case at bar.

"As the Alabama Supreme Court stated in Cobern v. State, supra:

'The jury had the right to infer from the proven facts and circumstances that the robbery began when the attack took place and was consummated when the defendant took the car and fled....' "

Clark v. State, supra, at 372.

Mae McGill was killed in her home, and the evidence overwhelmingly establishes the corpus delicti of murder. Johnson v. State, 473 So.2d 607, 609 (Ala.Cr.App.1985); Taylor v. State, 276 Ala. 232, 236, 160 So.2d 641 (1964); Jones v. State, 260 Ala. 341, 345, 70 So.2d 629 (1954). The issue remains whether this murder was committed during a robbery. Johnson v. State, supra. "Circumstantial evidence may afford satisfactory proof of the corpus delicti, and, if facts are presented from which the jury may reasonably infer that the crime has been committed, the question should be submitted to the jury. McCloud v. State, 401 So.2d 314 (Ala.Crim.App.1981); Dolvin v. State, 391 So.2d 133 (Ala.Crim.App.1980)." Magwood v. State, 494 So.2d 124, 149 (Ala.Cr.App.1985). The State presented sufficient circumstantial evidence to prove robbery in the first degree.

A person commits the crime of robbery in the first degree if he "[u]ses force against the person of the owner or any person present with intent to overcome his physical resistance or physical power of resistance" during the course of committing a theft or if he "[t]hreatens the imminent use of force against the person of the owner or any person present with intent to compel acquiescence to the taking of or escaping with the property" during the course of committing a theft. § 13A-8-43, Code of Alabama (1975), referenced by § 13A-8-41. Furthermore, he must be "armed with a deadly weapon or dangerous instrument" or must cause "serious physical injury to another." § 13A-8-41(a), Code of Alabama (1975).

The evidence was clearly sufficient to prove that Mae McGill's assailant used force and caused her death by means of a deadly weapon or dangerous instrument. Furthermore, the evidence showed that the assailant was, at the time he accosted Mae McGill, "in the course of committing a theft." According to § 13A-8-40(b), Code of Alabama (1975),

" 'In the course of committing a theft' embraces acts which occur...