Davis v. State

CourtAlabama Court of Criminal Appeals
Citation740 So.2d 1115
PartiesDavid Eugene DAVIS v. STATE.
Decision Date29 May 1998

Gail Dickinson, Pell City, for appellant.

Bill Pryor, atty. gen., and Rosa H. Davis, asst. atty. gen., for appellee.


The appellant, David Eugene Davis, was charged with two counts of capital murder for the deaths of Kenneth Douglas and John Fikes. Count I charged him with murder made capital because two people were murdered by one act or pursuant to one scheme or course of conduct, § 13A-5-40(a)(10), Ala.Code 1975, and Count II charged him with murder made capital because he committed it during a robbery in the first degree or an attempt thereof, § 13A-5-40(a)(2), Ala.Code 1975. In exchange for the State dismissing Count II, he pled guilty to and was convicted of Count I. The trial court engaged the appellant in a thorough colloquy, as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and Rule 14.4, Ala. R.Crim. P., during which the appellant admitted his guilt and expressed his desire to enter a guilty plea. The appellant entered his guilty plea, and the matter was presented to a jury so the jury could determine whether the State had proven its case against the appellant beyond a reasonable doubt, as required by § 13A-5-42, Ala.Code 1975. After the jury returned a verdict of guilty, the penalty phase proceedings began. By a vote of eleven to one, the jury recommended that the appellant be sentenced to death by electrocution. The trial court accepted the jury's recommendation and sentenced the appellant to death by electrocution.

We have reviewed the proceedings before and during the guilt phase of the trial for jurisdictional errors. § 13A-5-42, Ala. Code 1975. Further, we have reviewed the penalty phase proceedings for any error, whether preserved or plain, as required by Rule 45A, Ala. R.App. P., which provides as follows:

"In all cases in which the death penalty has been imposed, the court of criminal appeals shall notice any plain error or defect in the proceedings under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial right of the appellant."

In Haney v. State, 603 So.2d 368, 392 (Ala.Cr.App.1991), aff'd, 603 So.2d 412 (Ala.1992), cert. denied, 507 U.S. 925, 113 S.Ct. 1297, 122 L.Ed.2d 687 (1993), we stated as follows:

"The Alabama Supreme Court has adopted federal case law defining plain error, holding that `"[p]lain error" only arises if the error is so obvious that the failure to notice it would seriously affect the fairness or integrity of the judicial proceedings,' Ex parte Womack, 435 So.2d 766, 769 (Ala.), cert. denied, 464 U.S. 986, 104 S.Ct. 436, 78 L.Ed.2d 367 (1983) (quoting United States v. Chaney, 662 F.2d 1148, 1152 (5th Cir.1981))."

"[T]he plain-error exception to the contemporaneous-objection rule is to be `used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result.'" United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1, 14 (1985), quoting United States v. Frady, 456 U.S. 152, 163 n.14, 102 S.Ct. 1584, 1592 n.14, 71 L.Ed.2d 816 n.14 (1982). To find plain error, a reviewing court must find that "the claimed error not only seriously affected `substantial rights,' but that it had an unfair prejudicial impact on the jury's deliberations." Young, 470 U.S. at 16, n.14, 105 S.Ct. at 1047 n.14, 84 L.Ed.2d at 14 n.14.


The appellant's first argument is that the evidence was insufficient to support the jury's finding that the State met its burden of proving the elements of capital murder beyond a reasonable doubt. First, he argues that there was no evidence that the killings were premeditated. He asserts that the only evidence of his intent to kill the victims was circumstantial and came from his admissions. He further contends that, at the time of the murders, he was too intoxicated to form the specific intent to kill. When moving for a judgment of acquittal, the appellant argued only that the State had not proved that he committed the murders pursuant to one course of conduct. Thus, he did not preserve for review the arguments he raises on appeal. McElroy v. State, 611 So.2d 431 (Ala.Cr.App.1992). Accordingly, we must review the claims he asserts on appeal under the plain error rule. Rule 45A, Ala. R.App. P.

The evidence introduced at trial showed the following:

At around 9 p.m. on June 23, 1996, the appellant was drinking alcohol with his exbrother-in-law, Tommy Reed. He told Reed he wanted to kill his ex-wife, from whom he had recently been divorced, and he said he knew where he could get a firearm. He left Reed, and around 10 p.m., he asked two people at a service station for directions to the victims' home. At the time, he was aggressive and seemed to be in a hurry. According to his statements to police, he went to the victims' home and spoke to Kenneth Douglas. At some point, he got into a confrontation with Douglas during which he took a firearm from Douglas and shot him. When he heard another person moving in the bedroom, he shot into that room, killing John Fikes. He then started collecting various items belonging to the victims, including several firearms, which he said he intended to sell to obtain crack cocaine. As he was doing so, he noticed a kerosene lantern and decided to set the house on fire.

Around 1:30 a.m. the following morning, a relative of one of the victims noticed that the victims' house was on fire and telephoned 911. Also around 1:30 a.m., the appellant went to Louis Dodd's home and attempted to sell Dodd some of the firearms he took from the victims' home. Dodd described the appellant as being "scared to death" and said he appeared to be "drunk and on drugs." When Dodd told him not to come to his house at that time of the morning asking to sell stolen properly, he told Dodd, "They come from far away." Shortly thereafter, the Trussville Police Department received a complaint about a man walking door-to-door, holding a sawed-off shotgun in one hand and a jug in the other, and asking for gasoline for his vehicle. When they arrived at the scene, the officers recognized the appellant's vehicle and located the appellant. As the officers were trying to arrest the appellant, he dropped the shotgun behind some bushes. The officers testified that the appellant was aware of what was happening as they arrested him and that he probably was not intoxicated to such a degree that he could be arrested for driving under the influence. They also testified that the area where they arrested the appellant was known for drug activity. The officers found numerous items in his vehicle that belonged to the victims.

Tommy Reed, the appellant's ex-brother-in-law, testified that, on June 24, 1996, he talked to the appellant while the appellant was in the Trussville jail. When Reed asked him how bad it was, the appellant responded that it was "real bad" and "more than life." He then said, "I'll see you in heaven."

At trial, some of the witnesses speculated that the appellant was under the inflence of drugs and alcohol when he committed the murders.

The medical examiner testified that the victims died from the gunshot wounds.

The appellant first contends that the only evidence of his intent to kill was circumstantial and came from two statements he gave.

"`In reviewing a conviction based on circumstantial evidence, this court must view that evidence in a light most favorable to the prosecution. The test to be applied is whether the jury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt; not whether such evidence excludes every reasonable hypothesis but guilt, but whether a jury might reasonably so conclude.'
"Cumbo v. State, 368 So.2d 871, 874 (Ala.Cr.App.),

cert. denied,

368 So.2d 877 (Ala.1979), citing United States v. Black, 497 F.2d 1039 (5th Cir.1974). Additionally, circumstantial evidence may form the proof of the corpus delicti; if facts are presented from which a jury may draw a reasonable inference that a crime has been committed, the case must be submitted to the jury. Breeding v. State, 523 So.2d 496, 500 (Ala.Cr.App. 1987)."

MacEwan v. State, 701 So.2d 66, 70-71 (Ala.Cr.App.1997).

"`A defendant's guilt may be established by circumstantial evidence as well as by direct evidence. As long as the circumstantial evidence points to the guilt of the accused, it will support a conviction as strongly as direct evidence. In reviewing a conviction based on circumstantial evidence, "[t]he test to be applied is whether the jury might reasonably find that the evidence excluded every reasonable [hypothesis] except that of guilt; not whether such evidence excludes every reasonable hypothesis but guilt, but whether a jury might reasonably so conclude."'

"McMillian, 594 So.2d [1253] at 1263 [(Ala.Cr.App.1991)] (citations omitted). See also Potts v. State, 426 So.2d 886 (Ala.Cr.App.1982), aff'd, 426 So.2d 896 (Ala.1983). This statement of the law refers to cases in which the evidence is entirely circumstantial.

"`"The rule is clearly established in this State that a verdict of conviction should not be set aside on the ground of the insufficiency of the evidence to sustain the verdict, unless, after allowing all reasonable presumptions of its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince the court that it was wrong and unjust."'
"White v. State, 546 So.2d 1014, 1022-23 (Ala.Cr.App.1989),

quoting Bridges v. State, 284 Ala. 412, 225 So.2d 821 (1969)."

Jenkins v. State, 627 So.2d 1034, 1040 (Ala.Cr.App.1992), aff'd, 627 So.2d 1054 (Ala.1993), cert. denied, 511 U.S. 1012, 114 S.Ct. 1388, 128 L.Ed.2d 63 (1994). Furthermore, the question of a defendant's intent at the time of...

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