Davis v. State

• Decision Date: 08 January 1999
• Citation: 737 So.2d 480
• Parties: Ex parte State of Alabama. In re Adrian Roderick DAVIS v. STATE.
• Court: Alabama Supreme Court

737 So.2d 480

Ex parte State of Alabama.

In re Adrian Roderick DAVIS v. STATE.

1961993.

Supreme Court of Alabama.

January 8, 1999.

Bill Pryor, atty. gen., and Cedric B. Colvin, asst. atty. gen., for petitioner.

Thomas M. Goggans, Montgomery, for respondent.

PER CURIAM.

A Chambers County jury convicted Adrian Roderick Davis of murder committed during a robbery, Ala.Code 1975, § 135-40(a)(2), and murder committed during a burglary, § 13A-5-40(a)(4), based on the 1994 death of Artie Kate Harrington. The trial court sentenced Davis to two consecutive terms of life imprisonment without parole. The Court of Criminal Appeals affirmed his conviction for murder committed during the course of a robbery, but reversed his conviction for murder committed during the course of a burglary. Davis v. State, 737 So.2d 474 (Ala.Crim. App.1997). On November 14, 1997, this Court denied Davis's petition for certiorari review, without opinion (docket no. 1961981). We granted the State's petition for a writ of certiorari, to review the Court of Criminal Appeals' judgment reversing the conviction of murder committed during the course of a burglary. We reverse the judgment of the Court of Criminal Appeals insofar as it reversed that conviction, and we remand the cause.

I. Statement of Facts

The Court of Criminal Appeals found that the evidence in this case tended to show the following:

"[Davis] lived in his mobile home with his girlfriend, Shairl Carwell. His mobile home was across the street from the mobile home of the victim, Artie Kate Harrington. Carwell and Harrington were friends and worked together at the same nursing home. On the morning of November 23, 1994, Carwell, while at work, telephoned Harrington's residence and asked Harrington to go to [Davis's] mobile home and tell [Davis] to come to the nursing home to pick up Carwell's paycheck so that he could take it to the bank to cash it. Harrington agreed to do so. Carwell testified that [Davis] picked up her paycheck at the nursing home and then left the nursing home at approximately 8:50 a.m. She stated that she did not see him again until around 1:30 p.m. or 2:00 p.m. that day.

"At around 8:30 ... that morning, Harrington left her mobile home in a taxi and went to the nursing home, where she picked up her paycheck. The taxi driver then took Harrington to the bank to cash her paycheck. After leaving the bank, the driver took Harrington to Lelia Buchanan's house to have her hair done. After Buchanan did Harrington's hair, she agreed to drive Harrington home. En route, the two stopped at the post office, where Harrington purchased a $50 money order and placed it in her purse. Buchanan then drove Harrington to her mobile home and dropped her off.

"At 11:23 a.m., Harrington telephoned her landlord, Bobby Overcash, and told him that he could come by her mobile home to collect the rent. Harrington next telephoned her sister, Ruby McCants. While they were talking, Harrington told McCants that there was a knock at her door and that it must be her landlord. Harrington then told McCants that she would call her back; however, she never did. At around 12:35 p.m., Linda Overcash, Bobby Overcash's wife, went to Harrington's mobile home to collect Harrington's rent. When she arrived, she noticed that the front door was partially open. There were no signs of forced entry. Overcash entered the mobile home and found Harrington's dead body, lying face up on the floor in the living room. It was later determined that Harrington had died from ligature strangulation. She had been strangled with a cord of some type, possibly an electrical cord. Medical testimony indicated that she had a mark one-quarter-inch wide extending around her neck and that she had also received three nonfatal stab wounds to her lower back. Harrington's purse was found hanging at the foot of her bed, a short distance from the living room and her body. [Davis's] fingerprints were found on a Citizen's National Bank envelope and a plain white envelope inside Harrington's purse. The $50 money order was not found.

"In addition to [Davis's] fingerprints being found on items in Harrington's purse, additional evidence was presented to link [Davis] to Harrington's murder. Testimony revealed that [Davis] made two trips to Bi-City Auto on the day of the murder to pay on Carwell's credit account. On the second trip, sometime between 1:30 p.m. and 2:00 p.m., [Davis] presented a $50 money order to a Bi-City Auto employee and asked to pay $10 on Carwell's account. The money order was blank, and [Davis] completed a portion of it with his name. The Bi-City Auto employee accepted the money order and gave [Davis] $40 in change. Evidence was presented establishing that this money order was the same money order Harrington had purchased earlier that morning.

"[Davis] testified at trial. He denied ever having been inside Harrington's mobile home. He was unable to offer any explanation as to how his fingerprints came to be on the items found in Harrington's purse."

Davis, 737 So.2d at 477-78.

Before the Court of Criminal Appeals, Davis argued that this evidence was insufficient to support his conviction for murder during a burglary, primarily because, he claimed, there was no evidence showing that he "knowingly and unlawfully enter[ed] or remain[ed] unlawfully" in Harrington's dwelling. See Ala.Code 1975, § 13A-7-5. The Court of Criminal Appeals held that the State had presented no evidence establishing these statutory elements. Not only did the evidence presented fail to show a "breaking" of the victim's home, there was no direct evidence establishing how Davis entered the home. There were no signs of forced entry indicating that Davis initially entered the home unlawfully. There was also no indication that Davis entered the home with the victim's permission but then remained unlawfully in the home. The court, concluding that this lack of evidence that Davis in some way trespassed in the victim's home was fatal to the prosecution's case, reversed Davis's burglary-murder conviction.

II. Analysis

Davis was indicted for murder committed during a burglary in the first degree, § 13A-7-5, Ala.Code 1975.¹ The relevant portion of that statute provides:

"(a) A person commits the crime of burglary in the first degree if he knowingly and unlawfully enters or remains unlawfully in a dwelling with intent to commit a crime therein, and, if, in effecting entry or while in [the] dwelling or in immediate flight therefrom, he or another participant in the crime:

"(1) Is armed with explosives or a deadly weapon; or

"(2) Causes physical injury to any person who is not a participant in the crime; or

"(3) Uses or threatens the immediate use of a dangerous instrument."

Alabama's burglary statute further provides that "[a] person `enters or remains unlawfully' in or upon premises when he is not licensed, invited or privileged to do so." Ala.Code 1975, § 13A-7-1(4). An unlawful entry or unlawful remaining constitutes the trespassory element of burglary, which element, when coupled with the intent to commit a crime inside, forms the nucleus of the burglary offense.

The common law defined the crime of burglary far more narrowly than its statutory successor does. Common-law burglary required a breaking and entering of the dwelling of another in the nighttime with the intent to commit a felony. Wayne R. LaFave and Austin W. Scott, Jr., Substantive Criminal Law § 8.13 (1986). When Alabama adopted its current burglary statute, as part of the Alabama Criminal Code, by Act No. 607, Reg. Session, Ala. Acts 1977, the legislature expanded the crime of burglary beyond its commonlaw boundaries, by eliminating most of the common-law requirements. The requirement of a "breaking" was one requirement deleted. Perry v. State, 407 So.2d 183 (Ala.Crim.App.1981). The State is no longer required to prove that the defendant broke and entered the premises. Instead, the strictures of that element have been replaced with the general requirement of a trespass on premises through an unlawful entry or an unlawful remaining.

Although the Court of Criminal Appeals did not directly say that Davis's conviction could not stand because there was no proof of a "breaking and entering," the court implied that, by stating that there was no evidence of a breaking and entering and by quoting this statement from Martin v. State, 44 Ala.App. 395, 398, 210 So.2d 704, 707 (1968): "To [prove] burglary it is essential to prove a breaking into and entering of the house in question." Davis, 737 So.2d at 478. As the Court of Criminal Appeals has held repeatedly, this is not the law and has not been the law since the Alabama Criminal Code became effective. Perry, supra; Hollins v. State, 415 So.2d 1249 (Ala.Crim.App.1982); Johnson v. State, 473 So.2d 607 (Ala.Crim.App.1985), overruled, Ex parte Gentry, 689 So.2d 916 (Ala.1996).

While the State was not required to prove "breaking and entering," it was required to prove that Davis entered or remained "unlawfully" in Harrington's home with the intent to commit a crime. The "unlawful remaining" prong of Alabama's burglary statute "cover[s] cases where a person enters with license or privilege but remains after termination of such license or privilege." Ala.Code 1975, § 13A-7-1 Commentary.

The Court of Criminal Appeals expressed a reluctance to follow Ex parte Gentry, supra:

"The Supreme Court's stated intention in Gentry was to prevent conviction for a capital murder committed during the course of a burglary based on the mere fact that the murder took place inside a dwelling. However, while the holding in Gentry may have resolved a specific problem presented by the circumstances in that case, it has created a new problem for those burglary cases where the occupant of the dwelling is murdered, there are no signs of forced entry, and there is no direct evidence as to how the defendant entered the dwelling. Gentry severely curtails the possibility of

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