Dobyne v. State

• Decision Date: 15 April 1994
• Docket Number: CR-91-1840
• Parties: Willie C. DOBYNE v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1319

672 So.2d 1319

Willie C. DOBYNE v. STATE.

CR-91-1840.

Court of Criminal Appeals of Alabama.

April 15, 1994.

Philip Lisenby, Centreville, and Sharon D. Hindman, Russellville, for appellant.

James H. Evans, Atty. Gen., and Melissa Math and Frances Smith, Asst. Attys. Gen., for appellee.

TAYLOR, Judge.

The appellant, Willie C. Dobyne, was convicted of murder made capital because the murders occurred during the course of a robbery in the first degree. See § 13A-5-40(a)(2), Code of Alabama 1975. The jury, by a vote of 10 to 2, recommended that the appellant be sentenced to death. The trial court accepted the jury's recommendation and sentenced the appellant to death by electrocution.

The state's evidence tended to show that on January 12, 1991, at approximately 2:30 a.m., Leon Billingsley and Linda Snipes, employees of the County Truck Stop and Sawmill Restaurant (hereinafter called the County Truck Stop) in Brent, Alabama, were shot by the appellant and his codefendant, Cleophus Dukes. Evidence showed that the appellant shot Billingsley in the back and that Dukes shot Snipes in the upper chest and neck. Kenneth E. Warner, State Medical Examiner, testified that both victims died as a result of the injuries.

After the shootings the appellant and Dukes took Snipes's purse and the cash register and went to Bear Creek. They then forced open the register, which contained approximately $200.00 in cash, and threw the empty register in the water. Dukes later disposed of the guns by throwing them in Haysop Creek.

Because there were no eyewitnesses to the events, the above information was elicited from a tape-recorded conversation between the appellant and his half-brother, Joshua Suttle, and from a statement that the appellant gave to police. Other evidence was presented that connected the appellant to the crime and the shotguns were retrieved from Haysop Creek.

Anthony Parks testified that earlier on the night the shootings occurred, he was with the appellant and Dukes at a trailer belonging to Dukes's brother. He said that both Dobyne and Dukes were in the trailer when he went to bed. Parks stated that when he went to bed there were two shotguns in his bedroom, and that when he awoke the next morning the shotguns were gone and so were the appellant and Dukes. Parks identified one of the guns discovered in Haysop Creek as the gun that belonged to his father and that was in the bedroom when he went to bed. The other gun discovered in the creek, Parks testified, was like the other gun in the trailer the night before the shootings.

Bob Rinehart, chief of police of Brent, testified that he was at the County Truck Stop at approximately 11:00 p.m. on the night the murders occurred. He testified that at that time the appellant and Dukes were at the County Truck Stop. He further stated that he purchased two drinks and that Snipes put the money he paid her for the drinks in the cash register.

The manager of the County Truck Stop, Earnie Wilson, testified that when he left at around 10:00 p.m. on the night of the murders, both Billingsley and Snipes were in the store and there was approximately $200 in the cash register.

We note that many of the issues raised by the appellant on appeal deal with matters not objected to at trial or otherwise preserved for appellate review. "While this will not bar our review in a case involving the death penalty, it will weigh against any claim of prejudice." Williams v. State, 601 So.2d 1062, 1066 (Ala.Cr.App.1991). Rule 45A, A.R.App.P. states:

"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 As we recognized in Burton v. State, 651 So.2d 641 (Ala.Cr.App.1993): " '[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, 12 (1985), quoting United States v. Frady, 456 U.S. 152, 163, 102 S.Ct. 1584, 1592, 71 L.Ed.2d 816 (1982)." Burton, 651 So.2d at 645.

affected the substantial right of the appellant."

I

The appellant initially contends that the first count of the indictment against him was duplicitous in violation of Rule 13.3, A.R.Crim.P., which states, "Two or more offenses shall not be joined in the same count." Specifically, he argues that he was charged with two counts of robbery-murder in one count of the indictment. Count I of the indictment against the appellant reads as follows:

"The Grand Jury of said County charge that before the finding of this indictment Willie C. Dobyne whose name is otherwise unknown to the Grand Jury other than as stated, did intentionally cause the death of another person, to-wit: Linda Snipes and Leon Billingsley by shooting them with a shotgun, and Willie C. Dobyne caused said death during the time that he was in the course of committing a theft of United States Currency, the Property of County Truck Stop, by the use of force against the persons of Linda Snipes and Leon Billingsley, with intent to overcome their physical resistance or physical power of resistance, while the said Willie C. Dobyne was armed with a deadly weapon or dangerous instrument, to-wit: a shotgun, in violation of Section 13A-5-40(a)(2) of the Code of Alabama, against the peace and dignity of the State of Alabama."

Initially, we observe that this issue was not presented to the trial court. Rule 15.2(a), A.R.Crim.P., states: "Objections based on defects in the commencement of the proceeding or in the charge, other than lack of subject matter jurisdiction or failure to charge an offense, may be raised only by pretrial motion as provided in Rule 15.3." "Duplicity does not rise to the level of a failure to charge an offense." Campbell v. State, 508 So.2d 1186, 1191 (Ala.Cr.App.1986). Thus, this issue should have been raised before trial. Rule 15.2, A.R.Crim.P. Because this issue was not timely raised, we must evaluate this contention under the plain error doctrine. Rule 45A, A.R.App.P.

Rule 13.3 ¹ states: "Two or more offenses shall not be joined in the same count." It was a violation of this rule to join both capital murders, § 13A-5-40(a)(2), in the same count of the indictment. However, this error was error without injury to the appellant. The appellant could lawfully have been indicted for two counts of capital murder, the murder of Billingsley during a robbery and the murder of Snipes during a robbery. The appellant faced conviction for two counts of capital murder. He has not suffered any prejudice. Committing a double murder is also a capital offense under § 13A-5-40(a)(10). This was the offense charged in count II of the indictment. This count was dropped before the case was submitted to the jury.

Although we will not attempt to foresee all ramifications of this issue that might be presented by future cases, we hold that the error in the indictment in this case was error without injury under Rule 45, A.R.App.P. This rule states:

"No judgment may be reversed or set aside, nor new trial granted in any civil or criminal case on the ground of misdirection of the jury, the giving or refusal of special charges or the improper admission or rejection of evidence, nor for error as to any matter of pleading or procedure, unless in the opinion of the court to which the appeal is taken or application is made, after an examination of the entire cause, it should appear that the error complained of The defect in the indictment was not called to the attention of the trial court. Therefore, the limitation upon finding plain error must be applied in this case. Rule 45A, A.R.App.P.

has probably injuriously affected substantial rights of the parties."

The appellant further contends that the indictment was fatally defective because, he says, it failed to allege that the items stolen were the property of the victims. Again, this issue was not brought to the attention of the trial court; thus the plain error doctrine applies.

As the Alabama Supreme Court stated in Ex parte Hamm, 564 So.2d 469, 471 (Ala.), cert. denied, 498 U.S. 1008, 111 S.Ct. 572, 112 L.Ed.2d 579 (1990):

"[T]he statutes that define the elements of first degree robbery do not require that the person against whom force is used be the owner of the stolen property. Ala.Code 1975, §§ 13A-8-41(a) and -43(a); Raines v. State, 429 So.2d 1104, 1106 (Ala.Cr.App.), aff'd, 429 So.2d 1111 (Ala.1982), cert. denied, 460 U.S. 1103, 103 S.Ct. 1804, 76 L.Ed.2d 368 (1983)."

The indictment was not defective for stating that the owner of the stolen property was the truck stop rather than the murdered employees. Rheaume v. State, 624 So.2d 678 (Ala.Cr.App.1993).

II

The appellant next contends that the trial court erred in not holding a competency hearing. This issue was never presented to the trial court; therefore, our consideration of it can only be through application of the plain error rule.

The record reflects that the appellant initially pleaded not guilty by reason of mental disease or defect. ² Upon motion of the appellant the court ordered that he be examined at Taylor Hardin Secure Medical Facility. Dr. Kathy A. Rogers, a certified forensic examiner at Taylor Hardin, evaluated the appellant and found him competent to stand trial.

Based on Dr. Rogers's findings, the trial court determined that no competency hearing was necessary. The court is the initial screening agent for requests for mental examinations, Reese v. State, 549 So.2d 148 (Ala.Cr.App.1989), overruled on other grounds, Huntley v. State, 627 So.2d 1013 (Ala.1992), and the system relies on the sound judgment of the trial judge. There was no error in not ordering a competency...