Dubose v. State

• Court: Alabama Court of Criminal Appeals
• Writing for the Court: PATTERSON; MONTIEL
• Citation: Dubose v. State, 662 So.2d 1156 (Ala. Crim. App. 1993)
• Decision Date: 30 September 1993
• Docket Number: CR-89-359
• Parties: Edward Russell DUBOSE v. STATE.

Page 1156

662 So.2d 1156

Edward Russell DUBOSE v. STATE.

CR-89-359.

Court of Criminal Appeals of Alabama.

Sept. 30, 1993.

Rehearing Denied March 4, 1994.

William H. Allen, Arvid E. Roach II, Timothy C. Hester, Seth A. Tucker, Alane C. Weixel, Jeffrey B. Coopersmith of Covington & Burlington, Washington, DC, and Robert C. Campbell III, Mobile, for appellant.

James H. Evans, Atty. Gen., and Sandra Stewart and Robert Lusk, Jr., Asst. Attys. Gen., for appellee.

PATTERSON, Judge.

The appellant, Edward Russell Dubose, was charged, in a three-count indictment filed on February 3, 1989, for the capital offenses of the murder of Stephanie Marie King during a kidnapping in the first degree or an attempt thereof, § 13A-5-40(a)(1), Code of Alabama 1975; during a rape in the first degree or an attempt thereof, § 13A-5-40(a)(3); and during sodomy in the first degree or an attempt thereof, id. The three counts specifically charged the appellant with the victim's murder by asphyxia due to ligature strangulation. On February 24, 1990, a jury convicted the appellant on all three counts and subsequently recommended, by a vote of 11 to 1, that the appellant be sentenced to death by electrocution.

Pursuant to § 13A-5-47, the trial court held a sentencing hearing and found the following aggravating circumstances: (1) the capital offense was committed while the appellant was engaged in the commission of, or an attempt to commit, a rape and a kidnapping, § 13A-5-49(4); and (2) the capital offense was especially heinous, atrocious, or cruel when compared to other capital offenses, § 13A-5-49(8). The court found no statutory mitigating circumstance, § 13A-5-51. It noted that it had "carefully considered all aspects of the [appellant's] character or record as revealed by the evidence presented at trial and during the sentence hearing, and the pre-sentence investigation report and any evidence submitted in connection with it" and that it had "also considered any other relevant mitigating circumstance offered by the [appellant]." After finding that the aggravating circumstances "far outweigh any mitigating circumstances" and after considering the jury's recommendation, the court found that the only appropriate sentence for the appellant was death by electrocution. The appellant filed a motion for a new trial; that motion was denied on July 3, 1990.

The evidence at trial established the following facts.

At approximately 10:20 a.m. on Saturday, October 22, 1988, the victim, who was 16 years old, went to the Alco Baptist Church, where, in addition to being a member and the organist, she worked part-time as custodian. At approximately 10:35 a.m., the victim telephoned her mother and discussed some cleaning instructions left by Rev. Bobby Rone, the minister. At approximately 10:45 a.m., the victim telephoned the minister and told him, "There is a man here by the name of Robert who wants to talk with you." Then, a male, who in the minister's opinion sounded like a black man, ¹ asked the minister if the church would be open that day, and the minister said no. The man then asked if the church would be open on Monday. The conversation politely concluded.

When the minister arrived at the church about noon on Saturday, he did not observe a car parked in the lot. When he approached the church, he noticed that the double doors leading to the administrative offices were ajar. He went through the doors and noticed that a light was on in the secretary's office. He further observed that the door to his office was open, that the light was on, and that the plastic bag that lined his wastebasket was on his desk. Because it was unusual for the victim to leave the building in such a manner, the minister telephoned the victim's house and was informed that the victim was not there.

At 12:35 p.m., Brewton Police Lieutenant David Lovelace received a telephone call from the victim's father, who said that his wife had telephoned him and told him that the victim was supposed to be cleaning the church but that she was not there. He asked Lovelace to check Hardee's restaurant and McDonald's restaurant. When Lovelace did not see the victim's car at either place, he went to the Alco Baptist Church about 12:45 p.m.

Brewton Police Chief Grover Smith, upon receiving a telephone call at approximately 12:53 p.m. that the victim was missing, went directly to the church. Around 1:00 p.m., a search was organized at the church. One of the members of the search party, Wayne Overstreet, started his search on Pea Ridge Road, turned off onto Cunningham Road, and then turned off onto another road. When that road forked, Overstreet stopped his vehicle, got out, and walked down the road to the right. He noticed some recent tire tracks so he continued walking another 50 to 100 yards, at which point he saw the 1976 Ford Maverick automobile that the victim had been driving that morning. It was parked off the road in a heavily wooded area. When he approached the car, he saw the victim in the front seat. She was slumped over toward the passenger side. All the vehicle's doors were locked, so he beat on the front passenger window, but he got no response. He then left to get help. At approximately 1:50 p.m., Chief Smith received a telephone call that the victim's body had been found.

Approximately 15 minutes later, Overstreet returned to the victim's parked car with Chief Smith and Lieutenant Lovelace. Chief Smith used a tool to unlock the driver's door. A cord was wrapped around the victim's neck. One end was wrapped around one post of the driver's headrest. This cord appeared to be the drawstring cord from the victim's sweatpants, which she was still wearing. The victim was declared dead at the scene.

At around 2:45 p.m., that afternoon, Fountain Correctional Center's dog handler, Burley Townson, arrived at the crime scene with tracking dogs. He was shown tennis shoe tracks near the victim's vehicle. Two dogs were taken to the tracks and when they indicated that they had picked up the scent, Townson turned them loose. They followed a sandy road until it forked; they took the right fork, which led to a graded road. There the dogs turned right, and after approximately 100 yards, they turned left onto another graded road. At one point, the dogs left the road, went about 15 yards into the woods to a junk pile, and then returned to the road. When that road intersected with Pea Ridge Road they turned right and tracked for approximately 20 yards. There, the dogs stopped. While he was running after the dogs, Townson saw footprints, which appeared to be the same type of tennis shoe tracks, in sandy spots. For example, he saw footprints where someone had left the road at the junk pile and had then returned to the road. The last visible footprints were two feet off of Pea Ridge Road.

The following day, October 23, an examination and autopsy were performed on the victim's body. The victim wore braces on her teeth. Her bruised and swollen lips were consistent with her lips having been pushed up against her braces by a hand or a mouth. There were three abrasions on her upper back that were consistent with injuries inflicted by fingertips. A four-inch injury to her head indicated that either her head had struck or had been struck by an object. While there was no visible damage to her brain, the head injury may have caused her to lose consciousness. Her right forearm was bruised where she could have been grabbed, and the back of her left elbow was also bruised. Her external genitalia had a one-half inch laceration, as large as any seen by the medical examiner up until that time, and her anus was bruised and had a five-eighths inch tear, all of which were consistent with forced entry. Her panties had dark bloodstains from these lacerations. Her vagina had an "obvious fair amount" of seminal fluid, possibly from more than one person and more than the medical examiner usually sees in a rape victim.

The victim's face had petechial (pinpoint) hemorrhages. Her face was a dark purple compared to the skin below the ligature mark because the blood flow had been stopped by the cord. The cord had been tied with two overhand knots, which were below her left ear. In regard to the character of these knots, the medical examiner noted at trial that the first overhand knot could have slipped before the second one could have held it into place, unless something was holding the first knot. The tightness of the cord produced a ligature furrow where the cord had "bitten" into the skin. The circumference of that part of the ligature that was around the victim's neck was 10 inches while the circumference of her neck was 11 1/4 inches. The injuries to the neck also indicated that the cord had been moved up and down on the neck.

The medical examiner concluded that the victim had died as a result of strangulation. During the victim's strangulation, toxic products in the blood coming from the brain via the jugular veins remained in the brain; the blood flow to the brain via the carotid arteries was cut off; the nerves in the neck that govern the heartbeat were compressed; and the tongue was pushed upwards and backwards, covering the airway and thus stopping any oxygen from going to the lungs. The medical examiner concluded that it took the victim at least three minutes or "a little bit" longer to die, but that because the wounds also showed that the cord might have been moved up and down, the cord could have been around the victim's neck longer than three minutes.

Also on October 23 Chief Smith returned to the area where the dogs had left the road. This property is owned, in part, by the appellant's mother. There he found two white, heavily soiled rags and the remains of a burned purse. Another officer, who was with Chief Smith, found a comb some yards from the purse. The victim's mother identified the purse and the comb as those the victim was carrying the morning of her murder. A forensics document examiner...