Eatmon v. State

• Decision Date: 31 August 2007
• Docket Number: CR-04-2241.
• Citation: 992 So.2d 64
• Parties: Dionne EATMON v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

992 So.2d 64

Dionne EATMON v. STATE of Alabama.

CR-04-2241.

Court of Criminal Appeals of Alabama.

August 31, 2007.

Rehearing Denied December 14, 2007.

Certiorari Denied March 21, 2008 Alabama Supreme Court 1070408.

Talitha Powers Bailey, Birmingham, for appellant.

Troy King, atty. gen., and Kevin W. Blackburn, asst. atty. gen., for appellee.

WELCH, Judge.

Dionne Eatmon was convicted of the murder of Allison Kile, made capital because it occurred during a kidnapping in the first degree, a violation of § 13A-5-40(a)(1), Ala.Code 1975; the murder of Rick Kile, made capital because it occurred during a kidnapping in the first degree; and murder made capital because Allison and Rick Kile were killed pursuant to one scheme or course of conduct, a violation of § 13A-5-40(a)(10), Ala.Code 1975. Eatmon was sentenced to death for each count.

The evidence adduced at trial tended to show the following. Late on the night of February 5 and into the early morning hours of February 6, 2004, Rick Kile and his wife, Allison, went to a house on Jesse Owens Avenue in Brighton, where it was known that drugs were freely used. People could purchase and/or smoke crack cocaine and marijuana at the house.

Eatmon, Aundra "Dra" Marshall,¹ and several other people were at the house when Rick came in. Allison waited in the car. Witnesses testified that Rick and Marshall began to argue over $200 Rick owed Marshall for drugs Rick had gotten earlier. Ollie Taylor, who was at the house when Rick and Marshall were arguing, testified that Marshall told Rick that he "didn't trust [Rick] no more, because [Marshall] had shot at Rick, and Rick had called the police and filed a report. So, he wasn't taking no second chances with him no more, and he wanted his money right then and there." (R. 603.)

Rick and Marshall began fighting. Taylor said that "Rick had got the better of Aundra" (R. 603-4), and Marshall "hollered" for Eatmon to help him. Eatmon grabbed an iron bar used to bar the door and hit Rick twice. Rick stopped fighting and said he would get the money for Marshall. Marshall then made Rick sit on the floor.

Allison, who was still waiting in the car, blew the horn. Marshall told Steven Mayes and Rhonda "Molly" Wells, who were also visiting the house, to bring Allison into the house. The two brought Allison up to the house. Meanwhile, Marshall told Taylor to cut the electrical cord from a fan in the kitchen. Taylor brought Marshall the cord, and Marshall bound Rick's wrists behind his back.

Marshall led Rick down to the Kiles' car and put him in the trunk. Marshall went back into the house, where Allison was sitting on a couch praying. Marshall tied her hands with a cloth then led her to the car and forced her into the trunk with Rick. Rick then began to struggle, using his knees to prevent Marshall from closing the trunk. Marshall again asked for help from Eatmon, who again used the iron bar to beat Rick in the legs. Rick yelled out that he thought Eatmon had broken his legs and that he could not "hold on no longer." (R. 613.) Marshall then closed the trunk. After loading kerosene in the car, Marshall and Eatmon drove off in the Kiles' car with Rick and Allison in the trunk.

They parked the car on Watts Street in Brighton. Mattie Louise Thomas, who lives on Watts Street, testified that she was awakened by a loud noise before daybreak on February 6, 2004. She said she looked outside and saw two young black men running up the street and a car burning at the end of the street.

After igniting the Kiles' car, Eatmon and Marshall went to another drug house on Watts Street and enlisted Sidney Nelson to drive them away from the scene. At trial, Nelson and another man at the Watts Street crack house, Julian "Fat" Lathan, identified Eatmon as one of the two men who came to the house early that morning looking for a ride.

The fire department arrived at Watts Street. After dousing the car fire, firefighters opened the trunk of the car and discovered two bodies, later identified as Rick and Allison Kile.

Dr. Gregory G. Davis, Jefferson County assistant medical examiner in the coroner's office, performed the autopsies on the Kiles. He testified that both Rick and Allison had injuries indicating they had been strangled, but their deaths were caused by a combination of assault and "inhalation of products of combustion" or carbon-monoxide poisoning. (R. 471-72.) Both bodies were severely burned.

Testing conducted by the Alabama Department of Forensic Sciences indicated that both Rick and Allison had been doused with gasoline. The inside of their car had been doused with gasoline on the driver's side and kerosene on the passenger's side.

Eatmon presented no evidence in his defense during the guilt phase of the trial.

I.

Eatmon contends that the trial court erred in failing to grant his motion for a continuance, which he requested when Eatmon's mitigation expert told Eatmon's counsel he was unable to complete his evaluation in time for the trial.

"`"A motion for a continuance is addressed to the discretion of the court and the court's ruling on it will not be disturbed unless there is an abuse of discretion. Fletcher v. State, 291 Ala. 67, 277 So.2d 882 (1973). If the following principles are satisfied, a trial court should grant a motion for continuance on the ground that a witness or evidence is absent: (1) the expected evidence must be material and competent; (2) there must be a probability that the evidence will be forthcoming if the case is continued; and (3) the moving party must have exercised due diligence to secure the evidence. Knowles v. Blue, 209 Ala. 27, 32, 95 So. 481, 485-86 (1923)."'

"Fortenberry v. State, 545 So.2d 129, 138 (Ala.Crim.App.1988)."

Ex parte Clark, 728 So.2d 1126, 1134 (Ala. 1998), (quoting Ex parte Saranthus, 501 So.2d 1256, 1257 (Ala.1986)). See also Scott v. State, 937 So.2d 1065, 1076 (Ala. Crim.App.2005).

"`There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.' Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 850, 11 L.Ed.2d 921 (1964)." Glass v. State, 557 So.2d 845, 848 (Ala.Crim.App. 1990).

"`The reversal of a conviction because of the refusal of the trial judge to grant a continuance requires "a positive demonstration of abuse of judicial discretion." Clayton v. State, 45 Ala.App. 127, 129, 226 So.2d 671, 672 (1969).' Beauregard v. State, 372 So.2d 37, 43 (Ala.Cr. App.), cert. denied, 372 So.2d 44 (Ala. 1979)."

McGlown v. State, 598 So.2d 1027, 1029 (Ala.Crim.App.1992).

"`[N]ormally, a reviewing court determines the correctness of a trial court's ruling "as of the time when it was made and according to what the record shows was before the lower court at that time."' Henry v. State, 468 So.2d 896, 899 (Ala.Cr.App.1984), cert. denied, 468 So.2d 902 (Ala.1985)."

Dozier v. State, 630 So.2d 137, 140 (Ala. Crim.App.1993).

The record in this case shows that on the Friday before the trial began, after discussing proposed questions for a juror questionnaire, Eatmon's attorney informed the trial court that the defense might have a "potential issue," because the mitigation expert retained two months earlier had advised defense counsel that he had to have six months to prepare for trial. The attorney told the trial court that he had been able to obtain the telephone number of another mitigation expert, however, and he intended to contact her "to see if she is able to come on board and prepare. If not, then we will be asking for a motion to continue to allow our mitigation expert time to prepare his aspect of the case for the death penalty phase." (R. 62.)

The trial court questioned Eatmon's attorney about whether Eatmon had a learning disability, to which Eatmon's attorney responded, "Not that we know of." (R. 63.) The trial court then asked whether Eatmon had been sexually abused. The attorney did not directly answer the question, saying, "I think it's a matter of gaining the school records, contacting the witnesses, Judge, preparing them for their mitigation aspect, and knowing that it is a capital case and the co-defendant [Marshall] was given the death penalty regarding the mitigation aspect." (R. 63.)

The following Monday, the day trial was scheduled to begin, Eatmon's attorney reported to the trial court that he had been unable to contact the mitigation expert he hoped to use in place of the initial expert he had retained, and he requested a continuance. The trial court denied the motion, noting that the motion for a mitigation expert had been approved two months earlier.

Nothing in the record indicates that defense counsel was aware of specific evidence to be used in mitigation in the penalty phase of the trial. From the comments of Eatmon's attorney to the trial court, it appears that the mitigation expert was expected to review Eatmon's school records and prepare witnesses to testify during the penalty phase — both of which could be ably accomplished by defense counsel without the need for an expert. Further, nothing in the record indicates that there was information in Eatmon's school records or in his past experiences that would provide a basis for a mitigating circumstance. In other words, Eatmon failed to show that he expected the mitigation expert to add any evidence during the penalty phase that would serve as a valid mitigating circumstance.

Furthermore, the record does not indicate when Eatmon's attorneys learned that the mitigating expert would need more time to prepare for trial. Defense counsel notified the court of a "possible issue" arising from the unavailability of their mitigation expert on the Friday before trial was scheduled to begin on Monday. Not until the morning trial was set to begin did Eatmon actually request a continuance. It strains...