Ex parte Payne

Decision Date18 October 1996
Docket Number1941815.
Citation683 So.2d 458
PartiesEx parte Max Landon PAYNE. (Re Max Landon Payne v. State).
CourtAlabama Supreme Court

Larry Collins, Cullman, for Petitioner.

Jeff Sessions, Atty. Gen., and Cedric B. Colvin, Asst. Atty. Gen., for Respondent.

KENNEDY, Justice.

Max Landon Payne was convicted on three counts of capital murder (all relating to one killing): count one charged Payne with intentional murder committed during an abduction with the intent to accomplish or aid the commission of robbery or flight therefrom, pursuant to § 13A-5-40(a)(1), Ala.Code 1975; count two charged Payne with intentional murder during an abduction with the intent to inflict serious physical injury, pursuant to § 13A-5-40(a)(1); and count three charged Payne with intentional murder during a robbery in the first degree, pursuant to § 13A-5-40(a)(2). After the sentencing phase of the trial, the jury recommended the death penalty. The trial court accepted the recommendation and sentenced Payne to death. The Court of Criminal Appeals affirmed the conviction and death sentence. Payne v. State, 683 So.2d 440 (Ala.Crim.App.1995).

Payne raises four issues on appeal: (1) Did the Court of Criminal Appeals correctly hold that certain comments made by the prosecutor during closing arguments did not infringe upon Payne's right to remain silent? (2) Did the trial court err in failing to give certain jury charges requested by Payne? (3) Was Payne denied his right to a speedy trial? and (4) Did the trial court commit reversible error by admitting evidence obtained during what Payne says was an illegal search of his automobile?

The Court of Criminal Appeals set out the facts in its opinion. However, we feel it necessary to recite the facts as stated by that court in order to better present the issues.

"On March 23, 1992, Braxton Brown, the owner of West Point Grocery in Cullman, Alabama, was robbed, abducted, and subsequently shot two times in the face with a shotgun. He died as a result of the shotgun wounds and his body was found the following day in Crooked Creek.
"The state's evidence tended to show that Payne was at his sister's house, where he was living at the time, in the company of his girlfriend and two other people in the early evening hours of March 23, 1992. Sandra Walker, Payne's girlfriend, testified that she did not know the other two individuals with Payne. The three left at around 6:00 p.m. Payne returned to the house about 10 minutes later and went to the closet and removed his double-barreled shotgun. Wilma Faye Easterling, Payne's sister, asked Payne why he needed his shotgun. Payne replied, `In case somebody fucks with me.' Walker identified Payne's double-barreled shotgun in court.
"At approximately 8:33 p.m. on March 23, 1992, Judy Gail Byrum an employee of the company that monitored the alarm system at the West Point Grocery Store received an alarm from West Point Grocery. At 8:36 p.m. sheriff's deputy Jason Allen received a call that there had been a holdup at West Point Grocery. Allen notified Toby Welch, a dispatcher, who subsequently asked Gordon Nichols to respond to the scene. Nichols, a deputy sheriff with the Cullman County Sheriff's Department, responded to the call and arrived at West Point Grocery at 8:48 p.m. Nichols discovered the door of the store open and that some of the lights were off in the store. The lights outside the store were also off. Nichols also observed several packs of Marlboro cigarettes lying on the floor in front of the counter. Nichols did not find anyone in the store. He notified the dispatcher and secured the area. Bobby Watson, a sergeant with the Cullman County Sheriff's Department, arrived on the scene at approximately 9:08 p.m. He subsequently requested that an investigator be sent to the scene. Payne had been seen at West Point Grocery by two customers, Christy Sue Godsey and Becky Noone, around 8:25 or 8:30 p.m. Sometime after this and before 9:00 p.m. that evening, Payne arrived at his sister Faye Easterling's house. The victim, Braxton Brown, was with him. Sandra Walker, Payne's girlfriend, was present. At trial, Walker identified a photograph of Brown as a photograph of the man with Payne that evening. Walker testified that when the two men entered the house, Easterling asked Payne what was going on. Walker testified that Brown had three bank deposit bags and two cartons of Marlboro cigarettes with him. Walker identified the three bank deposit bags at trial. Brown told Easterling that he heard that she was pregnant and also that he heard that she needed `that,' referring to money. Easterling told Brown that she did not want the money. Brown asked her again to take the money, and Easterling said that she did not want the money.
"Walker testified that Brown appeared very nervous and scared. Payne instructed Brown to give Easterling the money he owed her. Brown took out four $5.00 bills and laid them on the kitchen table. Walker testified that Easterling and Payne then went to the bathroom, which is located next to the kitchen. Walker testified that the door to the bathroom was open and that she overheard Easterling saying `don't do this' several times.
"Walker further testified that she, Payne, and Payne's two sisters had been involved in an automobile accident the week before and that Payne was wearing a sling on his left shoulder as a result of an injury he received. Walker testified that Payne had a gun in his right hand, inside the sling, on the night he arrived at the house with Brown. Walker identified a handgun at trial as the one that Payne carried that night. Walker testified that Easterling asked Payne to give the gun back to Brown. Payne refused. Then Payne gave Brown the clip out of the gun. Easterling asked Payne to leave Brown with her or to take him back to his store and said that `maybe he would forget about this.' Walker testified that at this point, Brown nodded in the affirmative. Payne responded, `No, I am going to do this.' Then Payne left with Brown.
"When they were leaving the house, Payne and Brown met Ricky Smith and his wife Evelyn. Ricky Smith testified that he arrived at Easterling's house around 8:55 or 9:00 p.m. that evening. This was the last time that Brown was seen alive. Smith testified that when he walked into Easterling's house, she was crying. Easterling was speaking to Smith's wife and he overheard her say that Payne had robbed and kidnapped Brown.
"At approximately 9:15 p.m., Payne arrived at George Cleghorn's house. Payne asked Cleghorn if he could use his telephone. Payne called someone on the telephone and asked them if they had any bullets for a .22 rifle. Payne also asked Cleghorn if he had any bullets. Cleghorn identified Payne's clothing at trial as the clothing that he was wearing the night of this incident.
"Shortly after 9:08 p.m., Payne's sister Alma arrived at the West Point Grocery and informed Sergeant Watson that Payne was traveling in a blue Ford Maverick automobile with one missing headlight. Based on the information that Watson received from Payne's sister, Watson ordered the dispatcher to issue an all-points bulletin to be on the lookout for the automobile and to advise all officers that Payne was in the company of Braxton Brown.
"At 10:00 p.m. that evening, Investigator Ted Manus was at the West Point Grocery taking pictures of the scene when he received a call that gunshots had been heard. He went to see if he could locate the origin of the shots but could not. Manus returned to the store and secured several packages of cigarettes from the store that were found on the floor. He then received a call that Brown had been seen with Payne. Manus also received information that Brown and Payne were seen together at a residence near Bethel. Manus left the store and proceeded to the residence.
"Mitchell Love, an investigator with the Cullman County Sheriff's Department, arrived at Easterling's residence at approximately 10:15 p.m. Love testified that he located a blue Ford Maverick automobile outside this residence. Love had previously received word to be on the lookout for an automobile matching this description. Love notified the dispatcher that he had located the vehicle and asked for assistance on the scene. Several other officers arrived shortly thereafter. The officers looked inside the vehicle and observed several beer cans, some live shotgun shells and some expended shotgun shells and an arm sling.
"Phillip Lambert, the chief investigator for the sheriff's department, arrived at Easterling's residence. He also looked inside the Ford Maverick and observed two spent shotgun shells, several unspent shotgun shells, and an arm sling. He later called for a tow truck to have the automobile towed to the sheriff's department.
"At 12:05 a.m., on March 24, 1992, Rebecca Herbstreth, a ticket agent for Greyhound Bus Lines in Birmingham, Alabama, sold someone identifying himself as James Beavers a bus ticket to Key West, Florida.
At trial, Herbstreth identified Payne as the individual who claimed to be James Beavers. Herbstreth testified that she noticed that Payne was wearing a white T-shirt and torn blue jeans that had blood stains on them. Herbstreth further testified that Payne had cuts on his face. Payne gave Herbstreth a gold chain when he bought his ticket. Herbstreth identified this gold chain at trial. The chain was subsequently identified by the victim's son as one offered for sale from West Point Grocery. Payne handed out cigarettes to passengers while waiting for his bus and also helped one individual pay for a bus ticket. Herbstreth testified that Payne had tied to his waist a blue money bag that contained a lot of money. Herbstreth stated that Payne told her he received this money from the sale of his automobile.
"At approximately 7:50 a.m. on the morning of March 24, 1992, a man walked into the Greyhound Bus Station in Birmingham with a wallet that he had found about a

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