Ex parte Windsor, 1931643.

CourtSupreme Court of Alabama
Writing for the CourtCOOK, Justice
Citation683 So.2d 1042
PartiesEx parte Harvey Lee WINDSOR. (Re Harvey Lee Windsor v. State).
Docket Number1931643.
Decision Date18 October 1996

683 So.2d 1042

Ex parte Harvey Lee WINDSOR.
(Re Harvey Lee Windsor v. State).

1931643.

Supreme Court of Alabama.

August 23, 1996.

Rehearing Denied October 18, 1996.


683 So.2d 1043

COPYRIGHT MATERIAL OMITTED

683 So.2d 1044

Kathryn V. Stanley, Montgomery, Hugh Holladay, Pell City, and Ray Lowery, Pell City, for Petitioner.

Jeff Sessions, Atty. Gen., and Gilda Branch Williams, Deputy Atty. Gen., for Respondent.

COOK, Justice.

Harvey Lee Windsor was convicted on June 12, 1992, of the capital murder of Rayford Howard. The murder occurred during the course of a robbery of a convenience store. Following a sentencing hearing, the jury unanimously recommended that Windsor be sentenced to death. The trial court accepted the recommendation. Initially, the Court of Criminal Appeals reversed the conviction and remanded the case for a new trial Windsor v. State, 683 So.2d 1013 (Ala.Cr. App.1993); however, this Court granted the State's petition for the writ of certiorari and reversed the judgment of the Court of Criminal Appeals. See Windsor v. State, 683 So.2d 1021 (Ala.1994). Thereafter, the Court of Criminal Appeals affirmed Windsor's conviction. See Ex parte Windsor, 683 So.2d 1027 (Ala.Cr.App.1994). We have now granted Windsor's petition for certiorari review. For the following reasons, we affirm the judgment of the Court of Criminal Appeals.

Facts

At trial, the State offered evidence that Harvey Lee Windsor and an accomplice, Colon Lavon Guthrie, robbed two convenience stores. The owner of each store was fatally shot. This appeal addresses Windsor's conviction for the capital murder of Rayford Howard, who was killed in the first of those two robberies. The statement of facts set out by the Court of Criminal Appeals in its June 17, 1994, opinion included the following:

"On February 25, 1988, at approximately 2:00 p.m., Rayford Howard was found dead in his store in St. Clair County. He died as a result of a shotgun blast to the chest. Money had been taken from the store's cash register and the victim's pants pockets had been emptied. A witness saw someone carrying a `sawed-off shotgun' leave the victim's store, open the breach and reload the gun, and get into a black sports car.
"On this same day, the appellant and Guthrie were seen in St. Clair County travelling together in a black Ford Mustang automobile with gold stripes and the word `Boss' written in gold on the sides. At approximately 1:00 p.m. that day, the
683 So.2d 1045
appellant and Guthrie had visited Sammie Sue Wilson Osborne at her house. Ms. Osborne's house was located approximately five miles from Rayford Howard's store.
"The automobile in which the appellant was riding was seen later that afternoon travelling at a high rate of speed in Marshall County and in Lawrence County. The automobile was also seen at Tommy's Store, a convenience store, in Lawrence County. An occupant of the car discarded two Budweiser beer cans in the parking lot of Tommy's Store.
"The automobile was also seen at approximately 8:00 p.m. at a store in Colbert County. The attendant at the Colbert County store, Randall Earl Pepper, was killed by a shotgun blast to the head. The appellant was identified as the person running from the store and getting into the automobile. When the appellant was arrested, he had in his possession a .25 caliber automatic pistol that had belonged to Mr. Pepper.
"The automobile in which the appellant and Guthrie were travelling had been stolen on February 23, 1988, from Connie's Quick Stop convenience store in Tiftonia, Tennessee. The automobile was recovered on February 26, at Tiftonia Baptist Church, two-tenths of a mile from Connie's Quick Stop. Guthrie's sister's house was located between Connie's Quick Stop and the Tiftonia Baptist Church.
"When the automobile was searched, the following items were recovered: a ring of keys, a receipt from Parisian department store, a 20-gauge shotgun shell, and cigarette butts. One of the keys on the recovered ring opened a padlock that secured the rear door of Howard's store. The Parisian receipt was for a suit that Mr. Howard had purchased for his wife. The 20-gauge shotgun shell had been fired from the same gun as a shell that was recovered outside Howard's store. The appellant's fingerprint was found on one of the cigarette butts.
"Additionally, Guthrie's fingerprints were found on Mr. Howard's driver's license, which was recovered, along with his wallet and its contents, beside the road a few miles from his store. Guthrie's fingerprints were also found on one of the Budweiser beer cans that were left at Tommy's Store in Lawrence County."

683 So.2d at 1030.

I.

Windsor argues that the indictment charging him with capital murder was fatally defective. We hereby adopt the reasoning of the Court of Criminal Appeals in its June 17, 1994, opinion, in holding that the indictment was not constitutionally vague or fatally defective. That court stated:

"The appellant contends that the indictment charging him with murder during the course of a robbery was unconstitutionally vague and did not sufficiently apprise him of the charges against him. The indictment reads as follows:
"`HARVEY LEE WINDSOR, whose true name is otherwise unknown to the Grand Jury, did intentionally cause the death of Rayford W. Howard by shooting him with a shotgun, and Harvey Lee Windsor was in the course of a committing or attempting to commit a theft of money, the lawful currency of the United States of America, a more particular denomination and description of which is otherwise unknown to the Grand Jury, the property of Rayford W. Howard, with the intent to overcome his physical resistance or physical power of resistance, while the said Harvey Lee Windsor was armed with a deadly weapon or a dangerous instrument, to-wit: a shotgun, in violation of § 13A-5-40(a)(2) of the Code of Alabama....'
"Specifically, the appellant contends that the indictment was deficient because it did not state the value of the currency that was taken.
"`Prior to the enactment of § 13A-8-40 et seq. of the 1975 Code of Alabama, there was no statutory robbery in Alabama and the offense was derived from the common law. See Cobern v. State, 273 Ala. 547, 142 So.2d 869 (1962); Watts v. State, 53 Ala.App. 518, 301 So.2d 280 (1974). Common law robbery required a "taking" of property from the
683 So.2d 1046
person of another, Wilson v. State, 268 Ala. 86, 105 So.2d 66 (1958), although the amount or value of the property taken was immaterial. Sanders v. State, 289 Ala. 224, 266 So.2d 802 (1972); Harris v. State, 44 Ala.App. 449, 212 So.2d 695 (1968).
"`The present robbery statutes, however, do not require a "taking" of property, Marvin v. State, 407 So.2d 576 (Ala.Cr.App.1981); Ala.Code 1975, §§ 13A-8-40 through 13A-8-44 (1975) (Commentary), so that not only is the value of the property immaterial, but also the indictment need not allege an actual theft to constitute the offense. The operative words of the current robbery statute are "in the course of committing a theft," which includes an attempted theft, Marvin v. State, supra, rather than the common law element of an actual "taking from the person."'
"Grace v. State, 431 So.2d 1331, 1333 (Ala. Cr.App.1982).
"Robbery is an offense against the person and, therefore, the value of the property taken during a robbery is not an element of the crime. See §§ 13A-8-40 through 13A-8-44, Code of Alabama 1975. The indictment charging the appellant with murder during the course of a robbery was not deficient."

683 So.2d at 1032. See also Acres v. State, 548 So.2d 459, 462-64 (Ala.Cr.App.1987).

II.

Windsor contends that the trial court should have granted his motion for a change of venue and that its failure to do so constituted reversible error. We disagree.

"Rule 10.1(a), Ala. R.Crim. P., states, `The defendant shall be entitled to a change of the place of trial to the nearest county free from prejudice if a fair and impartial trial and unbiased verdict cannot be had for any reason.' The burden of proof is on the defendant `to show to the reasonable satisfaction of the court that a fair and impartial trial and an unbiased verdict cannot be reasonably expected in the county in which the defendant is to be tried.' Rule 10.1(b)....
". . . .
"`"The determination of whether or not to grant a motion for change of venue is generally left to the sound discretion of the trial judge, because he has the best opportunity to assess any prejudicial publicity against the defendant and any prejudicial feeling against the defendant in the community which would make it difficult for the defendant to receive a fair and impartial trial." Nelson v. State, 440 So.2d 1130, 1132 (Ala.Cr.App. 1983). See also Trahan v. State, 450 So.2d 1102 (Ala.Cr.App.1984).'
"Burton v. State, 651 So.2d 641 (Ala.Cr. App.1993). The trial court's ruling on a motion for a change of venue will not be reversed absent an abuse of discretion. Sockwell v. State, 675 So.2d 4 (Ala.Cr.App. 1993); Mullis v. State, 545 So.2d 205, 209 (Ala.Cr.App.1989); Knighten v. State, 507 So.2d 1015, 1021 (Ala.Cr.App.1986). To meet the burden of proof necessary to require a change in venue because of pretrial publicity, the defendant must show more than that the case generated widespread publicity. Oryang v. State, 642 So.2d 979 (Ala.Cr.App.1993).... `"It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court."' Ex parte Fowler, 574 So.2d 745, 747 (Ala.1990) (quoting Nelson at 1131); Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961)."

Buskey v. State, 650 So.2d 605, 609-10 (Ala. Cr.App.1994). The trial judge questioned the veniremembers regarding their knowledge of the facts of this case. The lack of response he received when he asked which members of the venire were familiar with the case supports his denial of the motion for a change of venue. There was no abuse of discretion.

III.

Windsor...

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117 practice notes
  • Brown V. State Of Ala. Appeal From Talladega Circuit Court (CC-01-290), CR-07-1332
    • United States
    • Alabama Court of Criminal Appeals
    • June 25, 2010
    ...he now complains, we review them for plain error. See Rule 45A, Ala. R. App. P. As the Alabama Supreme Court stated in Ex parte Windsor, 683 So. 2d 1042, 1061 (Ala. 1996): "'"While this failure to object does not preclude review in a capital case, it does weigh against any claim of prejudic......
  • Dotch v. State, No. CR-07-1913 (Ala. Crim. App. 4/2/2010), No. CR-07-1913.
    • United States
    • Alabama Court of Criminal Appeals
    • April 2, 2010
    ...able to present most of the evidence through later testimony); Windsor v. State, 683 So. 2d 1027, 1038-39 (Ala. Crim. App. 1994), aff'd, 683 So. 2d 1042 (Ala. 1996) (trial court erred in excluding hearsay evidence, but no reversal due because similar evidence was presented in later 946 So. ......
  • Brown v. State, CR-01-1900.
    • United States
    • Alabama Court of Criminal Appeals
    • April 28, 2006
    ..."Duke v. State, 889 So.2d 1, 17 (Ala. Crim.App.2002), quoting Windsor v. State, 683 So.2d 1027, 1033 (Ala.Crim. App.1994), aff'd 683 So.2d 1042 (Ala. "The Alabama Supreme Court in 1877 recognized that there are instances when a defendant may lawfully be physically restrained during trial pr......
  • Harrison v. State
    • United States
    • Alabama Court of Criminal Appeals
    • May 31, 2002
    ...State, 683 So.2d 440 (Ala.Crim.App.1995), aff'd, 683 So.2d 458 (Ala.1996); Windsor v. State, 683 So.2d 1027 (Ala.Crim.App.1994), aff'd, 683 So.2d 1042 (Ala.1996); Taylor v. State, 666 So.2d 36 (Ala.Crim.App.), opinion extended after remand, 666 So.2d 71 (Ala.Crim.App.1994), aff'd, 666 So.2d......
  • Request a trial to view additional results
117 cases
  • Brown V. State Of Ala. Appeal From Talladega Circuit Court (CC-01-290), CR-07-1332
    • United States
    • Alabama Court of Criminal Appeals
    • June 25, 2010
    ...he now complains, we review them for plain error. See Rule 45A, Ala. R. App. P. As the Alabama Supreme Court stated in Ex parte Windsor, 683 So. 2d 1042, 1061 (Ala. 1996): "'"While this failure to object does not preclude review in a capital case, it does weigh against any claim of prejudic......
  • Dotch v. State, No. CR-07-1913 (Ala. Crim. App. 4/2/2010), No. CR-07-1913.
    • United States
    • Alabama Court of Criminal Appeals
    • April 2, 2010
    ...able to present most of the evidence through later testimony); Windsor v. State, 683 So. 2d 1027, 1038-39 (Ala. Crim. App. 1994), aff'd, 683 So. 2d 1042 (Ala. 1996) (trial court erred in excluding hearsay evidence, but no reversal due because similar evidence was presented in later 946 So. ......
  • Brown v. State, CR-01-1900.
    • United States
    • Alabama Court of Criminal Appeals
    • April 28, 2006
    ..."Duke v. State, 889 So.2d 1, 17 (Ala. Crim.App.2002), quoting Windsor v. State, 683 So.2d 1027, 1033 (Ala.Crim. App.1994), aff'd 683 So.2d 1042 (Ala. "The Alabama Supreme Court in 1877 recognized that there are instances when a defendant may lawfully be physically restrained during trial pr......
  • Harrison v. State
    • United States
    • Alabama Court of Criminal Appeals
    • May 31, 2002
    ...State, 683 So.2d 440 (Ala.Crim.App.1995), aff'd, 683 So.2d 458 (Ala.1996); Windsor v. State, 683 So.2d 1027 (Ala.Crim.App.1994), aff'd, 683 So.2d 1042 (Ala.1996); Taylor v. State, 666 So.2d 36 (Ala.Crim.App.), opinion extended after remand, 666 So.2d 71 (Ala.Crim.App.1994), aff'd, 666 So.2d......
  • Request a trial to view additional results

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