Flowers v. State

• Decision Date: 25 February 2005
• Docket Number: No. CR-01-1489.,CR-01-1489.
• Citation: 922 So.2d 938
• Parties: Timothy FLOWERS v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

922 So.2d 938

Timothy FLOWERS v. STATE of Alabama.

No. CR-01-1489.

Court of Criminal Appeals of Alabama.

February 25, 2005.

Rehearing Denied April 8, 2005.

Certiorari Denied August 19, 2005 Alabama Supreme Court 1041065.

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Richard D. Jensen, Foley, for appellant.

Troy King and William H. Pryor, Jr., attys. gen., and Henry M. Johnson and Stephen Shows, asst. attys. gen., for appellee.

WISE, Judge.

The appellant, Timothy Flowers, was convicted of capital murder for intentionally murdering Tommy Philyaw during the course of a kidnapping and a robbery, see §§ 13A-5-40(a)(1) and 13A-5-40(a)(2), Ala. Code 1975. The jury, by a vote of 10 to 2, recommended that Flowers be sentenced to death. The trial court accepted the jury's recommendation and sentenced Flowers to death. This appeal, which is automatic in a case in which the death penalty has been imposed, followed.

The State's evidence tended to show the following: On November 28, 2000, Ruby Welch and Brenda Owens¹ reported to police that Tommy Philyaw was missing and that they suspected he had been the victim of a crime. They told police that Owens overheard John Morrow, Flowers's codefendant, and four other individuals talking about robbing Philyaw. Police went to Philyaw's trailer and discovered a large quantity of blood on the dirt road near his trailer and Philyaw's hat near the blood. Philyaw's truck was missing. The investigation focused on Flowers and his codefendants John Morrow, Elizabeth Fillingim, Angela Morrow, and Kendall Packer,² after several of the codefendants were interviewed by police and admitted their participation in the events that led to Philyaw's murder. The five codefendants agreed to rob Philyaw of his Christmas club money — a little over $1,000. Their plan called for one of the females to lure Philyaw from his trailer, where the group would then rob him.

On November 27, 2000, either Fillingim or Angela Morrow went to Philyaw's trailer and, pretending to have car trouble, asked for Philyaw's help. Philyaw followed the individual back to her car. Flowers, John Morrow, and Packer were waiting at the car, and when Philyaw arrived they began beating him with a metal pipe. They then put Philyaw in the back of his truck and drove to a secluded area. While they were driving Philyaw begged for his life and told them that he could get them more money; they continued to beat him with a pistol until they arrived at an isolated area. Flowers shot Philyaw in the back while he was lying face down in the bed of the truck. The truck was then set on fire.

Flowers led police to the body and to the shotgun used to kill Philyaw. The shotgun belonged to Philyaw. When leading police to the body Flowers said, "I hope you have a strong stomach, because this is where the massacre began."

The victim's body was badly burned; the remains weighed 65 pounds. The forensic pathologist, Dr. Kathleen Enstice, testified that she could not conclusively state how many times Philyaw had been shot because the fire destroyed some of the evidence. She testified that Philyaw was alive when the shotgun pellets entered his chest and severed his aorta. Another pellet also entered his right shoulder. This shot was also inflicted before his death. Four pellets were recovered from the bed of the truck. Five spent shells were recovered from the scene. Enstice testified that the cause of death was multiple gunshot wounds and that it was her opinion that Philyaw was dead when his body was set on fire.

Flowers was indicted for murdering Philyaw during the course of a kidnapping and a robbery, for murdering Philyaw while Philyaw was in a motor vehicle, for conspiring with his codefendants to kill Philyaw during a robbery, and for conspiring with his codefendants to kill Philyaw during a kidnapping. The jury convicted Flowers of two counts of capital murder — murder committed during the course of a kidnapping and murder committed during a robbery — and acquitted him of the conspiracy charges.

A separate sentencing hearing was held before the jury. See § 13A-5-45(a), Ala. Code 1975. The jury, by a vote of 10 to 2, recommended that Flowers be sentenced to death. A presentence report was prepared. See § 13A-5-47, Ala.Code 1975. The circuit court held a separate sentencing hearing at which it heard additional mitigating evidence. See § 13A-5-47(c), Ala.Code 1975. The circuit court found as aggravating circumstances that the murder was committed during the course of a kidnapping and a robbery and that the murder was especially heinous, atrocious, or cruel as compared to other capital offenses. See §§ 13A-5-49(4) and 13A-5-49(8), Ala.Code 1975. The circuit court found as mitigating circumstances that Flowers had no significant history of prior criminal activity, § 13A-5-51(1), that he was 18 years old at the time of the murder, § 13A-5-51(7), that he lacked a stable home life, that his mother had died when he was 16, that he lacked an education, and that he abused drugs, § 13A-5-52. After weighing the aggravating circumstances and the mitigating circumstances the circuit court sentenced Flowers to death. This appeal, which is automatic in a case where the death penalty has been imposed, followed. See § 13A-5-55, Ala.Code 1975.

Standard of Review

Because Flowers has been sentenced to death, we review the record of the proceedings in the circuit court for plain error. Rule 45A, Ala.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 affected the substantial right of the appellant."

In defining the plain-error standard, this Court has stated:

"The standard of review in reviewing a claim under the plain-error doctrine is stricter than the standard used in reviewing an issue that was properly raised in the trial court or on appeal. As the United States Supreme Court stated in United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985), the plain-error doctrine applies only if the error is `particularly egregious' and if it `seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.' See Ex parte Price, 725 So.2d 1063 (Ala.1998), cert. denied, 526 U.S. 1133, 119 S.Ct. 1809, 143 L.Ed.2d 1012 (1999); Burgess v. State, 723 So.2d 742 (Ala.Cr.App.1997), aff'd, 723 So.2d 770 (Ala.1998), cert. denied, 526 U.S. 1052, 119 S.Ct. 1360 (1999); Johnson v. State, 620 So.2d 679, 701 (Ala.Cr.App.1992), rev'd on other grounds, 620 So.2d 709 (Ala.1993), on remand, 620 So.2d 714 (Ala.Cr.App.), cert. denied, 510 U.S. 905, 114 S.Ct. 285, 126 L.Ed.2d 235 (1993)."

Hall v. State, 820 So.2d 113, 121-22 (Ala. Crim.App.1999), aff'd, 820 So.2d 152 (Ala. 2001), cert. denied, 535 U.S. 1080, 122 S.Ct. 1966, 152 L.Ed.2d 1025 (2002). Guilt-Phase Issues

I.

Flowers argues that the circuit court erred in denying his request for youthful-offender ("YO") status because he had no prior convictions. He asserts that the trial court erred in denying his request based solely on the severity of the capital-murder charges. Flowers cites the Alabama Supreme Court decision in Ex parte Farrell, 591 So.2d 444 (Ala.1991), to support his contention.

The record shows that Flowers filed an application for YO status. The circuit court ordered that the State Probation and Parole Office investigate his application. A report was filed with the circuit court and a hearing was held. After hearing arguments, the circuit court denied the YO application and stated:

"This case, the charge in this case, the additional charges that the defendant has in CC-01-148, burglary, first charge, and receiving stolen property, second charge, and the defendant's prior run-ins, connections with law enforcement in November 2000, and September 2000, in Escambia County, I believe those charges were domestic violence charges, and domestic violence assault, third, possession of a forged instrument charge. And based on those reasons, Youthful Offender status is being denied."

(Supplemental record, vol. II, page 11.)

The Alabama Supreme Court in Farrell held that the seriousness of a charge alone is not a sufficient basis on which to deny YO status but that the nature of the facts on which the charge rests may alone be sufficient to deny YO status. The Farrell Court stated:

"If the Legislature provides for and permits youthful offender protection in regard to a criminal charge, then it makes no sense for the judiciary to deny that protection because of that same criminal charge in and of itself. Indeed, such a judicial ruling would make it impossible for the accused to acquire the protection that the Legislature has afforded, because the very charge serving as the basis for allowing the youthful offender petition in the first place would also be used as the reason for denying it. Accordingly, we hold that a criminal charge in and of itself cannot be used as the sole basis for properly denying a petition for youthful offender status. . . .

"We are not saying that the nature of the fact situation on which a charge is based cannot be, in itself, a sufficient reason for denying youthful offender status; to the contrary, we hold that the nature of the fact situation on which a charge is based may, alone, be a sufficient reason for denying youthful offender status. For example, if a minor is charged with first degree assault for beating an elderly person nearly to death with a baseball bat, then the nature of the fact situation on which the first degree assault charge is based could be, in itself, a sufficient reason for properly denying a petition for youthful offender status, although the first degree assault charge in and of itself could not be the basis for denying that...