Fortenberry v. State, 7 Div. 614

• Decision Date: 22 March 1988
• Docket Number: 7 Div. 614
• Citation: 545 So.2d 129
• Parties: Tommy J. FORTENBERRY v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 129

545 So.2d 129

Tommy J. FORTENBERRY v. STATE.

7 Div. 614.

Court of Criminal Appeals of Alabama.

March 22, 1988.

Rehearing Denied May 10, 1988.

Stephen Harrison and Walden M. Buttram, Gadsden, for appellant.

Don Siegelman, Atty. Gen., and William D. Little, Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

On August 25, 1984, four people were killed at the Guest Service Station near Attalla, Alabama. They were Ronald Michael Guest, the son of the station owner; Wilbur T. Nelson, an employee at the station; and Robert William Payne and his wife Nancy, customers present when the robbery occurred. Tommy J. Fortenberry was charged in a two-count indictment with the capital offense of murder wherein two or more persons are murdered, Alabama Code 1975, § 13A-5-40(a)(10), and robbery-murder, § 13A-5-40(a)(2). A jury found him "guilty as charged." After a sentencing hearing, that same jury unanimously recommended punishment by death. At the third stage of the capital trial proceedings, the trial judge held a separate sentencing hearing and sentenced the defendant to death by electrocution. Seven issues are raised on this appeal from that conviction.

I

The defendant maintains that his confessions were obtained during an illegal detention and should not have been admitted at his trial. We disagree. In reaching this conclusion we have considered the testimony and evidence presented both at the hearing on the motion to suppress and at trial. Henry v. State, 468 So.2d 896, 899 (Ala.Cr.App.1984), cert. denied, Ex parte Henry, 468 So.2d 902 (Ala.1985).

The murders were committed on August 25, 1984. Four men were indicted but were never prosecuted after it was discovered that the juvenile who had accused them was lying. Then, in March of 1985, James Jenkins found a .44-caliber magnum Ruger Super Blackhawk revolver on the bank of Black Creek in Alabama City. The pistol contained four empty cartridges. On April 18, 1985, Etowah County Sheriff Roy McDowell received information that Jenkins had found the weapon. The sheriff obtained the pistol and cartridges from Jenkins and delivered them to a state firearms expert, Lawden Yates, at the Birmingham crime lab. On April 22, 1985, Yates examined the pistol and determined that it was the weapon used to kill the four people at the Guest Service Station.

Marlin Carter, chief of the investigators for the Etowah County Sheriff's Office, obtained written statements from Ricky Downing, Thomas Neander, and Steve Whiteside, placing the .44 magnum in the hands of the defendant "a day or so before the shooting." Carter testified, "These three people had seen this murder weapon and knew the weapon, knew where it came from. And could positively identify it. They had seen this weapon in the possession of [the defendant]." The weapon had been stolen from the defendant's father, Jerry Fortenberry, and Jerry Gable, who were partners in a gun repair business located at Gable's residence. The pistol was especially distinctive because "somebody had had fashioned a bolt to retain the cylinder pin." Based upon this information, around 6:00 on the evening of May 2, 1985, Investigator Carter and three other investigators from the Sheriff's Office went to the residence of the defendant's father, where the twenty-one-year-old defendant was living. Investigator Johnny Grant testified that they went to talk to both the defendant and his father. The defendant's eighteen-year-old brother Terry answered the door. Carter asked for Terry's father and Terry said that he "was over at Jerry Gable's." Carter then asked if the defendant was there and Terry replied that he was. Investigator Carter said, "We would like to see him, to talk to him." Terry opened the door, said "come on in," and walked to a bedroom where the defendant was lying in bed. The four investigators followed Terry. Investigator Grant testified that the defendant had been sleeping but was awake when they entered the room. The defendant said that he had been to Montgomery the night before and had slept during that day. Carter testified that the defendant did not look tired. Carter testified that he said, "We need to talk with you, Tommy. We need to talk with you down at the Courthouse, we want you to go with us." The defendant did not say anything but "got up" and "put his clothes on." Captain Grant testified that Carter "told Tommy we needed to talk to him, would he mind coming down to our office with us, and Tommy got up" and that the defendant "agreed and came." After that, Carter sent Grant and Investigator Hershel Womack to find the defendant's father, whom they needed to question about an unrelated pistol that had been reported stolen.

Investigators Carter and Aubrey Newman took the defendant to the courthouse. The defendant was not handcuffed but was read his Miranda rights when they left the house, even though he was not questioned at that time. Carter testified that the defendant "went with us willingly out to the car."

Carter testified that they arrived at the courthouse "about 6:45, or nearly 7:00" and went to the investigator's office on the third floor. At 6:53 that evening, the defendant signed a waiver of rights form. The defendant was questioned about the pistol used in the four murders at the Guest Service Station.

The defendant admitted taking the .44 magnum from his father and Gable. Between 9:00 and 10:00, the defendant, at the request of the officers, telephoned a friend. The record does not reveal the subject matter of that conversation. Around 11:00 or 11:30, the defendant was left alone with his father for "probably fifteen to thirty minutes." Investigator Carter testified that he "probably" would have allowed the father to stay with the defendant "if he had requested to." Around midnight, the defendant showed the investigators where he had disposed of the pistol, which had subsequently been discovered by Mr. Jenkins.

At 12:50 on the morning of May 3, 1985, the defendant gave a tape-recorded statement, claiming that Harvey Underwood was solely responsible for the robbery and the murders. The defendant did admit that he was present when the crime occurred, that Underwood got the murder weapon from him, and that he (the defendant) threw the pistol in the creek. The defendant was placed in a cell to sleep at approximately 2:15 that morning. Investigator Carter testified that at any time prior to the tape-recorded statement, the defendant "could have gotten up and left."

During the interval of approximately six hours between the time the defendant waived his rights until the tape-recorded statement was taken, he was questioned "on and off" and given something to eat. During that time, the investigators "checked out leads" the defendant had given them "to verify whether or not he had been telling us the truth." During this time, the defendant gave three different stories. Investigator Carter testified, "We would go over each statement until he decided that it wasn't true, and he would tell us another one, story. * * * Well, he would tell the same story, and then he would tell a little bit different. So we tried to check it out for him." Captain Grant testified, "We told him that the thing didn't check out, we needed to continue talking to him about it, not that we wanted another statement or we wanted him to say something else." Grant stated, "From the time he admitted that he stole the gun, yes, he would tell us all about it, and then, we would show him, you know, tell him what we had checked out, the story out, and it didn't fit, and he would start with another one."

Around 5:00 or 5:30 on the morning of May 3rd, Underwood was brought to the courthouse to face his accuser. There was testimony that this was done with the permission of both Underwood and the defendant. The defendant again accused Underwood of committing the murders, but Underwood "just practically got down on his knees and said, 'You know I didn't shoot nobody, you know. Why are you doing this?' "

At 5:25 on the afternoon of May 3rd, the defendant gave a handwritten statement admitting his responsibility for the robbery and murders. On Saturday, May 4, 1985, at 1:08 p.m., the defendant gave a detailed statement, recorded by a court reporter, admitting his guilt. On January 1, 1986, after he had escaped and been captured, the defendant gave a statement in the county jail in Bowling Green, Kentucky, wherein he again admitted his guilt.

Sometime before 5:00 on the afternoon of May 3, 1985, Investigators Grant and Carter and William Payne, the father of one of the victims, went to the clerk's office to get an arrest warrant for the defendant. Payne did not relate any facts to the magistrate other than that he was the father of one of the victims. The affidavit merely recites that Payne "has probable cause for believing and does believe that" the defendant intentionally caused the death of four people.

At the hearing on the motion to suppress, Gene Mitchell, the magistrate, testified that when Carter and Grant "asked for a warrant all they had was an incident report, and I needed something else to go on." Grant left and "brought another [sic] statement back from" the defendant. Mitchell stated that he "read the statement. And before reading the statement and after reading the statement I asked questions of Chief Carter." The trial court sustained the objection of defense counsel and refused to allow Mitchell to testify to anything that Investigators Carter and Grant told him.

At the hearing on the motion to suppress, Magistrate Mitchell should have been permitted to testify to the information he obtained from the officers before he issued the arrest warrant. It is well settled that information based on hearsay may support a finding of probable cause. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); Waldrop v. State, 424 So.2d 1345, 1349 (Ala.Cr.App.1982), cert. denied, Waldrop v. Alabama, 472 U.S. 1019, 105...