Gamble v. State

• Decision Date: 04 February 2000
• Citation: 791 So.2d 409
• Parties: LaSamuel GAMBLE v. STATE.
• Court: Alabama Court of Criminal Appeals

791 So.2d 409

LaSamuel GAMBLE v. STATE.

CR-97-0698.

Court of Criminal Appeals of Alabama.

February 4, 2000.

Opinion on Return to Remand June 30, 2000.

Rehearing Denied August 18, 2000.

Certiorari Denied March 2, 2001.

Irvin Harry Lyon, Pelham; and Joe W. Morgan, Jr., Birmingham, for appellant.

Bill Pryor, atty. gen., and A. Vernon Barnett IV, asst. atty. gen., for appellee.

Alabama Supreme Court 1992229.

LONG, Presiding Judge.

The appellant, LaSamuel Gamble, was convicted of two counts of capital murder in connection with the killings of John Burleson and Janice Littleton. The murders were made capital because they were committed during the course of a robbery in the first degree. See § 13A-5-40(a)(2), Ala.Code 1975. The jury recommended, by a vote of 10-2, that Gamble be sentenced to death for his convictions. The trial court accepted the jury's recommendation and sentenced Gamble to death by electrocution.

The State's evidence tended to show the following. On July 25, 1996, Gamble and his accomplices, Marcus Presley¹ and Steven McKenzie,² robbed "John's 280 Pawn," a pawnshop on Highway 280 in Shelby County. During the robbery, Presley killed John Burleson, the owner of the pawnshop, and Janice Littleton, an employee of the pawnshop, by shooting them in the head. A surveillance camera inside the pawnshop captured the entire robbery on videotape, including Gamble's participation in the robbery and the murders and Presley's shooting of Burleson and Littleton.³ Events depicted on the videotape revealed that approximately 30 minutes before the robbery, Presley entered the pawnshop, looked around, and asked Burleson about some merchandise in the store. Presley left, and at approximately 3:20 p.m., he returned, this time accompanied by Gamble (McKenzie did not come inside the pawnshop during the robbery, but waited outside in the car). Both men were armed with handguns. Gamble and Presley forced Burleson and Littleton to lie down on the floor behind the counter while they spent approximately 30 minutes going through the pawnshop, taking jewelry, guns, and cash from the cash register. Before leaving the store, Presley approached Burleson and Littleton, who were still lying on the floor; he leaned over the counter, and fired one shot. The videotape showed that after Presley fired the shot, his gun jammed. While he was trying to unjam his gun, Presley turned and motioned to Gamble, who was standing just outside the front door. Gamble walked to where Presley was standing, and then returned to the front door. Presley fired his gun at the victims a second time; his gun again jammed. At that point, Gamble began picking up unspent bullets that had fallen out of Presley's gun when Presley was trying to unjam it. Presley fired one more shot at the victims. The videotape showed that Gamble then leaned over the counter and looked at the victims on the floor. The two men then quickly left the pawnshop.

Testimony revealed that Presley shot Burleson twice in the head and Littleton once in the head. Burleson was dead when the police arrived at the pawnshop. Littleton was still alive when the police arrived, but she died later that day at the hospital from the gunshot wound.

The day following the robbery-murders, Gamble and his accomplices traveled by bus to Boston, Massachusetts, where they remained for approximately one week. McKenzie was arrested in Boston on August 1, 1996. Information given to police by McKenzie led to the arrests of Gamble and Presley on August 9, 1996, in Norfolk, Virginia. Both Gamble and Presley gave statements to police officers in Virginia before they were returned to Alabama. On August 19, 1996, Gamble and Presley gave second statements to investigators with the Shelby County, Alabama, Sheriff's Office. Items identified as being stolen from the pawnshop were found in the possession of McKenzie, Gamble, and Presley after their arrests. Some of the items stolen from the pawnshop were also found in Gamble's mother's house in Birmingham.

On appeal from his convictions, Gamble raises numerous issues, many of which he did not raise by objection in the trial court. Because Gamble was sentenced to death, his failure to object at trial does not bar our review of these issues; however, it does weigh against any claim of prejudice Gamble now makes on appeal. See Dill v. State, 600 So.2d 343 (Ala.Cr.App.1991), aff'd, 600 So.2d 372 (Ala.1992), cert. denied, 507 U.S. 924, 113 S.Ct. 1293, 122 L.Ed.2d 684 (1993); Kuenzel v. State, 577 So.2d 474 (Ala.Cr.App. 1990), aff'd, 577 So.2d 531 (Ala.), cert. denied, 502 U.S. 886, 112 S.Ct. 242, 116 L.Ed.2d 197 (1991).

Rule 45A, Ala.R.App.P., provides:

"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."

This court has recognized that "`the plain-error exception to the contemporaneous-objection rule is to be "used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result."'" Burton v. State, 651 So.2d 641, 645 (Ala.Cr.App.1993), aff'd, 651 So.2d 659 (Ala.1994), cert. denied, 514 U.S. 1115, 115 S.Ct. 1973, 131 L.Ed.2d 862 (1995), quoting United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985) (quoting United States v. Frady, 456 U.S. 152, 163, 102 S.Ct. 1584, 1592, 71 L.Ed.2d 816 (1982)). Accordingly, we will address the issues raised by Gamble on appeal.

I.

Gamble contends that he was denied his Sixth Amendment right to counsel because a lawyer was not appointed to represent him "from the moment of his arrest in Virginia." (Gamble's brief to this court, p. 73.) Gamble did not present this claim to the trial court; therefore, we will review it pursuant to the plain-error rule. Rule 45A, Ala.R.App.P. This claim is meritless.

In Gilchrist v. State, 585 So.2d 165 (Ala.Cr.App.1991), we said:

"Decisions by the United States Supreme Court `have long recognized that the [Sixth Amendment] right to counsel attaches only at or after the initiation of adversary judicial proceedings against the defendant.' United States v. Gouveia, 467 U.S. 180, 187, 104 S.Ct. 2292, 2297, 81 L.Ed.2d 146 (1984). `By its very terms, [the Sixth Amendment] becomes applicable only when the government's role shifts from investigation to accusation.' Moran v. Burbine, 475 U.S. 412, 430, 106 S.Ct. 1135, 1146, 89 L.Ed.2d 410 (1986). `[T]he Sixth Amendment right to counsel does not attach until after the initiation of formal charges.' Moran, 475 U.S. at 431, 106 S.Ct. at 1146. The Supreme Court has recognized that, depending on the jurisdiction, the initiation of formal charges may occur at the preliminary hearing, indictment, information, or arraignment. Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411 (1972)."

585 So.2d at 168. "Alabama statutes provide that counsel be appointed prior to arraignment if it is shown that the defendant does not have counsel and is indigent." Goodson v. State, 588 So.2d 509, 513 (Ala.Cr.App.1991).

The record reflects that Gamble was arrested in Virginia on August 9, 1996, and was indicted that same day by the Shelby County, Alabama, grand jury. On August 14, 1996, an arrest warrant was issued for Gamble in Shelby County for the murders of Burleson and Littleton. Gamble was extradited from Virginia to Alabama on August 18, 1996. On August 20, 1996, during his initial appearance before the trial court, Gamble informed the court that he wished to retain counsel. The trial court gave Gamble until September 6, 1996, to retain counsel and said that in the event that he had not done so by September 6, it would appoint counsel to represent him. When Gamble failed to retain counsel, the trial court found Gamble to be indigent and appointed counsel for him on September 9, 1996. Gamble was not arraigned until October 3, 1996, approximately one month after counsel was appointed.

Gamble was properly appointed counsel before his arraignment. He was not, as he claims on appeal, entitled to appointed counsel at the time of his arrest. Moreover, there is no indication in the record that Gamble ever requested counsel when he was arrested or when he gave statements to the police. Thus, we find no error, plain or otherwise, here. See Goodson, supra; see also Guenther v. State, 282 Ala. 620, 624-25, 213 So.2d 679 (1968), cert. denied, 393 U.S. 1107, 89 S.Ct. 916, 21 L.Ed.2d 803 (1969) (wherein court declined to extend right to counsel to attach at the "moment [the defendant] is arrested").

II.

Gamble contends that the trial court erred in denying his motion to continue the hearing on his application for youthful offender status. He appears to argue that the continuance should have been granted because, he says, the State had not "provided discovery" and that the State "may have had discoverable evidence in the form of statements of others that could have had an impact on his testimony at the Youthful Offender Hearing, and which may have affected the trial." (Gamble's brief to this court, p. 65.) We find no merit to this claim.

"The trial court has discretion in determining whether or not to grant a continuance. This Court will not reverse the trial court's decision in regard to a continuance absent a showing of gross abuse of the trial court's discretion." Malone v. State, 659 So.2d 1006, 1011 (Ala.Cr. App.1995) (citations omitted). "`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, Ex parte Beauregard, 372 So.2d 44 (Ala. 1979...