Gaston v. State, CR–15–0317

CourtAlabama Court of Criminal Appeals
Citation265 So.3d 387
Docket NumberCR–15–0317
Parties Jovon Dwayne GASTON v. STATE of Alabama
Decision Date16 March 2018

265 So.3d 387

Jovon Dwayne GASTON
STATE of Alabama


Court of Criminal Appeals of Alabama.

March 16, 2018
Rehearing Denied May 25, 2018

Olivia Ensign and Brian Stull, Durham, North Carolina, for appellant.

Luther Strange and Steve Marshall, attys. gen., and Thomas Govan and Audrey K. Jordan, asst. attys. gen., for appellee.

JOINER, Judge.

265 So.3d 396

Jovon Dwayne Gaston was convicted of murder made capital because it was committed during a kidnapping, see § 13A–5–40(a)(1), Ala. Code 1975, and during a robbery, see § 13A–5–40(a)(2), Ala. Code 1975. During the penalty phase of Gaston's trial, the jury recommended by a vote of 10 to 2 that Gaston be sentenced to death. The circuit court followed the jury's recommendation, finding that the aggravating circumstances outweighed the mitigating circumstances in his case, and sentenced Gaston to death. This appeal, which is automatic in a case involving the death penalty, followed. See § 13A–5–53, Ala. Code 1975.

Statement of Facts and Procedural History

The evidence adduced at trial established that, on April 20, 2011, Gaston and Tyrone Thompson were at a friend's house with Gaston's brother, Patrick Watkins, and Tyrone's girlfriend, Cheryl Bush. According to Cheryl Bush, throughout the night she saw Gaston and Tyrone "standing to the side" and "whispering" to each other. Eventually, Gaston, Watkins, Tyrone, and Bush left their friend's house, dropping Watkins off "on the east side" before taking Bush home. After dropping off Watkins and Bush, Tyrone telephoned Kevin Thompson1 and asked if he could stop by Kevin's apartment that night. According to Kevin's sister, Rena Curry, Tyrone had known Kevin for many years and Kevin had been trying to "steer [Tyrone] on the right path" in life. (R. 909.)

Between 9:00 p.m. and 10:00 p.m., Kevin's neighbor, Martelli Smith, noticed "two African–American males and one Caucasian female" standing outside the apartment complex near Kevin's silver Honda Civic automobile. (R. 934–35, 937, 939, 1005.) According to Smith, one male was "kind of chubby," while the other was "small and small built." (R. 935.)

Around that time, Chris Wilkerson, Kevin's friend, was on the phone with Kevin. Wilkerson testified that he heard someone knock on Kevin's door and that he overheard Kevin say, "I didn't know all of these people were coming with you." (R. 923.) When the call suddenly disconnected, Wilkerson called Kevin back and Kevin told him that he would "call [him] right back." (R. 924.) Although Wilkerson continued to try to reach Kevin until 1:00 a.m., he testified that Kevin never answered his phone or called him back.

The next day, when Kevin failed to report for work at Wellborn Elementary School, his colleagues became worried, so his school principal sent a school resource officer to Kevin's apartment to check on him. Because the apartment belonged to Kevin's sister, Rena Curry, however, the resource officer telephoned her and told her that Kevin had not shown up for work that day. Rena called her mother, Frances Curry, and then tried to reach Kevin on his cellular phone. When she could not reach Kevin on his cellular phone, Rena drove to the apartment. Frances also drove to the apartment and took alternate routes to determine whether Kevin had an automobile accident.

When Rena and Frances arrived at Kevin's apartment, they noticed that he was not at home and that his car was gone. Rena and Frances found Kevin's front door unlocked, the lights and air conditioning on, and a lit candle that appeared to have burned all night. They also noticed that one of his shoes was outside on the ground and a "trail" or "skid mark" was nearby. (R. 716, 901, 943.) The matching shoe was found inside Kevin's apartment

265 So.3d 397

by the front door. Kevin's mother telephoned the police.

Shortly thereafter, Cpl. Bill Deleon arrived at Kevin's apartment and noted that "[e]verything appeared to be normal" and that nothing inside the apartment was "ransacked." (R. 767, 773.) Cpl. Deleon testified that he remembered speaking with family members and neighbors but that he did not learn much other than someone mentioned that they had "heard something" the night before. (R. 768.)

Concerned that law-enforcement officials were not doing enough to locate her son, Frances continued her search for Kevin. During the course of her search, Frances contacted Kevin's bank and learned that several withdrawals had been made from Kevin's account the previous night at various automatic-teller machines ("ATM"). Frances again contacted the Jacksonville Police Department to inform them of the unusual bank-account activity.

Law-enforcement officers obtained surveillance footage from the credit unions and banks located in the Anniston and Jacksonville areas where unusual withdrawals had been made from Kevin's account. That footage revealed that Kevin's debit card was first used at 10:19 p.m. on April 20, 2011, at a drive-up ATM in Jacksonville. The driver, later identified as Nicholas Smith, wore a baseball cap with the letter "A," had a tattoo on his hand, and was driving Kevin's silver Honda Civic. (R. 964.) The passenger, whom Gaston later identified as himself, was dressed in a navy hoodie and white hat, was wearing a gold six-point star ring, and was holding a rifle with a camouflage pattern pointed at the backseat. Smith made "nine or ten" attempts to withdraw money before he succeeded. (R. 964–65.) He then made four successive $100 withdrawals, leaving a balance of approximately $80 in Kevin's account. The footage showed Smith passing money to Gaston, who passed it to someone in the backseat. (R. 967.)

Six minutes later, Smith drove across the road to the drive-up ATM at the Fort McClellan Credit Union. Photographs from the Anniston branch of the Fort McClellan Credit Union showed that a silver vehicle and a dark-colored sport-utility vehicle arrived at 12:13 a.m. on April 21, 2011. Smith and a second individual were shown at the ATM. (R. 954, 956.) Rena later recognized Tyrone as the second man in the footage. Police interviewed Tyrone on April 21, 2011, but Tyrone admitted only that he met Smith at the credit union after Smith called to ask Tyrone "how to use a debit card at the ATM." (R. 146–47.) Tyrone denied any knowledge of Kevin's disappearance.

According to testimony at trial given by Whitney Ledlow and Jessica Foster, Smith then went to the apartment shared by both Ledlow and Foster. Ledlow and Foster testified that, when Smith arrived at their apartment, he had a "gash" on his face. (R. 1092, 1122.) Both women testified that they saw blood inside Smith's Ford Explorer sport-utility vehicle when they left to purchase alcohol around noon that day. When they asked Smith about the blood, he became "real nervous," "wip[ed] everything down," and threw "a bunch of stuff in bags" in their trash can.

According to Ledlow, they both then left with Smith and drove the Explorer to a nearby detail shop to have the interior cleaned. John Robinson, the owner of the detail shop, testified that, as he was cleaning Smith's Explorer, he noticed "a lot of red splatters in different spots" that "might have been blood." (R. 1149–50.)

While they waited for Smith's car to be detailed, Smith, Ledlow, and Foster went to Foster's mother's house in Stringfellow where Kevin's car had been hidden the

265 So.3d 398

night before. After deciding to strip Kevin's car, they picked up Blake Hamilton and Teddy Smith and then returned to Foster's mother's house to work on the car. While Hamilton and Teddy removed parts, Foster and Ledlow searched the interior for anything of value. They found a credit card, a gold diamond cluster ring, and a Kodak brand camera. Ledlow later pawned the diamond cluster ring for $200, which she gave to Smith. At some point, Foster's mother walked inside the garage and told everyone to leave. She then contacted the police about the car.

After Smith, Ledlow, and Foster picked up Smith's Explorer, they parked the vehicle in the parking lot of a hospital in Anniston. They then attempted to find a trailer to dispose of Kevin's car. When they were unable to find one, they considered setting Kevin's vehicle on fire. In the end, they drove another vehicle to Carrollton, Georgia, checked into the Royal Inn motel, and drove to a nearby Wal–Mart where they threw several items, including Kevin's checkbook, into a trash can. The next morning, Foster, Ledlow, and Smith were detained at Hartsfield Jackson Airport in Atlanta, Georgia.

Foster told police where Smith had told them Kevin's body was located. Specifically, she told them that Kevin's body had been disposed of down an embankment near a set of guardrails on U.S. Highway 278. Based on that description, Investigator Seth Rochester of the Cherokee County Sheriff's Office was able to locate Kevin's body in the early morning hours of April 23, 2011. Dirt and leaves along the roadway appeared disturbed, as though "some type of struggle or fight had occurred" at the guardrail. (R. 831, 1842.) Police officers also noticed what appeared to be two knee prints in the dirt. They also found tire tracks, cigarette butts, and several cans near the guardrail.

After climbing down the steep embankment, police discovered Kevin's body facedown at...

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8 cases
  • Lindsay v. State
    • United States
    • Alabama Court of Criminal Appeals
    • 8 de março de 2019
    ...Indeed, on numerous occasions this Court has declined to find plain error based on an undeveloped and cold record. See Gaston v. State, 265 So. 3d 387 (Ala. Crim. App. 2018) ; Russell v. State, 272 So. 3d 1134 (Ala. Crim. App. 2017) ; Floyd v. State, 289 So. 3d 337 (Ala. Crim. App. 2017) ; ......
  • Osgood v. State
    • United States
    • Alabama Court of Criminal Appeals
    • 29 de maio de 2020
    ...which the acceptance or presentation of such victim-impact statements may, in fact, rise to the level of plain error. In Gaston v. State, 265 So. 3d 387 (Ala. Crim. App. 2018), this Court held that it was plain error for the trial court to allow testimony from the victim's family members as......
  • Dearman v. State
    • United States
    • Alabama Court of Criminal Appeals
    • 5 de agosto de 2022 in cases involving the death penalty. 52 See e.g., Peterson v. State, 326 So.3d 535, 547 (Ala.Crim.App.2019); Gaston v. State, 265 So.3d 387, 396 (Ala.Crim.App.2018); Phillips v. State, 287 So.3d 1063, 1078 (Ala.Crim.App.2015). The purpose of Rule 14.4(a)(1) is to set forth certain r......
  • Jackson v. State
    • United States
    • Alabama Court of Criminal Appeals
    • 20 de setembro de 2019
    ...the outcome of the trial might have changed if he had been present during those strikes." 791 So. 2d at 1004-05.Also, in Gaston v. State, 265 So. 3d 387 (Ala. Crim. App. 2018), we held that no reversible error occurred when the defendant was unable to hear the responses of prospective juror......
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