Guthrie v. State

• Decision Date: 05 March 1993
• Docket Number: 7 Div. 287
• Parties: Lavon GUTHRIE, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 914

616 So.2d 914

Lavon GUTHRIE, alias v. STATE.

7 Div. 287.

Court of Criminal Appeals of Alabama.

March 5, 1993.

Donald R. Hamlin, Pell City, for appellant.

James H. Evans, Atty. Gen., and Gilda Branch Williams and Sandra Stewart, Asst. Attys. Gen., for appellee.

On Return to Remand

PATTERSON, Judge.

The appellant, Lavon Guthrie, was convicted after a jury trial of the capital offense of murder of Rayford Howard committed during a robbery in the first degree or an attempt thereof, in violation of § 13A-5-40(a)(2), Code of Alabama 1975. At the sentencing phase of the trial, the jury voted unanimously to recommend that the appellant be sentenced to death. At the sentencing hearing held pursuant to §§ 13A-5-47 to -52, the trial court sentenced the appellant to death by electrocution.

At trial, the state's evidence tended to show the following facts: On February 23, 1988, Staci Thompson's automobile was stolen from "Connie's Quik Stop," a convenience store, in the Tiftonia area of Chattanooga, Tennessee. The car was a black 1983 Ford Mustang with gold stripes, tinted windows, and the words "The Boss" painted on each side. It was later identified at trial as the car pictured in state's exhibits no. 8 and no. 9. The car did not have a license plate at the time it was stolen.

On February 24, 1988, L.G. Windsor saw Harvey Lee Windsor, his nephew and the codefendant in this case, ¹ and another man, whom he did not identify, running from L.G.'s black 1976 Ford Mustang automobile, which was parked in his yard. L.G. had previously obtained the car from Harvey Lee. He spoke briefly on this occasion with Harvey Lee, but did not know the man with Harvey Lee. His nephew and the unidentified man left in a "lightish grey" Mustang automobile, which had a "boss motor" in it. He believed it to be either a 1979, 1981, or 1982 model. The next day, L.G. Windsor noticed that the license plate was missing from his 1976 Mustang. The car had had a plate on it when he had obtained it from Harvey Lee. The number on the plate was "39BY845."

On February 25, the appellant and a man introduced as "Harvey Windsor" visited Bobbie Sue Osborne, the appellant's cousin, between noon and 1:00 p.m. at her residence in Ashville, Alabama. When they arrived, the appellant was drinking Budweiser beer. He asked Bobbie Sue for a pair of gloves, explaining that he needed them to work on the transmission of a car. She did not give him any gloves. The appellant and Windsor arrived and left in a black car that had tinted windows and "The Boss" lettered across each side. At trial, Bobbie Sue identified the car pictured in state's exhibit no. 8 as the car being driven by the appellant and "Harvey Windsor."

About "midday" that same day, February 25, the appellant and "Harvey" visited the residence of Sammie Sue Wilson Osborne in Pell City. They arrived in a black car with the words "The Boss" painted on each side. At trial, Sammie Sue identified the car pictured in state's exhibit no. 9 as the car being driven by the appellant and "Harvey." After arriving at Sammie Sue's, the appellant and "Harvey" made sandwiches, drank Budweiser beer that they had brought with them, and stayed about 30 minutes. At trial, Sammie Sue testified that the appellant appeared to be drunk when he left. Her residence is approximately five miles from Howard's Store, a convenience store, (formerly Clements's Store), the scene of the instant offense.

Shortly after 1:00 p.m. on February 25, Frank Woodward and Sergeant Allen stopped at Howard's Store. They parked within 15 to 20 feet of another car in the parking lot. As Woodward walked around his car, he saw a man walk out of the store. The man was carrying a "sawed off gun," which he subsequently unbreached and reloaded. Woodward watched him get in the passenger side of a dark-colored sports car with tinted windows and observed the car leave the parking lot at a high rate of speed and go toward Interstate Highway 20. (The evidence before us fails to disclose if either Woodward or Allen went into the store.) A spent shotgun shell was later recovered in the parking lot of Howard's Store.

Around 2:00 p.m. on February 25, Richard Champion stopped at Howard's Store for gasoline. He put gas in his car and went inside to pay. He did not see the owner, Rayford Howard, but he noticed blood on the counter. After calling out Howard's name, he eased around the counter and saw Howard slumped on the floor. Champion called the police and an ambulance. It was subsequently determined that Howard had been killed by a sawed-off shotgun blast to the chest at close range. The cash register was closed, but the victim's pockets had been turned inside out.

That same afternoon, Jerry Bishop was traveling north on U.S. Highway 431 near Boaz. He pulled into the left lane to pass a car ahead of him when a car suddenly appeared behind him. Bishop moved back into the right lane and was then passed by a black Mustang with gold stripes, tinted windows, and lettering reading, he believed, "Boss Man." He saw two occupants in the Mustang. At trial, he identified the car as the one pictured in state's exhibits no. 8 and no. 9. Bishop watched as the Mustang collided with a car that was trying to turn in front of it. The Mustang did not stop. Bishop caught up with the Mustang in Albertville and noted that the license plate number was "39BY845," the number of the plate that had been removed from L.G. Windsor's car. Bishop reported the incident to the Albertville police.

Later that afternoon, Robert L. Hester, a salesman, was traveling along his route from Cullman to Moulton. He was passed by a black car with racing stripes and tinted windows. At trial, he identified the car as the one pictured in state's exhibit no. 9. He observed that the car had two occupants, that the license plate number was "39BY845," and that the car swerved and "drove all over the road." He watched the car until it pulled off at Tommy's Grocery Store on Alabama Highway 33 south of Moulton. Later, he reported his observations to the State Department of Public Safety.

Tommy Kerr operated Tommy's Grocery Store, a small grocery store and gasoline station, on Highway 33 between Wren and Moulton. Around 5:30 p.m. on February 25, he was unloading drinks inside the store. There were about five people in the store. Someone pulled to the gas pumps up in a black Ford Mustang with tinted windows and pumped some gas. At trial, he identified the car as the one pictured in state's exhibits no. 8 and no. 9. The car then pulled off to the side of the building and remained there for about five minutes. The occupants of the car placed two Budweiser beer cans on the ground outside the car and drove off in a hurry. A subsequent investigation disclosed that one of the appellant's fingerprints was found on one of these beer cans.

Around 8:00 p.m. on the night of February 25, Michael Maxwell went to the Chisca Texaco service station near Cherokee in Colbert County. When he arrived, an early 1980's model, black "Boss" Mustang was parked outside. At trial, he identified the car as the one pictured in state's exhibit no. 8. When he went inside, he saw two men: the owner, Randall Pepper, and a man he later identified in a pretrial photographic array and in court as the appellant. Outside, he saw another man who was sitting half-inside the Mustang, eating an ice cream cone. Maxwell saw no other vehicles around. Before he left the scene, Maxwell noticed that the car's license plate number included the letters "BY."

At 8:00 p.m., Tommy Pepper, Randall Pepper's son, was nearby at their house with his mother, Jane Renee Pepper, when they heard a "shotgun blast" or gunshot. Tommy ran to the station and saw one man sitting in a black sports car with racing stripes and tinted windows and another man running from the store. At trial, he identified the car as the one pictured in state's exhibits no. 8 and no. 9. He later identified one of the men as Harvey Lee Windsor. Jane Pepper, who had also come to the station, saw two men running from the store. She also saw what she described as a 1983 model, dark grey sports car with two stripes on it. At trial, she identified the car as the one pictured in state's exhibits no. 8 and no. 9. Although she could not identify either the appellant or his codefendant at trial as the men she had seen leaving the store, she described one as wearing blue jeans and a cap and having long dark hair. Upon entering the store, the Peppers discovered that Randall Pepper had been shot in the head and killed. His wallet, his .25 caliber automatic pistol, and some cash were missing. The cash register contained only change, no currency. ²

On the following day, February 26, the black 1983 Ford "Boss" Mustang was recovered at the Tiftonia Baptist Church in Chattanooga, some 600 to 1000 feet from Connie's Quik Stop where it had been stolen three days before from Staci Thompson. The car had no license plate when it was recovered. Alabama law enforcement officers inventoried the car. Among other things, the officers found a set of keys, one of which fit a padlock that had been given to law enforcement officers by Cuelon Howard, the victim's wife, after the victim's murder-robbery; pieces of an ice cream cone; a spent .20 gauge no. 7 1/2 shotgun shell; and a Parisian department store charge receipt with Cuelon Howard's charge account number and Rayford Howard's signature on it.

Also on that same day, February 26, Brenda Mills found a wallet just off the U.S. Highway 231 and Ashville exit ramp from Interstate Highway 20. On February 27, at the same location, law enforcement officers discovered various other items, such as photographs, a driver's license, a Social Security card, an insurance card, and a pistol permit. The wallet and other items were subsequently identified as having belonged to the victim, Rayford Howard. A subsequent study of the items for fingerprints disclosed that two of the...