Hall v. Davenport

• Decision Date: 02 September 2016
• Docket Number: CASE NO.: 1:13-cv-229-WHA
• Parties: JIMMY EARL HALL, #103508, Petitioner, v. CARTER DAVENPORT, et al., Respondents.
• Court: U.S. District Court — Middle District of Alabama

JIMMY EARL HALL, #103508, Petitioner, v. CARTER DAVENPORT, et al., Respondents.

CASE NO.: 1:13-cv-229-WHA

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA SOUTHERN DIVISION

September 2, 2016

REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE

I. INTRODUCTION AND PROCEDURAL HISTORY

This cause is before the court on a 28 U.S.C. § 2254 petition for writ of habeas corpus filed by Jimmy Earl Hall, a state inmate, on April 8, 2013.¹ In this petition, Hall challenges a conviction for solicitation to commit murder imposed upon him by the Circuit Court of Houston County, Alabama on January 13, 2011, after trial and a jury verdict.² On this same date, the court sentenced Hall, as a habitual felony offender, to life imprisonment without parole.

Hall filed a direct appeal of his solicitation-to-commit-murder conviction. In this appeal, Hall argued that the trial court erred by failing to grant his motion for judgment of acquittal because the State failed to present evidence corroborating the testimony of the jailhouse informant allegedly solicited to commit the murder. In support of this argument, Hall claimed that the State presented no evidence corroborating the informant's testimony with respect to either his solicitation of the murder or his intent to have the informant commit the crime. Doc. 13-3 at 12-20.³ On October 21, 2011, the Alabama Court of Criminal Appeals affirmed Hall's murder conviction in an unpublished opinion:

Hall was convicted of soliciting a fellow inmate, Charles Osborne, to murder Peggy Shannon Hall, who was married to Hall's father when he passed away. When Hall's father died, he left Peggy a life interest in approximately two acres of land and the structures on it, which included the wooden house where they had lived, a barn, a pump house, and a trailer.

Hall's father left a nearby house to Hall and his brother. Peggy testified that in November 2009, she discovered a hose attached to her pump house that was running underground and carrying water onto Hall's property. Peggy pulled the hose out of the ground and cut it off at the fence near Hall's yard. Over the next month, Peggy discovered the hose reconnected to her pump house on at least eight different occasions. Peggy cut the hose each time she found it reconnected. Peggy testified that she placed a lock on the pump house; however, someone removed the lock, reconnected the hose, and wrapped a chain around the pump house so that she could not get into the pump house to cut off the pump. At that point, Peggy found a note on the pump house that stated: "Cut my hose again and you will go to jail." That note was signed by "Jimmy." After discovering that note, Peggy filed a police report against Hall, and he was charged with criminal mischief and trespass.

On May 9, 2010, David Baker, the staff chaplain at the Houston County Jail, informed Osborne that his father had passed away. After Bakertalked to Osborne about his father's death, Osborne asked Baker what he needed to do if he was aware of a situation where somebody might be harmed. Baker told Osborne that he needed to notify the authorities. Baker then contacted the authorities for Osborne, and Osborne [advised them that Hall had on several occasions requested that he murder Peggy Shannon Hall]. Donovan Arias, an investigator with the Houston County Sheriff's Department, was one of the officers that discussed the situation with Osborne. Arias testified that, after discussing the situation with Osborne, the officers placed a wired recording device on him and placed him back into a cell with Hall so that they could record discussions concerning Hall's solicitation [of Osborne] to murder Peggy.

Osborne testified that Hall approached him about killing Peggy while he and Hall were sharing a cell. According to Osborne, Hall discussed killing Peggy almost every day for five or six weeks before Osborne notified the authorities. Osborne testified that Hall wanted him to spray lighter fluid around the roof of Peggy's house and set it on fire around 2 a.m. while Peggy was asleep. Hall gave Osborne directions to Peggy's house and drew a map of the property around Peggy's house. Hall told Osborne where to park his car so that it would not be noticed, and Hall drew Osborne an escape route.

Hall informed Osborne that Peggy lived with a little dog. Osborne testified that Hall offered to pay him $1,000, so that he could bond out of jail. However, Osborne never bonded out of jail. Hall also offered to pay Osborne with $5,000 worth of cocaine.

The audio recording of the wired conversation between Hall and Osborne was played for the jury. [Two separate] transcript[s] of the conversation [were] also provided to the jury. In that recorded conversation Hall discussed paying Osborne to spray a flammable liquid in vents under the eaves of a house and set it on fire early in the morning. Hall also mentioned igniting a propane tank that is near the house. Hall referred to a drawing of the property surrounding Peggy's house and described where Osborne should park and how he should approach the house so that he can set the house on fire and escape without being detected. The recorded conversation referred to burning up the house with a woman inside.

Hall testified in his own defense that he wanted Osborne to burn a playhouse on his property, not Peggy's house. Hall testified that he was trying to sell his property and that he wanted Osborne to burn the playhouse because, Hall said, Osborne had manufactured methamphetamine in the playhouse and Hall wanted to dispose of any illegal substances on theproperty. Osborne testified that he had never manufactured methamphetamine. Hall denied soliciting Osborne to murder Peggy.

At the close of the State's case, Hall's counsel moved for a judgment of acquittal, stating:

"Let the record reflect that the prosecutor has rested the State's case and we're in court absen[t] of the jury. And I move for a judgment of acquittal, and as grounds thereof assign following separately and severely. The State has failed to make out a prima facie case. The State has failed to prove each and every element of the crime of solicitation. The State has failed to carry the burden of proof. And there is a lack of evidence to the degree that the case does not warrant to be given to the jury. That's it."

The trial court denied that motion. At the close of all the evidence, Hall's counsel renewed that identical motion for judgment of acquittal, and the trial court denied the motion again. On January 13, 2011, the jury found Hall guilty of criminal solicitation to commit murder, and the trial court sentenced him to life in prison without the possibility of parole. On January 21, 2011, Hall filed a motion for a new trial. The trial court denied that motion on January 27, 2011. On March 4, 2011, Hall filed his notice of appeal to this Court.

On appeal, Hall alleges that the trial court erroneously denied his motion for a judgment of acquittal because, he says, the State did not corroborate Osborne's testimony. Specifically, Hall alleges that the State did not present evidence to corroborate both the act of solicitation and his intent to influence Osborne to commit a crime, as required by § 13A-4-1(a), Ala. Code 1975. However, Hall did not preserve this claim for appellate review, and the claim is without merit.

"'"[T]o preserve an issue for appellate review, it must be presented to the trial court by a timely and specific motion setting out the specific grounds in support thereof. . . . An issue raised for the first time on appeal is not correctly before this court." Buice v. State, 574 So. 2d 55, 57 (Ala. Crim. App. 1990).' McKinney v. State, 654 So. 2d 95, 99 (Ala. Crim. App. 1995)." Merchant v. State, 724 So. 2d 65 (Ala. Crim. App. 1998).

Similar to the corroboration requirement found in § 13A-4-1(a), Ala. Code 1975, § 12-21-222, Ala. Code 1975, requires that, in the prosecution of a felony, the testimony of an accomplice must be corroborated by other evidence tending to connect the defendant with the commission of the offense. Concerning the preservation of a claim that the rule set forth in § 12-21-222 was violated, this Court has held that "a motion for a judgment of acquittal that challenges the sufficiency of the evidence only generally, i.e., that the State failed to prove a prima facie case or words to that effect, does not preserve for review the specific claim that an accomplice's testimony was not sufficiently corroborated." Marks v. State, 20 So. 3d 166, 172 (Ala. Crim. App. 2008).

In the present case, Hall's motion for a judgment of acquittal only generally alleged that the State failed to prove a prima facie case of criminal solicitation. That motion did not specifically allege that the State did not corroborate Osborne's testimony. We hold that just as a defendant must specifically preserve a claim concerning an alleged violation of the statutory rule that requires corroboration of accomplice testimony, a defendant must specifically preserve a claim concerning an alleged violation of the statutory rule that requires the State to corroborate the testimony of the person allegedly solicited in a prosecution for criminal solicitation. Because Hall did not specifically raise in the trial court his claim that the State did not corroborate Osborne's testimony, that claim is not preserved for our review.

Moreover, assuming arguendo that Hall's claim [with respect to lack of corroborative testimony] is preserved for appellate review, the claim is without merit. In Thornton v. State, 570 So. 2d 762 (Ala. Crim. App. 1990), this Court held:

"To prove solicitation, [§ 13A-4-1, Ala. Code 1975] requires corroboration of both the communication (or the act of solicitation) and the intent to influence the solicitor to commit a crime. The corroborating testimony, however, does not need to be direct testimony that the accused did the specified acts. Rather, it is sufficient if the 'corroborative evidence tend[s] to

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