Hallford v. State, 4 Div. 913

• Decision Date: 14 June 1988
• Docket Number: 4 Div. 913
• Citation: 548 So.2d 526
• Parties: Phillip D. HALLFORD v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 526

548 So.2d 526

Phillip D. HALLFORD v. STATE.

4 Div. 913.

Court of Criminal Appeals of Alabama.

June 14, 1988.

As Modified on Denial of Rehearing

Aug. 23, 1988.

Bill Kominos, Ozark, for appellant.

Don Siegelman, Atty. Gen., and J. Randall McNeill and William D. Little, Asst. Attys. Gen., for appellee.

PATTERSON, Judge.

Appellant, Phillip D. Hallford, was indicted on July 10, 1986, in Dale County, for the capital offense of murder committed during a robbery in the first degree, in violation of § 2(a)(2), Act No. 81-178, Ala. Acts 1981, enacted March 31, 1981. ¹ Omitting its formal parts, the indictment reads as follows:

"The Grand Jury of said County charges that before the finding of this indictment that Phillip D. Hallford did intentionally cause the death of Charles E. Shannon by shooting him with a pistol and Phillip D. Hallford caused said death during the time that Phillip D. Hallford was in the course of committing a theft of billfold, the property of Charles E. Shannon, by the use of force against the person of Charles E. Shannon with intent to overcome his physical resistance or physical At arraignment, Hallford pleaded not guilty. On March 4, 1987, a jury found him guilty of the capital offense charged in the indictment. A sentencing hearing was held before the jury, in accordance with §§ 13A-5-43 through -46, Code of Alabama 1975, and the jury returned an advisory verdict recommending that the penalty be death. Ten jurors recommended the death penalty and two recommended a sentence of life imprisonment without the possibility of parole. ² Thereafter, the trial court held another sentencing hearing, in accordance with §§ 13A-5-47 through -52, and, after weighing the aggravating and mitigating circumstances and considering the jury's recommendation, sentenced Hallford to death. ³

power of resistance, while the said Phillip D. Hallford was armed with a deadly weapon, to-wit: a pistol, in violation of Section 2(a)(2) of Act No. 81-178...."

The state's evidence, which primarily consists of the testimony of appellant's children, tended to show that, during the night of April 12 or the early morning hours of April 13, 1986, appellant used his 15-year-old daughter, Melinda Hallford, to lure the 16-year-old victim, Charles Eddie Shannon, to an isolated area near an abandoned bridge over the Choctawahatchee River in Dale County. The victim was Melinda's "boyfriend." Appellant instructed Melinda to telephone the victim and arrange a meeting with him near the bridge. She made the call around midnight, April 12, and arranged to meet the victim as she had been instructed. Then, appellant, Melinda, and appellant's 15-year-old stepson, Sammy Joe Robbins, went to the bridge in appellant's vehicle and parked. Appellant and his stepson got out of the vehicle and hid nearby. Melinda remained in the vehicle. Around 1:00 a.m., April 13, the victim came to the vehicle and began talking with Melinda. Appellant approached the victim, turned him around and, after a brief struggle, shot him through the roof of his mouth with a .22 caliber pistol. Just after the shot was fired, the victim stated, as he slumped to the ground, "What did you shoot me for?" and appellant said, "For fucking around with somebody else's pussy." Appellant grabbed the victim by the feet and dragged him toward the bridge. As he was being dragged, the victim was crying and saying, "Oh my God, you shot me," and "Oh, Jesus Christ, you shot me." At some point, the victim regained his balance, and appellant marched the victim toward the river while holding him by the hair of his head. After several minutes, two more shots were heard, and shortly thereafter appellant returned to the vehicle. Melinda, Sammy Joe, and appellant went back to their home nearby, and appellant and Sammy Joe returned before daylight to the scene with a jug of water and a brush and washed away blood spots on the bridge. After daylight, appellant and Sammy Joe again returned to the scene to see if the body of the victim had floated to the surface of the river. If it had, they intended to shoot it with the shotgun they had brought in order to sink it.

The next day, appellant built a fire in a drum in his backyard and burned the victim's wallet and its contents, which included a photograph and a military identification card. While burning the wallet, he stated to Melinda that the victim "was a cheapskate because he didn't have any money in his wallet." He also showed her a picture of a girl he had taken from the wallet and told her that the victim had not been faithful to her. The victim's father testified that the victim had money in his wallet and that he had given his son $10 on the afternoon before his son disappeared. Appellant attempted to destroy the .22 caliber pistol by melting it down in an old tire rim with an acetylene torch. While melting the pistol, he had his 13-year-old son, Jack Hallford, act as a lookout for him and told The victim's badly decomposed body was discovered in the river by two fishermen on April 26, 1986. An autopsy disclosed three wounds which were made by .22 caliber bullets. The bullets were recovered from the victim's head. One bullet entered the roof of the mouth, one in front of the left ear, and one in the forehead. Any of the fired bullets could have caused death. The official cause of death was "[m]ultiple gunshot wounds to the head."

                him, "They won't know what this was," and "They won't find no evidence."   The remains of the pistol were recovered and identified at trial by a firearms expert as a .22 caliber pistol.  Appellant bored holes in the empty shell casings from the pistol, and made them into a necklace.  He made Melinda wear the necklace so that she would "remember."   Appellant told his 18-year-old stepson, Cecil Wayne Robbins, shortly after the killing, that "I wouldn't have to worry about him [referring to the victim] no more," and that "he had got rid of him."
                

There was testimony that appellant had threatened the victim about a week before the killing by telling him that if he rode his motorcycle by appellant's house again, he would kill him. When the police investigation began to focus on appellant, after the discovery of the victim's body, appellant fled with Melinda. He was arrested in Escambia County, Florida, on May 23, 1986, and extradited to Alabama.

Appellant testified in his own behalf, denying any knowledge of the crime or even knowing the victim. He attempted to establish an alibi for his whereabouts on the night of the killing; attempted to cast suspicion on his stepson, Cecil Wayne Robbins, by claiming that he had seen him burning a bloody shirt on the day after the killing; and tried to cast doubt on the testimony of his children by claiming that they had "drug" problems and were testifying against him because they were being pressured and detained. Cecil Wayne Robbins testified that he had a bloody shirt that was bloody because appellant had stabbed him in the back.

Appellant raises ten issues on appeal.

I

Appellant first contends that the trial court erred in admitting, over his objection, a photograph of the victim, Charles E. Shannon, that had been taken approximately one month prior to the victim's death.

Angelita Johns, the stepmother of the victim, identified a photograph of the victim taken approximately one month prior to his death and testified that it was the way he looked when he disappeared. The state's offer of the photograph into evidence was objected to by appellant on the grounds that the photograph was not relevant to any issues before the court and that the purpose of its introduction was to inflame the jury. In an effort to prevent the introduction of the photograph, appellant offered to stipulate that the victim was Mrs. Johns's stepson, that he was deceased, and that he was 16 years of age. The trial court overruled appellant's objection and admitted the photograph into evidence.

"The basic question to be asked in deciding the admissibility of a photograph of a victim, just as with any other demonstrative evidence, is whether it has a reasonable tendency to prove or disprove some material fact in issue. This decision is left largely to the sound discretion of the trial judge. Of course, the decision of the trial judge is not necessarily final since his decision is reviewable to determine if there has been an abuse of discretion."

C. Gamble, McElroy's Alabama Evidence § 207.01(2) (3d ed. 1977) (footnotes omitted). It is settled law that a photograph of a deceased person taken before his death may be introduced in evidence for identification purposes, and the photograph is admissible for identification purposes even if there is no contested issue of identity of the deceased. Boulden v. State, 278 Ala. 437, 179 So.2d 20 (1965); Sanders v. State, 202 Ala. 37, 79 So. 375 (1918); Malachi v. State, 89 Ala. 134, 8 So. 104 (1889); Jolly v. State, 395 So.2d 1135 (Ala.Cr.App.1981); Luschen v. State, 51 Ala.App. 255, 284 In the case sub judice, we find no abuse of the trial court's discretion in admitting the photograph into evidence. It was admissible for the purpose of identifying the body as being that of the victim alleged in the indictment, Charles E. Shannon. We hold that the introduction of the victim's photograph was not error, even though there was no contested issue of identity of the victim.

So.2d 282 (1973); Boyd v. State, 50 Ala.App. 394, 279 So.2d 565 (1973); C. Gamble, supra, § 207.01(2).

II

Appellant next contends that the trial court erred in refusing to grant his motion for a mistrial when the state's witness and the prosecutor used the word "murder" in describing the events surrounding the death of the victim. He argues that the use of the word "murder" invaded the province of the jury and so prejudiced him that its effect could not have been eradicated from the jurors' minds.

During the direct examination of appellant's stepson, Sammy Joe Robbins, who was...