Hamm v. State

• Decision Date: 16 June 1989
• Docket Number: 6 Div. 563
• Citation: 564 So.2d 453
• Parties: Doyle Lee HAMM v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 453

564 So.2d 453

Doyle Lee HAMM v. STATE.

6 Div. 563.

Court of Criminal Appeals of Alabama.

June 16, 1989.

Rehearing Denied Aug. 25, 1989.

Martha E. Williams and Hugh C. Harris, Cullman, for appellant.

Don Siegelman, Atty. Gen., and William D. Little and Sandra J. Stewart, Asst. Attys. Gen., for appellee.

PATTERSON, Judge.

Doyle Lee Hamm appeals from his conviction of the capital offense of murder during a robbery in the first degree or an attempt thereof, § 13A-5-40(a)(2), Code of Alabama 1975. Appellant was found guilty by a Cullman County jury of intentionally causing the death of Patrick Cunningham during the commission of a robbery in the first degree. A sentence hearing was held, pursuant to §§ 13A-5-45 and 13A-5-46, and the jury recommended that appellant receive the death penalty. Thereafter, the trial court, in compliance with § 13A-5-47, conducted a sentencing hearing and subsequently adopted the jury's advisory verdict, sentencing appellant to die by electrocution. ¹ Appellant raises three issues on appeal; however, he does not question the sufficiency of the evidence to support his conviction or sentence. We find that the evidence supported, beyond a reasonable doubt, the verdict of guilt and the sentence of death.

The prosecution's evidence established that, on January 24, 1987, a Saturday, Patrick Cunningham was working the 3:00 p.m. to 7:00 a.m. shift as the desk clerk of Anderson's Motel in Cullman, Alabama. At approximately 10:30 p.m., Kathy Flannagan, who was en route from Florida to Missouri, stopped at the motel to rent a room for the night. While registering, Flannagan observed a small-frame white male, who was wearing a blue v-neck sweater and a windbreaker (hereinafter "Subject One"), enter the motel lobby and ask Cunningham about a room for three. Cunningham informed Subject One that he had to have a reservation, and that subject left. Moments later, as Flannagan was about to leave the lobby, Subject One re-entered, accompanied by another white male, who was dressed in blue jeans and a faded green army fatigue jacket (hereinafter "Subject Two"). Cunningham told Flannagan that it "looks like there is going to be trouble," and he hurriedly pointed her toward her room. When Flannagan got into her car, she looked back inside the lobby and observed Subject Two pointing a shiny-looking revolver in the direction of the reception desk where Cunningham had been standing when she left. Flannagan was unable to actually see behind the desk because that portion of her view was obstructed. However, she observed Subject One standing near the door that the two men had entered, and she also saw a "banged up" early 1970's model car parked, with its engine running, just outside the motel door. The car sounded as if it did not have a muffler. There was possibly a third person inside the car. Flannagan acted as though she saw nothing, drove to a nearby telephone, and called the police. She reported to the dispatcher that the motel was being robbed, and she was instructed to return there to meet the police, which she did, whereupon she gave them a description of the men and of the car she had seen.

Cunningham's body was subsequently discovered on the floor behind the reception desk. He had been killed by a single shot to the head from a .38 caliber pistol. The evidence revealed that Cunningham was lying on the floor when he was shot in the temple area from a distance of approximately 18 inches. Investigation at the scene revealed that Cunningham's wallet, which his wife later estimated had contained approximately $60, was missing. The motel cash drawer, which should have contained in excess of $350 in cash was empty except for some coins.

Officer Lynn Wood of the Cullman police Department, who headed the investigation, learned from a teletype received by the Cullman Police and from a telephone conversation with the Sheriff of Tishomingo County, Mississippi, that two men matching The following day, Sunday, January 25, Officer Wood talked with Douglas Roden, who had been stopped by authorities in Decatur, driving a car that matched the description of, and that was later positively identified by Flannagan as, the car she had seen at the motel. Roden told Officer Wood that he and Regina Roden, his sister-in-law, had been kidnapped by appellant, Jimmy Wardlow, and Paula Cook. He said that they had been held in a trailer at a trailer park in Cullman and that appellant and Wardlow had left the trailer for about two hours on the night of the motel robbery, driving that same car. Roden said that he had seen a nickel-plated pistol at the trailer and one or two knives. He informed Officer Wood that he and Regina had escaped from the trailer that morning, Sunday, January 25, in the car and had driven to Decatur, where they were stopped by the police. The Rodens took Officer Wood to Lake's Trailer Park and pointed out trailer # 10, which was later determined to be the residence of appellant's nephew, Alfred Uselton, as the place where they had been held and where they had last seen appellant.

the descriptions given by Flannagan were wanted in Mississippi in connection with a robbery-murder which had occurred there earlier that same day. Officer Wood also learned that a .38 caliber, nickel-plated revolver had been taken in that Mississippi robbery.

Later that same day, a search warrant for the # 10 trailer and two fugitive from justice warrants for a robbery in Lee County, Mississippi (one for appellant and one for Wardlow) were issued upon an affidavit prepared by Officer Wood, the district attorney, and Sheriff Payne of Tishomingo County, Mississippi. After the warrants were signed, Officer Wood proceeded to Lake's Trailer Park where other officers already had the # 10 trailer under surveillance. Officer Wood radioed that the paperwork was complete, and the officers on the scene ordered appellant, Jimmy Wardlow, and Paula Cook out of the trailer and took them into custody. Officer Wood arrived on the scene with the warrants, and the trailer was searched. Inside the trailer, the officers found and seized a nickel-plated .38 caliber pistol, numerous rounds of .38 caliber ammunition, a faded green army fatigue jacket with several .38 caliber bullets in the pocket, some knives, and some clothing.

Appellant was transported to jail and booked as a fugitive from justice. At the sheriff's office, appellant gave a statement, in which he apparently denied any involvement in the Anderson Motel incident, and he participated in a lineup at which Flannagan failed to identify him as one of the men she had seen at the motel. Thereafter, appellant was placed under arrest for the Anderson Motel robbery. The following day, appellant gave a second statement, which was taped and later played for the jury, wherein he admitted that his initial statement was false and wherein he confessed to the robbery and murder of Patrick Cunningham. Subsequently, appellant was charged with the capital offense of robbery-murder.

It was later determined and ultimately testified to at trial by the Rodens that their original statements, leading up to appellant's arrest, were partly false. They had not been kidnapped by appellant and Wardlow, but had gone of their own accord to Lake's Trailer Park with them and Paula Cook. It was further discovered that the Rodens had, in fact, been the two individuals with appellant at Anderson's Motel on the night of the robbery-murder. Douglas Roden was the first man seen by Flannagan, Subject One, and Regina Roden had remained outside in the car. The record indicates that both of the Rodens entered into an agreement with the state whereby they would testify against appellant at trial, which they did, in exchange for being allowed to plead guilty to lesser offenses. The record indicates that Douglas Roden, who was charged with capital murder, agreed to plead guilty to the lesser offense of murder, for which he would receive a life sentence. The record also reveals that Regina Roden agreed that, in exchange for her testimony, she would plead guilty to robbery, for which she would be sentenced to seven years, and to hindering prosecution Appellant did not testify during the guilt phase of the trial, nor did he offer any evidence in his defense.

for which she would receive a concurrent sentence of three years' imprisonment.

I.

Appellant contends that the indictment, upon which he was prosecuted, failed to aver sufficient elements of the aggravation to support his conviction of a capital offense. He argues that, in order to properly charge the aggravation of robbery, as part of a capital offense, the indictment must aver that the victim of the force or attempted force was also the victim of the theft or attempted theft. He contends that the instant indictment charges only that Anderson Motel, Bill Anderson, or Francis Anderson was the victim of a theft and that Patrick Cunningham was the victim of an intentional murder and of an assault with a deadly weapon. For this reason, appellant contends that his conviction should be reversed. We disagree.

The instant indictment, in pertinent part, states the following:

"Doyle Lee Hamm ... did intentionally cause the death of Patrick Joseph Cunningham, by shooting him with a pistol; and Doyle Lee Hamm caused said death during the time that Doyle Lee Hamm was in the course of committing a theft of $350.00 in lawful greenback currency or coins, of the United States of America, including pennies, a better description of which is otherwise unknown to the Grand Jury than as stated, the property of Anderson Motel or the property of Bill Anderson, or the property of Francis Anderson, the ownership which is further unknown than stated, by the use of force against the person of Patrick Joseph Cunningham, with intent to overcome his physical resistance or physical power of resistance, while the said Doyle Lee Hamm was armed with a deadly weapon, to-wit: a pistol, in...