Handley v. State

• Decision Date: 30 June 1987
• Docket Number: 6 Div. 360
• Citation: 515 So.2d 121
• Parties: Paul Dewayne HANDLEY v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 121

515 So.2d 121

Paul Dewayne HANDLEY v. STATE.

6 Div. 360.

Court of Criminal Appeals of Alabama.

June 30, 1987.

Rehearing Denied July 28, 1987.

Certiorari Denied Oct. 16, 1987

Alabama Supreme Court 86-1414.

George C. Lucas, Ronda H. Lacey, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., and Rivard Melson, Asst. Atty. Gen., for appellee.

PATTERSON, Judge.

Paul Dewayne Handley, appellant, was indicted for the offense of "murder by the defendant during sodomy in the first ... degree or an attempt thereof committed by the defendant." Ala.Code 1975, § 13A-5-40(a)(3). The indictment, in pertinent part, reads as follows:

"PAUL DEWAYNE HANDLEY ... did intentionally cause the death of Denise Madolyn Murphree, by stomping her with his feet, kicking her with his feet or by means otherwise unknown, and PAUL DEWAYNE HANDLEY caused said death during the time that PAUL DEWAYNE HANDLEY, a male, was engaging or attempting to engage in deviate sexual intercourse with Denise Madolyn Murphree, a female, by forcible compulsion, in violation of § 13A-5-40(a)(3), of the Code of Alabama, 1975 ...."

He was arraigned and pleaded not guilty. 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-5-46, and the jury returned a unanimous advisory verdict recommending a sentence of life imprisonment without parole. Thereafter, the trial court held a sentencing hearing in accordance with § 13A-5-47, adopted the recommendation of the jury, and sentenced Handley to the penitentiary for a term of life without parole.

Sometime during the late hours of February 20, 1983, or early morning hours of February 21, 1983, Denise Madolyn Murphree was killed in her home in Trussville, Alabama. The victim was the sister-in-law of appellant. Appellant and his wife lived next door to the victim's residence. The medical testimony revealed that the victim died as a result of a severe beating and stomping which caused the victim to sustain a ruptured liver and other severe internal injuries. In addition, the victim had been stabbed, slashed, mutilated, and sodomized.

Appellant does not question the sufficiency of the evidence to support his conviction, and it would serve no useful purpose to recite the evidence in detail in this opinion; however, we will set out facts where we deem it necessary for a better understanding of the issues raised. Although the evidence of guilt was circumstantial, there was ample legal evidence presented by the State from which the jury by fair inference could find appellant guilty. The State's evidence disclosed that appellant was in the area where the crime was committed around the time of the commission of the crime; that, on the morning following the murder, he had scratches on his neck and blood, the same type as the victim's, on his trousers; that blood was found under his fingernails and on his underwear; that the treadmarks on his jogging shoes were similar to the treadmarks on the victim's body, and there was blood consistent with the victim's on the soles of those shoes; that his fingerprints and a palmprint were found on the hardwood floor near and under the victim's body; that pubic hair similar to appellant's was found under the body; that appellant's shirt, smeared with blood and semen, was found in the woods behind appellant's residence; that semen found on the victim and in the victim's room was that of a person having the same blood type as appellant; and that bite marks found on the victim's body were similar to impressions taken of appellant's teeth. Appellant denied his guilt and attempted to explain how his fingerprints and palmprint could have gotten in the victim's room and how the blood could have gotten on his trousers when he testified he went into her room the morning after her killing. The conflicts in the evidence were for the jury to resolve, and there was sufficient evidence from which the jury could have excluded every reasonable hypothesis except that of guilt beyond a reasonable doubt. Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1978), cert. denied, 368 So.2d 877 (Ala.1979). In fact, we find from our review of the record that the evidence of guilt was strong and convincing.

Four issues are raised by appellant on appeal.

I

Appellant first contends that the trial court erred in allowing his former wife to testify against him concerning her observations of his physical appearance and his ownership of a beige long-sleeved shirt, over his objections that his former wife's testimony violated his rights relating to the confidential marital communications privilege. He relies principally on Arnold v. State, 353 So.2d 524 (Ala.1977).

The shirt in question had been found, on the afternoon following the murder, hanging in a tree behind appellant's residence and close to the crime scene. The shirt was described as a long-sleeved "tee-shirt" with the words "Joel's Varsity Restaurant" printed on it. Appellant had previously worked at Joel's Varsity Restaurant and had been given two of the shirts. Semen and blood stains were found on the shirt. Appellant's former wife, Donna Murphree Handley, testified that the shirt belonged to her former husband, appellant. She also testified that she observed appellant wearing the shirt early on the night of the murder and that, when he returned to their residence at approximately 3:10 a.m. and entered the back door, he was not wearing a shirt, but was naked from the waist up.

Appellant and Donna Murphree Handley were married at the time of the murder, but were divorced prior to the trial of the instant case. The divorce did not affect or impair the principle of privileged communications between them. Arnold v. State. The question to be decided here is the applicability of the privilege for confidential communications to the matters observed and testified to by Mrs. Handley over appellant's objection.

"By its nature, the privilege includes only those statements or acts made or performed by one party to the marriage in communicating with the other. It is the confidential nature of this day by day interchange between the husband and wife, made as a natural consequence of the peculiar relationship of marriage, which falls within the proper scope of the privilege."

Arnold v. State, 353 So.2d at 526-27.

The privilege for confidential communications between spouses is discussed in C. Gamble, McElroy's Alabama Evidence, § 103.01(4) (3d ed. 1977), as follows:

"Although a husband or wife may be competent to take the stand against his or her accused spouse in a criminal prosecution, the witness spouse will still be unable, with few exceptions, to divulge confidential communications that transpired between the two of them. The historic justification for the privileged communications rule is to encourage family harmony by fostering communication between spouses.

"...

"The privilege for confidential communications between spouses applies not only to statements but also to knowledge acquired by one spouse's observation of an act of the other in private if the circumstances indicate that the actor-spouse did the act in the presence of the other spouse solely because of the confidence normally inspired by the marriage relation. Stated differently, the privilege applies to exclude all knowledge coming to the witness spouse by reason of the relationship and which, but for the confidence growing out of it, would not have been known.

"In determining whether the privilege is applicable in a given case, the proper inquiry is whether the communicating spouse intended the communication or act to be confidential. The privilege does not cover a communication or transaction between husband and wife which manifestly was not confidential or which must have been intended to be made public.

"...

"The privilege for confidential communications between spouses continues after the marriage has been dissolved as by death or divorce." (Footnotes omitted.)

For further general discussion, see State v. Browder, 486 So.2d 504 (Ala.Cr.App.1986).

The act of appellant of wearing the shirt described above, on the evening of the murder, as well as his ownership of such a shirt, did not constitute a confidential marital communication and, hence, it was proper for the trial court to admit the testimony of the former wife that he owned such a shirt and wore it on the date of the murder. Numerous persons obviously knew that appellant owned and had worn such a shirt; the shirt had been given to him by his former employer and he wore the shirt in the presence of his friend Greg Ballew on the night of the murder. The spouse's knowledge that her husband owned such a shirt and wore it on the night of the crime was in no sense traceable to their relation of husband and wife and the confidence that the relationship inspires. Rather, such information was accessible to third persons. This conduct was just as likely to occur before the public as in private and, indeed, it did. Owen v. State, 78 Ala. 425 (1885). Likewise, her testimony identifying the bloody shirt found behind the couple's home as belonging to her husband did not come within the prohibition of the law relative to communications made between the wife and husband during the marital relation. "The essence of the privilege is to protect confidences only." 8 Wigmore, Evidence § 2336 (McNaughton rev. 1961) (emphasis in original). Clearly, the circumstances surrounding the observation of the cited information rebut any claim that confidentiality, in the marital sense, was intended.

We further find that the act of appellant in entering his home without a shirt and naked from the waist up, around 3:10 a.m. on the morning of, or following, the murder, under the circumstances of this case, did not constitute a confidential marital communication, and the admission of this testimony by the former spouse was proper.

"The privilege has for its...