Hill v. State, 8 Div. 209

• Decision Date: 08 October 1985
• Docket Number: 8 Div. 209
• Parties: David Berry HILL v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 419

481 So.2d 419

David Berry HILL v. STATE.

8 Div. 209.

Court of Criminal Appeals of Alabama.

Oct. 8, 1985.

Rehearing Denied Nov. 12, 1985.

Certiorari Denied Jan. 24, 1986

Alabama Supreme Court 85-240.

Britt Cauthen of Cauthen & Cauthen, Decatur, for appellant.

Charles A. Graddick, Atty. Gen., and Jean Alexandra Webb, Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

David Berry Hill, the appellant, and Cecil Nathan Herron were separately indicted for the murder of Walter Luke Evans. The defendants were joined for trial and both men were convicted and sentenced to ninety-nine years' imprisonment. We find that the defendants were improperly joined for trial because their defenses were antagonistic and mutually exclusive.

Prior to trial, the prosecutor filed a "motion to consolidate" on the grounds that "each of the above Defendants has been charged in separate Indictments alleging participation in offenses that are the same act or transaction, or are a part of a common conspiracy, scheme, or plan or are otherwise so closely connected that it would be difficult to separate one from proof of the other."

The trial judge denied this motion, but later granted a motion to reconsider and ordered the defendants joined for trial finding "that these cases are suitable for consolidation, within the rules of Criminal Procedure, and can be consolidated and tried together without prejudice to either defendant." Hill filed a brief in opposition to the State's motion for joinder preserving the issue of antagonistic defenses: "What more antagonistic defenses can exist than putting two people on trial in the same proceeding where one defendant testifies and states the other defendant is guilty and that same defendant then testifies and states the other defendant is guilty?"

At trial, each defendant attempted to incriminate the other. In opening argument, the prosecution argued that "these two defendants acted in concert before, during, and after this event, that they were together like hand and glove all the way through." Herron's attorney argued that "Hill by himself, not in concert with anyone, took the life of Walter Evans." Hill's attorney argued that "Herron acted alone, that David Hill had nothing to do with this killing, and that ... only Cecil Herron committed this killing."

The State's evidence against Herron and Hill was circumstantial. That evidence was to the effect that sometime after 2:00 on the afternoon of December 3, 1982, nineteen-year-old Hill and eighteen-year-old Herron took Brenda Cooper to meet sixty-four-year-old Evans at Evans' house. Hill, Herron, Cooper and Evans were in Evans' residence at either 8:00 or 8:30 P.M. when Mrs. Hill called her husband. During the evening, Miss Cooper objected to Herron's suggestion that Evans "take her to bed," and everyone left the house to purchase some more beer.

Evans bought Herron some gasoline and the four people "rode around" after buying some beer in Madison County. Miss Cooper testified that, during this time, Herron started "smarting off" wanting "to have an orgy" or "get naked and jump in a pile."

Hill, Herron, Evans and Miss Cooper returned to her trailer where Herron ripped off her clothes and pulled off Evans' pants. Herron and Hill were completely naked. Miss Cooper testified that, before anything further happened, she sent Hill and Herron to buy some more beer. Miss Cooper testified that everyone had been drinking, but that Hill was "wiped out" and more intoxicated than anyone else. She stated that Hill "was willing to go along with anything Cecil [Herron] said."

Miss Cooper's boyfriend, Tom Cremeans, arrived and saw Hill and Herron sitting in a car outside Miss Cooper's trailer. He went in the trailer and found Miss Cooper naked. Cremeans got into a fight with Evans, hit him two or three times, and pushed him out of the trailer. Herron helped Evans in the car and began "hollering" at Cremeans, who went inside. Herron took a stick or board and burst the front windshield in Cremeans' automobile. Hill, Herron and Evans then drove off together. Hill left wearing only his blue jeans. His shirt and shoes were found at Miss Cooper's trailer the next day by the police.

Hershell Nix, the owner of the trailer park, was alerted by all the noise at Miss Cooper's trailer. He witnessed the events which occurred outside the trailer. When Hill and Herron left with Evans, Nix ordered Cremeans to leave. These events occurred around 10:30 or 11:00 P.M. Cremeans left but later returned and took Miss Cooper to his trailer.

An unidentified white male telephoned the Decatur Police Department at 12:26 on the morning of December 4, 1982, and reported that someone was hurt and bleeding at Evans' residence. The police were on the scene at approximately 12:29 A.M. and they discovered Evans' almost lifeless body in his bedroom. No one else was observed in or near the residence. The paramedics arrived around 12:30 P.M. and took Evans to the hospital where he later died. Evans had been cut and stabbed and died "as a result of a cut injury on the left side of his neck which resulted in the softening of the brain and destruction of the same."

Kenneth Driskell testified that, between 11:30 P.M. and 1:30 A.M. on the night of the murder, Herron stopped him outside the Happy People's Club and asked Driskell where he could get some marijuana. Hill was in the car with Herron. Driskell gave Herron two marijuana cigarettes in exchange for a radio which belonged to Evans.

Hill and Herron returned to Hill's apartment between 1:00 and 2:00 that morning. Mrs. Hill testified that Hill was intoxicated and "messed up bad, and he looked to be in a state of shock." Hill told his wife that he had "never seen so much blood," and that he had found Evans in his home lying "face down on the floor in a puddle of blood." Herron had blood on his hands and washed it off at Hill's apartment. Herron was wearing Evans' cowboy hat and also had Evans' pocketknife. Mrs. Hill testified that Herron was only "acting like he was messed up, ... and was definitely acting."

The State produced expert testimony to show that three buttons found at the scene of the murder were consistent with and similar to the buttons on Herron's shirt, four of which were missing. Blood on a jacket found in Herron's automobile was the same type as that of Evans.

Hill testified in his own defense that he and Herron took Brenda Cooper to meet Walter Evans. They were "going to split however much Brenda got if she went to bed with him." After a short time these four people left Evans' house to buy some more beer and on the way stopped to put gasoline in Herron's car. Hill testified that he had been drinking and smoking marijuana, and that he passed out and did not remember anything after the gas station, which was around 3:30 in the afternoon. After Hill passed out he did remember hearing Herron ask Evans for some money.

Hill testified that when he woke up, around 12:30 that night, he was outside Evans' house clad only in his blue jeans. He heard a "scuffle," went inside, saw two "puddles of blood" in the hallway, walked to Evans' bedroom and saw Herron "standing there over Mr. Evans with a [pocket] knife in his hand." Evans "had blood from his head to his shoulders." Hill did not know whether the knife, which belonged to Evans, was open or closed.

Hill asked what happened and Herron "mentioned that Brenda's boyfriend had gotten into it with Mr. Evans, and that he had followed us" to Evans' house. Hill stated that Herron told him that Miss Cooper's "boyfriend had come up and caught them at the trailer and he thought her boyfriend had followed him over there and did that to Mr. Evans." Hill told Herron to call an ambulance and then went to Herron's car.

Hill testified that the next thing he remembered after leaving Evans' trailer was the next morning when his wife told him that Herron had brought him home, that Herron had blood on him and that Herron told them that a man "jumped" on Evans at Miss Cooper's trailer and Herron "had to get him off."

In his defense, Hill called five witnesses besides himself. Ruby Herron, defendant Herron's mother, testified that her son had two buttons missing off his shirt and that she did not notice any blood on him.

Thelma Carter, Hill's mother, testified that Hill and Herron arrived at Hill's apartment between 1:30 and 2:00 on the morning of December 4, 1982. Hill was "in shock or something." She saw "spots of blood" on Herron's shirt and stated that Herron was "just laughing and carrying on and talking about having some kind of a knife" which she never saw. Herron told her that "this lady's boyfriend come up and caught Mr. Evans and her in bed together, and ... he [Herron] got him a stick and beat him off."

Martha Sue Smith, Hill's sister, testified that when Hill came home he was in a daze. She stated that Herron said that he had "pulled some man off Mr. Evans" and that "the man started to cut Mr. Evans and then Cecil [Herron] jumped on the man with a stick." Herron had "little specks" that "looked similar to blood" on his shirt and he had blood on his hands. Herron was "trying to get rid of" a knife and a cowboy hat that belonged to Evans.

Miss Smith testified that, after Herron left Hill's apartment, Hill told her that he had found Evans "lying down in a puddle of blood." Herron never mentioned anything about finding Evans.

Miss Smith also admitted that she told the police that both Hill and Herron told the story of finding Evans and that Herron "also mentioned several times they should go back and check on Mr. Evans, and then he would laugh."

Talmadge Townsend was also at Hill's apartment that early Saturday morning. He testified that Herron had "blood on his hands" and "a little blood on his shirt." Herron also had "a little knife" and said that Miss Cooper's boyfriend "beat up" Evans and that "they had to drag Brenda's boyfriend off of the man."

Hill's last...