Hinton v. State, 6 Div. 225

• Decision Date: 14 June 1988
• Docket Number: 6 Div. 225
• Citation: 548 So.2d 547
• Parties: Anthony Ray HINTON v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 547

548 So.2d 547

Anthony Ray HINTON v. STATE.

6 Div. 225.

Court of Criminal Appeals of Alabama.

June 14, 1988.

Rehearing Denied Aug. 23, 1988.

Sheldon Perhacs, Birmingham, for appellant.

Don Siegelman, Atty. Gen., and Martha Gail Ingram and William D. Little, Asst. Attys. Gen., for appellee.

TAYLOR, Judge.

Anthony Ray Hinton was convicted of the capital murders of John Davidson and Thomas Wayne Vason, in violation of § 13A-5-40(a)(2), Code of Alabama 1975, and was sentenced to death by electrocution for each conviction. Five issues are raised on appeal.

The two robbery-homicides which are the basis for the charges, which were brought under separate indictments, occurred on separate dates. The first robbery-homicide occurred on February 23, 1985, at Mrs. Winner's fried chicken restaurant, located at 737 29th Street, South, in Birmingham. This restaurant is approximately two and one-half blocks from the Red Mountain Expressway. Shortly after midnight on the morning of February 24, 1985, Thomas Elliott, an exterminator, arrived at Mrs. Winner's. Finding the door unlocked, Mr. Elliott entered the restaurant and called out. Mr. Elliott saw a light on in the back of the restaurant and headed toward it. Next to the cooler he found John Davidson, the restaurant's assistant manager, lying in a pool of blood. Mr. Davidson had been shot and was bleeding very badly. Mr. Davidson's false teeth were on the floor of the cooler. Blood was all over the door of the cooler. Mr. Elliott immediately called the 911 emergency number and summoned the Birmingham Police Department, as well as the rescue facilities of the Birmingham Fire Department, to the restaurant.

After assistance had been summoned, Mr. Davidson got up and started walking around the restaurant, but was unresponsive to Mr. Elliott's presence. Because he was frightened, Mr. Elliott went outside the restaurant to await the arrival of the paramedics. Moments later, the police and paramedics arrived, almost simultaneously. The paramedics administered emergency treatment to Mr. Davidson, then transported him to Medical Center East Hospital.

While the paramedics were attending Mr. Davidson, the police began their investigation of the incident. In the course of their investigation, the police determined that there was no sign of forced entry into the restaurant. However, the top of the safe was off and the safe was empty. A review of the restaurant's business records revealed that $2,100 was missing from the safe. No fingerprints were found at the scene. Mr. Davidson's truck was parked outside the restaurant and his wallet was on the front seat of the truck. Based on their investigation, the police concluded that Mr. Davidson, who had been alone in the restaurant, was accosted by an unknown gunman as he left the restaurant, forced to re-enter the restaurant, open the safe, and give the armed robber the cash contents of the restaurant's safe, and was then directed into the restaurant's cooler and shot twice in the head by the unknown robber.

Meanwhile, the victim, Mr. Davidson, was undergoing extensive surgery at Medical Center East, but to no avail; he died on February 25, 1985. During the course of the surgery, a .38 caliber bullet was removed from Mr. Davidson's head. This projectile was subsequently turned over to the Alabama Department of Forensic Sciences for its examination. Dr. Robert Brissie, chief coroner of Jefferson County, performed the autopsy on the victim. His examination revealed that Mr. Davidson suffered two gunshot wounds to the head. One bullet penetrated beneath his right eye and the other bullet entered approximately seven inches from the top of his head. Both wounds were to the right side of Mr. Davidson's face. It was Dr. Brissie's opinion that Mr. Davidson died as a result of gunshot wounds to his head. During the course of the autopsy, the second bullet was removed from the victim's head and turned over to the Department of Forensic Sciences for examination.

The second robbery-homicide occurred on July 1, 1985, at the Captain D's restaurant in Woodlawn, in the eastern section of Birmingham. This restaurant is located two to two and one-half blocks from the interchange of Interstate Highways 20 and 59. Earnest Horn left his job at Captain D's on the night of July 1, 1985, around 11:30 p.m., leaving the assistant manager, Thomas Wayne Vason, alone in the restaurant counting the money taken in that day and preparing to call in his report of the day's sales to the Shoney's regional office. (Captain D's restaurants are a subsidiary of the Shoney's restaurant chain.) When Mr. Horn left the restaurant the alarm system was plugged into the phone. At approximately 12:45 a.m. on July 2, 1985, Mr. Vason called in his sales total to the regional office, then left the restaurant.

At 7:45 a.m. on July 2, 1985, Reuben Valdez, manager of the Captain D's in Woodlawn, arrived at the restaurant in preparation for the day's opening. He noticed Mr. Vason's car, but at the time thought nothing of it. Mr. Valdez entered the restaurant and saw that the safe was open. He then saw Mr. Vason's body lying in the cooler. Mr. Vason had been shot and appeared dead to Mr. Valdez. The police were immediately summoned. Mr. Valdez then called the area supervisor of Shoney's to report the crimes. Birmingham police officers first arrived at approximately 7:50 a.m. Additional investigators arrived shortly thereafter. Police found on the floor next to the open safe a piece of paper on which was written the combination to the safe. Mr. Vason's wallet was also found nearby on the desk; it contained $165 in bills of various denominations. A review of the business records revealed that $650 was missing from the safe. Additionally, the telephone alarm system was unplugged. There was, again, no sign of forced entry into the restaurant. The side kitchen door to the restaurant, the one nearest to the safe (on which a smudged fingerprint was found), could be opened only from the inside or the outside with a key. Mr. Vason's keys were found in the kitchen area. Based on their investigation, the police concluded that Mr. Vason, upon leaving the restaurant, was accosted by an unknown gunman and forced to re-enter the restaurant, open the safe, and give the armed robber the cash contents of the restaurant's safe, and then was directed into the restaurant's cooler and fatally shot twice in the head by the unknown robber.

Dr. Pat Garceau, a medical examiner in the Jefferson County Coroner's Office, determined that Mr. Vason was dead at the scene of the crime. Dr. Garceau's autopsy of the victim revealed that Mr. Vason had suffered two gunshot wounds to the head. One gunshot wound entered the right cheek of Mr. Vason, and the other entered one and one-half inches from the top of his head. Further testing performed on the victim by Dr. Garceau determined the time of death to be between 12:30 a.m. and 2:30 a.m. on July 2, 1985. It was Dr. Garceau's opinion that Mr. Vason's death was the result of a gunshot wound which penetrated his brain.

During the course of the autopsy, two .38 caliber bullets were recovered from the body of Mr. Vason. Both bullets were turned over to the Department of Forensic Sciences for its examination. The .38 caliber bullets which were recovered from the bodies of Mr. Davidson and Mr. Vason were later examined by firearms experts in the Department of Forensic Sciences to determine if they had been fired from the same weapon. Examination by these experts revealed that the bullets taken from the head of Mr. Davidson and the bullets recovered from the head of Mr. Vason were fired from the same weapon. Further similarities were present, in that both victims had been shot twice in the head, and both victims, at some time during the course of the robbery, were placed in the walk-in cooler of the restaurant. Moreover, during the investigation of both robberies, fingerprint technicians examined areas of the restaurant and were unable to find any latent fingerprints which could lead to the arrest of a suspect. Thus, without any further leads, the police department's investigation was at a standstill.

Later in the month of July, however, Birmingham police investigators working on these cases got their first big break. On July 25, 1985, Sidney Smotherman, who was a night manager of Quincy's Family Steak House restaurant in Bessemer, survived a robbery which fit the pattern of the Mrs. Winner's and Captain D's robbery-homicides. Mr. Smotherman told Bessemer police he was working the night shift at Quincy's in Bessemer on July 24, 1985. Quincy's is located approximately four to five blocks from Interstate 59. Upon closing, however, several employees who were on the clean-up detail that night exited the building at the same time as Mr. Smotherman, approximately 12:14 a.m. on July 25, 1985. Mr. Smotherman got into his 1985 silver Pontiac Fiero and drove to the nearby Food World. Two other employees of Quincy's also stopped by Food World after work to pick up some items before going home for the night. One of the employees noticed a "strange looking guy" inside the store. The man seemed strange because he was not shopping and kept putting his hand up to his face in an apparent attempt to hide his face. This strange man did not make a purchase, but instead followed Mr. Smotherman outside the store. The receipt from Mr. Smotherman's purchases showed that Mr. Smotherman exited Food World at 12:26 a.m. on July 25, 1985.

After leaving Food World, Mr. Smotherman got into his car and began driving home. He had gone less than a mile down the road, when his car was bumped from the rear while he was stopped at a traffic light. Mr. Smotherman and the other driver, whom he identified as the defendant, got out of their cars to survey the damage. Having satisfied himself that there ws no damage to his car, Mr. Smotherman got back into his car and prepared to drive off, but was...