Hutcherson v. State

Citation727 So.2d 846
PartiesLarry Eugene HUTCHERSON, alias Larry Eugene Bonner v. STATE.
Decision Date17 October 1997
CourtAlabama Court of Criminal Appeals

727 So.2d 846

Larry Eugene HUTCHERSON, alias Larry Eugene Bonner


Court of Criminal Appeals of Alabama.

October 17, 1997.

Rehearing Denied December 19, 1997.

727 So.2d 850
Therese Green, Mobile, for appellant

Bill Pryor, atty. gen., and Tracy Daniel, asst. atty. gen., for appellee.


The appellant, Larry Eugene Hutcherson, was convicted of capital murder for the 1992 killing of Irma Thelma Gray and was sentenced to death. On appeal, this court affirmed the conviction and death sentence. 677 So.2d 1174 (Ala.Crim.App.1994). The Alabama Supreme Court reversed this court's judgment, holding that the improper admission of DNA evidence was not harmless error. 677 So.2d 1205 (Ala.1996). On April 19, 1996, this court remanded the case to the trial court for proceedings consistent with the supreme court's opinion. 677 So.2d 1210 (Ala.Cr.App.1996).

On remand, the appellant pled guilty to and was convicted of murder, made capital because the murder was committed during the course of a burglary, see § 13A-5-40(a)(4), Ala.Code 1975. The appellant was examined by Dr. C. Van Rosen, a clinical forensic psychologist, who determined that the appellant understood the consequences of entering the guilty plea, could appreciate the wrongfulness of his action when he committed the capital offense, and wanted to enter the guilty plea. The trial court then engaged in a colloquy with the appellant in which the appellant admitted his guilt and expressed

727 So.2d 851
his desire to enter a guilty plea, despite the advice of his attorneys. After the appellant entered his guilty plea, the matter was presented to a jury so that the jury could determine whether the State had proven its case against the appellant beyond a reasonable doubt. The jury returned a verdict of guilty, and the penalty phase proceedings began. By a vote of eleven to one, the jury recommended the death penalty. The trial court accepted the jury's recommendation and sentenced the appellant to death by electrocution

The appellant's guilty plea was taken pursuant to the provisions of § 13A-5-42, Ala.Code 1975, which provides as follows:

"A defendant who is indicted for a capital offense may plead guilty to it, but the state must in any event prove the defendant's guilt of the capital offense beyond a reasonable doubt to a jury. The guilty plea may be considered in determining whether the state has met that burden of proof. The guilty plea shall have the effect of waiving all non-jurisdictional defects in the proceeding resulting in the conviction except the sufficiency of the evidence. A defendant convicted of a capital offense after pleading guilty to it shall be sentenced according to the provisions of Section 13A-5-43(d)."

This statute distinguishes a guilty plea entered in a capital case from a guilty plea entered in a noncapital case. We interpret the phrase "proceeding resulting in conviction" to mean the guilt phase of a capital trial. Therefore, we read this statute to provide that, in a capital case, a guilty plea shall have the effect of waiving all non-jurisdictional defects, except the sufficiency of the evidence, occurring before and during the guilt phase of the trial. Thus, the appellant's argument that his guilty plea acts only as a bar to non-jurisdictional defects arising prior to the entry of the guilty plea is without merit.

We have reviewed the proceedings prior to and during the guilt phase of the trial for jurisdictional errors. In addition, we have reviewed the penalty phase proceedings for any error, whether preserved or plain, as required by Rule 45A, Ala. R. App. P., which provides as follows:

"In all cases in which the death penalty has been imposed, the court of criminal appeal shall notice any plain error or defect in the proceedings under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial right of the appellant."

In Haney v. State, 603 So.2d 368, 392 (Ala. Cr.App.1991), aff'd, 603 So.2d 412 (Ala.1992), cert. denied, 507 U.S. 925, 113 S.Ct. 1297, 122 L.Ed.2d 687 (1993), this court stated as follows:

"The Alabama Supreme Court has adopted federal case law defining plain error, holding that `"[p]lain error" only arises if the error is so obvious that the failure to notice it would seriously affect the fairness or integrity of the judicial proceedings,' Ex parte Womack, 435 So.2d 766, 769 (Ala.), cert. denied, 464 U.S. 986, 104 S.Ct. 436, 78 L.Ed.2d 367 (1983) (quoting United States v. Chaney, 662 F.2d 1148, 1152 (5th Cir. 1981))."

"The plain-error exception to the contemporaneous-objection rule is to be `used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result.'" United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1, 14 (1985), quoting United States v. Frady, 456 U.S. 152, 163, 102 S.Ct. 1584, 1592, 71 L.Ed.2d 816 (1982). To find plain error, a reviewing court must find that "the claimed error not only seriously affected `substantial rights,' but that it had an unfair prejudicial impact on the jury's deliberations." Young, 470 U.S. at 18, n. 14, 105 S.Ct. at 1047, n. 14, 84 L.Ed.2d at 13, n. 14.


The appellant's first argument is that the evidence was insufficient to support the finding of the jury that the State met its burden of proving the elements of capital murder beyond a reasonable doubt. Although his argument is couched in terms of the weight of the evidence, we will treat this

727 So.2d 852
as a sufficiency of the evidence argument because all other non-jurisdictional defects, if any, occurring during the guilt phase of the trial were waived by the appellant's guilty plea

The evidence introduced at trial showed that the appellant intended to burglarize a house. The officer who took the appellant's statement following his arrest read the statement into evidence as follows:

"I killed her. He stated that he went to the house on Wednesday night, or it could have been early Thursday morning, might have been after 12:00 o'clock. I had just left the Tarpon and was looking for a house to break in as I walked west of Moffatt Road. I picked that house because there were no cars in the driveway and it was dark. I went in the bathroom window. That is not too clear, because I had taken five Valiums and drank a lot of whiskey. I knew that I knocked the pane out of the window to get in. I remember I cut my arm when I broke out the garage window.
"I had been in the house for a while before I saw the old lady, who just showed up in the kitchen. I asked her where was her money and jewelry. She wouldn't tell me and began to try to get out of the back door. I kept pulling her back and I cut her throat. I took off her pants and poured powder over her which I found in the bathroom. I tried to get the car started, but it wouldn't. I left and called my mamma to pick me up. She picked me up on Moffatt Road.
"I went back into the house Thursday night. I had passed several times during the day and saw that no one had found her. I went through part of the house that I didn't go through Wednesday night. This is when I took out the air condition (sic) and the rest of the stuff and put it next to the fence. I got Hardy to stop after leaving the Tarpon Friday morning and picked up the stuff. Most of the stuff might have left town by now. I sold some and I just almost gave some away to people I owed. The air conditioner I know is still here. I know where it is. It is at my stepdaddy's house, Jackie Lang. The microwave, I know where it is, but she is related to my wife and I wouldn't want to get her involved. But I know it is there. Now, I feel better I have told you."

(R. 1158-60.)

The appellant contends that he was too intoxicated to form the specific intent to murder the victim. This court has previously addressed this issue:

"The question whether a defendant's intoxication rendered it impossible for the defendant to form a particular mental state is also a question for the jury. See Ex parte Bankhead, 585 So.2d 112, 121 (Ala. 1991). Evidence of intoxication, whether voluntary or involuntary, is admissible when it is relevant to negate an element of the offense charged. § 13A-3-2(a). `Voluntary drunkenness does not excuse crime, yet its excessiveness may produce such a mental condition as to render the intoxicated person incapable of forming a specific intent.' Lovett v. State, 491 So.2d 1034, 1039 (Ala.Cr.App.), cert. denied, 491 So.2d 1039 (Ala.1986) (quoting State v. Massey, 20 Ala.App. 56, 58, 100 So. 625, 627 (1924)). The degree of intoxication required to establish that a defendant was incapable of forming an intent to kill is a degree so extreme as to render it impossible for the defendant to form the intent to kill. Ex parte Bankhead, 585 So.2d at 121. The law concerning intoxication resulting from drug use is the same as intoxication resulting from alcohol. Hooks v. State, 534 So.2d 329 (Ala.Cr.App.1987)."

Williams v. State, 710 So.2d 1276, 1338 (Ala. Cr.App.1996). The trial court properly submitted to the jury the issue of the effect of the appellant's intoxication on his ability to form a specific intent. Furthermore,

"`[a]n intent to cause the death of the deceased may be inferred from the character of the assault, the use of a deadly weapon and all other attending circumstances surrounding the death of the deceased.' Fears v. State, 451 So.2d 385, 387 (Ala.Crim.App.1984). See also Swann v. State, 412 So.2d 1253 (Ala.Crim.App.1982); Tucker v. State, 383 So.2d 579 (Ala.Crim. App.), cert. denied, 383 So.2d 586 (Ala. 1980)."

727 So.2d 853
Weaver v. State, 678 So.2d 260, 277 (Ala.Cr. App.1995), rev'd, 678 So.2d 284 (Ala.1996).

"In Jones v. State, 591 So.2d 569, 574 (Ala.Cr.App.1991), this court stated:

"`"[T]he element of intent, being a state of mind or mental purpose, is

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