Hutcherson v. State

• Citation: 677 So.2d 1174
• Decision Date: 27 May 1994
• Docket Number: CR-92-925
• Parties: Larry Eugene HUTCHERSON a/k/a Larry Eugene Bonner v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1174

677 So.2d 1174

Larry Eugene HUTCHERSON a/k/a Larry Eugene Bonner v. STATE.

CR-92-925.

Court of Criminal Appeals of Alabama.

May 27, 1994.

As Corrected on Denial of Rehearing

Aug. 19, 1994.

Glenn Davidson, Mobile, for appellant.

James H. Evans, Atty. Gen., and Gilda Williams, Deputy Atty. Gen., for appellee.

TAYLOR, Judge.

The appellant, Larry Eugene Hutcherson, was convicted of murder made capital because the murder occurred during the course of a sodomy and a burglary, violations of §§ 13A-5-40(a)(3) and 13A-5-40(a)(4), Code of Alabama 1975. The jury, by a vote of 11 to 1, recommended the death penalty be imposed. The trial court accepted the jury's recommendation and sentenced the appellant to death by electrocution.

The state's evidence tended to show that on June 26, 1992, the body of 89-year-old Irma Thelma Gray was discovered in her home on Moffat Road in Mobile, Alabama. The victim's throat had been cut so severely that she was almost decapitated. Dr. Leroy Riddick, a forensic medical examiner, testified that the cut on her throat was 10 inches long, beginning at her left earlobe and progressing to within one and one-half inch of her right earlobe. The cut severed her windpipe and her carotid artery and went all the way to her spine. The victim had many other injuries that Dr. Riddick testified occurred before her throat was cut. These injuries, consistent with a beating, included numerous other cuts, bruises, and multiple fractured ribs. There was also evidence that the victim had been sodomized.

Lieutenant Frank Woodward of the Mobile Police Department testified that when he arrived at the house to investigate Ms. Gray's death, the door to the screened porch was punched inward; a window had been broken and there was pieces of broken glass and blood on the window sill. The inside of the house was in total disarray. The antenna for the television was on the floor and a bracket in a window sill, where an air conditioner would have been, was empty. Woodward found Mrs. Gray's body lying face down on the kitchen floor. Blood covered the floor near her head and there was talcum powder on her lower body. There was also blood and a bloody footprint on the floor of the Officer Lamar Whitten of the Mobile Police Department stated that he searched the house and found the appellant's driver's license in front of a closet in one of the bedrooms. Near the appellant's driver's license was a bloody knife.

bathroom. Woodward also stated that the door to the garage was partially open and that one of the windowpanes in the door was broken and there was a trail of blood leading from the window to the driver's side of the automobile that was in the garage.

A fingerprint was also discovered on the washing machine. The print matched the print of the appellant's right thumb.

Sarah Scott of the state forensic department testified that she was called to the scene to retrieve blood samples from certain areas in the house. A rag found in the garage was covered in blood consistent with the appellant's blood type. The blood on the garage window sill was also consistent with the appellant's blood as were the bloodstains lifted from the front porch. She also testified that bloodstains on a pair of jeans that the appellant was wearing when he was arrested were consistent with the victim's blood type.

The appellant's mother, Deborah Hutcherson, testified that around 6:00 a.m. on a morning during the last week of June 1992 she received a telephone call from her son asking her to pick him up on Moffat Road. The appellant told his mother that he had been in a fight and that his arm had been cut. She found her son at the Overlook Shopping Center, not far from the victim's house. She said that the cut on his arm was bad and that it looked like he needed stitches. She also stated that the appellant did not appear to be drunk but that he looked "real tired."

Sergeant Lester Clark testified that on June 27, 1992, he took the appellant into custody on a traffic attachment out of Prichard. He said that when he found the appellant he was asleep in his car outside the Tarpon Lounge, which was located about one-half mile from the victim's house. Clark took the appellant to the police station where he read the appellant his Miranda ¹ rights. Initially, the appellant stated that he did not wish to make a statement. About 45 minutes later, the appellant asked to speak with Clark. Sergeant Clark transcribed the following statement as he was talking with the appellant:

" '[I] want to tell you about the murder.' I again advised him that he did not have to say anything, but he stated that he had to tell someone and he wanted it to be me. The suspect continued to talk stating that, 'I killed her.' He stated, 'I went to the house on Wednesday night, or it could have been early Thursday morning. Might have been after twelve o'clock. I had just left the Tarpon [Lounge] and was looking for a house to break in as I walked west on Moffat Road. I picked that house because there were no cars in the driveway and it was dark. I went in the bathroom window.' And he said, 'That is not--' he hesitated and he said, 'That is not too clear because I had taken five Valiums and drank a lot of whiskey. I knew that I knocked out--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 awhile before I saw the old lady, who just showed up in the kitchen. I asked her where her money was and the jewelry. She wouldn't tell me and I began--she began to try to get out of the back door. I kept pulling her back, and I cut her throat. I took off her panties 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 Moffat. 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 parts of the house that I did not go through Wednesday night. This is when I took out the air conditioner and the rest of the stuff, and put it next to the fence.

" 'I got Hardy [Avera] to stop after leaving the Tarpon Friday morning and pick up the stuff. Most of the stuff might have been--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 stepfather'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've told you.' "

Three witnesses testified that the appellant sold them a microwave, a television, and a radio, respectively, in the last week of June 1992. These items were identified by the victim's son-in-law as having belonged to the victim.

Hardy Avera testified that on Wednesday in the last week of June 1992 the appellant came to his house wearing jeans and black tennis shoes. The appellant told him that "he thought he had killed someone." The next day he saw the appellant at the Tarpon Lounge and he took him to the victim's house. He said that the appellant went inside and came back with an air conditioner and some other items.

The appellant's stepsister, was present when her father, Jackie Lang, received a telephone call from the appellant. She said that during the conversation her father wrote down on a piece of paper that Larry had killed an old lady. Ms. Lang also stated that she testified before the grand jury that the appellant had told her that "he would rather die in the electric chair than live with what he had done to the victim."

Many of the issues raised by the appellant on appeal were not first presented to the trial court. However, because this case involves the death penalty, this court is obliged, under Rule 45A, A.R.App.P., to apply the plain error doctrine. Rule 45A, A.R.App.P., states:

"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."

As this court stated in Haney v. State, 603 So.2d 368 (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):

"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))."

"[T]he 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 "the claimed error [must] not only [have] seriously affected [the defendant's] 'substantial rights,' but ... it [must have] had an unfair prejudicial impact on the jury's deliberations." Young, 470 U.S. at 18, 105 S.Ct. at 1047, n. 14, 84 L.Ed.2d at 14.

PRE-TRIAL ISSUES

I

The appellant initially argues that the indictment against him did not adequately apprise him of the charges against him and that his constitutional rights were therefore violated. The two-count indictment reads as follows:

"Count One

"The Grand Jury of said County charge, that, before the finding of this indictment LARRY EUGENE...