Hyde v. State

• Citation: 778 So.2d 199
• Parties: James Matthew HYDE v. STATE.
• Decision Date: 30 January 1998
• Court: Alabama Court of Criminal Appeals

778 So.2d 199

James Matthew HYDE v. STATE.

CR-95-2036.

Court of Criminal Appeals of Alabama.

January 30, 1998.

Rehearing Denied March 20, 1998.

Terry Huffstutler, Guntersville; and David Roadruck, Guntersville, for appellant.

Bill Pryor, atty. gen., and Lindy Beale and Michael Billingsley, asst. attys. gen., for appellee.

BASCHAB, Judge.

The appellant, James Matthew Hyde, was charged with the capital murder of Ernest Andrew Whitten. The murder was made capital 1) because it occurred during a burglary, see ? 13A-5-40(a)(4), Ala.Code 1975; 2) because Whitten was a grand jury witness, see ? 13A-5-40(a)(14), Ala.Code 1975; 3) because Whitten had been subpoenaed to testify at the trial of Larry Whitehead, see ? 13A-5-40(a)(14), Ala. Code 1975; and 4) because Whitten was a police officer who was killed as a result of a job-related act, ? 13A-5-40(a)(5), Ala. Code 1975.

The evidence showed that the appellant was a close friend of Larry Whitehead. Whitehead was employed by Hudson Foods, Inc., but he rarely went to work. Instead, he or one of his friends punched the time clock, clocking him in and out, and he was paid as if he had worked. The appellant was caught clocking Whitehead in and out, and Detective Andrew Whitten of the Albertville Police Department investigated the incident. As a result of the investigation, Whitehead was arrested and charged with first-degree theft. Whitten testified before the grand jury that indicted Whitehead, and he was subpoenaed to testify at Whitehead's trial, which was scheduled to begin on January 30, 1995. Whitten was shot on January 24, 1995, and on January 25, 1995, he died from injuries he sustained in the shooting.

The appellant admitted his involvement in the crime in a statement he gave the police. That statement revealed the following:

On January 24, 1995, the appellant, Whitehead, and Stephen Brookshire drove to Whitten's house. While Whitehead and Brookshire remained in the vehicle, the appellant opened an outer door, entered an enclosed porch, and approached the door to the remainder of the house. Whitten came to the door, and the appellant, using a gun he had in a jacket pocket, shot him once in the abdominal area. When his gun jammed, the appellant returned to the car and the three men left. The appellant later discarded the jacket and the hat he had been wearing. Whitehead or one of his friends discarded the gun.

Stephen Brookshire testified for the State at the appellant's trial, and his story corroborated the appellant's confession. In addition, he testified that he and the appellant knew that Whitten was a witness against Whitehead and that Whitten was killed to prevent him from testifying at Whitehead's trial.

Larry Whitehead testified at trial for the defense. He stated that he killed Whitten and that Brookshire and the appellant had nothing to do with it. In fact, he testified that, when they were in the car on the day of the murder, Brookshire and the appellant thought he was going to a drug dealer's house to buy drugs.

During the guilt phase of the trial, but before the trial court charged the jury, the State abandoned the count in the indictment that made the murder capital because the victim was a police officer. The jury found the appellant guilty of capital murder on three bases?€”that the murder was committed during a burglary, that the victim was a grand jury witness, and that the victim was going to testify at the trial against Whitehead. By a vote of 7 to 5, the jury recommended a sentence of life imprisonment without the possibility of parole. The trial court overrode the jury's recommendation and sentenced the appellant to death. This appeal followed.

The appellant raises several issues on appeal that he did not raise in the trial court. However, because this case involves the death penalty, we are required to examine the record for plain error. Rule 45A, Ala. R.App. P., provides as follows:

"In all cases in which the death penalty has been imposed, the Court of Criminal Appeals 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."

We have stated the following regarding plain error review:

"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))."

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). To rise to the level of plain error, the claimed error must not only seriously affect a defendant's "substantial rights," but it must also have an unfair prejudicial impact on the jury's deliberations. United States v. Young, 470 U.S. 1, 16-17 n. 14, 105 S.Ct. 1038, 1047 n. 14, 84 L.Ed.2d 1, 13 n. 14 (1985). Finally, a failure to object will weigh heavily against a claim of prejudice. Williams v. State, 601 So.2d 1062, 1066 (Ala.Cr.App. 1991), aff'd, 662 So.2d 929 (Ala.), cert. denied, 506 U.S. 957, 113 S.Ct. 417, 121 L.Ed.2d 340 (1992). See also Brooks v. State, 695 So.2d 176 (Ala.Cr.App.1996),

aff'd, 695 So.2d 184 (Ala.), cert. denied, 522 U.S. 893, 118 S.Ct. 233, 139 L.Ed.2d 164 (1997).

I

The appellant first argues that the trial court erred in refusing to instruct the jury on the lesser included offense of intentional murder. We disagree.

"In Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), the United States Supreme Court held that the sentence of death could not be imposed after a jury verdict of guilt of a capital offense when the jury was precluded from considering a verdict of guilt of a lesser included noncapital offense, provided that the evidence would have supported such a verdict. Subsequently, in Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982), the Supreme Court clarified its decision in Beck, supra, to require that only when the evidence warrants such an instruction must a lesser included offense instruction be given. In so holding, the Court upheld the constitutionality of the following Alabama standard as applied in capital cases: `a lesser included offense instruction should be given if "there is any reasonable theory from the evidence which would support the position."' Hopper, 456 U.S. at 611, 102 S.Ct. at 2053 (quoting Fulghum v. State, 291 Ala. 71, 75, 277 So.2d 886, 890 (1973))."

Ex parte Julius, 455 So.2d 984, 986 (Ala. 1984).

"[A]n accused is not always entitled to an instruction on a particular offense even though this offense is included in the offense for which he is charged:

"`A person accused of the greater offense has a right to have the court charge on the lesser offenses included in the indictment, when there is a reasonable theory from the evidence supporting his position. Wiggins v. State, 491 So.2d 1046 (Ala.Cr.App. 1986); Chavers v. State, 361 So.2d 1106 (Ala.1978); Fulghum v. State, 291 Ala. 71, 277 So.2d 886 (1973).... A court may properly refuse to charge on a lesser included offense only when (1) it is clear to the judicial mind that there is no evidence tending to bring the offense within the definition of the lesser offense or (2) the requested charge would have a tendency to mislead or confuse the jury. Lami v. State, 43 Ala.App. 108, 180 So.2d 279, cert. denied, 278 Ala. 710, 180 So.2d 282 (1965).... Section 13A-1-9(b) provides, "The court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense."

"`"The `safer' practice is to charge upon all degrees of homicide: `[I]t is much the safer rule to charge upon all the degrees of homicide included in the indictment, when a party is on trial for murder, unless it is perfectly clear to the judicial mind that there is no evidence tending to bring the offense within some particular degree.' Pierson v. State, 99 Ala. 148, 153, 13 So. 550 (1892), approved in Williams v. State, 251 Ala. 397, 399, 39 So.2d 37 (1948)."

"`Phelps v. State, 435 So.2d 158, 163 (Ala.Cr.App.1983).'"

Holladay v. State, 549 So.2d 122, 129 (Ala. Cr.App.1988), aff'd, 549 So.2d 135 (Ala.), cert. denied, 493 U.S. 1012, 110 S.Ct. 575, 107 L.Ed.2d 569 (1989).

As we set forth in Parts II and III of this opinion, the State presented sufficient evidence to support the capital murder convictions for the murder of a witness and murder committed during a burglary. The evidence, including the appellant's confession, showed that the appellant killed Whitten because he was a witness against Whitehead. In addition, the evidence showed that the appellant unlawfully entered Whitten's house and that he intentionally and unlawfully caused a bullet to enter Whitten's house, which ultimately caused Whitten's death. Based on this evidence, there was no rational basis for convicting the appellant of the lesser included offense of intentional murder, and a charge on that offense would have served only to confuse or mislead the jury. If the jury believed the State's evidence, it would have been justified in finding the appellant guilty of the murder of a witness and murder committed during a burglary. If the jury believed the evidence presented by the defense, it would have been justified in finding the appellant not guilty. There was no reasonable theory under the evidence presented at the trial that would have justified a finding that the appellant was guilty of intentional murder. Thus, the trial court properly denied the appellant's request for a charge...