Killingsworth v. State

• Decision Date: 29 January 2010
• Docket Number: CR–06–0854.
• Citation: 82 So.3d 716
• Parties: Jimmy Lamar KILLINGSWORTH, Jr. v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

82 So.3d 716

Jimmy Lamar KILLINGSWORTH, Jr.

v.STATE of Alabama.

CR–06–0854.

Court of Criminal Appeals of Alabama.

Nov. 13, 2009.Rehearing Denied Jan. 29, 2010.

William W. Whatley, Jr., Montgomery, for appellant.

Troy King and Luther Strange, attys. gen., and Corey L. Maze, asst. atty. gen., for appellee.

WISE, Presiding Judge.

The appellant, Jimmy Lamar Killingsworth, Jr., was convicted of capital murder for the killing of Steven C. Spears, Jr. (“Steven”), and one count of second-degree assault for the assault of Monica Spears (“Monica”), a violation of § 13A–6–21(a)(2), Ala.Code 1975. The murder was made capital because he committed it through the use of a deadly weapon while the victim was in a vehicle, a violation of § 13A–5–40(a)(17), Ala.Code 1975; because he committed it through the use of a deadly weapon fired from a vehicle, a violation of § 13A–5–40(a)(18), Ala.Code 1975; and because he committed it during the course of a first-degree robbery or an attempt thereof, a violation of § 13A–5–40(a)(2), Ala.Code 1975. By a vote of 7–5, the jury recommended that Killingsworth be sentenced to imprisonment for life without the possibility of parole. The trial court overrode the jury's recommendation and sentenced him to death. It also sentenced him to serve ten years in prison on the assault conviction. Killingsworth filed a motion for a new trial, which the trial court summarily denied. This appeal followed.

Because this is a case in which the death penalty has been imposed, we have reviewed it for plain error. See Rule 45A, Ala. R.App. P. Although the lack of an objection at trial will not bar our review of an issue in a case involving the death penalty, it will weigh against any claim of prejudice the appellant may raise. See Ex parte Kennedy, 472 So.2d 1106 (Ala.1985). Rule 45A, Ala. R.App. P., provides:

“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 ... whenever such error has or probably has adversely affected the substantial right of the appellant.”

“[This] 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 (1985) (quoting United States v. Frady, 456 U.S. 152, 163 n. 14, 102 S.Ct. 1584, 1592 n. 14, 71 L.Ed.2d 816 n. 14 (1982)).

Monica testified that she was married to Steven; that they attended their nephew's birthday party on the evening of December 10, 2004, and started driving home shortly after 11:00 p.m.; and that they stopped to get a drink and then continued toward their home. She also testified that, while they were on Highway 139 at approximately 11:30 p.m., a vehicle drove up behind them quickly; that Steven slowed down several times, and the vehicle eventually started to pass them; and that, as the vehicle got beside their vehicle, she “heard a boom or some kind of shot or something,” and their vehicle came to a stop. (R. 568.) She further testified that that she noticed that the vehicle's window had been shattered and that Steven had his head down; that she tried to talk to Steven, but he did not respond; and that she checked Steven and realized he had been shot, was bleeding, and did not have a pulse.

Monica testified that she telephoned 911 and then flagged down a red sport utility vehicle. After the vehicle stopped, she approached the passenger side, saw three males in the vehicle, told them her husband had been shot, and asked them to help her. She testified that she could see the driver, who she identified as Killingsworth; the passenger, who was later identified as Troy Edward Connell; and a third person, who was later identified as Mark Jones, in the back seat.

Monica testified that she got back into her side of her vehicle and tried to telephone 911 again. She also testified that Killingsworth approached Steven, that the passenger followed her, and the third person did not get out of the other vehicle. Monica testified that she saw blood dripping, that she looked up and saw that Connell was hitting her in the face with a chain, and that she stepped out of her vehicle and tried to fight back. She then looked at Killingsworth and Steven and saw Killingsworth pull Steven partially out onto the ground and take his wallet. Killingsworth and Connell got back into their vehicle and drove away, and she telephoned her father for help.

Brown Bolding, Monica's father, testified that Monica telephoned him at about 11:30 p.m. on December 10, 2004, and asked him to come and help her. He went to the scene and discovered that Steven was dead. He also saw Monica, whose head and chest were covered with blood.

Darrell Upton, a paramedic, responded to the scene and examined Steven's body. Based on his observations, he testified that he concluded that Steven was dead and that the wound to his neck was consistent with a gunshot wound. The coroner arrived later and pronounced Steven dead.

Justin Killingsworth, Killingsworth's cousin, testified that Killingsworth came to his residence at approximately 4:00 a.m. on December 11, 2004, and looked scared. He also testified that Killingsworth telephoned Connell and that Connell picked him up about twenty minutes later in a red Tahoe sport utility vehicle. Justin testified that Killingsworth told him that they had been on Highway 139, that it looked like someone had been killed, that law enforcement officers had started chasing them, and that he got out of the vehicle and came to Justin's house.

Justin testified that, a few days later, Killingsworth's father got some family members together and told them that Killingsworth had been one of the people who was involved in the shooting. When his grandmother asked what he had done, Killingsworth said that they

“were messed up and drinking whiskey and that Troy said he wanted to kill somebody. And [he] thought he was just playing. And they went to pass this vehicle, and Troy shot in the vehicle. He said the vehicle kept getting slower and slower and went off the side of the road. And they turned back around, and Troy got out, opened the door, and the guy fell out of the vehicle. And then he, the woman was hollering, and Troy started beating her with the chain. And [he] started panicking and honking the horn and left. Troy got back in the vehicle, and then they left.”

(R. 669.) Justin also testified that, afterward, Killingsworth told him that Connell had gotten into the vehicle and opened the door and that Steven had fallen out. Finally, he testified that he told law enforcement officers about what Killingsworth had said.

Brad Abbott, a coach at Jemison High School, testified that, on December 10, 2004, he and Coach Brent Hubbard were driving home from Birmingham in Hubbard's truck. Around 10:00 p.m. or 10:30 p.m., while they were near Highway 139, a red sport utility vehicle pulled behind them at a high rate of speed and flashed its lights, as if trying to get them to pull over. They pulled into a church parking lot, and the other vehicle pulled in at an angle toward the driver's side door. Abbott identified Killingsworth as the driver of the red vehicle. He testified that the passenger said he thought they were someone else and kept talking to them, as if attempting to keep them there, when they started to drive away. Finally, he testified that they drove away toward Highway 139 and that the vehicle followed them, but they eventually lost sight of it.

Dr. Art Shores testified that he performed an autopsy on Steven's body. Based on his examination, he testified that Steven bled to death from a gunshot wound to his neck.

Jimmy Lamar Killingsworth, Sr., Killingsworth's father, testified that, about one week before Christmas 2004, he talked to Killingsworth, and Killingsworth admitted that he had been involved in the killing of Steven. He also testified that Killingsworth stated that he had been in a vehicle with Connell and Mark Jones, that he was driving the vehicle when Steven was shot, that they turned around and went back to the vehicle, that Connell got out and beat a lady with a chain, and that he got the wallet from the driver.

Jimmy testified that he saw Killingsworth, Connell, and Jones at Connell's grandmother's house between 9:00 p.m. and 10:00 p.m. on December 10, 2004. They were in Connell's sport utility vehicle, and Killingsworth was driving, Connell was in the passenger seat, and Jones was in the back seat. He testified that Killingsworth had been drinking, but did not appear to be intoxicated.

Investigator Jody Wade of the Bibb County Sheriff's Department testified that, on December 21, 2004, officers located Connell's red Tahoe sport utility vehicle at Professional Paint and Body in Montevallo. He also testified that Connell and his mother had dropped the vehicle off to have some body work done and that, at the time they found it, the vehicle was being prepared to be painted.

Mark Jones testified that Connell and Killingsworth picked him up shortly after dark on December 10, 2004, that Connell was driving his red sport utility vehicle at that time, and that they drove around and used drugs for a few hours. At some point, Connell asked him if he wanted to spend the night with him and go hunting the next morning, he said he did, and they went to his house to get a shotgun. When he came out of his house, Killingsworth was in the driver's seat, and Connell was in the passenger seat. He gave the shotgun to Connell and got into the back seat.

Jones testified that they drove around for a while and saw a truck. Connell told Killingsworth to flash the lights, which Killingsworth did, and then the vehicle pulled into a church parking lot. Connell spoke to the men in the vehicle. The men started driving away, and they followed the vehicle a few miles.

Jones testified that,...