Kinder v. State

• Decision Date: 09 December 1986
• Docket Number: 6 Div. 633
• Citation: 515 So.2d 55
• Parties: Richard David KINDER v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 55

515 So.2d 55

Richard David KINDER v. STATE.

6 Div. 633.

Court of Criminal Appeals of Alabama.

Dec. 9, 1986.

Rehearing Denied June 9, 1987.

Certiorari Denied Oct. 2, 1987

Alabama Supreme Court 86-1225.

Richard S. Jaffe, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., and P. David Bjurberg and William D. Little, Asst. Attys. Gen., for appellee.

McMILLAN, Judge.

The State petitioned the Juvenile Court of Jefferson County to certify the defendant to stand trial as an adult for a violation of § 13A-6-2, Code of Alabama (1975), Alabama's murder statute. Following a hearing, the case was transferred to the Circuit Court for Jefferson County, wherein the defendant was found guilty of capital murder, as charged in the indictment, and the jury recommended death by electrocution. Pursuant to § 13A-5-47, Code of Alabama (1975), the court held a sentencing hearing and, after reviewing the evidence, case law, and aggravating and mitigating circumstances, found that the mitigating factors outweighed the aggravating circumstances and, therefore, sentenced the defendant to life without parole. The defendant raises nine issues on appeal.

The victim's father testified that he last saw his daughter on the evening of October 20, 1983, as she was preparing to leave the house on a date with Chuck Leonard. The father testified that he gave his daughter two $20 dollar bills before she left. He further testified that the next time he saw her, she was dead.

Chuck Leonard testified that the victim was his girl friend and that they had a date on the evening in question to go to some haunted houses in Trussville. He further testified that they were unable to locate a certain haunted house, and that on their return to Birmingham, a car began driving closely behind them with its bright lights on. Leonard testified that, believing the car to be driven by a friend, he pulled the car that he was driving over to the left and, when the other car passed by them, he pulled up into a circle in order to "park." He further stated that while they were "parking," two people approached the car, and he identified the appellant as one of these people. He testified that they approached the car from the driver's side and that the other person, whom he later came to know as "Duren," told them to get out of the car. Duren pointed a pistol at them, while the appellant walked to the other side of the car and began looking in and under the front seat. Leonard testified that the appellant removed the victim from the car and that she, along with Leonard, were moved around to the trunk. At that point, Leonard testified, he noticed that the appellant had a knife that was approximately five to six inches long. He further testified that the appellant took the keys to the car and unlocked the trunk, making Leonard and the victim get inside. Leonard testified that he observed a car at the bottom of the circle before the defendant closed the trunk. Leonard testified that the car was driven for a few minutes and then was stopped again, whereupon he heard some scuffling and heard the car door being shut again. They then drove on for approximately 30 to 40 minutes, stopped again, and Leonard heard the word "robbery" used after he heard the persons in the car order some food. Leonard testified that he had difficulty hearing their conversations, because the radio was turned up all the way. The car then drove off "real quick-like" for approximately 30 to 40 minutes again and, when the car was stopped, the defendant opened the trunk and had some rope in his hand. Duren had a gun in his hand, and the defendant ordered the victim and Leonard out of the trunk. The defendant physically moved Leonard and the victim three to four feet behind the trunk and tied them back-to-back. Leonard testified that the defendant did these acts without any instructions from Duren. Leonard was tied so that he faced the bumper and the victim faced away. He further testified that the defendant went to the trunk and got the victim's purse, removed the two $20 dollar bills from it, and held them up so that Duren could see them. Without any instructions, the defendant approached the victim and Leonard and turned them around, so that the victim was facing the trunk. Leonard testified that the defendant then approached Duren and something was said that Leonard could not understand, as it was muffled. Leonard further testified that the only thing he could hear the defendant say was "Hurry up." The defendant then walked around to the passenger's side of the car and sat down inside the car. Leonard testified that he looked over his shoulder and observed Duren raise the pistol and shoot approximately five times. He testified that just before the last shot, both the victim and he started gradually sinking to the ground. Leonard testified that he was hit three times: in the leg, in the hip, and in the chest. He testified that, just prior to the shooting, he heard the victim say that she was very scared and that she was going to close her eyes until they left. The defendant and Duren then drove away and Leonard was able to free himself and proceed to get help. There was no one at home at the first house which Leonard approached; however, on reaching the second house, he lay on the porch and a lady said she would call an ambulance. The police and an ambulance arrived at about the same time, and the police escorted the defendant and Duren to the porch, where Leonard identified them.

Deputy Ted Williams, of the Jefferson County Sheriff's Department, testified that he found a bullet and a gold earring lying on the ground at the scene of the crime. Williams then went to Florentine Drive, where he met and spoke with Deputy Schlitz from the sheriff's office and, he testified that as a result of that conversation, found a blue 1983 Oldsmobile parked there and found a .22 caliber revolver that was wrapped up in a paper sack. He found the victim's purse inside the car and some trash from a hamburger establishment. The car was registered to Charles Leonard. Subsequently, Williams lifted some fingerprints from the car, especially from the trunk lid, and sent them to the sheriff's office. Williams testified that later that evening he saw some other officers who were involved in the investigation and that one of these officers, Deputy Ratigan, gave him a "folding-like lock blade knife." Deputy Williams then identified approximately 20 photographs as photographs that he had taken during his investigation.

Deputy Terry Ratigan, of the Jefferson County Sheriff's Department, testified that he had received a call informing him that there had been a murder and that two white male suspects were being sought. Deputy Ratigan testified that he stopped two white males near a high school at approximately 12:45 a.m. He testified that they were on foot. He frisked them for weapons and discovered a knife in the defendant's right rear pants pocket. He then let them go. He further testified that after he received further information and a more detailed description, he again stopped the two suspects, took the knife from the defendant and told them to get in the back of his patrol car. He then drove them to the porch on which Chuck Leonard was lying in order for Leonard to identify them. Deputy Ratigan further testified that he read the defendant his Miranda rights on the second time that he stopped him. He testified that the defendant did not indicate that he wanted a lawyer to be present. He stated that later that night he gave the knife that he had recovered from the defendant to Ted Williams.

Detective M.E. White, of the Jefferson County Sheriff's Department, testified that he read the defendant his Miranda warnings and that the defendant later signed the Miranda form. He further testified that he did not coerce or threaten the defendant to make a statement, and that no one else threatened the defendant. White testified that he again informed the defendant of his rights when he began to tape his statement.

The defendant, Richard David Kinder, testified that on the night in question he and Duren got a rope, and that Duren had a gun and a knife, which he gave to the defendant. He testified that they were going out that night to steal money from something or someone. He testified that when they came upon a parked car on a dead-end circle, Duren handed him the knife. He testified that the rope was to be used to tie up the person that they stole the money from so that they could get away. When they saw the parked car, they turned off their lights, backed out of the circle, and parked at a house up the road. The defendant further testified that Duren told him they were going to where it was parked and steal the car. He further testified that Duren told him that if anyone was in the car, they were going to put them in the trunk. He testified that he walked around and opened the passenger's door in order to check for any guns or other weapons under the seat. The defendant stated that Duren told the two victims that no one would be hurt if they followed instructions. He testified that he ordered the two to get in the trunk of Leonard's car. They drove that vehicle to their car which Duren then drove and left at a shopping center. They then drove to a fast food establishment and ordered a drink; when they drove around to the window, then raised the gun so that it could be seen by the cashier. The cashier screamed, "It's a robbery" or "We're being robbed," whereupon Duren drove off. Thereafter, the defendant said that Duren told him "We had to get rid of them becausethey seen [sic] us and they can identify us." The defendant testified that he suggested that they leave them in the trunk of their car and that they would never be able to identify them; however, Duren then stated that he did not intend to shoot the girl because she had not looked at him. The defendant testified that Duren then instructed him to search...