Lawhorn v. State

• Decision Date: 26 March 1999
• Docket Number: No. CR-96-0646.,CR-96-0646.
• Citation: 756 So.2d 971
• Parties: James Charles LAWHORN v. STATE.
• Court: Alabama Court of Criminal Appeals

756 So.2d 971

James Charles LAWHORN v. STATE.

No. CR-96-0646.

Court of Criminal Appeals of Alabama.

March 26, 1999.

Rehearing Denied August 6, 1999.

Certiorari Denied January 7, 2000.

Gary D. Buseck and Richard L. Neumeier, Boston, Massachusetts; and William C. Wood, Jr., Birmingham, for appellant.

Bill Pryor, atty. gen., and Beth Jackson Hughes, asst. atty. gen., for appellee.

Alabama Supreme Court 1982018.

LONG, Presiding Judge.

James Charles Lawhorn appeals from the denial of his petition for postconviction relief filed pursuant to Rule 32, Ala. R.Crim.P. On April 26, 1989, Lawhorn was convicted of murder, an offense made capital by § 13A-5-40(a)(7), Ala.Code 1975.¹ In accordance with §§ 13A-5-45 and -46, Ala.Code 1975, a sentencing hearing was held before the jury, after which, the jury, by a vote of 11-1, returned an advisory verdict recommending that Lawhorn be sentenced to death. On June 26, 1989, the trial court held a sentencing hearing, in compliance with § 13A-5-47, Ala.Code 1975, and sentenced Lawhorn to death by electrocution.

This court and then the Alabama Supreme Court affirmed Lawhorn's conviction and death sentence. Lawhorn v. State, 581 So.2d 1159 (Ala.Cr.App.1990), aff'd, 581 So.2d 1179 (Ala.1991). The United States Supreme Court denied certiorari review. 502 U.S. 970, 112 S.Ct. 445, 116 L.Ed.2d 463 (1991). All issues cognizable on direct appeal have been scrutinized, including those cognizable under the "plain error" doctrine.

Lawhorn filed his Rule 32 petition on May 3, 1993. The trial court held a lengthy evidentiary hearing on the allegations in Lawhorn's petition on October 30-31, 1995, and, in a thorough 67-page order, denied all relief on November 27, 1996. The Honorable William C. Sullivan, the circuit judge who presided over Lawhorn's trial, also presided over the evidentiary hearing on the Rule 32 petition.

The essential facts of this case were recited by this court in Lawhorn v. State, 581 So.2d at 1161-62. The state's evidence tended to show that William Berry (the victim) and Lawhorn, in the presence of Altion Maxine Walker (Lawhorn's aunt), got into an argument at a gasoline service station during the late morning of March 31, 1988. On April 2, 1988, Berry's body was found in a wooded area off Wiregrass Road, a road that intersects with Highway 148. An autopsy revealed 27 gunshot wounds, 4 of which were made by either a rifle or a pistol. Two of these four wounds caused death instantly. The remaining wounds were caused by a shotgun. On April 2, the day Berry's body was discovered, Lawhorn, after being advised of his rights guaranteed by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), was questioned about the murder. He gave an initial statement to the police in which he stated that Walker had tried to hire him to kill Berry, but that he did not do it. He said that he was in another city on the day of the murder. On April 7, Lawhorn, after acknowledging that he understood his rights and after signing a waiver on which he wrote, "I do not want a lawyer," gave a second statement to the police in which he related the following:

"From the Monday prior to the murder through the Friday after the murder, appellant stayed with his aunt, Walker. During the week, Walker told him that she was scared of Berry; that she had had her son, Kilgore, `beat his ass'; and that she wanted to `get rid' of him. Nearly everyday, she asked appellant to `get rid' of Berry. On Wednesday, she told him that she would pay him, and he said no. On Thursday, appellant and Walker, in Walker's truck, ran some errands in Alexander City. They picked up appellant's brother, Mac Lawhorn, about 1:30 p.m. On their way to Sylacauga, Walker asked Mac Lawhorn if he would be interested in making some money, and he answered, `Yes.' He asked her what was the job, and she replied, `Get rid of William.' Appellant further explained that Walker wanted to hire them for $100 to get rid of Berry. As they rode to Sylacauga, Mac Lawhorn was lying down in the back seat, at his aunt's direction.

"In Sylacauga, they went to the Otasco hardware store where appellant retrieved a 12-gauge single-shot shotgun and four shells from the automobile of his cousin Kilgore, Walker's son. Then, between 4:00 p.m. and 5:00 p.m., the three went to a wooded area, where, according, to Walker, she and the victim `go parking,' and appellant and Mac Lawhorn got out of the truck to wait in the woods until Walker returned with Berry. Appellant had a pistol in his pocket that he had gotten out of Walker's truck, and Mac Lawhorn was carrying the shotgun, which he loaded.

"In less than 30 minutes, Walker returned with Berry. Appellant and Mac Lawhorn were hiding in the woods. Berry and Walker got out of Walker's truck, and according to Walker's version that she later told appellant and his brother, Walker went across the road to the bushes to `use the bathroom.' Berry went across the road with her, but then he began running up the road. (Walker later told them that he had been `real' scared `the whole time' that Kilgore was waiting on him.) Walker then went to the two men and told them that Berry had run up the road. Then, Walker got into the driver's seat of her truck, the two men lay down in the bed of the truck, and Walker told them that she would slam on the brakes when she caught up with Berry.

"We now refer to the appellant's actual words to explain the subsequent occurrences:

"Q ... And what happened after that?

"A When she got to him, she slammed on brakes. My brother raised up, shot him in the shoulder.... He jumped—He hit the ground, then he jumped back up and he started running again. My brother shot him again.

". . . .

"Q Was he running in the road or towards the woods?

"A He was running towards the woods.

"Q Okay. When your brother shot him the first time, was W.C. [the victim] facing your brother or was his face away from your brother?

"A Facing.

"Q Because y'all had passed by W.C. when he leaned up he was smack face on with W.C.?

"A Yeah.

". . . .

"Q All right. And then what happened?

"A After he shot him?

"Q I believe you said he fell?

"A Yeah. He hit—he hit the road. After he hit the road, he jumped up and he hollered. I remember him hollering, so my brother shot him again ... and he was still running.

"Q Was he running off the road that time?

"A When he shot the second time, he was running off the road, and he hit— he hit the ground. My brother shot at him again and missed. That's when he hit the dirt in front of him, hit the dirt.

". . . .

"Q Okay. How may times did you shoot him?

"A Approximately three times.

"Q Okay. And you said he was still making noises when you walked down there where he was at?

"A It just, you know, like gurgling noises.... But he was already dead.

"Q .... And how far from the truck did you have to go down there where he was at?

"A About 15, 20 feet.

"Q What area of the body did you shoot?

"A I don't—I don't really know. I just—it was quick. It was real quick, because I got, you know—We was— My aunt was scared of somebody seeing her truck, so she told us to hurry up. She didn't want her truck seen.

". . . .

"Q Did you and Mac say anything to each other after he shot him with the shotgun the first time?

"A He told me this, to make sure he was dead. I left from the truck, went to where he was laying on the ground and I could see his leg was tangled in a vine or something. That's what made him fall.

". . . .

"Q Did Mac tell you you'd have to finish anything?

"A He told me to finish, go make sure he was dead. That's all he said.... We got—And after that, we got in the truck."

Lawhorn, 581 So.2d at 1162-63.

I.

Lawhorn claims that the trial court erred in adopting the state's proposed findings of fact and conclusions of law in its order denying his petition for post-conviction relief. The trial court did adopt verbatim the state's findings of fact and conclusions of law in its order denying relief. Lawhorn specifically asserts that to do so was error, because, he says, the findings regarding his trial counsel's decision to waive closing argument during the penalty phase of trial are incorrect.

"While the practice of adopting the state's proposed findings and conclusions is subject to criticism, the general rule is that even when the court adopts proposed findings verbatim, the findings are those of the court and may be reversed only if clearly erroneous. Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985); Hubbard v. State, 584 So.2d 895 (Ala.Cr.App.1991); Weeks v. State, 568 So.2d 864 (Ala.Cr.App. 1989), cert. denied, , 111 S.Ct. 230, 112 L.Ed.2d 184 (1990); Morrison v. State, 551 So.2d 435 (Ala.Cr. App.), cert. denied, 495 U.S. 911, 110 S.Ct. 1938, 109 L.Ed.2d 301 (1990)."

Bell v. State, 593 So.2d 123, 126 (Ala.Cr. App.1991), cert. denied, 593 So.2d 123 (Ala.[Crim.App.]), cert. denied, 504 U.S. 991, 112 S.Ct. 2981, 119 L.Ed.2d 599 (1992).

Lawhorn contends that the following findings and conclusions by the trial court were in error:

"Lawhorn also asserts that trial counsel failed to research pertinent law. The only evidence presented at the Rule 32 hearing about research concerned whether the district attorney could make a closing argument if the defense waived its closing argument. [Trial counsel] testified that he found a case before trial that supported his position that the district attorney could not argue if the defense waived its closing argument. Lawhorn contends that there were cases to the contrary which trial counsel should have found.

"Trial counsel were not ineffective because they did not find the case the district attorney argued to the trial court. Trial counsel found a case which supported their position and presented it to the trial court. The fact that this Court ruled against counsel does not make them ineffective. Trial counsel's strategy was reasonable and trial counsel had caselaw to support their position,

...