Lundy v. State

• Citation: 539 So.2d 324
• Decision Date: 19 July 1988
• Docket Number: 6 Div. 912
• Parties: Jimmy LUNDY v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 324

539 So.2d 324

Jimmy LUNDY v. STATE.

6 Div. 912.

Court of Criminal Appeals of Alabama.

July 19, 1988.

Rehearing Denied Aug. 23, 1988.

Certiorari Denied Feb. 24, 1989

Alabama Supreme Court 87-1439.

TYSON, Judge.

This cause now comes before this court on remand from the Supreme Court of the State of Alabama.

James Lundy was indicted for the capital offense of "Murder done for pecuniary or other valuable consideration or pursuant to a contract for hire," in violation of § 13A-5-40(a)(7), Code of Alabama 1975. The jury found the appellant "guilty as charged in the indictment," and the trial court set sentence at life imprisonment without parole in a State penitentiary.

This appellant is charged with the capital offense of murder in the death of his wife, Wanda Lundy. The victim was jogging on the morning of June 23, 1984, at approximately 5:30 a.m. when she was struck by a vehicle.

Officer Charles Scott of the Hackleburg, Alabama, Police Department was traveling south toward Winfield on highway 253 in Marion County when he saw a truck coming toward him at a high rate of speed. Officer Scott was going home from working his shift which ended at 5:00 a.m. Officer Scott testified that the truck turned off Highway 253 onto a road which goes to downtown Winfield.

Officer Scott continued traveling on Highway 253. The intersection of Highway 253 and Three Bridges Bottom Road is a mile south of where the truck turned, and as Officer Scott approached the intersection, he saw someone lying face down in the southbound lane. This person was the victim, Wanda Lundy. Mrs. Lundy was lying face down with her head pointing west and her feet just across the center line of the highway. Mrs. Lundy was pronounced dead in Winfield Hospital emergency room at 6:45 a.m. by Marion County Coroner, Larry Reese.

An investigation of the scene disclosed a cloth fabric on the roadway which inferred that Mrs. Lundy's body first made contact with the road at a point 44 feet and 8 inches north of where the white sideline stripes of Highway 253 and Three Bridges Bottom Road intersect. The fabric itself was found on the western side of the sideline stripe of Highway 253. These fibers were consistent with those of Mrs. Lundy's clothing. The body was found 63 feet and 4 inches north of where the first clothing fibers were found, placing the body 108 feet north of the intersection. Pieces of the grill of the vehicle were found four feet from where the "initial contact" fibers were found. Fibers, buttons, and tennis shoes were also found near the body of the victim.

Billy Rex Goodson, a co-defendant named in count II of the indictment as having contracted with this appellant to kill Mrs. Lundy, was the driver of the vehicle which struck the victim. Mr. Goodson was also the driver of the truck which Officer Scott saw speeding on Highway 253.

Goodson drove to the residence of his uncle shortly after hitting Mrs. Lundy. Goodson told his uncle to call the police because he had hit someone, and he did not know how badly the person was injured. Goodson was tested for drugs and alcohol, and the results of these tests were negative. Goodson was not taken into custody at this time.

Goodson's 1972 Ford pickup truck revealed evidence of the accident. Pieces of the grill found by the victim's body matched those missing from the grill of his truck. Fibers, human skin, and blood samples were also found on the undercarriage

of this vehicle. These samples matched those of the appellant's wife, Wanda Lundy.

I

The appellant asserts that the trial court erred in overruling the motion to quash the indictment. The appellant contends that the indictment should have been quashed because it is "vague and defective to the point of impairing the substantive rights of the appellant." This court has reviewed the record and finds that the trial court was proper in not quashing the indictment. Count II of the indictment reads:

"The grand jury of said County charged that before the finding of this indictment, Jimmy Lundy and Billy Rex Goodson, whose names are otherwise unknown to the Grand Jury, did intentionally cause the death of Wanda Lundy, by striking her with a vehicle, pursuant to a contract, to-wit: Jimmy Lundy co-signed a personal loan with Billy Rex Goodson at the Citizen's Bank of Winfield and Billy Rex Goodson received the proceeds from said loan, in violation of § 13A-5-40(7) of the Code of Alabama, against the peace and dignity of the state of Alabama."

This indictment clearly put the appellant on notice that he is being charged with the capital offense of murder in violation of § 13A-5-40(a)(7), Code of Alabama 1975. The indictment states that a loan to Billy Rex Goodson is the consideration for the "contract for hire," and that the victim was struck with a vehicle resulting in her death as a result of this contract. Wilder v. State, 401 So.2d 151 (Ala.Cr.App.), cert. denied, 401 So.2d 167 (Ala.), cert. denied, 454 U.S. 1057, 102 S.Ct. 606, 70 L.Ed.2d 595 (1981). See also, Ex parte State of Alabama v. Lundy, 539 So.2d 322 (Ala.1988).

II

This appellant contends that the trial court was in error in denying the appellant's motion for directed verdict and judgment of acquittal. The appellant contends that the State did not prove that the killing was intentional. The appellant also contends that there was no proof of any contract between Jimmy Lundy or Billy Rex Goodson to cause the death of Wanda Lundy.

This appellant was indicted and tried as a principal pursuant to § 13A-2-23(1), Code of Alabama 1975. This section states:

"A person is legally accountable for the behavior of another constituting a criminal offense, if with intent to promote or assist the commission of the offense:

(1) He procures, induces or causes such other person to commit the offense; ..." (Cited in pertinent part herein.)

"The standard for appellate review of the sufficiency of the evidence in a case such as this one was aptly set out in Dolvin v. State, 391 So.2d 133 (Ala.1980).

" ' "In reviewing a conviction based on circumstantial evidence, this court must view that evidence in the light most favorable to the prosecution. The test to be applied is whether the jury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt; not whether such evidence excludes every reasonable hypothesis but guilt, but whether a jury might reasonably so conclude. United States v. Black, 497 F.2d 1039 (5th Cir.1974); United States v. McGlamory, 441 F.2d 130 (5th cir.1971); Clark v. United States, 293 F.2d 445 (5th Cir.1961).

" ' "[W]e must keep in mind that the test to be applied is not simply whether in the opinion of the trial judge or the appellate court the evidence fails to exclude every reasonable hypothesis but that of guilt; but rather whether the jury might so conclude. Harper v. United States, 405 F.2d 185 (5th Cir.1969); Roberts v. United States, 416 F.2d 1216 (5th Cir.1969); The procedure for appellate review of the sufficiency of the evidence has been aptly set out in Odom v. United States, 377 F.2d 853, 855 (5th Cir.1967):

" ' " 'Our obligation, therefore, is to examine the record to determine whether there is any theory of the "391 So.2d at 137-38, quoting Cumbo v. State, 368 So.2d 871-874 (Ala.Cr.App.1978), cert. denied, Ex parte Cumbo, 368 So.2d 877 (Ala.1979)."

evidence from which the jury might have excluded every hypothesis except guilty beyond a reasonable doubt. Rua v. United States, 5 Cir.1963, 321 F.2d 140; Riggs v. United States, 5 Cir., 1960, 280 F.2d 949.... The sanctity of the jury function demands that this court never substitute its decision for that of the jury. Our obligation is to examine the welter of evidence to determine if there exists any reasonable theory from which the jury might have concluded that the defendant was guilty of the crime charged. McGlamory, 441 F.2d at 135 and 136.' " ' (Emphasis in original.)

Ex parte Robinette v. State, 531 So.2d 697 (Ala.1988).

The appellant argues that the State's case in chief reveals, "absolutely not one scintilla of evidence, that the death of the deceased was intentional." (Appellant's brief p. 127-128)

The following facts were presented to the trial jury in the case at bar:

Arley Burton testified that this appellant had continually asked Burton to either kill the appellant's wife or to have someone else kill her. This appellant even made a $500 down payment on the contract. Burton testified that the appellant even provided him with an itinerary of his wife's activities so that murder could be committed at a time when the appellant would have an alibi. (R. 316-321)

Burton testified that the appellant contacted him on many occasions suggesting possible times and locations. At one point, Burton went to the appellant's home so that he would know the layout for the purpose of staging a robbery. (R. 313-314)

Burton testified that these talks went on for about a year, and that six months before the death of Mrs. Lundy, the appellant asked for his money back. At this time the appellant stated that "he would get someone else to do the job." (R. 314-315)

Keython Hollingsworth, a co-worker of this appellant, also testified that this appellant had approached him about killing his wife. Hollingsworth testified that the appellant said, "I want somebody killed. I will give you five thousand dollars to find somebody to kill my wife, or you or anybody." (R. 276) Hollingsworth said that he did not reply and the appellant walked off. (R. 277)

The State also presented evidence of an extra-marital affair of the appellant. The appellant had dinner with this person the night before his wife's death.

On June 2, 1985, this appellant co-signed a $4,000 promissory note with Billy Rex Goodson, and Goodson was given a check for $4,000 which he cashed. Within three weeks of this transaction, the victim was killed while jogging when she was struck by a truck driven by Goodson.

...