Magwood v. State

• Decision Date: 08 October 1985
• Docket Number: 4 Div. 88
• Citation: 494 So.2d 124
• Parties: Kenneth Earl MAGWOOD v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 124

494 So.2d 124

Kenneth Earl MAGWOOD v. STATE.

4 Div. 88.

Court of Criminal Appeals of Alabama.

Oct. 8, 1985.

Rehearing Denied Nov. 12, 1985.

John M. Gruenewald, Dothan, for appellant.

Charles A. Graddick, Atty. Gen., and Rivard Melson and William D. Little, Asst. Attys. Gen., for appellee.

PATTERSON, Judge.

Kenneth Earl Magwood, appellant, was indicted for the offense of robbery when the victim was intentionally killed. Ala.Code 1975, § 13A-5-31(a)(2) (Supp.1978) (repealed July 1, 1981). ¹ He was arraigned and pleaded not guilty. A jury found him guilty of the capital offense charged in the indictment. A sentencing hearing before the jury was held in accordance with Beck v. State, 396 So.2d 645 (Ala.1980), and the jury fixed appellant's punishment at death. Thereafter, the trial court held a sentencing hearing, and after weighing the aggravating and mitigating circumstances, and considering the jury's fixing of the punishment at death, sentenced appellant to death by electrocution. ²

On April 10, 1981, a crew consisting of Jimmy Carroll (trainman), Danny Pelham (conductor), and Eugene L. Norris (engineer) was operating a Southern Railway Company switch engine and train engaged in switching operations on the outskirts of Dothan. About 6:00 p.m., they picked up additional cars at Bob's Feeds and Dothan Seed and Feed Company and, with a train of approximately 22 cars, prepared to back toward the Dothan railroad yards, where the cars were to be coupled with other cars. Due to the condition of the side track upon which they were operating, they were not allowed to exceed five miles per hour. A train exceeding this speed on this track would have a tendency to rock and could possibly derail, causing serious property damage and personal injuries.

In backing the train on this occasion, it was necessary that the trainman and conductor go to the rear of the train and act as lookouts for pedestrians and vehicles because the engineer's view of the direction in which they were traveling was obstructed. In backing the train to the location of the other cars, they had to cross a public thoroughfare referred to as the Plant Street Crossing. There were no automatic warning signals at the crossing. Therefore, the engineer was required to stop the train at the crossing, and the conductor and The train had moved only about 10 to 15 car lengths at a speed under five miles per hour, when suddenly, with a jolt, the train picked up speed and quickly reached a speed of 25 to 30 miles per hour. The train began rocking and the trainman and conductor feared a derailment. They attempted to contact the engineer by radio, but received no response. They tried a radio relay through the office, which had a stronger radio, and the engineer still did not respond. Being concerned about the ever-increasing speed and rocking of the train, the upcoming crossing, and the 12 to 15 cars sitting on the track ahead, they contemplated jumping from the train. Instead, the conductor, Pelham, went between the cars and, with some difficulty and considerable risk to himself, opened the air valve, which immediately activated the air brakes on all cars in the train. With all wheels locked, the train slid about 10 to 15 car lengths and came to a halt. Before stopping, the train went approximately 10 car lengths past the Plant Street Crossing. It stopped just short of the stationary cars sitting on the track ahead.

trainman were required to dismount and stop traffic until the train entered the crossing. The members of the train crew communicated with each other by "walkie-talkie" radios. When the trainman and conductor were properly situated on the rear of the train, they notified the engineer, who signaled by sounding the horn in the engine and commenced backing the train.

When the train stopped, the trainman and conductor ran back to the engine and discovered the body of the engineer, Norris, lying on the floor of the cab in front of the engineer's seat and on top of the deadman's pedal. He had been killed by a shotgun blast to the back of his neck, which had been fired from a distance of 3 to 5 feet. There was a large amount of blood in the cab, mainly under the head and body of Norris. There was blood and tissue splattered on one of the cab windows, which was broken. The deceased's right hip pocket was turned inside out and his wallet was missing.

Approximately 146 feet up the track from the engine, an unexpended 12-gauge shotgun shell with No. 2 shot was discovered. A broken Kool cigarette was found 156 feet from the engine, and four impressions of someone's feet were discovered between the tracks 135 feet from the engine. Less than 3 or 4 hours after the incident, the deceased's wallet was found in the grass near the train tracks at the rear of Dothan Seed and Feed, which is 1/4 to 1/2 mile up the tracks from where the train stopped. Various personal papers of the deceased, including his driver's license, were found with his wallet.

Bertha Thomas, who lived near the railroad track where the incident occurred, saw appellant earlier in the afternoon going toward the track and carrying a "long gun."

As a result of the information furnished by Bertha Thomas, on the same date, appellant was brought to the Dothan police station, arriving around 10:45 p.m. Early the following morning, April 11, 1981, at 1:40 a.m., after being advised of his Miranda rights, appellant made an oral statement, which was taped, implicating himself in the shooting of the engineer, Norris. He also admitted taking the engineer's wallet. Later that morning, after daylight, appellant assisted the officers in recovering the shotgun from where he had hidden it near the scene of the crime. Officer Lynn, testifying for the State, stated that upon returning to the police station after recovery of the shotgun, appellant talked with his mother in Lynn's presence. He testified that appellant's mother asked appellant if he killed the man, and he told her that he did. At 11:05 that morning, Lynn again advised appellant of his Miranda rights and took another taped statement from him, which was similar in content to the first statement. Both statements were admitted into evidence and, in both statements, appellant admitted shooting Norris, claiming that he did not intentionally do it, but that the gun went off as they were "tussling" over it.

The State introduced evidence that when the shotgun was found, it had a spent shell in its chamber. Subsequent tests revealed that the shell had been fired in that gun. Evidence was also introduced showing that shot patterns from that shotgun, when fired from 3 to 5 feet, were similar to the shot pattern on the victim's clothing. Appellant's fingerprint was found on a business card from the victim's wallet and his palm print was found on the victim's bank account card, which had also been in the victim's wallet. Evidence of these prints was also introduced by the State. It was determined from blood samples that appellant and the victim both had blood type A. The clothing of appellant was examined, including a shirt, blue jeans, belt, jacket, tennis shoes, and socks. Type A human blood stains were found on one tennis shoe and on the socks.

Upon conclusion of the State's case-in-chief, appellant moved to exclude the State's evidence and for a judgment of acquittal on the ground that the State had failed to present a prima facie case of the capital crime of robbery when the victim is intentionally killed by the defendant. The trial court denied the motions.

Appellant did not testify in his own behalf. He called three witnesses in an effort to establish a defense of alibi. Cleveland Jones testified that appellant was at his house on the date of the incident from 12:45 p.m. to about 2:30 p.m. when he left to get two six-packs of beer; that he returned about 15 minutes later; that he got on the back of a passing pizza truck and left again about 5:45 p.m. and returned about 6:00 p.m.; and that appellant remained with him until about 11:00 p.m. He testified that he did not see appellant with a gun; that they were drinking; that appellant was "high"; and that appellant passed out on the porch about 9:30 p.m. and he threw water on him to awaken him. Jerome Danzy testified that he was at Jones's house on the date of the incident; that he arrived around 6:00 p.m.; that appellant was there when he arrived; that he stayed with him until around 10:30 p.m. to 11:00 p.m.; and that appellant was drinking. He testified, "I wouldn't say he was high, I'd say he had been drinking." Donald Williams testified that he arrived at Jones's house at 12:30 p.m.; that he remained until 4:00 p.m.; and that appellant was there the entire time and was drinking.

After the first three defense witnesses mentioned above had testified, defense counsel stated to the trial judge, out of the presence of the jury, that he had previously advised appellant that in his best judgment appellant should not call any of the witnesses. He further stated that he had advised appellant that the remaining witnesses to be called would not help him, but that appellant insisted on calling them. Defense counsel wanted the court to know this and wanted appellant to tell the court that he wanted to call the witnesses despite his attorney's advice. The trial judge questioned appellant, who stated that he understood his attorney's advice, but he wanted the witnesses called.

Appellant next called Grady Miller as a witness. Miller was a prisoner in the jail, and he testified that appellant was placed in the jail about 7:00 a.m. on Saturday, April 11, 1981, and remained there continuously until 9:30 a.m. to 10:00 a.m. on Sunday, April 12, 1981. This testimony was apparently offered to rebut the State's evidence that appellant visited the scene of the crime on the morning of April 11 to retrieve the shotgun and that he gave a second taped statement the same morning.

Appellant's mother, Fannie...