McCoy v. State

• Decision Date: 03 February 1981
• Docket Number: 6 Div. 123
• Citation: 397 So.2d 577
• Parties: Thomas J. McCOY v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 577

397 So.2d 577

Thomas J. McCOY v. STATE.

6 Div. 123.

Court of Criminal Appeals of Alabama.

Feb. 3, 1981.

Rehearing Denied Feb. 24, 1981.

L. Drew Redden and Gerald L. Miller of Redden, Mills & Clark, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.

BOWEN, Judge.

The defendant was indicted and convicted for the crime of arson in the first degree. Alabama Code 1975, Section 13-2-20. Sentence was three years' imprisonment.

I

The defendant contends that his conviction was had on the uncorroborated testimony of accomplices. The State contends that the defendant, aided by Raymond Mills, hired Pete Thomas, James Miller and Ross Donahoo to burn his residence in order to collect the insurance.

The statement of facts contained in the brief of defendant's appellate counsel represents a thorough, fair and accurate version of the testimony presented at trial. The State, in its brief, recognizes this statement as being "substantially correct and moves to adopt it as its own." Therefore, the statement of facts in this opinion is substantially identical to the facts as stated in the brief of the appellant.

The State's first witness was Kenneth "Pete" Thomas. Thomas testified that he had been indicted for arson in this case, but he had not been arraigned, tried, nor had his case been set for trial. Thomas stated that he had not been promised that he would not be prosecuted or would not receive any additional time for this offense in exchange for his testimony.

Thomas stated that on a Monday he met with Raymond Mills (whom he already knew) at Mr. Mills' insurance office on 6th Avenue, South, in Birmingham. Mills told him a man wanted to pay $1,000.00 to have his house burned. Thomas told Mills that he would not do it for $1,000.00. Mills gave Thomas the defendant's telephone number and told him to call the defendant and make his own deal. Mills told Thomas that he wanted $750.00 out of what Thomas was paid. Mills also told Thomas that he had to go out of town Saturday and Sunday. Thomas called the defendant from a phone booth right outside Mills' office about ten minutes after this conversation, and told the defendant that he wanted $2,500.00 to do the job. The defendant allegedly told Thomas to get back in touch with him in two or three days.

On Wednesday Thomas called again and the defendant agreed to the $2,500.00. Thomas told him to have a duplicate made of his front door key and leave it with Mr. Mills' secretary where Thomas would pick it up. Thomas also told the defendant to leave town on Friday night and when he returned the house would be burned. Thomas was to receive half-payment before the job was done. Thomas was to call the defendant again on Friday afternoon about the money.

On Thursday night, Thomas talked with Ross Donahoo and James Edward Miller and they agreed to burn the house down on Friday night for $250.00 apiece. On Friday afternoon, Thomas called the defendant and asked if he had had the duplicate key made. The defendant told him that it was waiting for him at Mills' office. Thomas testified that he picked up the key on Friday afternoon.

Thomas further testified that on Friday evening, at about 7:00 P.M., he met the defendant at the Golden Rule Barbecue on Highway 78 in Irondale. Only the defendant and Thomas were present, since Thomas had left Miller and Donahoo at an omelet or a sandwich shop about a mile from the Golden Rule. The defendant told Thomas that he had not been able to get the money because the banks were closed. They called Mr. Mills in Nashville, Tennessee, from a pay phone in front of the building. Mills guaranteed payment of the money on the following Monday if the defendant was not able to pay. The defendant gave Thomas directions to his house in Leeds. About 45 minutes later Thomas drove to the defendant's house and saw the defendant locking the front door. The defendant's wife and children were in the car and they appeared to be preparing to leave.

That night, Thomas, Donahoo and Miller filled two one gallon plastic jugs and a five gallon can with gasoline at an Exxon service station in Irondale. They arrived at the defendant's house about 12:30 or 12:45 A.M. Miller and Donahoo got out of the car and spread the gasoline in the house and lit the fire. After leaving the scene, Thomas threw the key and jugs away and put the can in the trunk of his car. About 15 minutes after leaving the house they drove back by and saw that the house was burning. On Saturday Thomas and Miller called Mills in Nashville and told him the job was done. On Sunday, Thomas and his ex-wife, Joyce, drove back by the house and saw that it was burned. On Monday afternoon, Mills paid Thomas at his office. That same afternoon Thomas paid Donahoo and Miller.

Sometime after this, Thomas was arrested by the Mountain Brook police on another charge. At that time they took from him a notebook he kept in his wallet containing some telephone numbers. Among them were numbers for Raymond Mills and the defendant (listed as "Tom"). The notebook was a portion of a little black phone book. The Mountain Brook police gave the notebook back to Thomas after copying it, but Thomas threw it away. Thomas identified State's Exhibit No. 2 as being a xerox copy of the items in his wallet when he was arrested, including the telephone book.

Ross Donahoo testified that he pled guilty to arson in this case and had already served his time. He is now on parole.

Donahoo testified that the burning happened in January of 1978. Thomas asked him on a Thursday if he wanted to burn a house. They were supposed to have accomplished the job on Thursday night but Thomas got high and for this reason Donahoo would not go that night. Thomas met the defendant Friday at the Golden Rule Barbecue in Irondale. Donahoo later testified that he could not say who the other man at the Golden Rule actually was.

Donahoo testified that he, Miller, and Thomas went out to the defendant's house on Friday night. Only he and Miller went in the house. Together they doused the house with gasoline both upstairs and downstairs. Miller lit the fire and they left.

James Edward Miller testified that Joyce Thomas, Kenneth Thomas' ex-wife, had contacted him and told him that Mills had "a job for us or that (Thomas) had a job that (Mills) wanted him to do and he was trying to get in touch with us." On Wednesday, Miller saw Thomas who asked him if he would burn a house in Leeds. On Wednesday evening he and Thomas went to Mills' office to get a key. On Friday evening about 7:00 P.M. he went with Thomas and Donahoo to the Golden Rule Barbecue in Irondale. He identified the defendant as the man he saw there. Miller and Donahoo then went to a Waffle House or Omelet Shop nearby. Thomas called Mills from the omelet shop and then told Miller that Mills had agreed to guarantee the money.

Miller testified that they were going to do the job on Thursday but could not because Thomas got high on Demerol. On Friday night they purchased eight gallons of gasoline at the Exxon Service Station in Irondale. Then they went to the defendant's house. Miller and Donahoo went in and spread the gasoline around upstairs and downstairs. Then Miller lit the match and they left.

Miller testified that he saw Thomas give Joyce Thomas (Thomas' ex-wife) $600.00 after the burning of the house. On Monday evening Thomas paid Miller and Donahoo a total of $500.00 at a motel on Bessemer Road.

When Sergeant Wade of the Sheriff's office interviewed Miller around March of 1978, Wade promised he would speak to the District Attorney about not prosecuting him for arson. Miller was also told that the arson charge against him would be dismissed if he testified in this case and in the case against Raymond Mills.

Lila Joyce McGaughy, the ex-wife of Kenneth Thomas, testified for the State. On a Sunday afternoon at the end of January, 1978, she rode with Thomas to Leeds and saw a partially burned house. One or two days before, on Friday or Saturday night, Thomas, Donahoo, and Miller were at her house. She heard "bits and pieces" of a conversation between the three men concerning burning a house. She heard the names of "Raymond Mills" and "Mr. McCoy" during this conversation. The only location she heard mentioned was the City of Leeds, and, when asked what she remembered of the conversation, she testified, "they were discussing carrying gasoline, having to find something to carry gasoline in and they discussed a fuse box and Mr. Thomas made the statement that they would stop and get some gasoline on the highway." Later that evening Thomas, Donahoo and Miller left her house.

She denied Miller's allegation that Thomas gave her any money shortly after the fire was burned. She was living on Pike Road in Ensley at this time, and thinks, but is not sure, that the telephone was in her daughter's name, Kimberly Diane Doyle; she also thinks that the telephone number was 780-5124 and that the street address was 1702 Pike Road.

Gerald D. Wilson testified that he was working at the Irondale Exxon Service Station in January. He remembers that several men came in and bought gasoline in a can and some jugs between 10:30 and 2:00 o'clock on a Friday night. He testified that he would not now be able to recognize those people. He stated that in March of 1978 he was shown some photographs and at that time said "there was one that looked familiar, that looked like the one that came and paid the money for the gas."

Sergeant Harry M. Wade, Jr., of the Jefferson County Sheriff's Department testified that he talked to Mr. Wilson on March 9, 1978, and showed him five photographs, including photographs of Donahoo, Miller and Thomas. He testified Wilson at that time identified two photographs, but there was no testimony as to which photographs Wilson identified.

Sergeant Don Isaacs testified that he is the Mountain Brook policeman...