McGowan v. State, No. CR-95-1775 (Ala. Crim. App. 12/12/2003)

• Decision Date: 12 December 2003
• Docket Number: No. CR-95-1775.,CR-95-1775.
• Parties: James McGowan v. State.
• Court: Alabama Court of Criminal Appeals

Page 1

James McGowan v. State.

No. CR-95-1775.

Court of Criminal Appeals of Alabama.

Decided December 12, 2003.

Appeal from Conecuh Circuit Court, (CC-94-064).

PATTERSON, Retired Appellate, Judge.¹

The appellant, James McGowan, was convicted of two counts of capital murder: one count of murder made capital because two or more persons, Hiram E. Johnson and Mamie Lucille Johnson, were murdered by one act or pursuant to one scheme or course of conduct, § 13A-5-40(a)(10), Ala. Code 1975, and one count of the murder made capital because it was committed during a robbery in the first degree of Hiram E. Johnson, § 13A-5-40(a)(2). Subsequently, the trial court conducted a sentencing hearing pursuant to § 13A-5-46, and the jury, by a vote of 5-7, recommended that McGowan be sentenced to life imprisonment without the possibility of parole. The trial court overrode the jury's recommendation and sentenced McGowan to death.

Many of the issues raised on appeal were not presented to the trial court and are, thus, reviewed for plain error only.

"Because the appellant was sentenced to death, his failure to object at trial does not bar this Court's review of these issues; however, it does weigh against any claim of prejudice he now raises on appeal. See Whitehead v. State, 777 So. 2d 781 (Ala. Crim. App. 1999); Dill v. State, 600 So. 2d 343 (Ala. Crim. App. 1991), aff'd, 600 So. 2d 372 (Ala. 1992), cert. denied, 507 U.S. 924, 113 S.Ct. 1293, 122 L.Ed.2d 684 (1993); Kuenzel v. State, 577 So. 2d 474 (Ala. Crim. App. 1990), aff'd, 577 So. 2d 531 (Ala.), cert. denied, 502 U.S. 886 (1991).

"Rule 45A, Ala. R. App. P., provides:

"`In all cases in which the death penalty has been imposed, the Court of Criminal Appeals shall notice any plain error or defect in the proceedings under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial right of the appellant.'

"This court has recognized that `"the plain error exception to the contemporaneous objection rule is to be `used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result.'"' Whitehead v. State, supra, at 794, quoting Burton v. State, 651 So. 2d 641, 645 (Ala. Crim. App. 1993), aff'd, 651 So. 2d 659 (Ala. 1994), cert. denied, 514 U.S. 1115 (1995)."

Centobie v. State, [Ms. CR-98-2056, August 31, 2001] __ So. 2d __, __ (Ala. Crim. App. 2001).

To address the issues presented, we have considered the following evidence.

Testimony of Accomplice Dedree Crane

According to Dedree Crane, McGowan picked her up at her parents' house near Castleberry about noon on July 18, 1999. After leaving in a blue Toyota automobile, they smoked almost all of the supply of crack cocaine McGowan had in his possession — about $150 worth. After McGowan purchased an additional $50 of crack cocaine and they had smoked that, McGowan pawned Crane's ring for $20 and they bought more crack cocaine.

After they had smoked some of the last cocaine they had purchased, they went to Barry Harper's house between 3:30 p.m. and 4:00 p.m. There, Crane and McGowan smoked the rest of the crack cocaine, and Crane had oral sex with Harper in exchange for money so she and McGowan could buy more crack cocaine. They left, bought more crack cocaine, and smoked it. Then they went back to Harper's, McGowan concocted a story, and Harper gave them $125.

After buying more crack cocaine and smoking most of that, they tried to get more money from James Robert Pitts. However, he would not give them any, so they decided to return to Harper's house. On the way, McGowan told Crane that "he felt like just knocking somebody in the head, you know, to try to get some money somewhere" to purchase more crack cocaine. When they arrived at Harper's house, "some guys in a van" were there talking to Harper. When the men left, Harper and McGowan went into Harper's house. Crane followed at McGowan's direction. Inside, she told Harper that she needed to talk to him. After he approached her, McGowan hit him in the head from behind with a hammer. Harper resisted McGowan's attack until McGowan restrained him on the floor. After McGowan hit Harper in the head about four more times with the hammer, Crane went into the kitchen. After a time, McGowan came into the kitchen and handed Crane a wallet, which she put into her pocket. After reaching into a kitchen drawer, McGowan returned to the living room. Several minutes after she left Harper's house, McGowan followed. He was carrying a towel, the hammer, the shirt he had been wearing, and a large plastic bag. Blood was on his shirt, the legs of his pants, and his shoes. Harper died as a result of the injuries sustained.[²]

As they were driving away, McGowan handed Crane the hammer, and she threw it out of the car window. He had her take the money — $165 — from Harper's wallet. They then went to a Shell gasoline service station where McGowan cut the legs off of the pants he was wearing and threw away his bloody shirt, the legs of his bloody pants, Harper's wallet, the towel from Harper's house, and the cloth Crane had used to hold the hammer as she threw it from the car window.

After leaving the Shell station, McGowan and Crane bought more crack cocaine and smoked it. While riding toward Evergreen, McGowan told Crane that "he knew a place where we could go and get some more money" and "that ... it would be a couple that ... he would have to kill." Then they went to Frank Porter's house; Porter gave McGowan a hammer, ostensibly to repair McGowan's vehicle; and a blue and green plaid shirt.

They then went to the Johnsons' house. When Mr. Johnson came to the door, McGowan told him that he wanted to talk to him about a gun McGowan had pawned to Mr. Johnson. Mr. Johnson then invited them in. They went into the living room, but McGowan explained that he had left his car lights on, so he went back outside. He returned shortly and, when Mr. Johnson turned around, McGowan hit him on top of his head with a hammer. Crane said that after McGowan had hit Mr. Johnson three times and she saw Mrs. Johnson trying to get up from her bed, Crane ran out of the house. She went back inside when McGowan called her name. Mr. Johnson was on the floor; he was still. From the bedroom, McGowan instructed her to help him find Mrs. Johnson's purse. She went into the bedroom, but did not find the purse.

Crane then went outside and waited for McGowan in the car. After about five minutes, she could see McGowan's silhouette through the bedroom window, raising the hammer and bringing it down. After several more minutes, he came out and got into the car. He handed her a billfold and instructed her to go through its contents. She found Mr. Johnson's driver's license and a little more than $500 in cash. She gave the money to McGowan. Later, she threw the hammer, the wallet, and the contents of the wallet out of the car.

Then McGowan and Crane went to Evergreen to purchase more cocaine from "Rerun," who got into McGowan's vehicle with them. McGowan gave him $150 for crack cocaine, but before Rerun could give them the cocaine, a police officer stopped them. After approximately 15 minutes, the officer let Rerun go. The officer then followed McGowan and Crane to Abby Atterby's house in Evergreen. McGowan left Crane at Atterby's house and returned 30 minutes later. Crane left with McGowan, and they located Rerun. McGowan told him that he needed his money back because he and Crane had to "get out of the state right then." Rerun gave McGowan $100.

McGowan and Crane then drove until they reached Slidell, Louisiana, about daybreak. Crane persuaded McGowan to stop at a motel. She went in and had someone at the front desk telephone emergency 911. When the police arrived, she told them that McGowan had been holding her against her will. The police arranged for her to telephone her mother and they let McGowan go.

After giving several false statements, she led law enforcement officers to the hammer used to kill the Johnsons. At the time she testified against McGowan she had pleaded guilty to two counts of murder for killing the Johnsons as lesser-included offenses of capital murder (for which she had been indicted) in exchange for consecutive life sentences, but she had not yet been sentenced.

Testimony Presented by the Remaining State Witnesses

The Johnsons' daughter, Mary Boggan, testified that her mother was 79 years old at the time of her death and that her father was 82 years old at the time of his death. She also testified that her father's wallet and his gold watch were missing when his body was found.

James Robert Pitts testified that on a late afternoon in July, McGowan came to his residence and asked for a $10 loan; that, when he refused to loan him the money, McGowan asked if he would give him the money in exchange for sex with his female companion; and that when he refused that, McGowan and his companion left.

Chris Johnson testified that, while he was at Harper's residence on July 18, about 6:00 p.m., McGowan and a heavy set female arrived; that McGowan was wearing blue-jean shorts, but was not wearing a shirt, and he looked "rough"; and that, within an hour after he left, he saw McGowan's vehicle heading north toward Evergreen.

Dora Porter, Frank Porter's wife, testified that McGowan came to their house between 9:00 p.m. and 10:00 p.m. on July 18, 1994, and asked for a hammer, explaining that his muffler had wrapped around the drive shaft of his car, which was down the road; that he was wearing cut off blue-jean shorts and was not wearing shoes or a shirt; and that State's exhibit 26 was the hammer her husband had given McGowan.

Frank Porter testified that he introduced McGowan to the Johnsons and that he went with McGowan to the Johnsons on seven or eight occasions for McGowan to pawn items; that, when he went to see Mr. Johnson, he would...