McKinnis v. State

• Decision Date: 29 June 2012
• Docket Number: CR–08–0592.
• Parties: Kenneth Adam McKINNIS v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

99 So.3d 1265

Kenneth Adam McKINNIS

v.STATE of Alabama.

CR–08–0592.

Court of Criminal Appeals of Alabama.

June 29, 2012.

C. Bruce Adams, Dothan; David Kenneth Hogg, Dothan; and Brandon Buskey and Bryan A. Stevenson, Montgomery, for appellant.

Troy King and Luther Strange, attys. gen., and Hallie Dixon (withdrew 02/08/2011), Kevin W. Blackburn (withdrew 02/08/2011), and Richard D. Anderson, asst. attys. gen., for appellee.

KELLUM, Judge.

Kenneth Adam McKinnis was convicted of murder made capital because it was committed during the course of a robbery, a violation of § 13A–5–40(a)(2), Ala.Code 1975. By a vote of 10–2, the jury recommended that McKinnis be sentenced to death. The trial court followed the jury's recommendation and sentenced McKinnis to death.

The evidence adduced at trial indicated the following. In the early morning hours of August 19, 2006, Byron Lewis Belser was shot and killed in the Champagne Lounge, a strip club in Dothan (hereinafter “the club”). Dr. Corrine Elizabeth Stern, who in 2006 was a medical examiner for the State of Alabama and who performed the autopsy on Belser, testified that Belser died from a single gunshot wound to the right thigh. The bullet traveled left to right across Belser's body and slightly upwards. As it traveled through Belser's body, the bullet nicked the right iliac vein and artery, perforated the right ureter, traveled through the pelvic area toward the left hip bone, nicked the left iliac vein and artery, and came to rest in the left thigh. The bullet was extracted and sent for forensic testing. Dr. Stern testified that the nicked veins and arteries would have caused substantial bleeding into the pelvic and abdominal regions, resulting in pain and difficulty breathing before Belser's death.

Evidence was presented that at approximately 11:30 p.m. the night of August 18, 2006, McKinnis and three friends, Kyle McIntosh, Albert McLeod, and Mark Newman, arrived at the club. A video surveillance system ¹ at the club captured the four men walking through the front door of the club into the front entryway, paying the cover charge for admission, and being patted down by a security guard. McKinnis was wearing dark-colored shorts and a white t-shirt, and had on white-framed sunglasses; he had facial hair. Although McKinnis was only 20 years old at the time, he was permitted to enter the club.² After entering, the four men went to the dance stage and sat at a table. Terri Burnett, the bartender at the club that night, testified that she sold the group four pitchers of draft beer, but nothing else. The video surveillance system recorded McKinnis and his friends sitting near the dance stage drinking and watching the strippers for over two hours.

Newman left the club with a woman at approximately 1:45 a.m. on August 19, 2006. A few minutes later, McKinnis, McIntosh, and McLeod also left the club. A few minutes after McKinnis and his friends left, Michael Conaway, the owner of the club, was standing outside the front entrance of the club with his girlfriend, Shirah Robinson, and two other men when he noticed a man, whom he had seen inside the club earlier and whom he positively identified at trial as McKinnis, get out of a white automobile parked in a parking lot across the street from the club and walk toward the club. Conaway testified that the man was wearing a pair of dark-colored shorts, was shirtless, had a rag wrapped around the bottom part of his face, and was carrying a silver or chrome-colored pistol in his left hand. As the man approached the entrance of the club, Conaway said, he raised the gun and started shooting directly at the group of people standing outside. Conaway testified that he yelled and pushed Robinson and that everyone standing outside ran for cover. Robinson testified that she, too, saw a man get out of the white automobile across the street and approach the club entrance carrying a pistol; however, she could not identify the man. Robinson, like Conaway, said that when the shooting began, everyone outside ran for cover. Robinson testified, however, that as the shooter approached the front door of the club, she heard him say “I'm going to get ... them niggers.” (R. 556.) Both Conaway and Robinson stated that they heard several gunshots outside and then heard additional gunshots coming from inside the club.

Burnett testified that she heard gunshots sometime after 1:00 a.m. the morning of August 19, 2006. The initial three or four shots, Burnett said, sounded like they were being fired outside the club. Nonetheless, she immediately got on the floor behind the bar. Burnett said that before the shooting began, Belser and another man were sitting at the bar; the other man left the bar area, and Burnett served Belser a drink just before she heard the shots. Burnett testified that Belser's location was visible from the front entryway of the club. When she heard the shots, Burnett told Belser to get down, but Belser only laughed and told her not to worry because the shots were outside. At that moment, Burnett said, she heard five to six additional, much louder, shots being fired inside the club. Burnett stayed on the floor until the shooting ended and then got up, telephoned emergency 911 on her cellular telephone, and walked around to the front of the bar where she saw Belser lying on the floor bleeding.

The video surveillance system recorded the shooting from the perspective of the front entryway. The video shows a man running through the front door to the interior of the club at 1:56 a.m. Just after the man ran into the club, the front door opened again and McKinnis entered the club firing a pistol with his left hand. McKinnis had on the same or similar dark-colored shorts he had been wearing earlier in the club, but he had no shirt on and was not wearing sunglasses, and he had a rag tied around the bottom part of his face. After McKinnis entered, he swapped the gun from his left hand to his right hand and continued firing into the club as he reached with his left hand across the counter to the cash register. McKinnis was unable to open the cash register, and he then turned around and ran out the front door of the club.

Dothan police officers arrived at the scene within minutes of the shooting and secured the club. Paramedics were summoned, and they transported Belser to the hospital, where he later died. Jon Thomas, a crime-scene technician with the Dothan Police Department, found eight shell casings outside the club and four shell casings inside the club, several bullet holes both inside and outside the club, and three spent bullets inside the club. According to Thomas, there was one bullet hole in the outside of the front door, one bullet hole in the front-door frame, two bullet holes in the front of the bar, two bullet holes in the wall of the dressing room for the dancers, one bullet hole in the wall behind the cash register in the front entryway, and one bullet hole in the far left wall of the club. In addition, Thomas found a defect in the floor just in front of the left corner of the bar (as viewed from the front entryway) where one of the bullets had ricocheted.

Based on the location of the three bullets recovered and the location of the various bullet holes and defects, Thomas was able to determine that six shots had been fired inside the club and to determine the path of those shots. One bullet went through the wall to the left of the entryway, struck the floor near the left corner of the bar, ricocheted, and entered the far left wall of the club. Thomas said that he was unable to recover that bullet because it had gone too deeply into the wall and he did not want to severely damage the business to recover the spent bullet. Two bullets went through the wall of the dancers' dressing room in the back right corner of the club. One of those bullets was recovered on the floor of the dressing room, but the second was not recovered. Two bullets also went through the front of the bar. Both of those bullets were recovered—one was on the floor behind the bar and the other was in the ice bin behind the bar. Another bullet hit Belser. Thomas testified that he was positive that the bullet that hit Belser had not ricocheted off of anything. He also was positive that the two bullets that hit the dressing room, the two bullets that hit the bar, and the bullet that went through the left wall of the entryway, ricocheted off the floor and entered the far left wall of the club had not hit Belser.

Antonio Gonzalez, a captain with the Houston County Sheriff's Department at the time of trial but a patrol sergeant with the Dothan Police Department at the time of the shooting, testified that he arrived at the club within a few minutes of the shooting. Capt. Gonzalez said that as he got out of his vehicle and headed toward the club, a black male approached him, pointed to the north and told him that the shooter had fled in a white Chevrolet automobile. Capt. Gonzalez looked to the north of the club and saw a white automobile turning onto Chickasaw Street. Capt. Gonzalez pursued the vehicle. Although he initially lost sight of the vehicle, Capt. Gonzalez reestablished visual contact with the vehicle on the Montgomery Highway, and eventually stopped the vehicle on Rebecca Street. McLeod was driving the vehicle; McKinnis was in the front passenger seat; and McIntosh was in the backseat.

Becky Edwards, also a crime-scene technician with the Dothan Police Department, found inside the vehicle a .40 caliber Glock brand semiautomatic pistol on the floorboard behind the driver's seat; a .40 caliber magazine in the glove compartment with 10 live rounds in it; $43 in cash in the glove compartment; a pair of white-framed sunglasses on the back seat; a black t-shirt on the driver's seat; and several empty beer bottles. Just outside the vehicle, near the back tire, Edwards found a dark-colored rag or scarf.

Katherine Richert, a firearms and toolmarks examiner...