McMillian v. State, 1 Div. 864

• Citation: 570 So.2d 1285
• Decision Date: 21 September 1990
• Docket Number: 1 Div. 864
• Parties: Walter McMILLIAN v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1285

570 So.2d 1285

Walter McMILLIAN v. STATE.

1 Div. 864.

Court of Criminal Appeals of Alabama.

Sept. 21, 1990.

Bryan A. Stevenson, Montgomery, for appellant.

Don Siegelman, Atty. Gen., and William D. Little, Asst. Atty. Gen., for appellee.

PATTERSON, Judge.

Appellant, Walter McMillian, was jointly indicted with Ralph Myers, in a two-count indictment, on December 11, 1987, in Monroe County, for the capital offense of murder committed during a robbery in the first degree, in violation of § 13A-5-40(a)(2), Code of Alabama 1975. The indictment reads, in pertinent part, as follows:

"COUNT I

"The Grand Jury of said County charge that before the finding of this indictment, Walter McMillian, alias Johnny D. McMillian and Ralph Myers ... did, intentionally cause the death of Ronda Morrison, by shooting her with a pistol, in violation of Section 13A-6-2 of Code of Alabama, and the said Walter McMillian, alias Johnny D. McMillian and Ralph Myers caused said death during the time that the said Walter McMillian, alias Johnny D. McMillian and Ralph Myers did, in the course of committing or attempting to commit a theft of $35.00 dollars in lawful United States Currency, the property of Rick Blair, use force against the person of Ronda Morrison, with intent to overcome her physical resistance or physical power of resistance, while the said Walter McMillian, alias Johnny D. McMillian was armed with a deadly weapon, to-wit: a pistol, in violation of Section 13A-8-41 of the Code of Alabama, all of which is in violation of Section 13A-5-40(a)(2), of the Code of Alabama,....

"COUNT II

"The Grand Jury of said County further charge that before the finding of this indictment, Walter McMillian, alias Johnny D. McMillian and Ralph Myers ... did, intentionally cause the death of Ronda Morrison, by shooting her with a The only difference in the counts of the indictment is the allegation of ownership of the money alleged to have been taken in the robbery.

pistol, in violation of Section 13A-6-2 of Code of Alabama, and the said Walter McMillian, alias Johnny D. McMillian and Ralph Myers caused said death during the time that the said Walter McMillian, alias Johnny D. McMillian and Ralph Myers did, in the course of committing or attempting to commit a theft of $35.00 dollars in lawful United States Currency, the property of Ronda Morrison, use force against the person of Ronda Morrison, with intent to overcome her physical resistance or physical power of resistance, while the said Walter McMillian, alias Johnny D. McMillian was armed with a deadly weapon, to-wit: a pistol, in violation of Section 13A-8-41 of the Code of Alabama, all of which is in violation of Section 13A-5-40(a)(2), of the Code of Alabama,...."

At arraignment on December 14, 1987, appellant pleaded not guilty. He moved to sever his case from that of Myers, and his motion was granted on November 13, 1987. On November 13, 1987, he moved for a change of venue, alleging that due to extensive pretrial publicity, he would be unable to receive a fair trial in Monroe County. After an evidentiary hearing, the trial court granted the motion and transferred the case to Baldwin County for trial.

On August 17, 1988, a Baldwin County jury found appellant guilty of the capital offense charged in the indictment. A sentencing hearing was held before the jury, in accordance with §§ 13A-5-43 through -46, and the jury returned an advisory verdict recommending that the penalty be life imprisonment without the possibility of parole. Five jurors recommended the death penalty, and seven recommended a sentence of life imprisonment without parole. ¹ Thereafter, the trial court held another sentencing hearing, in accordance with §§ 13A-5-47 through -52, and after weighing the aggravating and mitigating circumstances and considering the jury's recommendation, sentenced appellant to death. ²

The state's evidence showed that, on Saturday morning, November 1, 1986, Ronda Morrison, who worked for Jackson Cleaners in downtown Monroeville, opened the establishment for business about 9:05 a.m. When she arrived, she parked her automobile beside the building, unlocked the door, and entered the building carrying a small money bag. Shortly thereafter, Ray Owens entered the establishment to pick up some clothes that he had previously left for cleaning. Morrison went into the back of the establishment and brought his clothes to the front counter. His bill was approximately $13.00, and he paid her with a $20.00 bill. Morrison when to a desk, got some change out of a bag, made change for his $20.00 bill, and put the bill in the cash register. As he left, he noticed that she was putting other money in the cash register. About 11:30 a.m., he heard on his radio "scanner" that something had happened at Jackson Cleaners.

Around 10:10 a.m. or 10:15 a.m., Jan Owen entered the establishment and left a skirt with Morrison for cleaning. She did not see anyone else and did not observe anything unusual. Around 10:40 a.m. or 10:45 a.m., Jerrie Sue Dunning entered the establishment, and no one came to assist her. She called out several times, "Is anyone here?" She received no answer. She noticed that the cash register was open, and she testified that she observed bills and change in the cash register. Shortly thereafter, Florence Masons entered the establishment, and a few minutes before 11:00 a.m., Coy Stacey entered. The three of them began a search and discovered Morrison's body lying on the floor under a rack of clothing in the back of the cleaners. They called the police.

One of the first officers to arrive was Woodrow Ikner of the Monroeville Police Department. He arrived around 11:05 a.m. He knew Morrison, who was 18 years of age. She was lying face-down, and there were blood stains on her face and on the back of her shirt. He checked for a pulse, but found none, and discovered that the body was "cool." Her pants and shirt were unbuttoned, and her undergarments were visible. Three spent bullet casings and a part of a bullet were found near the body. Another spent casing was found in the bathroom in the rear of the establishment and about 50 feet from the body, and one was found outside the bathroom door. The bathroom showed signs of a scuffle. There was a bullet hole in the bathroom ceiling. The victim's gold necklace was found on the bathroom floor. A brick was found in the bathroom with hair on it, and an impression in the wall was discovered that had apparently been made by the brick being hurled against the wall. There was dust on the victim's clothing and some indication that she had been dragged to the spot where her body was found. Ikner discovered one drop of blood on the floor near the cash register. He dusted the cash register and the area around it for fingerprints and found only unidentifiable smudges. The police officers testified, and the photographs taken at the time shows, that the cash register was open and contained only some change.

Morrison was pronounced dead by Coroner Farrish Manning at 11:30 a.m. Dr. Gary Dean Cumberland, a state pathologist, performed an autopsy on the victim's body. He found numerous scratches and bruises on the right side of her neck and forehead. Three gunshot wounds were discovered: one to the back side of her right shoulder; one to the left side of her back; and one to the back side of her upper arm. Three bullets were recovered from her body. The pathologist found that the cause of death was the three gunshot wounds. He concluded that death would have resulted from the wounds within 10 to 20 minutes, but that unconsciousness would probably have occurred within minutes. There was a substantial amount of internal bleeding, but little external bleeding.

A ballistics expert concluded that the three bullets recovered from the victim's body were .25 caliber and that all were fired from the same gun, probably from an automatic manufactured by Raven Arms Company. He examined the bullet holes in the victim's shirt and discovered powder residue around one bullet hole. He concluded that the gun that fired that bullet was fired from within six inches of the victim's body. He could reach no conclusion regarding the distance at which the gun was fired when the other two wounds were inflicted.

Joe Hightower, a 22-year-old welder, testified that "sometime up in the morning" on the day of the killing, he was passing by Jackson Cleaners and observed appellant's truck "sitting at the cleaners." He knew the truck well, having seen it over a "hundred times." He had been to appellant's house and had seen the truck there. He described the truck as a green, low-rider type, sporty, and "souped up." He had always wanted a truck like that and had never seen another one like it. He observed no other vehicles at the cleaners at that time. After observing the truck, he went home and, around noon or 1:00 p.m., his wife told him about hearing of the incident that had just occurred at the cleaners. He remembered that he had seen appellant's truck at the cleaners, but he did not report it. On cross-examination, he testified that he gave the information to the sheriff a few days before the commencement of the trial and, when asked why he had not come forward sooner, he stated that he was scared. On re-direct, the prosecutor asked him why he was scared, and he stated, "Just because the reasons I have been to his house." The prosecutor then asked, "Mr. Hightower, why were you scared to come forward with this information?" He replied, "Because when you fool with drugs and you don't know, if you get involved with something like that it could cause [sic] you your life, too."

Bill Hooks, Jr. testified that, on the day of Morrison's murder, he was working at Kenny Blanton's about three or four miles from Jackson Cleaners; that "about the middle of the morning," he went to Taylor's Parts in Monroeville to buy some parts for an automobile that he was working on; and that, as he was...