McNabb v. State

• Citation: 887 So.2d 929
• Parties: Torrey Twane McNABB v. STATE of Alabama.
• Decision Date: 26 October 2001
• Court: Alabama Court of Criminal Appeals

887 So.2d 929

Torrey Twane McNABB v. STATE of Alabama.

CR-98-0967.

Court of Criminal Appeals of Alabama.

October 26, 2001.

Opinion on Return to Remand February 1, 2002.

Opinion Overruling Rehearing April 25, 2003.

Morris Dees, Montgomery; and Thomas M. Goggans, Montgomery, for appellant.

William H. Pryor, Jr., atty. gen., and Michelle Riley Stephens and Kristi L. Deason Hagood, asst. attys. gen., for appellee.

SHAW, Judge.¹

The appellant, Torrey Twane McNabb, was convicted of two counts of capital murder in connection with the murder of Montgomery Police Officer Anderson Gordon. The murder was made capital because Officer Gordon was on duty at the time of his death, see § 13A-5-40(a)(5), Ala.Code 1975, and because Officer Gordon was in his patrol car at the time of his death, see § 13A-5-40(a)(17), Ala.Code 1975. McNabb was also convicted of two counts of attempted murder. The jury, by a vote of 10-2, recommended that McNabb be sentenced to death for his capital-murder convictions. The trial court accepted the jury's recommendation and sentenced McNabb to death. The trial court also sentenced McNabb to 20 years' imprisonment for each count of attempted murder.

On September 24, 1997, at approximately 1:30 p.m., Officer Anderson Gordon's body was found slumped behind the steering wheel of his patrol car, with his foot still on the brake pedal, at the intersection of Rosa Parks and National Avenue in Montgomery. Officer Gordon had been shot five times. His death was the result of a shot that entered his chest and severed his aorta.

Sanford Sharpe, a bail bondsman, testified that he was hired by All States Bonding Company to locate McNabb after McNabb had failed to appear for two court appearances relating to charges of receiving stolen property and possessing a controlled substance. McNabb's grandmother had secured his bond with All States Bonding Company and, after McNabb had failed to appear in court, a capias warrant was issued for his arrest. Sharpe testified that he located McNabb sometime in August 1997 at his grandmother's residence. Sharpe testified that he spoke with McNabb for several minutes and that McNabb told him he would go with him as soon as he put on some shoes. However, McNabb fled out the back door of the house.

On September 24, 1997, at approximately 1:30 p.m., Sharpe said, he again located McNabb; this time McNabb was sitting in an automobile parked on the street outside his grandmother's residence. Sharpe testified that he attempted to pull his truck in front of McNabb's vehicle to block McNabb, but that when McNabb looked up and saw him, McNabb pulled around his truck and sped away. Sharpe stated that he pursued McNabb and that when McNabb reached the intersection of Rosa Parks and National Avenue, McNabb sped through a stop sign and struck another vehicle. Sharpe drove up to the scene of the accident and, just as he was about to put his truck in park, McNabb got out of his vehicle, pulled a gun, and began shooting at him. Sharpe stated that he immediately pressed the gas pedal and sped down the street to get away from the gunfire. Sharpe drove around the block and telephoned emergency 911 on his cellular telephone. He then returned to the scene of the accident. Sharpe said that when he got back to the scene, he parked his truck next to a Montgomery police patrol car that was parked on the side of the road. When he approached the patrol car, Sharpe said, he saw that the officer in the car, Officer Gordon, had been shot several times. Fearing that McNabb was still nearby, Sharpe pulled out his gun, a 9mm Lorcin pistol, which he kept on his person. At that point, several other Montgomery police officers converged on the scene and confiscated Sharpe's pistol.

Annie Gamble testified that in the early afternoon of September 24, 1997, she was driving on Rosa Parks Avenue after she had dropped her husband off at work when a white vehicle ran a stop sign at the corner of Rosa Parks and National Avenue and struck her car. Gamble said that after the accident, a man, whom she identified as McNabb, got out of the white vehicle and waved a gun in her direction. She pleaded with him not to shoot. Gamble said that a red truck then drove by and McNabb began shooting at it as it continued down National Avenue. After the truck was out of sight, Gamble said, McNabb turned and saw a Montgomery police patrol car parked on the corner. Gamble testified that McNabb walked to the patrol car with his gun by his side, hidden from view. Gamble testified that as McNabb was approaching the car, "some words were passed" between McNabb and the officer. (R. 1871.) When he reached the rear of the patrol car, Gamble said, McNabb began firing into the car, shooting out the rear window in the process. Gamble stated that when the officer attempted to return fire, McNabb fled, running behind a nearby church. After McNabb fled, Gamble approached the patrol car to check on the officer. Shortly thereafter, Gamble said, several Montgomery police officers arrived at the scene.

Christopher Best testified that he was walking toward the Beulah Baptist church on the corner of Rosa Parks and National Avenue when he saw a white vehicle run a stop sign at the intersection and collide with another vehicle. Best testified that the driver of the white vehicle got out his car and began firing a gun at a red truck that was driving down National Avenue. Best said that as soon as he heard the first shot, he ran behind the church for cover. The driver of the white vehicle then walked in front of the church, out of Best's line of vision. However, Best said, as soon as he lost sight of him, he heard several gunshots in rapid succession. Best testified that the driver of the other vehicle in the accident, Gamble, screamed and then ran in front of the church from which Best had heard the shots coming. Best said that he then went to the front of the church and saw Gamble leaning in the window of a police car and screaming for someone to call emergency 911. Best went back to the church and asked someone to telephone 911 because an officer had been shot. He then went to the police car, where a crowd had developed. Best said that he immediately noticed that both the front and back windows on the driver's side had been shot out. At that point, Best said, the driver of the truck that had been shot at returned to the scene. When the driver got out of the truck, Best said, he had a telephone in his hand. He also reached back into his truck, got a gun, and put it in his waistband. At that point, Best said, several Montgomery police officers arrived at the scene.

Michael Johnson testified that he lives at the intersection of Rosa Parks and National Avenue in Montgomery, across the street from the Beulah Baptist church, and that on September 24, 1997, at approximately 1:30 p.m., he heard what he thought were firecrackers and he looked out his front window. Johnson testified that he saw a Montgomery police patrol car stop in front of the church. He then saw a young black male, wearing dark-colored shorts and no shirt, approach the patrol car, holding a gun behind his back. Johnson said that the officer in the patrol car rolled his window part way down and spoke with the man briefly. The man then opened fire on the officer "out of the blue." (R. 1915.) Johnson testified that the officer did not have his weapon out when the man first fired at him. Johnson said that after the officer was shot, he telephoned emergency 911 and then went outside to the patrol car. According to Johnson, both driver's side windows in the patrol car, front and back, were shot out, and glass was all over the ground.

Jeffrey Dyson, a cable contractor, testified that on September 24, 1997, he was working near the corner of Rosa Parks and National Avenue. At approximately 1:30 p.m. that afternoon, Dyson said, he walked to the front of the Beulah Baptist church and saw two wrecked cars in the intersection. Dyson testified that a man was standing near the cars in the intersection; the man had no shirt on and was wearing dark green shorts. At that point, Dyson said, the man walked toward a Montgomery police patrol car that had just pulled up to the accident. Dyson said the man had his hands behind his back as he was walking toward the patrol car. At that point, Dyson said, he turned away and went back to work. A few seconds later, however, he heard gunshots. When he turned around again, Dyson said, he saw the man shooting at the officer in the patrol car. Dyson testified that the man then ran from the patrol car. According to Dyson, the man ran behind the church, climbed a six-foot chain-link fence, and then continued running away from the scene. Dyson testified that the man did not appear to be injured and that he climbed over the fence "real quick." (R. 1933.)

John Reynolds testified that on September 24, 1997, he was working behind the Beulah Baptist church when he heard what sounded like a collision at the intersection of Rosa Parks and National Avenue. When he looked around the church toward the intersection, Reynolds said, he heard gunshots and immediately went back behind the church for cover. Reynolds said that he then heard more gunshots and saw a man wearing green shorts and no shirt run behind the church and "scale the fence" that was behind the church. (R.1943.) Reynolds testified that he saw the man drop a gun on the ground and then lean down and pick it up just before he climbed the fence. Once over the fence, Reynolds said, the man ran toward a ditch that was behind the church.

Shortly after the shooting, several Montgomery police officers arrived at the scene in response to the numerous 911 calls and began looking for McNabb. Officer William M. Perkins testified that he was in his patrol car when the dispatcher informed him that an officer had been shot and that the shooter had run toward a ditch behind the Beulah Baptist Church. Officer Perkins immediately...