McWhorter v. State

Citation781 So.2d 257
PartiesCasey A. McWHORTER v. STATE.
Decision Date27 August 1999
CourtAlabama Court of Criminal Appeals

James Radford Berry, Albertville; Thomas Mitchell, Albertville; and Randall Scott Susskind, Montgomery, for appellant.

Bill Pryor, atty. gen., and Jack W. Willis, asst. atty. gen., for appellee.

McMILLAN, Judge.

The appellant, Casey A. McWhorter, was convicted of capital murder for the intentional murder of Edward Lee Williams during the course of committing a robbery, see § 13A-5-40(a)(2), Ala.Code 1975. A sentencing hearing was held before the jury and an advisory verdict of death was returned by vote of 10-2. Thereafter, following another sentencing hearing, the trial court sentenced the appellant to death.

In its sentencing order, the trial court made the following findings, properly summarizing the facts of the crime:

"The court finds beyond a reasonable doubt that approximately three weeks before February 18, 1993, the 18-year-old defendant conspired with 15 and 16 year old codefendants (the 15-year-old codefendant being the son of the victim) to kill the victim in order to rob him of a substantial sum of money and to obtain other property from his home. This conspiracy was discussed from time to time until February 18, 1993. On that date a fourth party, who was aware of the plot, dropped the defendant and the 16-year-old codefendant off on a highway a few blocks from the victim's home at about 3:00 p.m. The fourth party and the 15-year-old son of the victim rode around until they met the defendant and the other codefendant at a pre-arranged spot at 8:00 o'clock that evening.
"The defendant and the 16-year-old proceeded on foot to the victim's home and let themselves in the unlocked empty house. They knew that the victim was not expected home for approximately three to four hours. They spent this three- to four-hour period of time in the home going through it, gathering up various items that they wanted to keep and making silencers for two .22 rifles which were there in the home. One silencer was made out of a plastic jug and filled with napkins and attached to the rifle by duct tape. The other was made by wrapping a pillow around the barrel of the second rifle and holding it in place with duct tape and electrical wire. The rifles were `test-fired' into a mattress to see if the silencers were accomplishing the desired effect. When the victim arrived home, he first saw the 16-year-old, grabbed the rifle he was holding and began to struggle over it. At that point, the defendant fired the first shot into the victim's body. Between the two conspirators on the scene, the victim was shot at least 11 times. After the victim was down on the floor, the defendant fired at least one more round into his head to assure that he was dead. They took his wallet and various other items from the home and left in the victim's pickup truck. They met the other two parties at the prearranged spot, took the victim's truck out into the woods and stripped it. The spoils were divided between the four individuals. The toxicologist testified that the victim died of multiple gunshot wounds, there being 11 entrance wounds and 2 exit wounds. The aorta and another major blood vessel were pierced, causing approximately half a gallon of blood to accumulate in the chest cavity and at least one bullet was removed from the brain.
"The defendant's guilt was evidenced not only by his confession but by the testimony of the fourth party who drove the defendant to the area near the victim's home and met him again at 8:00 p.m. and by the testimony of a friend to whose home the defendant carried part of the spoils and to whom the defendant confessed the substance of his guilt. All of the physical evidence was consistent with the above account."
I.
A.

The appellant argues that the trial court failed to instruct the jury on any lesser included offenses to capital murder, and that its failure to do so violated his right to a fair trial. The appellant specifically argues that the jury should have been instructed on the lesser included offenses of manslaughter, felony murder, and intentional murder. The appellant argues that the jury could have reasonably found that the appellant was unable to form the requisite intent to commit the murder because, he says, there was extensive evidence that he was under the influence of alcohol on the day of the offense. The appellant makes no argument as to why intentional murder could have constituted a lesser included offense in the present case.

The evidence presented concerning the circumstances of the offense indicates that the appellant either was guilty of capital murder or was not guilty. The trial court, in charging the jury on the intent element of capital murder, informed it that, if it concluded that the appellant was voluntarily intoxicated so that he was unable to form the necessary intent to rob, then the appellant could not be convicted of capital murder. However, the evidence clearly indicated that this offense was carefully planned and was carried out according to the plans. The appellant and his accomplice laid in wait and, while at the victim's home, manufactured two homemade silencers for their weapons. The weapons were test-fired to ensure that they were in working order and, thereafter, the murder was meticulously performed. Following the offense, the appellant and his accomplice gathered certain of the victim's possessions, placed them in the victim's truck, and drove this truck to a previously arranged meeting place in a secluded area. There, the victim's property was divided and any evidence was disposed of. The appellant took his portion of the property and concealed it, along with the weapons, at the home of a friend.

Marcus Carter testified on direct examination that, when he got together with the appellant on the night of the offense, there was no indication that the appellant had been drinking, was intoxicated, or was under the influence of any substance. He further testified that, he drove the automobile on the night of the offense and that during the time that he was with the appellant before the appellant got out of his car, the appellant did not drink or take any drugs. Moreover, he testified that when he met the appellant again at the high school following the offense, the appellant did not appear to have been drinking, to have been intoxicated, or to have been under the influence of any drugs or alcohol.

The record indicates that the appellant was arrested the day after the offense, after having been located at the Boaz-Albertville Hospital. The appellant had been taken to the hospital after allegedly attempting to commit suicide by ingesting pills and alcohol. However, there was no direct evidence that the appellant had taken an overdose or what the ingested substance might have been. During the trial, an investigating officer, Detective Maze, testified that he located the appellant at the Boaz-Albertville Hospital, to which defense counsel objected on the basis of relevancy and on the basis that the testimony was overly prejudicial. When asked in which area of the hospital the appellant had been located, defense counsel again objected on grounds of prejudice and relevancy. The officer testified that the appellant was in intensive care. There was no further testimony concerning the appellant's condition or any specifics concerning the reason for his admission to the hospital. The detective subsequently did testify that the appellant was in an intensive care unit and that he was attached to certain monitoring equipment, but that he was capable of carrying on a conversation and he appeared to understand what was transpiring. In his statement to the police, the appellant indicated that he had difficulty remembering the offense because he was "drunk" at the time. The record indicates that the trial court charged the jury on voluntary intoxication, as well as its effect on the charge of capital murder. Thus, the appellant argues that the jury should have been charged on manslaughter as a lesser included offense to capital murder.

The record indicates that during the charge conference defense counsel objected to the trial court's refusal to instruct the jury on the lesser included offense of manslaughter, citing Fletcher v. State, 621 So.2d 1010 (Ala.Cr.App.1993), and acknowledging that although Fletcher dealt with the ingestion of cocaine, the present case dealt with the alleged ingestion of alcohol. However, the trial court noted that the only evidence tending to suggest any intoxication came from the appellant's statement; it refused to give the charge.

In Hutcherson v. State, 677 So.2d 1174, 1175 (Ala.Cr.App.1994), the appellant had argued that the trial court erred in failing to instruct the jury on manslaughter where the trial court had given the jury an instruction on intoxication. The appellant in Hutcherson also cited Fletcher v. State, supra, in support of his argument. However, in Hutcherson, this Court held that it was not plain error for the trial court to fail to give a manslaughter charge when it had given a charge on intoxication. One of the reasons given for this determination was based on the evidence at trial—there had been no indication that the appellant was so intoxicated that he could not form the necessary intent, despite his statement that he had ingested drugs and alcohol before the murder. This Court stated:

"[T]he evidence of the appellant's intoxication was the appellant's statement that he had taken five Valiums and had drunk alcohol before the murder. There is absolutely no evidence in the record that shows when prior to the murder these intoxicants were ingested. Also, the appellant's mother, who picked the appellant up on Moffatt Road after the murder, when asked if the appellant appeared intoxicated, stated that he looked `real tired.' The jury's finding that the appellant was not so
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    • United States
    • Alabama Court of Criminal Appeals
    • January 11, 2019
    ...ask the jury to draw inferences from the evidence presented, and comment on the strength of the State's case. McWhorter v. State, 781 So. 2d 257, 321 (Ala. Crim. App. 1999). With these legal principles in mind, we address each of the incidents of alleged prosecutorial misconduct identified ......
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