Melson v. State

• Citation: 775 So.2d 857
• Parties: Robert Bryant MELSON v. STATE.
• Decision Date: 26 March 1999
• Court: Alabama Court of Criminal Appeals

775 So.2d 857

Robert Bryant MELSON v. STATE.

CR-95-1681.

Court of Criminal Appeals of Alabama.

March 26, 1999.

Rehearing Denied May 28, 1999.

Lajuana Sharonne Davis, Montgomery, for appellant.

Bill Pryor, atty. gen., and Paul H. Blackwell, Jr., asst. atty. gen., for appellee.

LONG, Presiding Judge.

The appellant, Robert Bryant Melson, was convicted of three counts of murder made capital because the killings were committed during the course of a robbery in the first degree, see § 13A-5-40(a)(2), Ala.Code 1975; one count of murder made capital because it involved the murder of two or more persons by one act or pursuant to one scheme or course of conduct, see § 13A-5-40(a)(10), Ala.Code 1975; one count of attempted murder, see §§ 13A-6-2 and 13A-4-2, Ala.Code 1975; and one count of robbery in the first degree, see § 13A-8-41, Ala.Code 1975. The jury recommended, by a vote of 10-2, that Melson be sentenced to death for his three convictions for the capital offense of murder during the course of a robbery. The trial court accepted the jury's recommendation and sentenced Melson to death by electrocution. The trial court additionally sentenced Melson to life imprisonment without the possibility of parole for his capital conviction for the murder of two or more persons; to 40 years' imprisonment for his conviction for attempted murder; and to 40 years' imprisonment for his conviction for robbery in the first degree.

The state's evidence showed the following. At approximately 12:00 a.m. on April 16, 1994, four employees of Popeye's restaurant in Gadsden were closing the restaurant. The restaurant had closed to the public at 11:00 p.m. One of the employees, 17-year-old Bryant Archer, testified that he was helping his coworker, 17-year-old James Nathaniel Baker, take out the trash. Archer testified that the back door to the restaurant was locked, and that another coworker, 23-year-old Darryl Collier, unlocked the door for them. When they opened the door, a black male and a Hispanic male entered and ordered Archer, Baker, Collier, and 18-year-old Tamika Collins, another employee at the restaurant, into the restaurant's office. The two men ordered the employees, at gunpoint, to remove the money from the restaurant's safe. They complied, and were then ordered by the black male to get inside the restaurant's freezer. Shortly after they were locked inside the freezer, the black male opened the freezer door and began shooting. Baker, Collier, and Collins all suffered close-range gunshot wounds to the head, and were dead when paramedics arrived at the scene. Although Archer suffered four gunshot wounds, he survived and was able to crawl from the freezer to the restaurant's office and telephone 911 for help.

When the police arrived at the restaurant, Archer was able to identify one of the men as Cuhuatemoc Peraita, a former employee at Popeye's.¹ Archer told officers from the Gadsden Police Department that the other man was a black male, but that he was unable to identify Melson because both men were wearing bandannas over their faces. Archer was able to identify Peraita by his distinctive hairstyle. Archer further told the police that the black man ordered him and his coworkers into the freezer at gunpoint and locked them inside. According to Archer, the black man then opened the freezer door and began shooting. Archer also told the police that although he did not see the car that the men were driving, he knew that Peraita drove an older model black Chevrolet Monte Carlo.

After the police had gotten Archer's description of the suspects and of the type of car they might be driving, a BOLO ("be on the lookout") was issued at 12:36 a.m. for a black male and a Hispanic male driving an older model black Monte Carlo. Officer Terry Graham of the Rainbow City Police Department received the BOLO and recognized Archer's description of the suspects as people that he knew. Graham then went to Peraita's house, and he saw an older model black Monte Carlo parked in front of the house. Graham also noticed some activity inside Peraita's house. When the Monte Carlo left Peraita's house, Graham followed the car and eventually pulled the car over. Graham testified that Melson was driving the car and Peraita was in the front passenger's seat. Both Melson and Peraita were taken into custody at 1:20 a.m., just a little over an hour after the robbery and murders. They were then transported to the Gadsden Police Department for questioning.

During his questioning, Melson maintained that he and Peraita had been together all night on the evening of April 15, 1994, and that they were separated only when they were pulled over by the police and arrested at 1:20 a.m. on April 16, 1994. Melson told the police that they had been driving around smoking marijuana and that they had driven by Popeye's several times that evening, but they had never gone inside the restaurant. Melson further told the police that he and Peraita had gotten their clothes wet that evening and that they had gone to Peraita's house to change clothes. On April 18, 1994, two days after he gave his initial statement to the police, Melson asked to speak again to the investigating officer. Melson gave a second statement at that time in which he stated that Peraita had picked him up at 4:00 p.m. on April 15, 1994, and that the two of them had driven around in Peraita's car most of the evening, smoking and selling marijuana. Melson said that at approximately 11:50 p.m., Peraita told him that he was going to visit his girlfriend, who worked at Popeye's. Melson stated that he then asked Peraita for a ride to "Green Pastures." Melson further stated that he walked around "Green Pastures" until about 1:00 a.m., when Peraita picked him up again. Melson said that Peraita asked him to drive, and that he (Melson) saw the police cars and ambulances at Popeye's. According to Melson, Peraita tried to tell him what he had done, but Melson said that he did not want to know. Melson said that he and Peraita then went to Peraita's house to change their clothes because it had been raining that night and their clothes had gotten wet.

Laura Laverty testified that Melson had spent the night of April 14, 1994, with her, and that he had spent most of the day of April 15 with her as well. She testified that Melson left her house with Peraita at approximately 4:30 p.m. on the afternoon of April 15, 1994. She said that Melson and Peraita returned at approximately 11:00 p.m. that evening, and that they stayed at her house for 30 minutes. Although Melson told Laverty that he was coming back, he did not return. Laverty also testified that Peraita had told her, two weeks before the murder, that he was thinking about robbing Popeye's. Laverty testified that Peraita had also stolen a gun several weeks before the robbery and murders at Popeye's.

Laverty further testified that she had visited Melson in jail on a regular basis for about a month after his arrest. Laverty said that Melson had asked her to talk to a girl named Melissa and a guy named "Big Dirt," to see if they would go to Melson's lawyers and tell them that they had seen Melson somewhere else when the robbery and murders were alleged to have occurred. Laverty testified that when Melson left her house at 11:30 p.m. on April 15, 1994, he was wearing a University of Alabama sweatshirt, blue jeans, tennis shoes, and a hat.

Melissa King testified that she and Melson had dated for several months before the robbery and murders at Popeye's, and that they had broken up in February 1994. She further testified that Melson had written her three letters from jail since his arrest in April, asking her to go to the police and to his lawyers, and to provide him with an alibi on the night of the robbery at Popeye's. King refused to do so, and she took the letters to the police.

Evidence presented by the state linking Melson to the murders included testimony concerning items found during a search of Peraita's house. Inside Peraita's house the police found a bag filled with money; an Alabama sweatshirt; two pairs of blue jeans; one pair of tennis shoes; and one green bandanna. In Peraita's front yard, the police found six shell casings. These casings were positively identified as having been fired from the murder weapon, which had been recovered after the murders from the Coosa River.

John Case of the Alabama Department of Forensic Sciences testified that he had compared a set of plaster casts made from shoeprints that were found several days after the murders in a ditch behind Popeye's, to the tennis shoes Melson was wearing when he was arrested. Case testified that in one of those plaster casts, he found imprints of two pebbles and a seed that were imbedded in the tread of the shoe that left the shoeprint. When comparing that plaster cast to Melson's left tennis shoe, Case concluded that, in his opinion, "to find by chance another shoe that would be the same size, the same brand, and have the same degree of wear or lack of wear and also have those inclusions in the same spot on the same shoe and on the cast would be very remote such as to make it impractical to consider another shoe." (R. 1637.)

On appeal from his convictions, Melson raises 17 issues, many of which he did not raise by objection in the trial court. Because Melson was sentenced to death, his failure to object at trial does not bar our review of these issues, see Rule 45A, Ala.R.App.P.; however, it does weigh against Melson as to any claim of prejudice he now makes on appeal. See Dill v. State, 600 So.2d 343 (Ala.Cr.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.Cr.App.1990), aff'd, 577 So.2d 531 (Ala.), cert. denied, 502 U.S. 886, 112 S.Ct. 242, 116 L.Ed.2d 197 (1991).

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

"In all cases in which the death penalty has been imposed, the Court of Criminal Appeals

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