Merrill v. State

• Decision Date: 21 March 1997
• Citation: 741 So.2d 1099
• Parties: Robert David MERRILL v. STATE.
• Court: Alabama Court of Criminal Appeals

741 So.2d 1099

Robert David MERRILL v. STATE.

CR-93-1054.

Court of Criminal Appeals of Alabama.

March 21, 1997.

Opinion on Return to Remand November 20, 1998.

Cecilee R. Beasley, Dennis Wayne Jacobs, Richard S. Jaffe, and Stephen A. Strickland, Birmingham, for appellant.

Bill Pryor, atty. gen., Arthur F. Patterson, Jr., deputy atty. gen., and Stephen N. Dodd, asst. atty. gen., for appellee.

McMILLAN, Judge.

The appellant, Robert David Merrill, was indicted for capital murder in the death of Darius Welch, see § 13A-5-40(a)(18), Code of Alabama 1975 (makes capital murder committed by firing or otherwise using a deadly weapon from a vehicle). He also was indicted on a charge of attempted murder in the shooting of Demetrius Cotchery. The cases were consolidated for trial, and the appellant subsequently was found guilty of both offenses. The jury recommended that he be sentenced to death on the capital charge, by a vote of 11-1. Following a separate sentencing hearing, the trial court sentenced the appellant to death by electrocution. The court also sentenced him to 99 years' imprisonment on the attempted murder conviction and ordered that that sentence run concurrently with the sentence on the capital charge.

The State's evidence at trial tended to show that, at approximately 11:00 p.m. on Friday, August 21, 1992, Darius Welch was walking toward his house in the 4000 block of 24th Street North in Birmingham. He was accompanied by his son Darrell, who was riding a bicycle. A black pickup truck with a camper on the bed came around the corner and Darrell said he heard someone in the truck yell, "Hey, nigger." Two shots were fired, and Darrell then saw his father lying on the ground. The State medical examiner testified that Darius Welch died from a shotgun wound to his lower right chest.

The evidence relating to the attempted murder charge was admitted through the testimony of the court reporter. The court reporter, over objection, read into evidence the testimony given at the preliminary hearing by State's witness Demetrius Cotchery, who did not testify at the appellant's trial. Cotchery stated that, on August 23, 1992, at approximately 4:00 a.m., he was walking in the 2500 block of 16th Street North in Birmingham. A light-colored truck pulled up and stopped, and the driver yelled something. Cotchery said that the back window of the truck then opened and he saw a shotgun barrel emerge. Five shots were fired, two of which struck him. Three police officers testified that they were engaged in a vehicle stop in the vicinity when they heard shots. Two of the officers pursued a light or cream-colored truck down 16th Street and stopped the vehicle. The appellant was inside, in the passenger seat. The police found three spent shotgun shells on the floorboard and a shotgun belonging to the appellant behind the seat. It was subsequently determined that two shell casings recovered from the scene of the shooting had been fired from the shotgun.

Police detective Steve Corvin took a statement from the appellant shortly after the shooting of Cotchery, at approximately 6:01 a.m. The appellant said that he and his friend Danny Wolfe had left a racetrack and were "just looking for—you know, maybe a good fight or something" when "the black guy ... shot us the bird." He and the man "cussed each other a couple of times" and the appellant then fired his shotgun, which he said was loaded with birdshot, at the man. The appellant told Corvin that he did not like blacks and that "[i]t's niggers on drugs and s___ is bothering us." A short time later, at approximately 6:58 a.m., Detective Corvin took a second statement from the appellant, in which the appellant said that he did not know anything about the Friday night shooting of Darius Welch. On the following day, August 24, the detective took a third statement from the appellant. This time, the appellant told Corvin that he, Jeff McKenna, and Kaye Edwards went to 41st Street in North Birmingham on the night of Friday, August 21, because they wanted to scare some blacks. He said that they saw two black people on bicycles, that he shot "right at" one and "high at" the other, and that he was surprised to learn that he had hit one of them. The defense called a single witness at trial, a police officer who testified that he had seen the appellant at a local racetrack at approximately 11:00 p.m. on the night Welch was killed and that the appellant appeared to be intoxicated at that time.

The appellant presents 16 issues. However, the record is not sufficient to provide a proper review on appeal, as will be discussed below.

I.

The appellant's first claim is that the trial court erred both procedurally and substantively in consolidating the capital murder case and the attempted murder case for trial and that he was prejudiced as a result of the consolidation. With regard to the alleged procedural error, he argues that the trial court consolidated his cases for trial without first providing him an opportunity to be heard. He further argues that he had no opportunity to file a motion to sever the offenses because there is nothing in the record with regard to when the order of consolidation was entered and he was tried immediately after he was arraigned.

Rule 13.3(c), Ala.R.Crim.P., provides that offenses or defendants charged in separate indictments may be tried together if they could have been joined in a single indictment, information, or complaint; however, the trial court "shall not order that the offenses or the defendants, as the case may be, be tried together without first providing the defendant or defendants and the prosecutor an opportunity to be heard." In the present case, the appellant was charged in separate indictments with capital murder and attempted murder. The State's motion to consolidate was filed on March 8, 1993, and the appellant was arraigned immediately before trial on May 24, 1993. There is nothing in the record to indicate when the motion to consolidate was granted.

In Blackmon v. State, 487 So.2d 1022, 1027 (Ala.Cr.App.1986), this Court considered whether the procedural requirements of Rule 15.4(b), Ala.R.Crim.P.(Temp.), the predecessor of the present Rule 13.3, Ala. R.Crim.P., had been satisfied in consolidating the cases of Blackmon and two other defendants for trial.¹ The case was remanded because the record was silent as to the issue "whether the appellant, while represented by counsel, was given an opportunity to be heard on the issue of consolidation at some time before the motion to consolidate was granted." Quoting the Alabama Supreme Court in Ex parte Jones, 473 So.2d 545 (Ala.1985), this Court stated that "[a]ffording an opportunity to move for severance after consolidation fails to cure the prejudicial error resulting from violation of the rule.... [T]he purpose of Rule 15.4(b), Alabama Temporary Rules of Criminal Procedure, can only be served by strict compliance with it." (Emphasis original.) See Goodman v. State, 611 So.2d 446 (Ala.Cr.App.1992) (holding that the defendant was denied an opportunity to respond where, without notice to the defendant, a motion to consolidate was filed and granted on the same day); see also Holladay v. State, 545 So.2d 213 (Ala. Cr.App.1989) (holding that error in consolidating indictments could not be rendered harmless where the defendant was not present at the consolidation hearing and was denied an opportunity to be heard).

Because the record in the present case is deficient, this Court is unable to determine whether the appellant was given an opportunity to be heard before the trial court issued its order consolidating the offenses. Therefore, this cause must be remanded to the trial court for a finding of fact on that issue. See Robinson v. State, 686 So.2d 522 (Ala.Cr.App.1996).

II.

The appellant contends, and the State agrees, that the trial court erred in imposing the death penalty without a written sentencing order outlining the findings of facts as to the aggravating and mitigating circumstances. Section § 13A-5-47(d), Code of Alabama 1975, provides:

"Based upon the evidence presented at trial, the evidence presented during the sentence hearing, and the presentence investigation report and any evidence submitted in connection with it, the trial court shall enter specific written findings concerning the existence or nonexistence of each aggravating circumstance enumerated in Section 13A-5-49, each mitigating circumstance enumerated in Section 13A-5-51, and any additional mitigating circumstances offered pursuant to Section 13A-5-52. The trial court shall also enter written findings of facts summarizing the crime and the defendant's participation in it."

In Murry v. State, 562 So.2d 1348 (Ala. Cr.App.1988), this Court held that, due to the absence of the specific written findings required by § 13A-5-47(d), remand of the trial court's sentencing order was required. In the present case, as in Murry v. State, this Court cannot properly review the sentencing decision of the trial court without the required written findings.

Therefore, this cause is due to be, and it is hereby, remanded to the trial court. On remand, the court should determine whether the appellant and his counsel had an opportunity to be heard on the issue of consolidation before the entry of the court's order. The court's written findings of fact and conclusions of law should be forwarded to this court, along with the record of any proceedings held as to this matter. In addition, the court should enter a sentencing order in compliance with § 13A-5-47(d), Code of Alabama 1975, containing specific written findings concerning the existence or nonexistence of each aggravating circumstance and mitigating circumstance, as well as written findings of facts summarizing the crime and the appellant's participation in it. A return should be filed with this Court within 60 days after the release of this opinion.

REMANDED WITH INSTRUCTIONS.

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