Meyer v. State

• Citation: 575 So.2d 1212
• Parties: Marshall Frank MEYER v. STATE. CR 89-82.
• Decision Date: 21 September 1990
• Court: Alabama Court of Criminal Appeals

Page 1212

575 So.2d 1212

Marshall Frank MEYER v. STATE.

CR 89-82.

Court of Criminal Appeals of Alabama.

Sept. 21, 1990.

Rehearing Denied Nov. 16, 1990.

Certiorari Denied March 15, 1991

Alabama Supreme Court 1900385.

William R. Hill, Jr., Birmingham, for appellant.

Don Siegelman, Atty. Gen., and Beth Slate Poe, Asst. Atty. Gen., for appellee.

TAYLOR, Presiding Judge.

The appellant, Marshall Frank Meyer, was indicted for capital murder, but was convicted of the lesser included offense of the intentional murder of David Lett by shooting him once in the head with a pistol, as defined by § 13A-6-2, Code of Alabama 1975. He was sentenced to 50 years in the state penitentiary.

The evidence tended to show that on June 15, 1987, the appellant and the victim left Sherwood, Michigan, together en route to New Orleans, Louisiana. They were traveling in the victim's automobile. On the way to Louisiana, the two stopped in Newport News, Virginia, so that the victim could visit a friend, T.J. LaBouf. Mr. LaBouf was the last known person to see David Lett alive.

Mr. LaBouf was the State's key witness. During his testimony, Mr. LaBouf was shown a red and white knit pullover shirt marked as State's exhibit three. This shirt was found at the scene where the body was discovered. Mr. LaBouf testified that the shirt appeared to be the same shirt that the appellant was wearing when he and the victim left Virginia.

Shortly before lunch on June 19, 1987, the appellant and the victim left Virginia going south to Louisiana. The route they were to take, according to Mr. LaBouf, passed through Montgomery, Alabama, on Interstate 85. The victim's girlfriend, Carol Andrews, was to meet the two in New Orleans and expected them to arrive on the morning of June 21, 1987.

The appellant and the victim never arrived in Louisiana. The victim's body was found in a remote area in Chilton County, Alabama. His car was discovered in Michigan at the home of Mike Haywood, a friend of the appellant's. Mr. Haywood testified that the appellant borrowed a shop vacuum from him and vacuumed out the car and that the appellant also borrowed some tools so that he could remove the seats from the car and a hose to wash the interior of the car.

The appellant's girlfriend, Wanda Cooper, was with the appellant on several occasions when he withdrew money from the victim's bank account using the victim's automatic teller machine bank card. The appellant told Ms. Cooper "not to tell the police, that it wasn't none of their business." Bank records indicate that beginning on June 22, 1987, a total of $850 was withdrawn from the victim's account.

During the investigation, the appellant was found to be in possession of a brown "trucker's type wallet." Danny Ballard, a friend of the appellant and his business partner, testified that he saw the appellant remove a one-hundred dollar bill from the wallet. The appellant's parents had never seen the wallet. Dale Stensland, an employee of Swans Ice Cream and Frozen Food Company, testified that the wallet was identical to the one issued to the victim when he worked at that company in 1987.

When police began their investigation of the murder of David Lett, the appellant was their prime suspect. They questioned him on several occasions concerning how he ended up in Michigan with the victim's car. The appellant's first version of his return was that he did not know where David was and that he had returned from Richmond, Virginia, by bus. Michigan State Trooper Jeffrey Whelan, the investigating officer, asked the appellant to produce his bus tickets; however, a week later the appellant said that he did not have them and had not even looked for them.

Next, the appellant told Trooper Whelan that he had taken a bus from Richmond to Pittsburgh, Pennsylvania, and that a friend named "Junkyard Dan" or "Junkie Dan" had picked him up there and taken him back to Michigan. When the police questioned "Junkie Dan" Ballard, he verified the story. However, a week later, he told the police that the appellant had asked him to lie to the police and that he had never taken the appellant anywhere.

In yet another version, the appellant told his girlfriend, Wanda Cooper, that he had hitchhiked back to Michigan. He later told her that he had come back by bus. Finally, he told her he had driven David's car back but gave her no explanation as to why.

Finally, in the appellant's taped statement to Michigan law enforcement officers, the appellant said that he and the victim stopped in Richmond after leaving Newport News so that David could buy drugs to take back to Michigan. The appellant said that David drove to the parking lot of a bar and told him to wait inside the bar until he returned. The appellant said that the victim then left with another man in a black van. The appellant claims that he waited approximately eight hours for the victim to return and when he did not, the appellant took the victim's car and drove back to Michigan.

The appellant raises three issues on appeal.

I

The appellant's first contention is that the trial court erred in denying his motion for a directed verdict of acquittal and to exclude the State's evidence and in denying his motion for a new trial in that the State failed to prove a prima facie case. He supports this contention with two theories. He claims that the State failed to adequately prove that venue was correct in Alabama. In the alternative, the appellant argues that the State's evidence was insufficient to sustain a conviction because it was circumstantial in nature.

"Proof of venue is necessary to sustain a conviction, and like any other fact in the case, when there is evidence in the case tending to prove that the offense was committed within the jurisdiction of the court, the question of venue becomes a fact for the jury to decide." Grace v. State, 369 So.2d 318, 322 (Ala.Cr.App.1979), citing, § 15-2-7, Code of Alabama 1975; See also Porter v. State, 520 So.2d 235 (Ala.Cr.App.1987); Creech v. State, 508 So.2d 302 (Ala.Cr.App.1987). "In a criminal case, proof of venue is sufficient if it can be reasonably inferred from the facts and circumstances adduced." Coleman v. State, 423 So.2d 276 (Ala.Cr.App.1982). Moreover, venue need not be established solely by direct evidence but rather, evidence from which it may be inferred is sufficient. Id.

The issue in the case at bar is whether the fact that a dead body found in Chilton County, Alabama, is sufficient evidence from which to infer venue in Chilton County. In Coleman, supra, a body was found on a mountain in Madison County, Alabama, very near the Tennessee State line. It was uncertain whether the murder occurred in Alabama or in Tennessee. The court held that since it was conceivable that the murder could have occurred in either state, venue would be established in the state where the body was found. Id. Thus, in the case at bar, the State's evidence was sufficient to prove venue, and the Circuit Court for Chilton County had jurisdiction to hear the appellant's case.

The appellant's alternative theory must likewise be rejected by this court. In P.S. v. State, 565 So.2d 1209 (Ala.Cr.App.1990), this court held:

"The mere fact that evidence is of a circumstantial nature does not make it deficient. Linzy v. State, 455 So.2d 260, 262 (Ala.Cr.App.1984). Further, such evidence should be reviewed by this court in the light most favorable to the State, Bass v. State, 55 Ala.App. 88, 313 So.2d 208 (1975), and our judgment should not be substituted for that of the jury. Cumbo v. State, 368 So.2d 871, 875 (Ala.Cr.App.1978), cert. denied, 368 So.2d 877 (Ala.1979)."

P.S., supra, 565 So.2d at 1212. By applying the cases set out above, we find that the jury could have been convinced beyond a reasonable doubt of the appellant's guilt from the evidence presented, even though it was circumstantial in nature. Thus, for this reason and the reason previously discussed, the trial court correctly denied the appellant's motion for a directed verdict of acquittal and to exclude the State's evidence and his motion for a new trial.

II

Next, the appellant contends that the trial court incorrectly charged the jury on reasonable doubt. However, when defense counsel objected to the court's oral charge, he simply said, "For the record, Your Honor, we object to the Court's charge on reasonable doubt." This is insufficient to preserve this issue for appellate review.

The correct method of objecting to the trial court's oral charge to the jury is set forth in Temporary Rule 14, A.R.Crim.P., as follows:

"... No party may assign as error the court's giving or failing to give a written instruction, or the giving of an erroneous, misleading, incomplete, or otherwise improper oral charge, unless he objects thereto before the jury retires to consider its verdict, stating the matter to which he objects and the grounds of his objection...."

The appellant has failed to preserve this issue for review because he did not object to the trial court's oral charge with specificity. See Ex parte State, 497 So.2d 201 (Ala.1986). Thus, nothing is preserved for our review.

III

Finally, the appellant contends that the trial court erred in denying his motion for a new trial on the grounds that the jury's verdict was contrary to law and the evidence. More specifically, the appellant argues that by the jury's returning a guilty verdict of the lesser included offense of murder in all three counts of the indictment, he was, in effect, found guilty of murdering David Lett three separate times.

The appellant was charged with capital murder in a three-count indictment. Count one reads as follows:

"The Grand Jury of said county charged before the finding of this indictment, Marshall Frank Meyer, whose true name is to the Grand Jury unknown, otherwise than is stated, did intentionally cause the death of David Lett by shooting him with a pistol and the said Marshall Frank Meyer caused said death during the...