Mitchell v. State
| Citation | 706 So.2d 787 |
| Decision Date | 21 March 1997 |
| Docket Number | CR-94-2245 |
| Parties | Atif MITCHELL v. STATE. |
| Court | Alabama Court of Criminal Appeals |
William J. Baxley and David McKnight, Birmingham, for appellant.
Bill Pryor, atty. gen., and James B. Prude, asst. atty. gen., for appellee.
Atif Mitchell was charged in a three-count indictment with the following counts of capital murder: count one, shooting Demarcus King, see § 13A-5-40(a)(17), Ala.Code 1975, "[m]urder committed by or through the use of a deadly weapon while the victim is in a vehicle"; count two, shooting Omarfio Houston, see § 13A-5-40(a)(17), Ala.Code 1975; and, count three, causing the death of both Demarcus King and Omarfio Houston, see § 13A-5-40(a)(10), which makes capital the offense of "[m]urder wherein two or more persons are murdered by the defendant by one act or pursuant to one scheme or course of conduct." The jury convicted Mitchell of the lesser included offense of felony murder on all three counts. The trial court stated on the case action summary sheet that "there can only be one sentence since there is only one case" and stated that "the verdicts in counts I and II are [considered] advisory." 1 C.R. 6. The trial court sentenced Mitchell to life imprisonment on count III of the indictment. Mitchell raises seven issues on appeal. Because Mitchell challenges the denial of his motion to suppress certain evidence, the sufficiency of the evidence to sustain a conviction, the appropriateness of one of the jury charges, the prosecutor's conduct, and an alleged fatal variance between the indictment and proof presented at trial and because he was not identified as a participant by direct testimony from witnesses at the crime scene, we believe we must present the facts in great detail.
On June 16, 1993, at approximately 1:00 a.m., the bodies of Demarcus King and Omarfio Houston where discovered in a van parked in an alley near the corner of 14th Street and 6th Avenue North in Birmingham, Alabama. Houston's body was found inside the van, slumped against the driver's seat. The passenger's side door was open and King was partly in the van and partly on the ground outside the van. 2 There were 10 bullet holes in the driver's side door. The van had been wrecked on the front passenger side. Shell casings from .380 caliber bullets, lead from the bullets, glass fragments from the van's headlights, orange plastic lens material from a side turn signal marker, and a splash guard that was determined to be from a 1981-1989 burgundy Chevrolet Caprice or Pontiac Parisienne were found on the ground near the van.
Houston was pronounced dead at the scene. His body had sustained 10 bullet wounds. Seven .380 caliber bullets, all fired from a .380 caliber gun, were removed from Houston's body. King suffered from two bullet wounds. He was treated by paramedics and taken to the hospital, where he soon died. A 9mm. bullet core and a 9mm. bullet jacket, both fired from a 9mm. gun, were removed from King's body.
Mitchell did not dispute that the automobile identified by witnesses as the get away car, was a burgundy Chevrolet Caprice that he had borrowed from an individual named Isaac Lamont Ruffin. He did not dispute that he was present when Houston and King were shot, nor did he dispute that his 9mm. gun may have fired the lethal bullet into King. In dispute is whether Mitchell participated in the commission of the crime. Several witnesses testified at trial and at the motion to suppress. A summary of their testimony follows.
Julia Whisonant testified that she was a cable splicer working between 5th Avenue North and 6th Avenue North on 14th street at the time of the murders. She said that at about 1:00 a.m. she heard what to her sounded like firecrackers. She determined the sound to be actual gunfire. When she heard the noise a second time she looked up and saw a green Volkswagen van and a burgundy or brown General Motors car. This car was later identified as a burgundy Chevrolet Caprice. There was one person in the Chevrolet. R. 302, 306. Two people were standing close to the Volkswagen. R. 303. R. 305. Mitchell testified that he was six feet four inches tall and weighed 235 pounds. The horn of the Volkswagen van started blowing and she "knew [the shooting] was pretty much over with then." R. 303.
She saw "the two people that were outside closest to the Volkswagen return[ ] to get in the [Chevrolet] that was waiting on them to leave." R. 303. The person on the right side of the Volkswagen R. 304-05. Whisonant said that the person who was on the right side of the Volkswagen was tall and heavyset. He had extremely large shoulders and must have been some type of weight lifter because his shoulders were pretty much squared up. The other person was a small person, "just your average built person." R. 307. She described both persons as males with dark completions. R. 307. The car left the scene at what Whisonant described as a fairly normal speed and turned left onto 8th Avenue.
On cross-examination, Whisonant testified that in a prior statement given to the police she had described the larger of the two persons as being 5 feet 10 inches tall and weighing 180 to 200 pounds, "more short and kind of stubby." R. 315.
Lewis Bradley, a probation and parole officer for the State of Alabama, testified that on June 16, 1993, at around 1:00 a.m., he was in his automobile stopped at a traffic light at the corner of 6th Avenue North and 14th or 15th Street. He heard what sounded like "a bunch" (R. 321) of firecrackers going off and looked down the street and saw someone shooting into a green Volkswagen. The Volkswagen was parked in the alley and a car was approximately 15 or 20 yards beyond the Volkswagen near the middle of the street. R. 322. The shooter was "coming from behind the [Volkswagen] and shooting into it." R. 320. Bradley said he saw "fire coming out of the weapon." R. 320. The shooter R. 320. The car proceeded to 8th Avenue and turned left. Bradley could not describe the shooter's vehicle and did not know how many people were in the vehicle.
Donna Glenn testified that on June 16, 1993, at around 1:00 a.m., she and a friend were travelling in an automobile on 14th Street near the alley at 6th Avenue. She was driving. She said that she saw a Volkswagen van parked between the alley and the sidewalk and that a burgundy Chevrolet had it blocked in. The Chevrolet had part of the street blocked, so Glenn had to drive around it. Two young men were seated in the front seat of the Chevrolet. Glenn stated that at one time she thought she might have seen three people in the Chevrolet, "but she wasn't for sure." R. 335. However, she said that "[she] kn[e]w there w[ere] two [people] in the front." R. 339. She did not see anyone in the Volkswagen van. As she approached the Chevrolet she "saw a young black man get out ... of the driver's seat" of the Chevrolet. R. 331, 332. She had passed the cars and was looking in her rearview mirror when she saw the man who had gotten out of the driver's seat walk between the Chevrolet and the Volkswagen van "and [go] around to the driver's side of the Volkswagen." R. 334. Glenn said that she had driven a short distance past the Volkswagen van when she heard "a whole bunch" of gunshots. R. 333. The other man in the Chevrolet slid over to the driver's side. The man who got out of the car was about 5 feet and 11 inches, slim, with a hump in his nose, and his throat stuck out.
Glenn stated that there were no bullet holes in the Volkswagen van when she passed it the first time. After the shooting she and her friend went to get some beer. They passed the scene a second time after getting beer and saw bullet holes in the Volkswagen van. A couple of days later she contacted the police because a news report had identified her car as leaving the crime scene. On cross-examination Glenn testified that the appellant was not the man she saw getting out of the Chevrolet. R. 345.
Charles Smith was the passenger riding with Donna Glenn at the time of the incident. He testified that he saw the Chevrolet 3 bump the Volkswagen. R. 373. "After it bumped the Volkswagen ... we passed on by ... [t]hen the shots fired." R. 374. Smith said it sounded like two guns firing. He looked in the rearview mirror and saw two men standing in front of the Volkswagen. He saw a short man on the passenger side of the Chevrolet. He thought, but he was not sure, whether he saw another man, a taller man, standing on the driver's side of the Chevrolet. In a moment the Chevrolet, travelling fast, passed Glenn and Smith on 14th Street and turned left on to 8th Avenue.
On cross-examination Smith stated that he had given a defense investigator and Detective Long tape-recorded statements. He said that in these statements he said that he saw only one man standing outside the vehicles but that there could have been two men. Smith stated on cross-examination that he was certain that one man was a "kind of short, dark skin, not fat" person, who was wearing short pants. R. 380. This man got into the Chevrolet on the passenger side but Smith did not know if it was the front or back seat. After repeated questioning on cross-examination, Smith concluded, R. 391. The tape-recording given to...
To continue reading
Request your trial
-
Sheffield v. State Of Ala.
...intent to kill; it requires only the intent to commit the underlying felony. § 13A-6-2(a)(3), Ala. Code 1975; Mitchell v. State, 706 So. 2d 787 (Ala. Crim. App. 1997). The absence of an intent to kill, however, is not necessarily an element of felony murder, as contrasted with the intent to......
-
Pressley v. State
...and the burden is upon the state to show voluntariness and a Miranda predicate in order for them to be admitted.'" Mitchell v. State, 706 So.2d 787, 801 (Ala.Cr.App. 1997) (citations "The general rule is that for a confession to be admissible the state must show that the defendant was advis......
-
Harbin v. State
...State, 675 So.2d 537, 541 (Ala.Crim.App. 1996), quoting Shultz v. State, 480 So.2d 73, 76 (Ala.Crim.App. 1985). 4. In Mitchell v. State, 706 So.2d 787 (Ala. Crim.App.1997), this Court held that the trial court did not err in charging the jury on felony murder as a lesser-included offense of......
-
Stallworth v. State
...the need against the time-honored tradition of guarding the secrecy of the grand jury proceedings. As we stated Mitchell v. State, 706 So.2d 787, 806-07 (Ala.Crim.App.1997): "`While it is true that broader discovery is to be allowed in cases involving capital murder because of the possible ......