Moore v. State, 8 Div. 930

• Decision Date: 20 September 1988
• Docket Number: 8 Div. 930
• Citation: 539 So.2d 416
• Parties: Tabitha Sue MOORE v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 416

539 So.2d 416

Tabitha Sue MOORE v. STATE.

8 Div. 930.

Court of Criminal Appeals of Alabama.

Sept. 20, 1988.

Rehearing Denied Dec. 30, 1988.

F. Timothy Riley of Carnes & Carnes, Albertville, for appellant.

Don Siegelman, Atty. Gen., and Cecil G. Brendle, Jr., Asst. Atty. Gen., for appellee.

TAYLOR, Judge.

The appellant, Tabitha Sue Moore, was indicted by the Marshall County Grand Jury on January 20, 1987, for assisting in the murder of Greg Pruitt, a violation of § 13A-6-2, Code of Alabama 1975. The appellant, on May 8, 1987, was also indicted for the solicitation and conspiracy to murder Greg Pruitt, a violation of § 13A-4-1 and § 13A-4-3, Code of Alabama 1975. The State, on June 15, 1987, filed a motion to consolidate the appellant's case with that of her co-defendant, Michael Hunt. Pursuant to the motion, a hearing was held and the trial court consolidated the cases for trial. The appellant's trial commenced on July 7, 1987. The trial court, during trial, severed the appellant's case from that of her co-defendant and the appellant's trial continued. The jury found the appellant guilty of murder and the trial court sentenced her to life imprisonment.

The State's evidence tended to show the following:

On the night of December 20, 1986, the victim, Greg Pruitt, his brother, Mark Pruitt, and Mark's wife, Kathy, were at the "Class of '57" lounge. Around 10:00 p.m., they were joined at the table by Michael Hunt. Hunt told the victim that the appellant's car had broken down and that he would drive him to meet the appellant at B & B's lounge. Unknown to the victim, the appellant, Michael Hunt, and Billy Brannon had planned to kill the victim that night. Hunt's story that he told the victim at the lounge was a facade in order to lure the victim to his death. Hunt and the victim left the "Class of '57" lounge in Hunt's car. However, Billy Brannon, armed with a .35 caliber rifle, was hiding in the trunk of Hunt's car. Hunt and the victim did not go to the B & B lounge. Instead, Hunt drove to a secluded area in the rural part of Etowah County, known as "Tain't Much Dam." Hunt and the victim got out of the car. Hunt then opened the trunk and Brannon got out and shot the victim. Hunt and Brannon then took the victim's body to Aurora Lake in order to dispose of it. Later, Brannon and Hunt returned to the appellant's trailer. Ronnie Harper and his wife, Kim, were at the appellant's trailer when Brannon and Hunt arrived. Brannon and Hunt asked the appellant for extra clothes, gloves, plastic bags, and cement blocks. The appellant, before Brannon and Hunt left, told Brannon to take a camera and get some pictures. Later, Brannon returned alone with "blood all over him." Ronnie Harper testified that Brannon then told them about the murder and that he and Hunt had dumped the victim's body in Aurora Lake. Ronnie Harper testified that the appellant told Brannon, "You did a good job, baby," that Brannon told him he had killed the victim out of his love for the appellant, and that Brannon gave the appellant eight dollars that he removed from the victim's body.

Kim Harper's testimony corroborated that of her husband. She testified that the appellant had asked her to babysit the appellant's son so she could "set up" the victim and that the appellant told her that they had been planning it for two weeks. She testified that the appellant and Brannon talked about keeping their stories straight, and that Brannon told her that the appellant told him to kill the victim instead of beating him.

The Harpers reported the crime to the Boaz police at 1:00 a.m.

The victim's body was found in the early morning hours of December 21, 1986, near the "Tain't Much Dam" area of Lake Aurora in Etowah County. The body was lying in the edge of the water with hay bailing twine wrapped around it and tied to cement blocks. The victim's head was covered with a garbage bag. Officer John Maze, of the Albertville Police Department, testified that there was a huge pool of blood surrounding the body and that .35 caliber rifle spent cartridges were found at the scene.

Detective Tommy Cole, of the Albertville Police Department, was the investigating officer, and he arrived on the scene at approximately 5:00 a.m. Detective Cole and Officer Darrell Childress left the scene and went to the appellant's trailer, where they observed Brannon's Jeep and Moore's car parked out front. Detective Cole testified that he saw, in plain view, a .35 caliber rifle on the front seat of the appellant's car. The front door to the appellant's trailer was open, and Detective Cole knocked loudly on the front door. He identified himself as a police officer, but no one came to the door. He stepped inside the trailer and walked down the hallway of the trailer until he reached the back bedroom. There, he saw Brannon and the appellant in bed. Detective Cole announced that he was investigating a homicide and ordered Brannon to get out of bed. Brannon, upon getting out of bed, had blood on his hands and on his blue jeans. Detective Cole advised the pair of their constitutional rights and the appellant gave her permission to search the trailer by signing a "Permission to Search" form. The officer recovered bloodstained jeans, tennis shoes, a shirt, and a sweater which appeared bloodstained. Brannon's .35 caliber rifle was also confiscated in the search. At approximately six o'clock a.m., Brannon was taken to the Albertville Police Department for questioning.

Detective Cole, at approximately 7:45 a.m., arrived at Michael Hunt's home. Hunt resided with his mother. Detective Cole informed Hunt that he was investigating a homicide and that he believed Hunt was involved. Hunt was read his Miranda rights and Hunt's mother gave her permission to search by signing a "Permission to Search" form. Detective Cole testified that he found freshly washed bloodstained clothes in the washroom and a spare tire that had bloodstains and body particles on it. Hunt told Detective Cole that the tire came from the trunk of his car and gave them permission to search the trunk, whereupon Detective Cole observed that the trunk was nearly covered with blood. Body parts and small particles of body tissue (brains) were found in Hunt's car trunk. Additionally, a bloodstained glove was found in the yard. Detective Cole, upon completion of the search, transported Hunt to the Albertville Police Department.

The appellant, a few hours after Hunt was brought to the police station, voluntarily came to the Albertville Police Department and was questioned by Detective Cole. Later that afternoon, she was arrested at her home, read her Miranda rights, and questioned again by Detective Cole and Detective Ed Whitten. In her oral statement to Detectives Cole and Whitten, the appellant revealed the incidents of the previous night's murder but did not confess to planning the victim's murder or participating in the crime.

At trial, the parties stipulated to the following facts:

The victim, Greg Pruitt, was killed by a gunshot blast to the head fired by Billy Brannon on December 20, 1986, at "Tain't Much Dam." The victim's body was recovered on the morning of December 21, 1986, at Aurora Lake. The cause of death was a gunshot wound that was inflicted by Billy Brannon. The .35 caliber rifle discovered by Detective Cole in the appellant's vehicle was the murder weapon, and the spent cartridges found at the scene were fired from a .35 caliber rifle.

The jury, following deliberations, returned a verdict of guilty, and the trial court sentenced her to life imprisonment. The appellant raises five issues on appeal.

I

The appellant contends that the State's evidence was insufficient to support a conviction for murder. The appellant, at trial, argued that although she had been part of a conspiracy to assault or "rough up" the victim, she was not part of a plot to kill the victim.

The testimony the appellant finds objectionable is that of her co-conspirator, Billy Joe Brannon. She alleges that no proof at all, outside of Brannon's hearsay statement to third parties, connected her to the killing or that she knew the killing was to take place. Specifically, she alleges that there was no positive evidence of any conspiracy to commit murder before the statement of her co-conspirator or co-defendant, Billy Joe Brannon, was admitted. Therefore, she says the trial court was in error to admit these statements, and without these statements the evidence was insufficient to convict her of murder.

The appellant, in support of her contention, cites Ingle v. State, 415 So.2d 1225 (Ala.Cr.App.1982), which states in pertinent part:

"[B]efore the declarations of a co-conspirator are admitted against the defendant, there must be evidence of a conspiracy. Langham v. State, 243 Ala. 564, 11 So.2d 131 (1943). The proof of the existence of the conspiracy must be independent of the statements of the defendant's co-conspirators. United States v. Hodges, 606 F.2d 520 (5th Cir.), cert. denied, 444 U.S. 1035, 100 S.Ct. 708, 62 L.Ed.2d 671 (1979); Collins v. State, 137 Ala. 50, 34 So. 403 (1903). The initial existence of a conspiracy may not be proved by the statements of the co-conspirators. DeBardeleben v. State, 16 Ala.App. 367, 77 So. 979, cert. denied, 201 Ala. 523, 78 So. 877 (1918)." Id. at 1228-29.

In Bright v. State, 485 So.2d 398, 401 (Ala.Cr.App.1986), we held that "before a co-conspirator's statement or act will be admissible against the accused, proof must be made of the conspiracy. C. Gamble, McElroy's Alabama Evidence, § 195.03(2) (3d ed.1977)."

The existence of the conspiracy must be shown by "evidence independent of the hearsay statements" of the co-conspirator. United States v. Cannington, 729 F.2d 702, 711 (11th Cir.1984).

However, in the case at bar, the evidence presented by the State, even without the testimony the appellant finds objectionable, was sufficient to convict the appellant.

Kim and Ronnie Harper testified for ...