Morton v. State
| Decision Date | 30 August 2013 |
| Docket Number | CR–10–1579. |
| Citation | 154 So.3d 1065 |
| Parties | Everett Bernard MORTON v. STATE of Alabama. |
| Court | Alabama Court of Criminal Appeals |
Aaron Gartlan and David Kenneth Hogg, Dothan, for appellant.
Luther Strange, atty. gen., and William D. Dill, asst. atty. gen., for appellee.
On Application for Rehearing
The opinion issued on November 2, 2012, is withdrawn and the following opinion is substituted therefor.
The appellant, Everett Bernard Morton, was convicted of one count of murder made capital because it was committed by or through the use of a deadly weapon while the victim was inside a vehicle, a violation § 13A–5–40(a)(17), Ala.Code 1975, and of one count of attempted murder, a violation of § 13A–6–2 and § 13A–4–2, Ala.Code 1975. The jury unanimously recommended that Morton be sentenced to life imprisonment without the possibility of parole for his capital-murder conviction. The trial court followed the jury's recommendation and sentenced Morton to life imprisonment without the possibility of parole for the capital-murder conviction. The trial court sentenced Morton to 10 years' imprisonment for the attempted-murder conviction.
The evidence adduced at trial indicated the following. During the evening hours of April 19, 2006, Morton telephoned Patrick Dixon and asked to purchase $10 worth of marijuana from him. Dixon agreed to sell Morton the marijuana and he and Tyrance Byrd drove in Dixon's green Ford Thunderbird automobile to Morton's aunt's house on Hamilton Street in Dothan.1 When they arrived, Dixon and Byrd were told by then 12–year–old Kaheera (“Kiki”) Rich to drive around the corner to Fifth Avenue, which they did. At that time, Morton approached Dixon's automobile and purchased the marijuana from Dixon, giving Dixon two five-dollar bills. Just after the purchase, two armed men wearing bandanas on their faces, who were later identified as Michael James and Marcus Rivers, came out of nearby bushes and approached the vehicle, pointing their weapons at Dixon and Byrd and demanding that Dixon and Byrd hand over all of their money. James and Rivers then began shooting at Dixon's automobile. Dixon and Byrd were able to speed away from the shooting, but both suffered gunshot wounds, and Dixon ultimately died as a result of his wounds. Testimony indicated that the robbery of Dixon and Byrd was planned by Morton, who asked James and Rivers to help him, so that he could obtain money to pay a debt.
Michael James testified that he lived on Fourth Avenue near Hamilton Street in Dothan, and that he knew Morton, whose aunt lived on Hamilton Street, and Rivers, as well as Dixon, but that he did not know Byrd. According to James, Dixon often sold marijuana in the neighborhood around Hamilton Street. James said that he had purchased marijuana from Dixon on previous occasions. On April 19, 2006, James said, he, Morton, and Rivers were together in the neighborhood. They had been smoking marijuana. Morton told James and Rivers that “he wanted a lick, need a lick,” meaning that Morton wanted to commit a robbery. (R. 1037.) According to James, Morton said that he owed money to someone and that he wanted to rob Dixon. James told Morton that Dixon “was the wrong one” (R. 1043) to rob because “[e]verybody knew him.” (R. 1044.) At first, James told Morton that he did not want to participate in the robbery; however, James subsequently changed his mind and agreed to help Morton rob Dixon. Rivers agreed to help as well. James and Rivers were both armed with black nine-millimeter pistols. James testified, however, that he told Morton that “wasn't nobody supposed to get hurt” during the robbery and that there would not be any shooting. (R. 1069.) Morton telephoned Dixon to have him come over to the neighborhood so that they could commit the robbery. Morton borrowed $10 from James to purchase marijuana from Dixon in order “to make it look legit.” (R. 1051.) James said that he, Rivers, and Morton agreed that Morton would use body language to signal James and Rivers to begin the robbery.
James testified that he and Rivers hid in the bushes across the street from where the robbery subsequently occurred. Both were wearing black clothing and had bandanas over their faces. James testified that he wore a blue bandana, which signified that he was a member of a gang called the “CRIPS.” (R. 1048.) James could not recall what color bandana Rivers wore. James stated that, from his vantage point in the bushes, he saw Dixon drive his automobile onto Fifth Avenue and that he then saw Morton standing by the automobile. According to James, he saw the overhead light inside the car turn on, saw Dixon “fumbling ... getting the drugs,” and then saw the exchange take place. (R. 1052.) James said that he then “speculated” that he and Rivers were supposed to begin the robbery and they came out of the bushes and approached Dixon's vehicle. (R. 1053.) Rivers went to the driver's side of the vehicle and James went to the passenger side. James said that he told the occupants in the vehicle “to put their hands on the roof and don't move.” (R. 1055.) Rivers also said “don't move.” (R. 1055.) James then said “don't test me, brother, just give it up, give it up.” (R. 1073.) James said that when he and Rivers approached the car, Morton backed away. James testified that he was the first to shoot at the vehicle, but that he missed the vehicle and hit the passenger, Tyrance Byrd. James then fired toward Byrd “four or five” more times and Rivers fired toward the driver, Dixon, several times. (R. 1059.) James said that he and Rivers continued firing at the vehicle as it sped away.
James testified that after the shooting he ran home and hid his pistol “in the backyard up under a shed.” (R. 1065.) That pistol was never recovered by the police. Early the next morning, James was arrested by police and taken to the police station. James said that he subsequently gave three statements to the police regarding the shooting. In his first statement, James told the police that he and Rivers were walking home from a friend's house when they saw Dixon's car on the side of the road and then saw somebody rob Dixon. In other words, James told police that he and Rivers were only witnesses to the robbery and not the perpetrators. After the police “started pressuring” him, James said, he gave a second statement, in which he said that he and Rivers were walking down the road when they saw Dixon's car pull to the side of the road and he and Rivers then approached the car and robbed Dixon. (R. 1078.) In neither of his first two statements did James mention Morton's involvement. However, according to James, he lied to the police in his first two statements because he “was scared and trying to save [him]self.” (R. 1067.) James said that it was only in his third statement that he told the police the truth. In his third statement, James stated essentially the same facts as he testified to at trial. He said that it was Morton's idea to commit the robbery. He also said that there was no plan for anyone to get hurt and that the shooting occurred suddenly, when Byrd reached for a gun. However, unlike his testimony at trial, in his third statement, James said that the first time he fired at the vehicle he fired two warning shots, neither of which hit anyone.
James testified that he, like Morton, had been charged with capital murder2 and attempted murder, but that the district attorney offered him a plea bargain in exchange for testimony against Morton and Rivers. James said that he pleaded guilty to intentional murder as a lesser-included offense of the capital-murder charge and to attempted murder and that he received two concurrent 30–year sentences. James said that, while in prison serving his sentence, he gave a recorded statement to Morton's defense attorneys. In the statement, James said that Morton was not involved in the robbery and shooting. However, James testified that he had lied to Morton's defense attorneys. At some point after he gave that recorded statement, James said, he asked a different attorney than the attorney who had represented him on the plea agreement to review his case and, when the district attorney spoke to him about a week before Morton's trial, James told the district attorney that he believed he could get a better sentence and indicated that he was not going to testify against Morton. According to James, the district attorney then told him that he had violated the terms of his plea agreement and that his guilty pleas were void. The district attorney then indicted James for capital murder during a robbery. James subsequently spoke with the attorney who had represented him on the plea agreement and decided to testify against Morton as required by his plea agreement. James said that his testimony at trial was the truth.
Elishous Townsend, who lived on Hamilton Street two houses away from Morton's aunt's house, testified that he knew Morton and James, but that he did not personally know Rivers, although he had heard of Rivers. Townsend said that he knew that Morton smoked marijuana and that he had previously seen Morton purchase marijuana on Hamilton Street, including many purchases from Dixon. Townsend stated, however, that he never saw Morton purchase marijuana near his aunt's house; the purchases were always made on another part of the street. On the night of April 19, 2006, Townsend said, Morton and James were in his front yard and he heard them talking about robbing someone, although neither Morton nor James identified their potential victim. Townsend admitted, however, that in his statement to police, he had said that he had heard James tell Morton that James was “going to rob this fool,” not that James and Morton were both participating in the discussion of a robbery as he testified to at trial. (R. 566.) Later that night, when Townsend was on his front porch with friends drinking...
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