Mullis v. State

• Decision Date: 27 January 1989
• Docket Number: 4 Div. 942
• Citation: 545 So.2d 205
• Parties: Easton Darris MULLIS, Jr. v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 205

545 So.2d 205

Easton Darris MULLIS, Jr. v. STATE.

4 Div. 942.

Court of Criminal Appeals of Alabama.

Jan. 27, 1989.

Rehearing Denied Feb. 24, 1989.

Certiorari Denied June 16, 1989

Alabama Supreme Court 88-662.

Richard Waldrop, Enterprise, and L. Merrill Shirley, Elba, for appellant.

Don Siegelman, Atty. Gen., and J. Randall McNeil, Asst. Atty. Gen., for appellee.

TAYLOR, Presiding Judge.

The appellant, Easton Darris Mullis, Jr., was convicted of murder made capital by § 13A-5-40, Code of Alabama 1975. The trial court, following a jury trial, sentenced the appellant to life imprisonment without the possibility of parole. Five issues are raised on appeal.

The evidence as presented by the State tended to establish that the appellant, Easton Darris Mullis, Jr., was married to Virginia Gail Mullis and that they lived with their four children in the State of Georgia. Mrs. Mullis and the victim in this case, James Edward Nelson, began having a love affair, and in May of 1985, she left her husband and children to move with Nelson to Coffee County, Alabama.

Both Michael Wayne Railey and Joseph Michael Downs were approached by appellant Mullis with a request that they assist him in killing Nelson, but both men refused. The appellant finally approached David Stubbs, who accepted his offer to murder James Edward Nelson. Mullis, David Stubbs, and Stubbs's uncle, Richard Adams, then conspired to kill Nelson. Appellant Mullis was to pay Stubbs and Adams $10,000 upon completion of the crime. Stubbs and Adams, according to the plan laid out by Mullis, were to break into Nelson's home, rob him, and then abduct him. Mrs. Mullis was to be tied up in order to prevent her from escaping. Stubbs and Adams were then to use one of Nelson's automobiles, take him to the Conecuh River, kill him, and dispose of the body.

On July 24, 1985, the appellant, Stubbs, and Adams left Georgia at approximately 5:00 p.m. and arrived in Troy a few hours later. While in Troy, they stole a blue pickup truck from an apartment complex and drove just outside of Troy. The appellant told Stubbs and Adams that they were to meet him at the Omelet Shoppe restaurant in Troy after the murder. Stubbs and Adams then drove to the Nelson's home, disconnected his telephone line, and parked the stolen truck on an isolated logging road near the home. They walked back to the house wearing ski masks and gloves. They entered the house through an unlocked rear door and burst through the door of the bedroom where Nelson and Mrs. Mullis were sleeping. Stubbs was carrying a .38 caliber pistol and Adams was armed with a .32 caliber pistol. Both pistols belonged to Mullis. Mullis had traded Larry Bullock a shotgun for the two pistols. Bullock subsequently testified to the exchange in this trial. Stubbs ordered Nelson to bind Mrs. Mullis with tape, and he did so. Also, Stubbs demanded that Nelson hand over his wallet. He again complied. Mrs. Mullis's money was also taken. Stubbs then demanded the keys to Nelson's automobile, and they proceeded to march Nelson at gunpoint to his car. Nelson was placed in the back seat of his car, with Adams seated next to him. Stubbs drove the car to a bridge located about five miles from Nelson's home. Stubbs led Nelson to the bridge, and, while Adams acted as a lookout, shot him in the head with the .38 pistol. Stubbs and Adams lifted Nelson's body and threw it over the bridge, where it landed on the river bank next to the Conecuh River. Stubbs and Adams then returned to Nelson's car and drove back to Troy to meet Mullis at the Omelet Shoppe. They saw Mullis' car parked at the end of the Omelet Shoppe's parking lot, but parked the car beside the Discount Tire and Muffler Center, located about 50 yards from the Omelet Shoppe. After wiping the car clean of prints, they walked back to the Omelet Shoppe, where they met Mullis. The two then got in Mullis's car and left Troy to return to Georgia. On their return trip, they divided the money stolen, approximately $800, and Mullis received $200 of the money taken during the crime. As they crossed the bridge at Lake Eufaula, Stubbs threw the murder weapon, the .38 pistol, into the water, and attempted to throw Nelson's wallet into the water but it hit a pole and landed on the bridge. This pistol was recovered by law enforcement officials after Adams was arrested. The .32 pistol carried by Adams was not thrown over the bridge into the water because Adams wanted to sell it.

Mrs. Mullis, a short time after 1:00 a.m., freed herself and ran to a neighbor's house, where she called the Coffee County sheriff's office. Several units were summoned to the scene and she recounted the events that had occurred several hours earlier.

The next morning, Nelson's body was discovered lying in the bushes alongside the Conecuh River. Several law enforcement officials arrived at the bridge and found a .22 caliber shell casing, blood, fragments of glass, and a key ring later identified as belonging to Nelson. Later, the pickup truck stolen by Adams and Stubbs was discovered, and the Troy Police Department discovered Nelson's car parked near the tire store in Troy.

Dr. David B. Rydjewski conducted the autopsy on the body of Nelson and, as a result of his examination, determined that Nelson had died as a result of a gunshot wound to the head.

Lonnie Harden, a firearms and tool mark expert with the State of Alabama's Department of Forensic Sciences, testified to the tests run on the .38 pistol that Mullis had obtained for Stubbs to use as the murder weapon. Harden was able to compare one of the test-fired bullets to that of the bullet recovered from the victim's body. In his opinion, he testified, the bullet could have been fired from that weapon.

Jane Elise Dewberry, a waitress at the Omelet Shoppe in Troy, testified that Mullis entered the restaurant around 8:30 p.m. on the night of the murder and ordered a cup of coffee. She testified that Mullis never ordered any food and was still seated in the restaurant when she completed her shift at 10:00 p.m. Ms. Dewberry, when questioned by the Troy Police Department a week and a half after the murder, had identified Mullis as a customer in the Omelet Shoppe that night. Ms. Dewberry had identified Mullis after being shown six different photographs. She testified that Officer Donald Brown of the Troy Police Department did not suggest that Mullis's photograph was the one of the suspect and that she recognized the photograph of the appellant from memory.

Archie Adams, Mullis's cellmate for three months in the Coffee County Jail, testified that Mullis admitted to him his involvement in the murder. He said Mullis also told him that Stubbs and Adams dropped him off at Leon Frier's house in Columbus, Georgia, on the night of the murder, and that this would be his alibi. Actually, Mullis, Stubbs, and Adams did stay at the home of Mullis's friend Leon Frier, but they did not arrive there until 5:00 a.m. on the morning of July 25, 1985.

Additionally, Archie Adams testified that Mullis gave him a letter that he had written in order to falsely implicate Mrs. Mullis in the killing. Adams said that Mullis wanted him to give it to his wife to have it recopied in her handwriting so that it would appear that it did not come from him. Adams took the letter and gave it to his wife with instructions for her to give the letter to the Coffee County Sheriff's Department. Adams's wife did, in fact, give the letter to the sheriff's office, and it was subsequently introduced into evidence at trial.

Richard Adams and David Stubbs were 17 years old at the time of the murder. Adams pleaded guilty to the lesser offense of murder and testified against Mullis. Adams also testified that the appellant told him that if he testified against him, he would make certain that he would not walk out of prison alive.

I

Mullis's first contention is that the trial court erred in refusing to grant his motion for a change of venue. He argues that there was extensive pre-trial publicity and that it created an atmosphere of prejudice that prevented him from obtaining a fair trial. Specifically, he contends that his motion should have been granted because four members of the venire indicated during voir dire that they had read or heard news accounts of the murder. However, each of those four veniremen, as well as all other venire members, indicated that they could be impartial and base their decision solely on the evidence presented at the trial. Moreover, the only veniremen struck were those who indicated their opposition to the death penalty or expressed some difficulty in acquitting Mullis if he did not testify in his own behalf.

To establish the existence of prejudice against a defendant sufficient to justify a change of venue, specific facts and circumstances must be established to indicate that it will be practically impossible to obtain an impartial jury to try the case, and such a showing may not be based on speculation. Kennedy v. State, 472 So.2d 1092, 1095 (Ala.Cr.App.1984), aff'd, 472 So.2d 1106 (Ala.), cert. denied, 474 U.S. 975, 106 S.Ct. 340, 88 L.Ed.2d 325 (1985). The accused must affirmatively show that pre-trial publicity has so saturated the community as to have a probable impact on the prospective jurors or that there is a connection between the publicity generated and the existence of actual juror prejudice. Langham v. State, 494 So.2d 910, 913 (Ala.Cr.App.1986); Grayson v. State, 479 So.2d 69, 74 (Ala.Cr.App.1984), cert. denied, 479 So.2d 76 (Ala.1985).

The fact that there was widespread publicity is not sufficient to require a change of venue, and a qualified juror need not be totally ignorant of the facts in the case. Peoples v. State, 510 So.2d 554, 563 (Ala.Cr.App.1986), aff'd, 510 So.2d 574 (Ala.), cert. denied, 484 U.S. 933, 108 S.Ct. 307, 98 L.Ed.2d 266 (1987).

The granting of an accused's motion for a change of venue rests in the sound discretion of the trial court,...