Musgrove v. State

• Court: Alabama Court of Criminal Appeals
• Writing for the Court: BOWEN
• Citation: Musgrove v. State, 519 So.2d 565 (Ala. Crim. App. 1986)
• Decision Date: 14 October 1986
• Docket Number: 8 Div. 345
• Parties: Phillip MUSGROVE v. STATE.

Page 565

519 So.2d 565

Phillip MUSGROVE v. STATE.

8 Div. 345.

Court of Criminal Appeals of Alabama.

Oct. 14, 1986.

Rehearing Denied Nov. 12, 1986.

Mark McDaniel and Marc Sandlin, Huntsville, for appellant.

Charles A. Graddick, Atty. Gen., and William D. Little and Gerrilyn V. Grant, Asst. Attys. Gen., for appellee.

BOWEN, Presiding Judge.

Phillip Musgrove was convicted of the capital murder and kidnapping of Deborah Lynn Burks in violation of Alabama Code 1975, § 13A-5-40(a)(1) and sentenced to death by electrocution. Six issues are raised on appeal.

The facts, as recorded by the trial judge in his sentencing order, recount a bizarre tale of criminal conduct, torture, and murder:

"I. FINDINGS OF FACT SUMMARIZING THE CRIME, AND, THE DEFENDANT'S PARTICIPATION IN IT

"At approximately 9:00 a.m. on the morning of Friday, November 11, 1983, the owner/manager- /manager of the Frank Ann Motel in Huntsville, Madison County, Alabama (Mr. S. Patel) discovered the bound, gagged, and naked body of a young, white female lying face-down in the shower stall of Room 15. He immediately called the Huntsville Police.

"Police investigation established that Room 15 had been leased on Wednesday, November 9, 1983 (and the lease extended for an additional day on November 10th) by a white male who had identified himself on the motel registration card as 'Phillip Musgrove.' In addition, the motel owner/manager was shown a 'photographic line-up' of six white males (State's Exhibit 3). He selected the photograph in the middle of the top row as that of the individual with whom he had dealt on November 9th and 10th. That photograph was of the defendant (and, apparently, had been taken of him on January 1, 1978, when defendant was booked on the charge of Driving Under the Influence: his only previous arrest).

"An 'All Points Bulletin' (APB) for the arrest of Phillip Musgrove then was transmitted from Huntsville via the NCIC network. On the evening of the same day--Friday, November 11, 1983--a homicide investigator with the Montgomery Police Department (Robert W. Davis) drove to the Day's Inn Motel in Hope Hull, Alabama. He discovered an automobile parked in front of Room 117 which matched the APB description: i.e., a two-door, Rust/Burnt-Orange colored, 1978 Chevrolet Nova bearing the Madison County tag attributed to defendant. A check with the motel's clerk confirmed that Room 117 was leased to a white male who had identified himself as 'Phillip Musgrove.' At that point, Officer Davis proceeded to the room. He was accompanied by Montgomery Police Officers L.O. Perdue and R.T. Ward, and two unidentified Deputies from the Montgomery County Sheriff's Department. The time was approximately 8:00 p.m.

"Upon being admitted to the motel room, the occupant identified himself as Phillip Musgrove. His 'Miranda rights' and warnings were read from both sides of a standard, billfold card. The defendant acknowledged that he understood his rights, and, that he wanted to 'go ahead and talk, and get it over with.' However, he was not questioned at that point. Rather, he was taken into custody. The following items of evidence were removed from his clothing: a large, two-bladed, folding Case knife (State's Exhibit 5); a key to Room 116 of the Catalina Motel in Huntsville (State's Exhibit 16); and, a key to Room 15 of the Frank Ann Motel (State's Exhibit 17). In addition, when defendant's automobile was driven from the motel to the Montgomery Police Department by Officer Davis, a bayonet (State's Exhibit 4) was discovered under the driver's seat.

"Upon arrival at the Montgomery Police Department, defendant was readvised of his 'Miranda rights' and warnings, but this time by means of a standard written form which Officer Davis completed by filling-in the blank spaces with a typewriter. Again, defendant acknowledged that he understood his rights, and, that he desired to discuss the events which had led to his arrest. Officer Davis required defendant to sign the form (State's Exhibit 1), and then proceeded to question him. Defendant gave an incriminating statement, and then was placed in a jail cell to await the arrival of Huntsville Police Officers. The time was approximately 9:30 p.m.

"During the early morning hours of the following day (Saturday, November 12, 1983), two members of the Huntsville Homicide Unit (Officers Danny Cox and Wayne Sharp) arrived in Montgomery. Before questioning the defendant, they again advised him of his 'Miranda rights' and warnings. Defendant again acknowledged that he understood and desired to discuss the incident. He again gave an incriminating statement.

"Defendant related the events which led to his arrest on at least three occasions prior to trial: first to MPD Officer Davis; second to HPD Officers Cox and Sharp; and third to his retained psychologist, Dr. Allen Shealey. All three statements were consistent in material respects, and varied only in the amount of detail supplied by the defendant. The following summary of his statements is a composite of the testimony received at trial.

"Defendant described having met the victim, Deborah Lynn ('Debbie') Burks, in a bar two or three months prior to her death. She was a dope addict--'a junkie'--and he felt sorry for her. They began dating, and then living together. Defendant professed to having fallen in love with her. He spent his 'life savings' of approximately $7,000 for: dilaudid tablets to support her drug habit; for food, clothing, shelter, and entertainment; and for methadone treatment at a drug clinic in Birmingham in an effort 'to get her life straightened out for her.'

"When defendant's money ran out, however, the relationship soured. He and Debbie separated. But defendant alleged he was not able to sleep, or to keep Debbie off his mind. On Wednesday, November 9, 1983, defendant left his mother's house (where he had been living since his break-up with Debbie) and rented Room 15 at the Frank Ann Motel. That evening, he went looking for Debbie, and found her at 'Buster's Lounge.' He asked her to spend the night with him, and she agreed--saying that she would come to his room about nine o'clock. He went back to the motel and waited. When Debbie had not arrived by midnight, however, defendant drove back to Buster's Lounge. Debbie was sitting at a table with a man named Bob Selens, who was a former employer of the defendant and allegedly 'one of his best friends.' Bob Selens was drunk, and asked defendant: 'Do you mind if I screw your girl friend?' Defendant replied: 'That's between you and her.' Defendant again asked Debbie to spend the night with him at the Frank Ann Motel. She again agreed, but said she wasn't ready to leave; that she would come when the lounge closed (around 2 a.m.). Defendant left the bar, and returned to his motel room to wait.

"When Debbie Burks still had not come to the motel by 3:30 or 4:00 a.m. on November 10th, he once more went looking for her. He drove to the Catalina Motel in Huntsville, where Debbie had most recently been residing, but discovered Bob Selens' Datsun 280Z sports car parked in front of her room (No. 116: State's Exhibit 16). He left. He drove around for a time, or went back to his own motel room. He eventually drove back to the Catalina Motel. At this point, the evidence is unclear: defendant either saw Bob Selens leaving the motel in his car, or, defendant saw that Selens' car no longer was parked in front of Room 116. In either event, defendant drove to a telephone and called Selens' home. He asked Selens whether he had engaged in sex with Debbie: 'Bob, how did you do?' [Officer Cox]; or, 'Bob, you ain't been screwing Debbie have you?' [Dr. Shealey]. To which inquiry Selens responded negatively, saying that Debbie 'had three or four guys in line in front of me with money she had to take care of first, and then she was going to give me a "freebie" '; but Selens alleged that he had tired of waiting after several hours, and left.

"Defendant then telephoned Debbie Burks at her Catalina motel room, and again asked her to come to his motel. Debbie said that she had a 'friend' in the room who was passed out drunk, and that she did not want to leave him alone. Defendant persuaded her that the 'friend' would be all right if he was sleeping, and Debbie consented. Defendant then drove to the Catalina Motel and Debbie got into his car. On the way back to the Frank Ann Motel, defendant stopped briefly to purchase cigarettes and soft drinks. Allegedly, Debbie became angry over the fact that defendant had purchased her a Coke, instead of a Mello-Yello.

"After entering the motel room, they took off their clothes in preparation for getting into bed. Defendant asked Debbie to perform an oral sex act, but she refused. Defendant argued with her, saying that he was only asking for a 'simple thing,' that he loved her and she loved him, and that he had 'spent all this money on you and everything.' Debbie persisted in her refusal, saying that she was 'tired.' The argument apparently intensified--defendant professing not to be able to understand why Debbie would have sex with three or four other guys, and Bob Selens, but not him. Debbie denied having sex with Bob Selens (Dr Shealey), at which point defendant apparently confronted her with Selens' statement that she would have given him a 'freebie' if Selens had waited. To which Debbie responded: 'Well, Bob is a good looking guy.' Defendant grabbed her, and started choking her. Debbie agreed to perform oral sex, but 'at that point, sex was the furtherest thing from his mind' (Shealey). Defendant continued to choke her, and to slap her, to the point that she began to lose consciousness. And then he quit.

"Defendant got up. He took Debbie's blouse from wherever she had laid it when undressing, and ripped it into strips. He then either told her he was going to bind and gag her, or asked whether 'she minded if he' did so. According to Dr. Shealey: 'She said she didn't mind.' ...