Owens v. State, 4 Div. 536

• Decision Date: 12 February 1986
• Docket Number: 4 Div. 536
• Citation: 531 So.2d 2
• Parties: Charles Edward OWENS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 2

531 So.2d 2

Charles Edward OWENS v. STATE.

4 Div. 536.

Court of Criminal Appeals of Alabama.

Feb. 12, 1986.

Rehearing Denied April 8, 1986.

Michael J. Bellamy, Phenix City, for appellant.

Charles A. Graddick, Atty. Gen., and M. Beth Slate and William D. Little, Asst. Attys. Gen., for appellee.

PATTERSON, Judge.

Appellant, Charles Edward Owens, was indicted by the Spring 1982 term of the Russell County Grand Jury for the capital murder of Rebecca Heath. The indictment alleged that Mrs. Heath was murdered during a kidnapping in the first degree, in violation of § 13A-5-40(a)(1), Code of Alabama 1975. At the guilt finding phase of appellant's trial, a jury found him guilty as charged. At the sentence determining phase, the jury (nine voting for life imprisonment without parole and three voting for death) recommended that appellant be sentenced to a term of life imprisonment without parole. A presentence report was prepared by the State probation and parole officer and a hearing was held to resolve any factual disputes concerning the contents of that report. Subsequently another hearing was held before the trial judge in accordance with § 13A-5-47. The trial judge, after consideration of the jury's recommendation, determined that the aggravating circumstances outweighed the mitigating circumstances to the extent that the jury recommendation should not be followed. Appellant was sentenced to death by electrocution. The written findings of the trial court are attached to this opinion as Exhibit A. The trial and sentencing proceedings were conducted in accordance with Beck v. State, 396 So.2d 645 (Ala.1980), and §§ 13A-5-45 through 13A-5-52, Code of Alabama 1975.

On August 31, 1981, Mrs. Heath's body was found in a green Oldsmobile Cutlass automobile, which was located approximately The events leading up to the murder of Mrs. Heath began during the late spring or early summer months of 1981. Mrs. Heath had been married to Larry Heath ¹ (hereinafter referred to as Heath) for approximately three years by the summer of 1981. They had one child, Hamilton, and the family resided in a subdivision south of Phenix City, in Russell County, Alabama.

fifty feet off an old logging road (referred to as Old Smokey Road), against some pine trees, in Troup County, Georgia. An autopsy indicated that Mrs. Heath died as a result of a bullet wound to the head. The bullet entered Mrs. Heath's skull through her right eye and did not exit. Mrs. Heath was nine months pregnant, and a dead male fetus was removed from her body during the autopsy.

Denise Paige Lambert ² was twenty years old when she moved from Bristol, Virginia, to Columbus, Georgia, in May of 1981. She came to the Columbus area to gain experience in showing horses. Her parents provided her with money for living expenses while she resided in Columbus. Lambert met Heath during the summer of 1981, when she went to Banner Buildings, where Heath was employed, to purchase a camper top for her truck. Lambert and Heath subsequently became romantically involved. Heath told Lambert that he was married, but was seeking a divorce. Heath later told her that the divorce was final, but that Mrs. Heath would not move out of the house because she was having difficulty telling her parents that she was divorced and had lost custody of her son. This was a fabrication; Heath had never filed for divorce nor received a divorce from Mrs. Heath.

Heath accompanied Lambert to a family reunion, which was held the third weekend of August 1981. There, Heath was introduced to Lambert's parents and it was announced that Heath and Lambert would be married on October 18, 1981. Heath told Lambert that his divorce had become final on August 12, 1981. When Lambert returned to Columbus, she began making preparations for the upcoming marriage.

On Wednesday, August 26, 1981, Heath called Lambert and told her that Mrs. Heath had taken $58,000 from his bank account and given it to her father. Heath had told Lambert that he had received this money as payment for mercenary activities. Lambert later discovered that this was all untrue. This money, which did not exist, was to be used to purchase a horse farm in Tennessee after Heath and Lambert were married. Lambert stated that Heath was very upset when he told her about the money and said, "I'm going to have her killed," referring to Mrs. Heath. Lambert stated that she did not take this threat seriously, and she thought that "he was just mad and blowing off steam." On Friday, August 28, 1981, Heath told Lambert that he had found someone to do the job. Lambert stated that she did not actually believe Heath was serious until Saturday, August 29, 1981, when they went to a highway overpass in LaGrange, Georgia, where Heath stated, "I think this would be a good place for it to happen."

Jerry Heath ³ testified that his brother, Larry Heath, wanted to contact "someone to have somebody killed." Jerry sent his brother to see appellant because he thought appellant could "put him in contact with somebody." Three days later, Jerry saw his brother who told him that the man he had seen (appellant) could not help him and he was looking for someone else. Jerry said he did not know of anyone else. His brother became upset and told Jerry that he was afraid that he would lose his Joseph Pate testified that he was visiting Heath at Banner Buildings on August 24, 1981. Pate stated that appellant walked in and Heath said he had been waiting for appellant. According to Pate, appellant and Heath walked outside to talk with two black men waiting in a white " '64 or '65" Ford Mustang automobile. Heath spoke with these men for approximately five minutes, then returned to his desk, took out a revolver, and loaded it with "jacketed hollowpoints." Heath put the gun back in his desk drawer and went back to the men in the Mustang. One of the men (not appellant) got out of the back seat and he and Heath went behind a building, out of sight. Later Heath returned and the Mustang was gone.

                son if he sought a divorce.  One week later (the day before the murder), Jerry went to appellant's apartment to purchase some marijuana and when he arrived he saw his brother;  the appellant;  a man named Lumpkin;  and another man in appellant's apartment.  Heath had what looked like a pistol wrapped in a "baby diaper."   Jerry stated, "Whatever it is ya'll are up to, I don't want no part of it," and then he departed
                

Sanders Williams ⁴ stated that appellant introduced him to Heath during August of 1981. Williams stated that he went to appellant's apartment and appellant and Greg Lumpkin ⁵ were present. Appellant asked Williams if he wanted to "make some money." Williams said it depended on what he wanted done. Williams, Lumpkin, and appellant went to Banner Buildings, in a white Mustang, to see Heath. Williams rode in the back seat; appellant and Lumpkin were in the front. Appellant first spoke with Heath, then Williams got out of the car and talked with Heath. Williams and Heath walked away from the car and went behind "one of those little buildings," on the Banner Buildings lot. Heath asked Williams to kill "his girlfriend." Williams responded, "I don't know man." Heath then gave Williams $100 "for good faith" and told him to "just think about it." Heath also told Williams that a gun would be supplied. Some time later appellant delivered a gun and bullets to Williams. (This was apparently the same meeting which Pate witnessed on August 24, 1981.)

Williams then accompanied appellant and Lumpkin to purchase a car. Williams did not go to the car lot. When Lumpkin and appellant returned, they had purchased an automobile, a "black Thunderbird." Williams was then supposed to drive in the Thunderbird to a LaGrange shopping mall to kill Mrs. Heath and make it look like a robbery; however, it was determined that it was too late to do the act that day.

Williams departed with the Thunderbird and drove to Alabama. He took the gun to a pawn shop and sold it for $100. The next day he took the car back to appellant. Appellant wanted the gun back also. Williams told appellant he would get the gun, but after that, Williams stayed away from appellant and had no further involvement with appellant or Heath.

Denise Lambert testified that Heath originally told her that he was going to have an "old marine buddy" come in from out of town to kill Mrs. Heath. Later Heath said that the deal with the "marine buddy" fell through and he had found someone else to do the job, but did not say who this other person was.

On Sunday, August 30, 1981, Heath asked Lambert to keep his son, Hamilton, overnight. Heath returned at 6:00 or 6:30 Monday morning and told Lambert to get Hamilton dressed and go to a service station Shortly thereafter Lambert took the passenger seat in her truck in order to tend to Hamilton and Heath drove the truck toward his residence. The Mustang and Cutlass followed behind the truck. Heath stopped the truck at the road leading to the Heath home. Heath told the driver of the Cutlass, "It's the second house on the left." The Cutlass and Mustang pulled around the truck and headed toward the Heath home.

beside Banner Buildings, where he would meet them. Lambert arrived at the service station at approximately 7:00 a.m. She observed a white Mustang parked in the lot, next to Heath's green Oldsmobile Cutlass. Heath and appellant were standing between the two cars and talking.

Heath drove the truck back to Phenix City and parked at a service station. Heath said he wanted to wait and see if the "cars got out of the driveway okay." According to Lambert, the Cutlass and Mustang never came by. Heath drove the truck back toward the house and stopped at a church near the Heath home. Heath walked to the woods behind the church. When he returned he said "that they were gone."

Heath took Lambert and Hamilton back to Lambert's apartment. Prior to leaving, Heath handed Lambert "some folding money" and said, ...