Peak v. State
| Decision Date | 07 September 2012 |
| Docket Number | CR–10–0753. |
| Parties | Kendarius Lamond PEAK v. STATE of Alabama. |
| Court | Alabama Court of Criminal Appeals |
OPINION TEXT STARTS HERE
Alabama Supreme Court 1111251.
William R. Myers, Birmingham, for appellant.
Luther Strange, atty. gen., and Tracy M. Daniel, asst. atty. gen., for appellee.
The appellant, Kendarius Lamond Peak, was indicted by a Jefferson County grand jury for three counts of capital murder. Specifically, Peak was charged with the capital offense of murder committed during a first-degree burglary or an attempt thereof, see § 13A–5–40(a)(4), Ala.Code 1975; the capital offense of murder committed during a first-degree robbery or an attempt thereof, see § 13A–5–40(a)(2), Ala.Code 1975; and the capital offense of murder committed during a kidnapping or an attempt thereof, see § 13A–5–40(a)(1), Ala.Code 1975. Following a jury trial, Peak was convicted of the lesser-included offense of felony murder, see § 13A–6–2(a)(3), Ala.Code 1975. The circuit court sentenced Peak to 23 years' imprisonment and ordered Peak to pay a total of $4,941.62 in restitution.
The evidence presented at trial established the following pertinent facts. In August 2008, Natrice Mitchell and Romana “Bull” Keahey were in a dating relationship. Before Mitchell began dating Keahey,she had been in a long-term relationship with Robert Muse. Mitchell and Muse met when Mitchell was a freshman in high school. The two eventually lived together and had two children together. After Mitchell and Muse ended their relationship, Mitchell began dating Keahey. Mitchell and Keahey would sometimes stay together at the house Mitchell had shared with Muse. The record indicates that Muse and Keahey were cousins and were both drug dealers.
Mitchell and Muse maintained contact with one another for the benefit of their children. After Mitchell and Muse broke up and Mitchell began dating Keahey, Muse and Keahey got into an altercation as Muse was returning the children to Mitchell after a visit. While Muse was at Mitchell's house, he saw Keahey drive by, got angry, and asked Mitchell to call Keahey. Once Mitchell contacted Keahey, Muse took the telephone from Mitchell and began shouting profanity at Keahey. When asked whether Muse ever made any threats toward Keahey during this time, Mitchell testified that on two occasions Muse said that he wanted to rob Keahey.
Mitchell testified that on August 10, 2008, she arrived home at approximately 9:00 p.m. and found Keahey and his cousin inside the residence. Shortly thereafter, Keahey's cousin left in Keahey's truck, and Mitchell and Keahey went to bed. Sometime after going to sleep, Mitchell was awakened when she and Keahey were “flipped out of the bed.” (R. 578.) Mitchell saw two men dressed in black and wearing ski masks. Mitchell testified that one of the men, whose voice she identified as being Muses's, said “Ya'll sleep with the doors open.” (R. 578.) Mitchell recognized the men based on their “body structures” as being Muse and Peak. Mitchell stated that she also recognized Muse and Peak by their voices and when she saw their eyes through the holes in the ski masks. Mitchell testified that she had known Muse and Peak for six years. Mitchell stated that Muse and Peak each had a gun when they entered her bedroom.
After Muse and Peak “flipped” Mitchell and Keahey out of bed, Muse took Keahey out of the bedroom and into the hallway while Peak stayed in the bedroom with Mitchell. Peak kept his gun out while he was in the bedroom with Mitchell. Mitchell testified that she heard Muse ask Keahey where the money was and she then heard Keahey throw up. Keahey told Muse that there was no money in the house. Mitchell testified the Keahey then asked “Robert [Muse], why you doing this?” and Muse stated (R. 669.) Muse then returned Keahey to the bedroom and took Mitchell to the living room. While in the living room, Muse asked Mitchell “how could [she] do him like this, I thought we was going to get back together.” (R. 586.) After Mitchell and Muse finished talking, Muse returned to the bedroom and asked Keahey if he and Mitchell were just friends, to which Keahey responded in the affirmative. Muse and Peak then took Keahey's wallet, watch, and some marijuana. Afterwards, Muse and Peak took Keahey out of the bedroom, and Keahey asked for his wallet back. Mitchell testified that she was still in the bedroom when she heard the men “tussling” at the side door in the kitchen. Mitchell then heard a “click,” like Keahey had been “hit upside the head with a gun or something.” (R. 593.) Mitchell then heard Keahey “holler” and a few moments later heard gunshots and “heard a car pull off.” (R. 594.) After the car left, Mitchell ran outside around the house and called Keahey's name. When Keahey did not answer, Mitchell grabbed her car keys and left. Mitchell eventually went to her sister's house where she telephoned the police and gave a statement to investigators. Police subsequently found Keahey's body two houses down from the house where Mitchell and Keahey had been staying.
After Keahey's murder, Mitchell picked up her oldest son from Muse's cousin's house. When Mitchell arrived at the house, Muse and Peak were there. Mitchell testified that Peak came out to her car and apologized about what had happened at her house. Mitchell testified that Peak said (R. 601.)
Mitchell testified that she and Muse argued frequently following the murder. Mitchell explained that Muse was not there for the kids anymore and that she believed that Muse was upset about what he had done. Mitchell testified that she got upset and “bust[ed] out” Muse's car windows. (R. 602.) Mitchell also admitted to filing a false police report against Muse alleging that Muse had kidnapped someone.
Following the murder, Mitchell gave three statements to police—one statement immediately following the incident, a second statement in September 2008, and a third statement in December 2008. In her first two statements to police, Mitchell claimed that she did not know the identities of the two men who had robbed and murdered Keahey. During the second interview, Mitchell told police that Keahey told her that someone—not Muse or Peak—wanted to rob him. In her third interview with police, Mitchell told police that Peak and Muse robbed and murdered Keahey. Mitchell testified that she did not reveal the identities of Muse and Peak in her first two interviews with police because Muse was the father of her children. Mitchell testified that she decided to tell the police the truth because “it was the right thing to do.” (R. 605.)
John Glass, a neighbor of Mitchell's, testified that he was awake with his young grandson in the early morning hours of August 11 when the robbery and murder occurred. Glass testified that he heard a “muzzle gunshot and screams.” Glass ran to the front porch of the house and saw a man “pass and stop and another man come down and hand each other something.” (R. 710.) Glass described the first man as young, medium-colored, 5 feet, 125 pounds with short hair. He described the second man as lighter-skinned, 5 feet 8 or 9 inches with braided hair. Glass believed that the first man was in his “teens” and that the second man was in his “twenties.” (R. 715.) Glass testified that he could not hear what the two men were saying but saw the taller man hand the smaller man some items. Glass then heard two more rounds of gunshots go off in the driveway. After seeing a gun flash, Glass saw two men standing in the driveway and one lying on the ground. After the two men ran away, the taller man walked back toward the driveway and shot at the body on the ground. Glass then moved from his front porch to look out the side windows where he saw three people standing and a man in the driveway. Glass described the third man he saw as heavier, dark-skinned, and also in his 20s. Glass testified that everyone left in two vehicles.
Peak and Muse's first cousin, Valencia Harvell, helped Muse clean his house around the time of the murder. Valencia testified that while cleaning Muse's house she found a box of “practically new” ski masks on Muse's washer and dryer. (R. 530.) In the months before the murder, Valencia had overheard Muse say that he intended to rob Keahey. Valencia testified that Rodriques Thomas, who was also her cousin, had been spending time with Muse, Mitchell, and Keahey. Valencia described Thomas as being 19 years old at the time of the murder, skinny with dark, short hair, and of “medium” height. (R. 531.)
Another cousin of Peak and Muse's, Christopher Harvell, testified that Muse had said that he wanted to rob Keahey. Christopher testified that Muse had several guns that included a 9mm handgun and a 10mm handgun. Christopher testified that Peak carried a 9mm handgun that belonged to Muse.
Randy Underwood, a member of the crime-scene unit of the Birmingham Police Department, arrived at the crime scene at approximately 5:45 a.m. on August 11 to photograph the scene and to collect physical evidence. Underwood collected a 10mm shell casing in the front yard of the house where Keahey had been staying with Mitchell. Underwood collected two other 10mm shell casings near where Keahey's body was lying. Underwood estimated that Keahey's body was 120 feet from the house. Underwood collected a 9mm shell casing and another 10mm shell casing in the pathway near the side door of Keahey's house in addition to another 9mm shell casing beside the stairs to the house. Underwood also collected a baseball hat found in the alley behind Keahey's house. Underwood testified that the hat had a letter “P” on the front and that genetic testing on the hat revealed that it had been worn by a male.
Dr. Gary Simmons, a forensic pathologist who performed an autopsy on Keahey's...
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