Peraita v. State

• Decision Date: 30 May 2003
• Citation: 897 So.2d 1161
• Parties: Cuhuatemoc Hinricky PERAITA v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

897 So.2d 1161

Cuhuatemoc Hinricky PERAITA v. STATE of Alabama.

CR-01-0289.

Court of Criminal Appeals of Alabama.

May 30, 2003.

Rehearing Denied August 15, 2003.

Charles E. Johns, Jr., and Everette A. Price, Jr., Brewton, for appellant.

William H. Pryor, Jr., atty. gen., and Anne C. Adams, asst. atty. gen., for appellee.

BASCHAB, Judge.

The appellant, Cuhuatemoc Hinricky Peraita, was convicted of two counts of capital murder for the murder of Quincy Lewis. The murder was made capital because the appellant committed it while he was under sentence of life imprisonment, see § 13A-5-40(a)(6), Ala.Code 1975, and because the appellant had been convicted of murder within the twenty years preceding the capital offense, see § 13A-5-40(a)(13), Ala.Code 1975. Pursuant to § 13A-5-44(c), Ala.Code 1975, the appellant and the State waived the right to have the jury participate in the sentencing hearing, and the trial court accepted the waiver. The trial court then conducted a sentencing hearing, received a presentence investigation, and sentenced the appellant to death. The appellant filed a motion for a new trial, which was overruled by operation of law. See Rule 24.4, Ala. R.Crim. P. This appeal followed.

The appellant raises several issues on appeal that he did not raise at trial. Although the lack of an objection at trial will not bar our review of an issue in a case that involves the death penalty, it will weigh against any claim of prejudice the appellant may raise. See Ex parte Kennedy, 472 So.2d 1106 (Ala.1985)

. Rule 45A, Ala. R.App. P., provides:

"In all cases in which the death penalty has been imposed, the Court of Criminal Appeals shall notice any plain error or defect in the proceedings under review ... whenever such error has or probably has adversely affected the substantial right of the appellant."

"[This] plain-error exception to the contemporaneous-objection rule is to be `used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result.'" United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985) (quoting United States v. Frady, 456 U.S. 152, 163 n. 14, 102 S.Ct. 1584, 1592 n. 14, 71 L.Ed.2d 816 n. 14 (1982)).

The State presented evidence that the appellant, Michael Castillo, and Quincy Lewis were incarcerated at Holman Prison on December 10 and 11, 1999. Around midnight, an incident occurred in which Lewis was stabbed several times. Shortly thereafter, he died as a result of his injuries. Kevin James Bishop was employed as a correctional officer at Holman Prison and worked from 10 p.m. on December 10, 1999, until 6 a.m. on December 11, 1999. At approximately 11:43 p.m., as officers were doing a body count to make sure all of the inmates who were assigned to Dorm 4 were accounted for, he saw the appellant in the dorm. The appellant said," `What's up Bishop,'" and did not indicate that he was scared for himself or Castillo. (R. 966.) Bishop testified that, if the appellant had asked to be removed from the dorm, he would have been placed in segregation in a cell by himself for his protection until the situation could be investigated. After the body count was completed, the lights were turned down for the night so that only about one-half of the lights were on.

Charles Smith was incarcerated at Holman Prison on the night of the offense and knew the appellant, Castillo, and Lewis. Five or six days before the offense occurred, he had seen the knife that was used to stab Lewis in a paper bag at the foot of Lewis' bed. He testified that he had heard Lewis tell the appellant to get the knife out of the bag and that the appellant had taken the knife and hidden it under his clothes.

Shortly before midnight and after the body count on the night the offense occurred, Smith saw Castillo and Lewis together. Lewis was walking toward the television room, but he stopped and sat on a bed across from Castillo's bed, where Castillo was sitting. When he did, the appellant, who was sitting on a box that was between the beds, got up to walk away. As the appellant walked between Castillo and Lewis, Lewis slapped him. The appellant continued to walk to his own bed. Smith testified that, after Lewis slapped the appellant, the other inmates were expecting something else to happen. He explained that some sort of response is common in a prison when one inmate slaps another inmate.

Smith testified that the appellant stayed at his bunk for two or three minutes and then returned to the box on which he had previously been sitting. After about three to five minutes, the appellant stood up and started out like he was going to leave again. However, he spun around, grabbed Lewis around the neck, and "snatched his neck back." (R. 1044.) Castillo then started stabbing Lewis in the neck and in several other places. In the process, he also stabbed the appellant in the arm. Eventually, Lewis put a towel to his neck and staggered out of the dorm. As he was doing so, Castillo gave the knife to the appellant. The appellant then "hit [Lewis] in the side" and said, "`Die, nigger.'" (R. 1045-46.)

Smith testified that the appellant and Castillo had paid Lewis two cartons of cigarettes to leave them alone and that he had asked Lewis several times to leave them alone. He also testified that Lewis could not stand the idea of the appellant being with Castillo. Finally, he stated that the appellant had been sleeping in the bed above Lewis' bed, but that he had changed to a different bed.

Alvin Hamner was also incarcerated at Holman Prison on the night of the incident and knew the appellant, Castillo, and Lewis. During the night, he heard some movement and turned to look at what was happening. At that time, he saw the appellant "holding Quincy Lewis around the neck and Castillo standing over him." (R. 1029.) He first thought Castillo was punching Lewis in the neck, chest, and stomach. However, after more lights were turned on, he saw blood and realized that Castillo had been stabbing Lewis. He testified that Castillo had the knife, but handed it to the appellant when the lights came on and officers entered the dorm. He further testified that, as Lewis was falling to the floor, he saw the appellant stab Lewis in the side. Lewis subsequently walked out of the dorm and into the hallway, where he again fell to the floor. As the appellant walked by Lewis, Hamner heard him say, "`M_____ f_____, die.'" (R. 1031.)

Alphonso Burroughs was also employed as a correctional officer at Holman Prison and worked from 10 p.m. on December 10, 1999, until 6 a.m. on December 11, 1999. When he walked into Dorm 4, he saw Lewis, who was covered with blood, walking from the area around Castillo's bed. The appellant and Castillo, who were also covered with blood, were in the same area only a few feet from Lewis, and the appellant had a knife in his hand.

Lewis walked out of the dorm and collapsed during the time Burroughs was escorting the appellant and Castillo out of the dorm. Burroughs went to help Lewis, and he told the appellant and Castillo to "go on up the hall." (R. 952.) The appellant and Castillo complied, and Burroughs, another officer, and two inmates picked up Lewis to carry him to the infirmary to get medical attention. Part of the way there, the appellant, who was still holding the knife, and Castillo turned around. The appellant waved the knife and said, "`Drop the bastard and let the bastard die.'" (R. 953.) The appellant, who appeared to be mad, continued to swing the knife and said, "`Y'all get back too or we'll cut you too.'" (R. 954.)

Bishop also saw the appellant and Castillo standing side by side in the dorm. Both were covered with blood, and the appellant had a knife in his hand. Shortly thereafter, Lewis walked out of the dorm and collapsed. As others helped Lewis, Bishop stayed between the appellant and Castillo and Lewis. He testified that he told the appellant several times to put the knife down. However, the appellant said he would not do so until he and Castillo were in segregation. The appellant and Castillo walked part of the way down the hall, but then they turned around, the appellant swung his knife toward Bishop, and said," `Put the bastard down and let the son-of-a-bitch die.' "(R. 972.)

Kevin Dale Boughner was also employed as a correctional officer at Holman Prison on December 10 and 11, 1999. He saw the appellant, who had a knife in his hand, walking toward the segregation area. The appellant and Castillo were "[c]overed with blood, arm [in] arm, walking down the hall at a very brisk pace" toward him. (R. 980.) The appellant looked at him and said," `If you get us to a safe place I'll give you the knife.'" (R. 980.) Boughner put them in a holding cell and locked the door, and the appellant threw the knife out. Boughner described the appellant as "really pumped up, hyper, adrenaline flowing, just really pumped up, hyped up." (R. 981.) He also stated that, on two occasions, the appellant asked, "`Is he dead?" (R. 982.)

Bishop remained with the appellant and Castillo while Burroughs, the other officer, and the two inmates carried Lewis to the infirmary. Burroughs testified that, while he was going toward the infirmary, Bishop and Boughner tried to lock the appellant and Castillo in separate holding cells. However, he heard the appellant say that he and Castillo would not give up the knife unless they were locked up together. Burroughs testified that, after he and Castillo were locked in a holding cell together, the appellant threw the knife to the floor.

Sergeant William James, the shift commander for the segregation area, saw the appellant and Castillo, who he described as "covered from head to toe with blood," as they were approaching the holding cell. (R. 991.) After he was secured in the holding cell, the appellant asked, "`Is he dead?'" (R. 991.)

Dr. William John McIntyre treated Lewis in the emergency room at Atmore Community Hospital approximately one...