Perkins v. State

Citation808 So.2d 1041
PartiesRoy Edward PERKINS v. State.
Decision Date19 November 1999
CourtAlabama Court of Criminal Appeals

Joseph S. Dice, Tuscaloosa; and Andrew A. Smith, Northport, for appellant.

Bill Pryor, atty. gen.; and Jeremy W. Armstrong, Paul H. Blackwell, Jr., and Andy Scott Poole, asst. attys. gen., for appellee.

LONG, Presiding Judge.

The appellant, Roy Edward Perkins, was convicted of murder made capital because it was committed during the course of a kidnapping in the first degree. See § 13A-5-40(a)(1), Ala.Code 1975. The jury, by a vote of 10-2, recommended that Perkins be sentenced to death. The trial court accepted the jury's recommendation and sentenced Perkins to death.

The State's evidence tended to show the following. On August 9, 1990, at approximately 4:00 p.m., 33-year-old Cathy Gilliam was abducted at gunpoint from her home in the Tuscaloosa County community of New Lexington. Candace Gilliam, Mrs. Gilliam's daughter, testified that she was in her bedroom at approximately 4:00 p.m. on August 9, when she heard her mother scream. After this testimony, Candace, who was 14 years old at the time of the trial, was excused from the courtroom; in lieu of further live testimony from Candace, it was stipulated that her testimony would have been as follows had she continued to testify: When she heard her mother scream a second time, Candace went to the kitchen. There she saw a man holding her mother and pointing a black pistol at her mother's head. She heard her mother yell for help and say "something about a rapist." (R. 1755.) Candace watched as the man led her mother outside to a vehicle parked behind her mother's car. She could not see the vehicle well, but did notice that it was bigger than a car and that it was gray in color. At that point, Candace telephoned her grandmother. Candace was unable to give a detailed description of the man who had abducted her mother, but she did tell police that the man had brown, straight hair and a thin beard, and that he was not much taller than her mother.

Maudeen Hood, a resident of New Lexington who lived two to three miles from the Gilliam residence, testified that at approximately 5:00 p.m. on August 9, Cathy Gilliam knocked on her back door. According to Hood, Mrs. Gilliam stated that she had been shot and that she was going to die, and she asked Hood to call her father-in-law and to take her to the hospital. Hood stated that she helped Mrs. Gilliam into her kitchen, where Mrs. Gilliam lay on the floor; Hood then telephoned Mrs. Gilliam's father-in-law. When no one answered, Hood telephoned for help. Mrs. Gilliam told Hood that her assailant was about her husband's size, had long brown hair, a beard, and a mustache, and was driving a gray pickup truck. Mrs. Gilliam also told Hood that her assailant had brought her to Hood's house and that he had said that he did not mean to shoot her.

At approximately 5:15 p.m. on August 9, Norman Eldon Willingham, an Alabama state trooper, and Harry Montgomery, Chief Deputy Sheriff of the Tuscaloosa County Sheriffs Department, arrived at the Hood residence. Willingham testified that upon arriving, he saw Mrs. Gilliam lying on the kitchen floor; she had a gunshot wound to her chest. He stated that although Mrs. Gilliam had been shot in the chest, he immediately noticed that there was no hole in the front of her shirt. He stated that Mrs. Gilliam appeared pale, that she was having trouble breathing, and that she was complaining of pain and asking for help. When Willingham asked Mrs. Gilliam to describe her assailant, Mrs. Gilliam told him that he was a white male, approximately 30 years old, with medium-length hair and facial hair, and he was driving a gray full-size pickup truck. In addition, Mrs. Gilliam told Willingham that she had been sitting down when she was shot, and that it had been at least one hour since the shooting. Montgomery testified that he asked Mrs. Gilliam if she knew her assailant, and that she responded that she did not.

Gary Wayne Hunnicut, fire chief with the Samantha Volunteer Fire Department, testified that he was dispatched to the Hood residence on August 9, 1990. He stated that when he arrived, Donnie Hallman, a fellow volunteer, was already on the scene treating Mrs. Gilliam. In addition, both Willingham and Montgomery were present. Hunnicut testified that while he and Hallman were treating Mrs. Gilliam, he heard either Willingham or Montgomery ask Mrs. Gilliam if Perkins was her assailant. According to Hunnicut, Mrs. Gilliam "grunted" and nodded her head in the affirmative. (R. 1287.) In addition, Hunnicut said he heard Mrs. Gilliam grunt and saw her nod her head in the affirmative when either Willingham or Montgomery asked her if she had been shot with a pistol.

Scott Sassaman, a paramedic with the Suburban Ambulance Company, testified that he arrived at the Hood residence at approximately 5:46 p.m. on August 9. Hallman was already working on Mrs. Gilliam. Sassaman stated that he took over Mrs. Gilliam's treatment and put Mrs. Gilliam in "mass trousers"—air-filled pants that move blood from the lower body to the upper extremities. (R. 2023.) Sassaman stated that he saw no gunpowder residue on Mrs. Gilliam. According to Sassaman, Mrs. Gilliam was placed in the ambulance at approximately 6:00 p.m. While in the ambulance, Sassaman said, Mrs. Gilliam expressed concern about her family and stated that she was going to die. Mrs. Gilliam died in the ambulance on the way to the hospital.

On August 10, 1990, Kenneth Warner, the State Medical Examiner for Tuscaloosa County, performed an autopsy on Mrs. Gilliam. Warner testified that Mrs. Gilliam died from a gunshot wound to her chest that destroyed her liver. He stated that, in addition to the gunshot wound, there was a stab wound just above Mrs. Gilliam's right collarbone. The hyoid bone in Mrs. Gilliam's neck was broken, Warner said, and there was hemorrhaging in her neck muscles. Warner stated that these injuries were consistent with a struggle having taken place. Warner also stated that he found no evidence that Mrs. Gilliam had been raped and that there was no gunpowder residue around the gunshot wound. He testified that if Mrs. Gilliam was wearing a shirt at the time of the shooting, the absence of gunpowder residue around the wound would be meaningless, but that if Mrs. Gilliam was not wearing a shirt when she was shot, the absence of gunpowder residue would indicate that the fatal shot was fired from at least 18 inches away.

Vernon Hudson, Chief Deputy of the Fayette County Sheriff's Department, testified that he was driving south on Highway 63 on August 9, 1990, at approximately 5:30 p.m., when he saw Perkins, whom he knew personally, driving north in a gray pickup truck. Hudson stated that he knew Perkins was wanted in connection with the shooting of a woman in Tuscaloosa County, so he turned around and followed Perkins. According to Hudson, he lost sight of the pickup truck briefly when he turned around, but he saw dust on a dirt road off Highway 63 and he turned down the road. Hudson said he found a gray, 1979 Chevrolet pickup truck abandoned just off the dirt road, and that the keys were in the ignition. Hudson stated that he notified a dispatcher that he had found the truck Perkins was driving and that he stayed with the truck until the homicide unit arrived, at which time, he said, he turned the truck over to Investigator J.R. Simpson. Hudson testified that he found the truck approximately one-half mile from the homes of Perkins's mother and grandmother.

Investigator Simpson testified that he responded to a call regarding an abandoned truck believed to have been driven by Perkins. He stated that when he arrived in Fayette County just off Highway 63, he took photographs of the abandoned truck. He stated that the truck had a gunshot hole in the front windshield and a gunshot hole in the roof of the cab. On cross-examination, he stated that he believed both holes were caused by shots fired from within the truck, most likely from the driver's side. The truck was towed to the homicide unit's impound lot and was "processed" for evidence by Simpson and Dr. John McDuffie, a trace-evidence examiner with the Alabama Department of Forensic Sciences.

At trial, Perkins stipulated to the following facts, which the trial judge read to the jury:

"The defendant caused the death of Cathy Gilliam with a .357 Magnum pistol. That's number one. Number two, the defendant, Mr. Roy Perkins, was in the 1979 Chevrolet gray pickup truck shown in State's Exhibit number 23. Number three, Cathy Gilliam's blood was found in the 1979 gray Chevrolet pickup truck shown in State's Exhibit number 23."

(R. 2087.)

The State presented evidence that Simpson and McDuffie found a wallet containing Perkins's driver's license and a fragment of a projectile in the gray truck. Fibers from the shorts Mrs. Gilliam was wearing at the time of her abduction were also found in the truck. Perkins's fingerprints were found on the outside of the driver's door of the truck. Further, both the driver and front passenger seats contained reddish stains; the stained portions of the seats were cut out and sent to Dr. Phyllis T. Rollan, a forensic serologist with the Alabama Department of Forensic Sciences. Dr. Rollan testified that the stain found on the back of the front passenger seat was consistent with Mrs. Gilliam's blood.

After the abandoned truck was discovered, the police began searching for Perkins in Fayette County. Bobby Mason, an enforcement agent with the Alabama Alcoholic Beverage Control Board, testified that he participated in the search for Perkins in Fayette County. He stated that on August 11, 1990, he found a campsite in the woods near the homes of Perkins's mother and grandmother. At the campsite, Mason found quilts, cigarettes, various food items, wire-cutters, 10 feet of rope, and a .357 Magnum handgun.

Baxter Pate, a...

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