Pilley v. State

• Decision Date: 27 May 2005
• Docket Number: CR-01-1275.
• Citation: 930 So.2d 550
• Parties: Stephen PILLEY v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

930 So.2d 550

Stephen PILLEY v. STATE of Alabama.

CR-01-1275.

Court of Criminal Appeals of Alabama.

May 27, 2005.

Rehearing Denied July 8, 2005.

Certiorari Denied November 18, 2005 Alabama Supreme Court 1041599.

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John Scott Waddell and Daniel W. Wainscott, Birmingham, for appellant.

William H. Pryor, Jr., atty. gen., and Tracy Daniel, asst. atty. gen., for appellee.

WISE, Judge.

Stephen Pilley was convicted of murder made capital in connection with the deaths of Pamela Dodd, Lester Edward Dodd, William A. Nelson, Sr., James Watkins, and Florence Adell Elliott. The murders were made capital because they were committed "by one act or pursuant to one scheme or course of conduct." See § 13A-5-40(a)(10), Ala.Code 1975. After a sentencing hearing, the jury unanimously recommended that Pilley be sentenced to death. The trial court accepted the jury's recommendation and sentenced Pilley to death.

On August 14, 1998, this Court affirmed Pilley's conviction and sentence. Pilley v. State, 789 So.2d 870 (Ala.Crim.App.1998). Pilley petitioned the Alabama Supreme Court for certiorari review on October 16, 1998. The Supreme Court granted the petition, pursuant to former Rule 39(c), Ala.R.App.P.¹ On January 28, 2000, the Supreme Court reversed Pilley's conviction and sentence, holding that the circuit court should have declared a mistrial after learning that the deputy district attorney who tried this case contacted a juror who attended church with him after the jury was selected, but before Pilley's trial began. However, the court noted, there was sufficient evidence from which the jury could have found either that Pilley was directly responsible for the murders or that he was an accomplice. Ex parte Pilley, 789 So.2d 888 (Ala.2000). The Supreme Court remanded Pilley's case for this Court to order a new trial, which we did. Pilley v. State, 789 So.2d 895 (Ala.Crim.App.2000).

Pilley's new trial began on October 1, 2001. After hearing all of the evidence the jury once again convicted Pilley of the same capital offense—murder made capital because the five homicides were committed "by one act or pursuant to one scheme or course of conduct." Following a sentencing hearing, the jury recommended, by a vote of 10-2, that Pilley be sentenced to death. The circuit court adopted the jury's recommendation and sentenced Pilley to death.

In the original opinion affirming Pilley's capital-murder conviction and death sentence, this Court made detailed findings of fact, which the Supreme Court quoted in its opinion. We quote from those facts the facts presented during Pilley's second trial, indicating by brackets the information gleaned from the evidence presented during this trial:

"On the morning of October 16, 1994, the bodies of Lester Edward Dodd, Pamela Dodd, William A. Nelson, Sr., James Watkins, and Florence Adell Elliott were found in the Changing Times Lounge, a neighborhood bar, in Birmingham. The Dodds, who worked at the bar, were found lying facedown in the pool-table area of the lounge, while the other three, who were regular bar patrons, were found lying facedown in the bar area. The positions of the bodies suggested an `execution style' killing. All five died from gunshot wounds to the top or back of the head, inflicted by two distinctive types of handgun ammunition:.25 caliber CTI Blazer bullets and 9mm Glazer bullets. A forensic expert testified that, while no guns were ever recovered, he was certain that two weapons had been used in these murders. The bar had been ransacked, the cash register emptied, and the personal effects of the victims scattered around the bar.

"A bartender at the Crazy Eights Bar in Bessemer testified that, around 7:00 p.m. on October 15, 1994, while working in the bar, he overheard Pilley and Andrew Apicella discussing a way to make some `easy money.' The bartender testified that he heard Pilley tell Apicella that he did not have a gun, and Apicella responded by telling him he could get guns. Shortly after this conversation, Pilley and Apicella left the Crazy Eights Bar.

"[A number of] customers who had been at the Changing Times Lounge at various times the night of October 15, 1994, identified Pilley as having been in the bar that night with another male. These witnesses remembered Pilley and his friend because they were not regular customers and because [either Pilley or his friend approached a regular customer at the jukebox, requesting that she play a particular song]. While Pilley's friend was playing pool, Pilley would wander about the bar. The last of these witnesses to leave the bar testified that when he left at [approximately 12:30 a.m.], Pilley and his friend were still in the bar with about five other customers and the Dodds.

"Rhonda Haynes, a friend of Pilley's, testified that, after she had gone to bed on the night of October 15, 1994, Pilley and Andrew Apicella came to her house unannounced, and asked her to arrange for a motel room where they could spend the night. They stayed with her until daybreak, injecting each other with a cocaine solution. During that stay, Haynes helped the two men count and divide money they claimed to have won at a bar playing pool. . . . From this money, Pilley handed Haynes five $2 bills, asking her to hold them for him.

"The former testimony of Pamela Haddix was read into evidence, indicating that Ms. Haddix had lived with one of the victims, William A. Nelson, Sr. According to Ms. Haddix's testimony, it was their custom to save $2 bills to give to their grandchildren as gifts. Ms. Haddix testified that, at the time of his death, Mr. Nelson had five $2 bills folded in a `secret pocket' in his wallet.

"A lawyer, retained by the Apicella family on an unrelated matter, turned over to police jewelry that was subsequently identified as belonging to Pamela Dodd."

789 So.2d at 874-75.

Sgt. Johnny Long, a Birmingham Police Department homicide detective, was the lead investigator of the murders at the Changing Times Lounge. During his investigation, Sgt. Long interviewed Pilley several times.² Pilley initially told Sgt. Long that the last time he had gone to the Changing Times Lounge was more than a month before the killings. However, in subsequent interviews, Pilley told Sgt. Long that he had, in fact, been in the lounge on the night of the killings, but he claimed that he went there alone and that he left before 11:00 p.m. Finally, Pilley told Sgt. Long that he had been in the Changing Times Lounge with Andrew Apicella, who was his accomplice, but he denied knowing Apicella or participating in the robbery-homicides of the five victims. As a result of Sgt. Long's investigation, he arrested two people—Pilley and Apicella— and charged them with capital murder.

At trial, Pilley denied any knowledge of Apicella's plan to rob and murder the customers and employees of the Changing Times Lounge. Pilley claimed that Apicella had threatened him and his family if he told the police what had happened. Pilley's version of the events surrounding the murders was detailed, but somewhat inconsistent. However, Pilley did not blame the inconsistencies on intoxication. Rather, Pilley claimed that he had not told the police the facts to which he now testified because, at the time of his interviews, he did not believe this information to be relevant to the investigation. Pilley also denied using cocaine at Rhonda Haynes's house following the murders. He maintained that he filled his syringe with water, rather than a cocaine solution.

After both sides had rested and the circuit court had instructed the jury on the law applicable to Pilley's case, the jury determined that the murders of the Dodds, Nelson, Watkins, and Elliott were committed pursuant to a common scheme or plan, and it convicted Pilley of capital murder.³

During the penalty phase of Pilley's trial, the State resubmitted all of the evidence it had introduced during the guilt phase. Pilley presented no evidence. After both sides had rested and the circuit court had instructed the jury on the law applicable to the penalty phase, the jury returned an advisory verdict recommending that Pilley be sentenced to death.

Standard of Review

In every case in which the death penalty is imposed, this Court must review the record for any plain error, i.e., for any defect in the proceedings, whether or not the defect was brought to the attention of the trial court. 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, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial right of the appellant."

As this Court stated in Hall v. State, 820 So.2d 113, 121-22 (Ala.Crim. App.1999), aff'd, 820 So.2d 152 (Ala.2001):

"The standard of review in reviewing a claim under the plain-error doctrine is stricter than the standard used in reviewing an issue that was properly raised in the trial court or on appeal. As the United States Supreme Court stated in United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985), the plain-error doctrine applies only if the error is `particularly egregious' and if it `seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.' See Ex parte Price, 725 So.2d 1063 (Ala.1998), cert. denied, 526 U.S. 1133, 119 S.Ct. 1809, 143 L.Ed.2d 1012 (1999); Burgess v. State, 723 So.2d 742 (Ala.Cr.App.1997), aff'd, 723 So.2d 770 (Ala.1998), cert. denied, 526 U.S. 1052, 119 S.Ct. 1360, 143 L.Ed.2d 521 (1999); Johnson v. State, 620 So.2d 679, 701 (Ala.Cr.App.1992), rev'd on other grounds, 620 So.2d 709 (Ala.1993), on remand, 620 So.2d 714 (Ala.Cr.App.), cert. denied, 510 U.S. 905, ...