Prewitt v. State

• Decision Date: 17 July 1984
• Docket Number: 1 Div. 555
• Citation: 460 So.2d 296
• Parties: Rickey Allen PREWITT v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 296

460 So.2d 296

Rickey Allen PREWITT v. STATE.

1 Div. 555.

Court of Criminal Appeals of Alabama.

July 17, 1984.

Rehearing Denied Aug. 14, 1984.

Certiorari Denied Nov. 30, 1984

Alabama Supreme Court 83-1356.

Michael Scheuermann, Mobile, for appellant.

Charles A. Graddick, Atty. Gen., and Helen P. Nelson and Edward Carnes, Asst. Attys. Gen., for appellee.

HARRIS, Judge.

Rickey Allen Prewitt was convicted of "murder for hire" pursuant to § 13A-5-31(a)(7), Code of Alabama 1975, for the brutal slaying of Mrs. Paul Leverett. In accordance with the jury's recommendation, the trial court sentenced Prewitt, the appellant herein, to life imprisonment without parole.

On the afternoon of May 30, 1980, Mrs. Leverett was murdered in her own home in Mobile, Alabama. The coroner testified that the victim died from a combination of gunshot and knife wounds. She had been shot once in the face and once in the neck. The latter shot, apparently, had first penetrated the victim's left hand before it entered her neck. The victim's throat had been slashed by at least four independent movements of a very sharp knife. The victim had also received a number of other knife wounds on her face and chest, at least some of which were inflicted by a long, sharp knife. The coroner further explained that all of the wounds could have been, and probably were, inflicted within a matter of seconds. He estimated that the victim had died within three hours of receiving those extensive injuries and that the time of death was between 3:00 p.m. and 5:20 p.m.

The key prosecution witness was Hilton Connell Robinson, a convicted criminal, who was an acquaintance of the appellant at the time of the instant offense. Robinson testified that on the afternoon of the murder, between 4:00 p.m. and 5:00 p.m., the appellant met him at Robinson's place of business in Mobile and told him that he, the appellant, pursuant to a "contract for hire," had murdered Mrs. Leverett in her own home. Robinson described the grisly details of the crime as they were, allegedly, related to him by the appellant. The details described by Robinson were substantially consistent with the circumstantial evidence presented by the state, including the physical evidence at the murder scene and the wounds inflicted upon Mrs. Leverett. Robinson further testified that he witnessed the "pay-off," when Mr. Leverett delivered $10,000 in one-hundred-dollar bills to the appellant.

The State also presented evidence that the appellant had made statements to others about his involvement in certain "murders for hire" statements which, arguably, referred to Mrs. Leverett's murder, and evidence that the appellant had purchased, just weeks before Mrs. Leverett's murder, a .357 Magnum pistol and a Gerber knife, weapons which were consistent with the wounds inflicted upon Mrs. Leverett.

The appellant presented an alibi defense. His mother and father testified that, on the day Mrs. Leverett was murdered, the appellant arrived at their home in Ackerman, Mississippi, between 12:30 p.m. and 2:00 p.m., and that he remained with them for the rest of the afternoon. The owner-operator of the Ackerman Supply Company, a friend of the appellant, testified that the appellant was in his store in Ackerman, Mississippi, between 11:00 a.m. and 1:30 p.m. on the day of the murder, and that Ackerman, Mississippi, is approximately 210 miles from Mobile, Alabama. (Robinson had previously testified that the appellant told him that he, the appellant, had arrived in Mobile by airplane at around noon on the day of the murder.)

The appellant also presented extensive evidence to discredit Robinson's testimony. Numerous witnesses testified that Robinson's general reputation in the community was "bad." Robinson, himself, had admitted that he was a convicted criminal. Other witnesses testified that Robinson had agreed to cooperate with the State and to testify against the appellant in exchange for the State's assistance in obtaining a reduction in those sentences which had already been imposed upon Robinson for two then-recent convictions.

The appellant did not testify in his own behalf.

The sufficiency of the evidence for conviction is not challenged on this appeal.

There is no merit in appellant's argument that the trial court's dismissal of a certain prospective juror, due to her opposition to capital punishment, constituted a Witherspoon violation. "The holding in Witherspoon is not applicable where the jury recommends a sentence less than the death sentence." Eady v. State, 284 Ala. 327, 224 So.2d 876 (1969); see, Brinks v. State, 44 Ala.App. 601, 217 So.2d 813, cert. denied, 283 Ala. 712, 217 So.2d 820 (1969); see also, Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), and Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). The appellant was sentenced, in this instance, to life imprisonment in the penitentiary without parole, rather than "death."

The appellant contends that, on three separate occasions during the presentation of the State's case in chief, evidence which referred to other possible, independent, offenses was presented in the presence of the jury. He argues that the combination of these three incidents effectively denied him his constitutional right to a fair trial. We disagree.

Contrary to appellant's arguments, only one of the incidents specifically referenced a possible, independent offense. Angie Smith testified that she met the appellant in July 1980 (after the instant offense had been committed), and that she lived with him from September 1980 until February 1981. The prosecutor questioned Smith, on direct examination, in an attempt to disclose any incriminating statements or admissions, with reference the instant offense, that the appellant might have made to her. Smith told the jury that during one conversation with the appellant in July or August 1980, he mentioned that he had previously squandered a large sum of money that he had received for a "job" that he had done in the spring of 1980. In a later conversation, in response to Smith's warning that the police might arrest him for some unpaid traffic tickets, the appellant told her that the traffic tickets were the "least of his worries" because the statute of limitations had not run "on that homicide I did." During the prosecution's apparent attempt to connect these statements with the instant offense, the following occurred:

"Q. He said--Did he tell you when he did the homicide?

"A. I didn't ask.

"Q. Did he tell you who he had killed?

"A. Some hot shot up north.

"Q. Did he provide--Now, this conversation--

"THE COURT: Mr. Galanos, Mr. Hanley, let me see you."

During the "bench conference" which followed, a conference called by the trial court even though there had been no objections by the appellant to this line of testimony, the trial court ruled that Smith's testimony concerning these conversations with the appellant was inadmissible because of the risk of injecting illegal evidence of another offense, unrelated to the instant offense. However, the trial court denied appellant's motion for a mistrial and, instead, instructed the jury to disregard Smith's last answer about "a job done up north." The trial court polled the jurors, each of whom indicated that he or she could disregard Smith's last answer and focus on the "allegations of the indictment."

The trial court's prompt, and unsolicited, actions in this instance cured any error that was introduced by Smith's unexpected answer to the prosecutor's question. See, Huffman v. State, 360 So.2d 1038 (Ala.Crim.App.1977), affirmed, 360 So.2d 1045 (Ala.1978); Barbee v. State, 395 So.2d 1128 (Ala.Crim.App.1981), and cases cited therein; Wood v. State, 416 So.2d 794 (Ala.Crim.App.1982).

Moreover, evidence of another "murder for hire" committed by the appellant might well have been admissible as an exception to the general exclusionary rule, if relevant to prove a "motive" for the instant offense, or to "identify" the appellant through a common scheme or pattern or a distinct modus operandi. See, generally, C. Gamble, McElroy's Alabama Evidence §§ 69.01(6)-(8) (3d ed. 1977); see also discussions in, Bynum v. State, 348 So.2d 804 (Ala.Crim.App.1976), cert. denied, 348 So.2d 828 (Ala.1977), cert. denied, 434 U.S. 1034, 98 S.Ct. 766, 54 L.Ed.2d 781 (1978); Allen v. State, 380 So.2d 313 (Ala.Crim.App.1979), cert. denied, 380 So.2d 341 (Ala.), cert. denied, 449 U.S. 842, 101 S.Ct. 121, 66 L.Ed.2d 49 (1980); and Brewer v. State, 440 So.2d 1155 (Ala.Crim.App.), cert. denied (Ala.1983). The applicability of these exceptions cannot be determined from this record because, in its desire to protect appellant's rights, the trial court preempted further inquiry into the details of the alleged other offense, details which might have rendered evidence of such an offense admissible.

The other two alleged references to another offense committed by this appellant are not substantiated in the record. Sandra Shephard, another acquaintance of the appellant, who met him after the instant offense had been committed, testified, over appellant's objection and after a thorough voir dire examination by both parties and by the trial court, that during conversations with the appellant in December 1980 he told her that he had previously killed someone for money and that he had been "offered a hit job before." Another witness testified that he had learned that the appellant had purchased "fourteen different firearms" from the Ackerman Supply Company.

Neither of these incidents specifically referenced another offense committed by the appellant. Shepard's testimony logically implied appellant's involvement in Mrs. Leverett's murder. This evidence was admissible either as appellant's own "admission" that he had indeed committed the instant offense, or as proof of his motive ("murder for hire") for the instant offense. See, generally, Miller v. State, 48...