Robinson v. State

• Decision Date: 01 March 1991
• Docket Number: CR-89-477
• Citation: 584 So.2d 533
• Parties: Willie Joe ROBINSON v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 533

584 So.2d 533

Willie Joe ROBINSON v. STATE.

CR-89-477.

Court of Criminal Appeals of Alabama.

March 1, 1991.

S. Lynn Marie McKenzie of Knight & Griffith, Cullman, for appellant.

Don Siegelman, Atty. Gen., and Margaret S. Childers, Asst. Atty. Gen., for appellee.

ON APPLICATION FOR REHEARING

BOWEN, Judge.

The opinion released December 28, 1990, is withdrawn. The following becomes the opinion of this Court.

Willie Joe Robinson was convicted of two counts of murder and was sentenced as a habitual offender to life imprisonment without parole. He raises six issues on this appeal of those convictions.

On the evening of March 5, 1989, Kerry Clutts was driving from Huntsville to Birmingham on Interstate 65 South when a blue Mazda pickup truck passed him about two miles past the Cullman-Good Hope interchange. The truck was going about 75 miles per hour and was crowding the lane in which Clutts was driving. When the truck cleared Mr. Clutts's vehicle, it stayed in the middle of the road and then suddenly veered left, careened into a ditch in the median, and "somersaulted" into the oncoming northbound traffic. The pick-up truck struck a white GMC "Blazer-type" vehicle whose occupants, Rickey Shoemake and his wife, Edith, were dead when the paramedics arrived.

Mr. Clutts stopped his vehicle and ran back to the site of the wreck. He saw a slim black male, about five feet ten inches tall, lying next to the driver's side of the blue pickup truck. The man was moaning and saying that a car had "cut him off." Clutts was unable to identify the defendant at trial as the man he observed at the site of the wreck.

Cullman Deputy Sheriff James Douglas Williams arrived about five minutes after the collision. He was the first law enforcement officer at the accident scene. He saw a man, whom he identified at trial as the defendant, leaning against a blue pickup truck. Deputy Williams detected a "very noticeable" odor of alcohol as he helped the defendant to the back seat of his patrol car. Williams asked the defendant whether anyone was with him and the defendant said "[N]o, he was driving, he didn't think anybody was with him, somebody hit him." When the deputy asked the defendant whether he had been drinking, the defendant said he "thought so."

Cullman Deputy Sheriff Dennis Spradlin remained with the defendant until the defendant was taken by ambulance to the Cullman Medical Center. He testified that the defendant had a strong odor of alcohol, slurred speech, and a "staggerish" walk. The defendant pronounced words incorrectly and gave "vague" responses to Spradlin. In Spradlin's opinion, the defendant was "under the influence."

Phyllis Teague and Bobby Goodwin, members of the ambulance team that transported the defendant to the hospital emergency room, both testified that they noticed an odor of alcohol on the defendant. When Ms. Teague asked the defendant if he had had anything to drink, he replied that he had had two beers.

A blood sample drawn from the defendant at 9:00 p.m., approximately one hour after the collision, showed a blood alcohol level of .193%. A later sample, drawn from the defendant at 11:30 p.m. the same night, revealed a blood alcohol level of .13%. There was testimony that "[a]lcohol is eliminated in a male at a rate of .15% per hour."

Blood samples were also taken from the bodies of both victims. Rickey Shoemake's blood tested negative for alcohol or drugs. Edith Shoemake's blood sample contained no alcohol, but showed a small level of codeine, consistent with the amount found in a dose of nonprescription cough medicine.

I

The indictments charged that the defendant

"did recklessly engage in conduct which manifested extreme indifference to human life and created a grave risk of death to a person other than [the defendant], and did thereby cause the death of Edith Nunnelee Shoemake [and] Rickey Allen Shoemake by operating a motor vehicle while under the influence of alcohol and thereby striking with his vehicle the vehicle in which [the victims] w[ere] occupant[s], in violation of Title 13A-6-2 of the Code of Alabama."

At trial, the defendant moved for a judgment of acquittal, contending on several grounds that the evidence was insufficient to convict him. On appeal, he challenges only the State's proof that he was operating or was in "actual physical control" of the truck which collided with the victims' automobile. He claims the evidence was deficient because: (1) he was not found behind the steering wheel or inside the truck after the wreck; and (2) the only eyewitness to the collision could neither identify him as the individual driving the truck nor eliminate the possibility that the truck had more than one occupant.

The State's evidence of "actual physical control" was sufficient because, if for no other reason, the defendant admitted that "he was driving" to Deputy Williams, the first officer on the scene. The defendant also gave a statement to State Trooper Ricky Dale later that night at the hospital emergency room, which read, in pertinent part:

"I ... got on I-65 at Priceville headed south. I remember passing Lacon and got up to the first Cullman exit. I remember seeing a truck stop on the left side of the road. I continued on to the next exit where I observed a car coming onto the Interstate. This vehicle merged in front of me. I downshifted to third and hit my brakes. I remember tumbling or banging around inside the truck. The next thing I remember a lady and a man came up to me as I laid on the ground. A law enforcement officer helped me to a vehicle where I could lay down."

" 'Actual physical control' is determined by a totality-of-the-circumstances test. Cagle v. City of Gadsden, 495 So.2d 1144 (Ala.1986)." Davis v. State, 505 So.2d 1303, 1305 (Ala.Cr.App.1987). " '[P]ositive, direct, or eyewitness testimony is not required.' Moon v. City of Montgomery, 536 So.2d 139, 141 (Ala.Cr.App.1988). See also Bickerstaff v. State, 516 So.2d 800, 801 (Ala.1987); Cagle, 495 So.2d at 1147; Davis v. State, 505 So.2d [at 1305-06]." McLaney v. City of Montgomery, 570 So.2d 881, 882 (Ala.Cr.App.1990). Even without the defendant's admissions, the State's evidence was, under a totality-of-the-circumstances test, "inconsistent with any reasonable hypothesis that the defendant [was] innocent." Davis, 505 So.2d at 1305.

II

The defendant argues that the trial court erred by denying his request for state funds to obtain an independent analysis of his blood samples.

The defendant was initially represented by retained counsel, who entered an appearance on May 2, 1989. On May 9, the defendant's retained attorney filed a number of motions, including a motion for state funds to secure an independent analysis of the defendant's blood samples and a motion to proceed in forma pauperis with a request for the appointment of counsel. On May 9, the trial court entered the following order:

"Defendant's Motion for Independent Analysis of Blood Sample is granted but the defendant must secure his expert, must examine the blood in the presence of an officer or any person legally in possession, must complete the sampling on or by Monday, May 22, 1989, when the case is set for trial, and must not dissipate all of the blood sample being examined.... The Defendant's Motion to Proceed in Forma Pauperis and appointment of counsel is reserved for the further pleading day, Friday, May 19, 1989, after the Defendant files his affidavit under oath of indigency before this judge."

Neither retained nor appointed defense counsel ever objected to this ruling. There was no request that the ruling on the independent analysis at state expense be delayed or reserved until after the ruling on the determination of indigency.

The case was continued from the May trial docket. In late June, retained counsel filed a motion to withdraw for non-payment of his fee. The motion was granted on July 6. The next day, defendant filed an affidavit of indigency, and current counsel was appointed to represent him.

Section 15-12-21(d), Code of Alabama 1975, "clearly authorizes reimbursement for any expense reasonably incurred in the defense of an indigent by a court appointed attorney if such expense is approved in advance by the trial court." Bailey v. State, 421 So.2d 1364, 1367 (Ala.Cr.App.1982). The court's duty to appoint counsel or to approve expenses is necessarily contingent upon a prior showing of indigency. Here, the trial court had no authority to grant the defendant anything "at state expense" until the defendant had been determined to be and had been declared indigent. See §§ 15-12-1(1), 15-12-5(c), and 15-12-21, Ala.Code (1975).

After retained counsel withdrew, the defendant filed an affidavit of indigency. He was then determined to be indigent by the trial court and an attorney was appointed to represent him. However, after that determination of indigency, there was no request that the independent analysis be performed at state expense. This motion was simply not pursued and was not brought to the attention of the trial court after the defendant had been declared indigent.

Under the circumstances, the court did not have the statutory authority to approve a request for defense expenses on May 9. Later, when it did have that authority, it was never presented with a request for such expenses. We reject the defendant's speculation that the trial judge would have summarily rejected a later request for funds, since the court granted an October 5 defense request for "Subpoena Duces Tecum for Medical Records and for Expenses."

III

The defendant argues that the prosecutor committed error in commenting on his constitutional right against self-incrimination. We find that this issue was not preserved for review by timely objection.

Decatur police sergeant Noel Mayfield was called as a defense witness. He testified that at 6:24 p.m. on the evening in question, a blue Mazda pick-up truck almost collided with his police car. ...