Sale v. State

• Decision Date: 04 April 2008
• Docket Number: CR-05-1447.
• Parties: Michael SALE v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

8 So.3d 330

Michael SALE v. STATE of Alabama.

CR-05-1447.

Court of Criminal Appeals of Alabama.

April 4, 2008.

Rehearing Denied June 13, 2008.

M. Hampton Baxley, Dothan, for appellant.

Troy King, atty. gen., and Michael A. Nunnelley, asst. atty. gen., for appellee.

WELCH, Judge.

Michael Sale was convicted of the murder of his wife, Lynn Sale, made capital because it occurred during the course of kidnapping in the first degree, a violation of § 13A-5-41(1), Ala.Code 1975. After the penalty phase of Sale's trial, the jury unanimously recommended that he be sentenced to death. The trial court then ordered a presentence report. A sentencing hearing was held, after which the trial court accepted the jury's recommendation and sentenced Sale to death.

The evidence adduced at trial tended to show the following. On the night of May 2, 2004, Michael Sale placed a telephone call to 911 and requested help for his wife, Lynn, at their home in Webb, Alabama. Daniel Mercer, one of the paramedics who responded to the call, said they were told the patient's extremities were turning black.

Mercer said that when paramedics arrived at the Sales' home, they found Lynn lying in a twin bed covered with stained, dirty linens. He said that when he pulled down the bed covers to examine Lynn, the odor of urine, feces and decubiti, or dead flesh, "came up on me." (R. 396.) Lynn's hands and feet were black, and she was having trouble breathing. Mercer said that in his opinion, Lynn was going to die if she did not receive treatment immediately. Despite her poor condition, Mercer said, Lynn reacted to pain stimuli.

Mercer said he was concerned about how Lynn had reached such a poor condition and questioned Sale as to whether Lynn had seen a doctor recently. He said that Sale told him that she had seen a doctor two weeks earlier but that the doctor did not know what was wrong with her, it may have been blood poisoning or it may have been cancer. Mercer was still puzzled, so, he said, he asked Sale three times whether Lynn had recently seen a doctor and each time Sale told him she had seen the doctor two weeks earlier. (R. 787.)

Lynn was transported by ambulance to Southeast Alabama Medical Center in Dothan. Dr. Allen Purvis, one of Lynn's treating physicians, testified that Lynn, who was 48 years old, was dehydrated and in renal failure and respiratory failure when she arrived at the hospital. Her extremities, as well as her nose, were turning black because she was suffering from gangrene caused by sepsis, a bacterial infection that enters the blood stream, generally through a cut or break in the skin. The infection can be the result of poor hygiene. Dr. Purvis said that if Lynn had lived, her fingers, nose, and legs below the knees would have had to have been amputated.

Dr. Purvis was concerned about how bad Lynn's condition was before she was brought into the hospital. He testified that she had to have been extremely ill for a number of days to be in as poor a condition as she was when she was first brought in. He added that he had been a physician for 16 years and he had

"never had anybody bring anybody and say they stopped talking three days ago. I mean, if somebody stops talking, that is as basic as it gets. People bring them in right then. If something turns dark or black, people bring them in right then. They don't say their foot turned black three days ago. They don't say they stopped talking three days ago, and we decided to bring mama in today. They just don't do that. We have never in all my time have people come in and delay that. And that is people of any low educational status, maybe somebody who is maybe mentally handicapped. You just know there is something extremely, seriously wrong when someone stops talking."

(R. 685.)

Dr. Purvis said after examining Lynn, he was "fairly convinced" she had been the victim of domestic abuse. (R. 687.) She had a broken rib, black eyes and "cauliflower ear," a term meaning her ear was swollen and misshapen from a blow. Lynn was covered in bruises, human bite marks, scratches and cuts, some of which were fresh and some of which had been healing. Lynn also had significant swelling in her genitalia and pubis region, and there were scratches on her vagina. Given Lynn's condition, hospital personnel did not believe she was capable of having scratched herself.

In addition, medical tests showed that Lynn had suffered a heart attack and several small strokes. Dr. Purvis's opinion was that the heart attack occurred before Lynn was brought into the hospital. Based upon the results of a CAT scan, Dr. Purvis said the strokes had occurred several days before Lynn was brought to the hospital. A CAT scan also showed that Lynn had a tampon in her vagina that had been left there for a number of weeks. She was unable to move her arms and legs. He said that to be in such poor condition, she had to have been ill for some time.

Dr. Purvis said that when they discovered the tampon, doctors immediately suspected that she had toxic-shock syndrome. After running tests, however, they ruled out toxic shock as a cause of Lynn's sepsis, because blood tests revealed that the infection she had was not consistent with toxic shock.

Lisa Nixon, a nurse who treated Lynn, testified that Lynn's toes and fingers were hard and "crispy." (R. 832 and 833.) She said that Lynn's nose was "just like a piece of charcoal sitting up there. It wasn't soft and mushy like a normal nose. It was hard and crispy. We were very afraid to do anything with that [feeding] tube, because we were afraid that part of the nose would fall off." (R. 830-31.) Also, large patches of hair were missing from Lynn's head.

Nixon also testified as to the bruising and cuts Lynn had suffered. According to Nixon, Lynn was feeling pain and would often moan. Nixon said that although Lynn's condition was terminal, she did improve somewhat when she was being treated at the hospital. Three days before Lynn's death on May 17, 2004, Nixon said she was talking to Lynn as she usually did, not expecting an answer. Lynn verbally responded, which "kind of shocked" Nixon. (R. 828.) Nixon asked Lynn a series of questions such as her age, where she was, and whether she had children, all of which Lynn answered correctly. Nixon said she then asked Lynn whether she knew who had hurt her. Lynn said yes, then said, "Michael hurt me, he did this to me." (R. 828.) Shortly afterwards, Nixon said, Lynn stopped being able to move her mouth or to open her eyes. She died three days later.

Nixon also testified as to Sale's demeanor and the inconsistent statements he made when he was at the hospital. When Lynn was first brought into the hospital, Nixon asked Sale how long Lynn had been sick. He told her it had been a couple of days. Nixon asked Sale whether Lynn had been to see a doctor. Sale said that she had and that the doctor thought she had a kidney infection. He also told Nixon that the reason he did not take her to a doctor before was that she refused to go. He then said Lynn had not been able to talk for several days. When Nixon asked him how she had refused to go to the doctor when she could not talk, Sale changed the subject.

On May 3, 2004, the day after Lynn was admitted to the hospital, the hospital notified police of the possibility that she had been the victim of domestic violence. Investigator Bill Rafferty with the Houston County Sheriff's Department testified that he went to the Sales home in Webb to execute a search warrant to determine whether there was any evidence of domestic abuse at the home. In the garbage can outside of the house, they found filthy clothes belonging to Lynn. They also found wads of hair matching Lynn's, and a handwritten note asking, "Do you hurt, yes or no." A long strip of torn sheet, about five feet long and three inches wide was found in the shed outside the house.

Inside the house, law-enforcement officials found a stained mattress on a twin bed that had been covered in baking soda, battered walls, damage to cabinets in the house, weather stripping on an interior bedroom door, blood toward the bottom of that door, and nail holes above the windows and the door framing in that bedroom. The room smelled of urine and feces. Law-enforcement officials found a pair of broken, twisted eyeglasses, and a calendar that had been torn up.

Ryan Sale, Lynn and Sale's oldest son, was 23 years old at the time of the offense. At trial, he testified as to the cause of Lynn's critical condition and eventual death. He said that Sale often physically abused Lynn and that Sale had also hit him. He said he was so afraid of Sale that when Sale hit Lynn, he had wet his pants. He described Sale as controlling the family and said that Sale would not allow Lynn to see her sisters or her parents, all of whom lived in Michigan. Sale, who had his own floor-tiling business, also made Lynn quit her job.

Ryan said that in 2000 or 2001, Lynn finally called the police to report Sale's abuse. On April 17, 2001, Sale was convicted and sentenced to two years prison, to be followed by five years' probation. Sale served 11 months and then was released from prison to begin serving his probation. As a condition of his probation, Sale was subject to a restraining order that prohibited him from having any contact with Lynn, and he was not to go near her.

Ryan said that when Sale got out of prison, he returned to their home, despite the restraining order. Ryan testified that he was more afraid of his father when he got out of prison. Ryan said that he heard Sale tell Lynn that he wanted to "punish her due to all the money that he lost while he was locked up and the downfall the business had taken while he was locked up." (R. 457.) Ryan described Lynn from that point on as being "terrorized." (R. 457.) He described the atmosphere at home as "very scared, fearful." (R. 463.) Although Ryan knew his mother was suffering beatings at the hands of his father, he did not...