Scheuing v. State

Citation161 So.3d 245
Decision Date08 November 2013
Docket NumberCR–10–1454.
PartiesJesse Earl SCHEUING v. STATE of Alabama.
CourtAlabama Court of Criminal Appeals

Alicia A. D'Addario and Angela Setzer, Montgomery, for appellant.

Luther Strange, atty. gen., and Andrew L. Brasher, asst. atty. gen., for appellee.

Opinion

PER CURIAM.

Jesse Earl Scheuing was indicted for murder made capital pursuant to § 13A–5–40(a)(2), Ala.Code 1975, because it occurred during a robbery in the first degree of Sean Adam Cook. In a related case, Scheuing was also indicted for theft of property in the first degree for the theft of a 2003 GMC Yukon sport-utility vehicle, pursuant to § 13A–8–3, Ala.Code 1975. On May 6, 2010, the State moved the circuit court to consolidate the two cases for trial, and, on June 1, 2010, following a hearing, the court granted the motion.

The jury unanimously found that the State had proven beyond a reasonable doubt that Scheuing had committed the capital offense while under a sentence of imprisonment, and it recommended, by a vote of 10 to 2, that he be sentenced to life in prison without the possibility of parole. The jury also found Scheuing guilty on the theft charge. The circuit court sentenced Scheuing to death for his capital-murder conviction and to 60 years in prison as a habitual offender for his theft conviction. Scheuing appeals his convictions and sentences. After careful review, this Court affirms.

The evidence at trial tended to demonstrate the following. In August 2008, Scheuing was released on parole in the State of Georgia. He had been convicted of thefts of automobiles, breaking and entering into automobiles, escape, and being a felon in possession of a firearm. James Potts, a friend of Scheuing who lived in Alabama, went to Georgia and brought Scheuing to Alabama to stay with Potts and his wife, Tifani Kulp. On November 20, 2008, Scheuing failed to report to his parole officer as required by the terms of his parole.

A couple of days before Thanksgiving, Scheuing stole a Kia Sportage automobile from Dean Jakiel's driveway. Jakiel had borrowed the Sportage from Lani Harrison, his daughter, and had parked it in his driveway, leaving the keys in the ignition. Also left in the Sportage was Jakiel's loaded, .38 caliber, five-shot, hammerless Smith and Wesson revolver and a box of ammunition for the gun. Within a day or two after stealing the Sportage, Scheuing abandoned the vehicle, but he kept the gun and ammunition that was in the vehicle.

On November 26, 2008, the day before Thanksgiving, Potts took Scheuing to the home of Sean Cook, who was a friend of Potts. While there the three men smoked marijuana, and Cook sold a small amount of marijuana to Potts and Scheuing. That night, Potts, Kulp, and Scheuing gave Jeanette Rutledge, a friend of Potts and Kulp, a ride to her home. During the ride, Potts told her that he had a .38 caliber pistol in the car.

Shortly after midnight on November 28, 2008, Scheuing decided to rob a store to get money to buy Potts an Xbox 360 video-game console and to get transportation to Grand Rapids, Michigan, where Scheuing wanted to meet a woman he had communicated with in an Internet chat room. Scheuing, Potts, and Kulp got into Potts's car, with Potts driving and Scheuing sitting in the back seat behind him. Sometime during the ride, Scheuing twice test fired the gun he had stolen from the Sportage by shooting it out the car window; he did this to learn the gun's characteristics when fired. Also at some point during the night, Scheuing decided that he was going to kill whomever he robbed. The three drove around trying to find a place that would be easy to rob. They rejected most of the stores they saw because the clerks were enclosed in bullet-proof glass; they also rejected a Waffle House restaurant because it had too many customers. Scheuing finally decided that the target would be the Pak-a-Sak1 convenience store in Oxford. Although Potts and Kulp knew that Cook worked at the store as a cashier, they did not recognize him as the cashier when they drove by the store that morning.

Potts parked the car a couple of blocks behind the Pak-a-Sak store. Scheuing walked to the store; he had the .38 caliber pistol in the back pocket of his pants. When Scheuing walked up to the store, Cook, who had to push a button to allow someone to enter the store, recognized Scheuing and allowed him in. Scheuing briefly spoke with Cook before asking where the restroom was. Scheuing had planned to put on a hockey mask he had with him while in the restroom, but, because Cook had recognized him, Scheuing decided not to use the mask. There were three customers in the store when Scheuing first entered, so he went into the restroom and waited until he heard them leave. After leaving the restroom, Scheuing walked to the counter where he talked with Cook about various topics. As they spoke about marijuana and the “munchies”2 (State's Exhibit 96), Scheuing said that he was hungry and walked to the candy aisle. There, where Cook was unable to see what Scheuing was doing, Scheuing moved the .38 caliber pistol from his pants pocket to his coat pocket. With his hand in the coat pocket containing the pistol, Scheuing then walked back to the counter and continued speaking with Cook. Cook turned his head, looking out the window at a passing car; Scheuing pulled out the gun, and, when Cook turned back toward Scheuing, Scheuing shot him in the head. Scheuing then took the cash-register drawer and ran out the door. He went back to the car and told Potts and Kulp that he had shot Cook. The three returned to Potts's home where Scheuing and Potts took the money from the cash-register drawer. The two men then took the cash-register drawer to a remote road where they cleaned their fingerprints from the cash-register drawer and then abandoned it.

A short time after Scheuing left the store, Mary De La Zerda, a regular customer of the Pak-a-Sak store and an acquaintance of Cook's, arrived there. When she first entered the store, De La Zerda called for Cook because she did not see him. After getting no response from him, she noticed that the counter area was in disarray. De La Zerda again called for Cook and, receiving no response, walked behind the counter where she found him lying on floor. She then went outside and telephoned emergency 911.

Officer Jake Durham of the Oxford Police Department was dispatched to the Pak–a–Sak store in response to the 911 call and was the first officer to arrive on the scene. After speaking with De La Zerda, Officer Durham entered the store with Officer Eric Hood and Officer Jamie Clark. Once inside, Officer Durham noticed that the cash-register drawer was missing and that “items were out in the floor and strewn all over the place.” (R. 542.) After seeing Cook lying on the floor, Officer Durham alerted the other officers of the situation and had them separate. Officer Durham went “straight through the building back toward the cooler and the bathroom areas” (R. 543) while Officer Hood went down the aisles and Officer Clark went behind the counter. Officer Clark saw Cook on the floor and noticed that [h]e had some vomit around his mouth,” “had a very gray complexion,” and “appeared to be deceased.” (R. 635.) After not finding anyone else in the building, the officers went back outside, put up crime-scene tape, and secured the scene until someone from the investigation division of the police department arrived.

Justin Edwards, a paramedic, also responded to the 911 call. When he arrived at the Pak-a-Sak store, he was informed by a police officer of what had been found in the store. When Edwards went into the store, he noticed that Cook was blue, was not moving, and that “his brain matter was on the floor next to him,” and Edwards determined that Cook was dead. (R. 564.)

After Scheuing and Potts disposed of the cash-register drawer, they went to a Walmart retail store where they purchased an Xbox 360, an Oblivion video-game cartridge for the video-game console, and a Playstation 2 video-game cartridge. The Playstation 2 cartridge was purchased so Scheuing would have something to play while Potts was playing Oblivion. While they were playing the games at Potts's house, Cook's teenage brother called Potts and threatened him, Kulp, and their son. Cook's brother made the threats because he believed that Potts had shot Cook.

Due to the telephone call, Potts decided that they needed to get rid of the gun Scheuing had used to kill Cook. Scheuing, Potts, and Kulp got back into Potts's vehicle. While they were driving over a bridge, Scheuing threw the gun and the ammunition out of the passenger-side window and into a lake.

At the Pak-a-Sak store, investigators contacted a manager who came in and retrieved video from the recording equipment at the store. The video revealed that an individual wearing a black and red coat and a black hat with a skull on top came into the store and, after walking around the store and speaking with Cook, pulled a gun out of his coat pocket and fired one shot at Cook. The man then picked up the cash-register drawer and ran out the door. Investigators were also able to obtain a video of a parking lot from another local business. That video showed the man who shot Cook getting out of the back seat of a car and then returning to the back seat of the same car a few minutes later.

After dropping Kulp off at work, Scheuing and Potts went to the Greyhound bus station to purchase a ticket to Grand Rapids, Michigan. Because they had spent so much money on the video-game console and cartridges, Scheuing did not have enough money left to buy the bus ticket. Scheuing and Potts decided to stay away from Potts's home for the day and that, in the evening, Potts would drop Scheuing off somewhere so Scheuing could steal a car to drive to Grand Rapids.

Scheuing and Potts spent the day together, smoking marijuana and selling game cartridges and memory cards. After picking Kulp...

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    • United States
    • Alabama Court of Criminal Appeals
    • 11 Enero 2019
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    ...J., concurring in the result, joined by Malone, C.J., and Bolin, J.). See also Scheuing v. State, 161 So. 3d 245, 305 (Ala. Crim. App. 2013) (Windom, P.J., concurring specially, joined by Joiner, J.) (quoting at length Justice Murdock's opinion concurring in the result in Ex parte Floyd in ......
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