Thomas v. State, 1 Div. 442

• Decision Date: 04 October 1983
• Docket Number: 1 Div. 442
• Citation: 460 So.2d 207
• Parties: Wallace Norrell THOMAS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 207

460 So.2d 207

Wallace Norrell THOMAS v. STATE.

1 Div. 442.

Court of Criminal Appeals of Alabama.

Oct. 4, 1983.

Rehearing Denied Nov. 1, 1983.

Albert C. Hultquist, Homewood, for appellant.

Charles A. Graddick, Atty. Gen. and John Gibbs and Edward E. Carnes, Asst. Attys. Gen., for appellee.

HUBERT TAYLOR, Judge.

Robbery or attempts thereof when the victim is intentionally killed; sentence, death by electrocution.

Appellant was indicted for the intentional killing during the course of a robbery of Quenette Shehane. Ala.Code § 13-11-2(a)(2) (1975). On appellant's motion, venue was transferred to the Mobile Circuit Court. On November 3, 1977, appellant was convicted and subsequently sentenced to death. On the authority of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), and Beck v. State, 396 So.2d 645 (Ala.1980), appellant's conviction was reversed and remanded for a new trial. Thomas v. State, 400 So.2d 435 (Ala.Cr.App.), cert. denied, 400 So.2d 435 (Ala.1981). On May 19, 1981, appellant was again found guilty. The jury, after receiving evidence of aggravating and mitigating Curtis Eiland, the victim's uncle, identified her body at Cooper Green Hospital in Birmingham on December 21, 1976.

                circumstances, recommended a sentence of death.  Subsequently, the trial court concurred in the jury's finding and sentenced appellant to death. 1  From that conviction appellant now appeals
                

On December 21, 1976, Jefferson County Deputy Coroner Jack Parker was called to the 3800 block of Fourth Place West in Birmingham. Parker observed the victim lying about nine feet off the roadway in an area used for dumping garbage. There were numerous bruises and scrapes on the body, as well as what appeared to be a gunshot wound to the chest.

Coroner Jay Glass performed the autopsy. Four bullets were removed from the victim, three from the buttocks area, and one from the chest area. Parker received the projectiles from Glass and turned them over to evidence technician David Higgins.

Glass's external examination revealed six gunshot wounds to the victim. In addition to those noted by Parker, two other wounds were found in the area of the victim's left elbow.

The victim's fiance, Ramsey Lane, testified that he last saw his fiancee around 6:30 p.m. on December 20, 1976, at his fraternity house where they were to have dinner. The victim left the fraternity house to go buy some salad dressing and never returned. She drove her automobile, which contained all of her possessions, including a Sears portable black and white television. Lane identified the television and testified that he was with the victim when she bought the set from a local Sears store.

John Andrew Mays, a roommate of Jerry Lee Jones, testified that on December 20, 1976, he overheard Jones, appellant, and Edward Bernard Neal say they were "going out and pick up some young ladies." Mays remained at the apartment longer than the others and then left to go to his sister's house. He walked to Graymont Avenue in the direction of Legion Field. As Mays passed a "U-Tote-M" store, he saw a man push a young woman into an automobile. He could not identify the race of either person. However, he did identify the automobile as belonging to Jones.

Edward Lynn, a student at Daniel Payne College and fraternity brother of appellant and Neal, testified that around 9:30 p.m. on December 20, 1976, he received a call from appellant requesting that he pick him up at a convenience store located on the corner of Cherry Avenue and Highway 78 in Birmingham. Lynn drove to the store and saw appellant, Jones, and Neal. He noticed the clothes of Jones and Neal had spots of blood in the chest portion. Appellant's clothes were not rumpled and had no blood on them. Appellant told Lynn that Jones and Neal had gotten into a fight. Lynn drove the trio to Jones's apartment.

Hoover police evidence technician L.E. Strickland testified that on December 21, 1976, he was called to a location about three-quarters of a mile from the intersection of Cherry Avenue and Highway 78 to examine the victim's automobile. He photographed the scene and had the car towed to the city shop where he processed it for evidence. Strickland recovered from the car: (1) two spent .22 caliber shells found near the left front door; (2) one spent .22 caliber shell found on the right front floorboard; (3) one lead bullet recovered from the "hat rack" area of the rear seat; (4) a reddish colored stain removed from the right rear quarter panel; (5) a blue skirt which was found lying partially on the right front floorboard; (6) a piece of seat cover removed from the upper right front seat area; and (7) eleven latent fingerprints. The shells and projectile were turned over to Higgins. The clothes were placed in the trunk of Strickland's car and removed by evidence technician Leonard Robbins the following day; they were then turned over to the Department of Forensic Sciences. The fingerprints were sealed, identified, and placed in the locked depository at the police identification bureau.

On February 10, 1977, Strickland received a Sears portable twelve-inch black and white television, model number 564.50100501, serial number 40204630 from Birmingham police officer Bino Barefield.

Evidence technician Leonard Robbins testified that on December 21, 1976, he went to the location where the victim's body was found and collected seven .22 caliber shells, six spent and one live. He turned them over to Higgins. Robbins collected three pieces of pavement on which reddish stains were found and turned them over to the Department of Forensic Sciences.

Birmingham police officers Jerry McElroy and Myran Bradley testified that on January 28, 1977, they saw appellant in possession of a pistol. They arrested appellant and gave the pistol to evidence technician James Rhodes.

David Higgins, Birmingham police senior evidence technician, testified that on January 29, 1977, he received the .22 caliber pistol previously in the custody of evidence technician Rhodes. Higgins test fired the .22 caliber pistol taken from appellant and compared the projectiles and spent shells with those collected by Strickland, Robbins, and himself. He determined that the six casings found by Robbins at the site of the victim's body and the three casings found by Strickland at the site of the victim's automobile had all been struck by the same firing pin. He also determined that one of the casings found by Robbins had probably been fired from the gun taken from appellant.

Higgins's comparisons of the four projectiles removed from the victim's body revealed that they had been fired from appellant's pistol. He also determined that the projectile found by Strickland in the victim's car was fired from the same gun.

Sandra Triplett, a senior fingerprint technician, determined that the right palm print found on the door glass of the victim's car was appellant's.

In December 1976, Eugene Maddox was a student at Daniel Payne College and was a fraternity brother of appellant. He was living at home. During the Christmas holidays, appellant visited Maddox at his home and brought a television with him. Maddox identified the victim's television as being similar to the one brought by appellant. Appellant left the television with Maddox.

When school reconvened, the television was put in a dormitory room that Maddox and appellant shared. After appellant was arrested, he telephoned Maddox and told him to destroy the television. Maddox told Sammy Mulkey, a resident of the same dormitory, about appellant's telephone call, and Mulkey volunteered to dispose of the television. Maddox left his dormitory room and upon his return, the television was gone. He did not see it again until appellant's trial. Maddox also identified the gun taken from appellant by Bradley as belonging to appellant.

Sammy Mulkey testified that he took the television from Maddox's room. He identified the television recovered by Barefield as the set which he had received from Maddox. Mulkey took the television to his parents' home in Clanton where he kept it for three or four days until contacted by Clanton police officer William Petty. Petty testified that he recovered the television from Mulkey. He subsequently gave the television to Birmingham police officer Barefield.

Frank Speigner, manager of the home entertainment department of the Century Plaza Sears store in Birmingham, testified that on August 30, 1976, the victim had purchased a Sears portable television bearing the same model and serial numbers as previously testified to by Strickland. The set used by appellant and Maddox and recovered from Mulkey by Petty and Barefield bore the identical numbers.

Lawden Yates, criminologist with the Department of Forensic Sciences, examined evidence submitted to him by Robbins, Strickland, and Higgins. Yates determined that the reddish stains found on the pavement taken from the site of the victim's body were human blood. He determined that a stain on the piece of seat cover submitted by Strickland was human semen.

Yates found the reddish stain removed from the right rear quarter panel of the victim's car to be blood. He test fired appellant's pistol and compared the projectiles with those removed from the victim. Yates concluded that the bullets removed from the victim had been fired from the pistol taken from appellant. Examination of the victim's skirt revealed no defects or unusual features of any type. Other articles of clothing belonging to the victim were found to have blood stains on them.

Yates's testimony concluded presentation of the State's case. Appellant moved to exclude the State's evidence on the basis of its failure to prove a prima facie case. The motion was denied. Appellant then rested his case without presenting any evidence.

I

The Alabama Death Penalty Act is constitutional. Raines v. State, 429 So.2d 1111 (Ala.1982); Beck v. State, supra.

II

Appellant contends...