Tyson v. State

Citation784 So.2d 328
PartiesAnthony TYSON v. STATE of Alabama.
Decision Date04 February 2000
CourtAlabama Court of Criminal Appeals

Thomas M. Goggans, Montgomery, for appellant.

Bill Pryor, atty. gen., and Thomas F. Parker IV, asst. atty. gen., for appellee.

COBB, Judge.

The appellant, Anthony Tyson, was convicted of three counts of murder in the deaths of Derek Cowan and Damien Thompson. The murders were made capital because they occurred during the course of a robbery and involved the killing of two or more people during one act or pursuant to one scheme or course of conduct, see of §§ 13A-5-40(a)(2) and 13A-5-40(a)(10), Code of Alabama 1975. The jury, by a vote of 10 to 2, recommended that Tyson be sentenced to death. The trial court accepted the jury's recommendation and sentenced Tyson to death by electrocution.

On appeal, Tyson does not question the sufficiency of the evidence; therefore, we will give only a brief rendition of the facts. The State's evidence tended to show that on January 4, 1997, Porter Key, an employee of Henry Trucking Company, was driving on Franklin Road in Macon County when he discovered the body of Derek Cowan in the middle of the road. Key saw a green Acura automobile roll off the road and strike a fence. The car then backed up onto the road and sped off in the direction of Tuskegee. He thought that the driver of this car had been involved in a hit-and-run accident so he followed the car. He was unable to keep up, and he lost the car somewhere in Tuskegee. Cowan had not been the victim of an accident, but had been shot twice in the back of the head. Within minutes after Key discovered Cowan's body, the body of Damien Thompson was discovered slumped forward in the passenger side of an Acura automobile that was in the bushes at the intersection of Bull Avenue and Anona Street in Tuskegee. Thompson had been shot twice in the head.

Alphonso Cardwell testified that he and Cowan were scheduled to meet for a drug exchange on a dirt road off County Road 36 on January 4, 1997. He testified that as he was driving to the designated location he saw Cowan, Thompson, and a third male, whom he identified at trial as Tyson, drive by in a green Acura. The Acura was being followed by another vehicle driven by Cornelius Drisker. Cardwell arrived at the location and Cowan and Cardwell made the exchange. Cardwell testified that he gave Cowan $300 in exchange for cocaine. Minutes after the drug exchange, Cowan's body was discovered. Witnesses testified that one of his pockets was turned inside out. The $300 was missing.

Police connected Tyson to the murders while investigating a shooting in Union Springs that occurred 10 days after the double murder in Macon County. Nicholas Martin testified that Tyson and three other people shot at him from a car as he was walking his dog. He testified that he recognized Tyson and that he went to the police station and signed a warrant for his arrest.1 The gun identified as the gun used in the Union Springs shooting was the murder weapon in the double murder.

Numerous forensic evidence connected Tyson to the double murder. After executing a search warrant on Tyson's apartment, based on evidence obtained in the investigation of the Union Springs shooting, police recovered a Lorcin chrome .380 pistol and bloodstained Nike brand sneakers. A DNA analysis of the blood on the sneakers revealed that the blood matched Thompson's blood. Tyson's fingerprints were also recovered from the green Acura. Spent shell casings recovered from the Acura, near Cowan's body, and from the Union Springs shooting were identified as having been fired by the same gun, a Lorcin .380, which was identified as being Tyson's. Tyson's defense at trial was that he did not kill Cowan and Thompson. He attempted to connect a third person to the killings—the man who had been seen in a car with the victims earlier on the day of the murders. Tyson attempted to show that this other person could have committed the murders.

Standard of Review

Tyson has been sentenced to death; therefore, this Court's standard of review is governed by the plain-error doctrine, i.e., this Court will review an issue on appeal even if the issue was not first presented to the trial court. See Rule 45A, Ala.R.App.P., which states:

"In all cases in which the death penalty has been imposed, the Court of Criminal Appeals shall notice any plain error or defect in the proceedings under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial right of the appellant."

Error is "plain" if "the error is so obvious that the failure to notice it would seriously affect the fairness or integrity of the judicial proceedings." Haney v. State, 603 So.2d 368 (Ala.Cr.App. 1991), aff'd, 603 So.2d 412 (Ala.1992), cert. denied, 507 U.S. 925, 113 S.Ct. 1297, 122 L.Ed.2d 687 (1993). Also, "[T]he plainerror exception to the contemporaneous-objection rule is to be `used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result.'" United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985), quoting United States v. Frady, 456 U.S. 152, 163, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). To find plain error "the claimed error [must] not only [have] seriously affected [the defendant's] `substantial rights,' but ... it [must have] had an unfair prejudicial impact on the jury's deliberations." Young, 470 U.S. at 18 n. 14, 105 S.Ct. 1038.

The Courts of this State have been reluctant to reverse a capital conviction solely on plain error, and have done so only in specifically egregious situations, i.e., when a prosecutor made a direct comment on an accused's failure to testify, see Powell v. State, 631 So.2d 289 (Ala.Cr.App.1993); when the state illegally introduced evidence, in the guilt phase, indicating that the defendant had committed three prior uncharged violent acts, see Ex parte Woodall, 730 So.2d 652 (Ala.1998), on remand, 730 So.2d 666 (Ala.Cr.App.1999); and when a prosecutor, in the sentencing phase, commented on the result of the defendant's previous trial for the same offense, see Hammond v. State, 776 So.2d 884 (Ala.Cr.App.1998).

I.

Tyson initially argues that the evidence discovered in his apartment should have been suppressed because of various defects alleged in the search warrant and the supporting affidavit. The record reflects that a search warrant was executed on Tyson's apartment as a result of an investigation into the Union Springs shooting. A search of Tyson's apartment revealed bloodstained sneakers, a shotgun, and a Lorcin .380 pistol.

A.

Tyson argues that the evidence is due to be suppressed because the search warrant did not specifically authorize a nighttime search pursuant to § 15-5-8, Code of Alabama 1975, and Rule 3.10, Ala.R.Crim.P. Section 15-5-8, Code of Alabama 1975, states:

"In cases in which the property to be seized does not include a controlled substance, a search warrant must be executed in the daytime unless the affidavits state positively that the property is on the person or in the place to be searched, in which case it may be executed at any time of the day or night. Except in cases in which the property to be seized includes a controlled substance, the issuing judge or magistrate must state in the warrant, according to the character of the affidavits, whether it is to be executed by day or at any time of the day or night. In cases in which the property to be seized includes a controlled substance, a warrant may be executed at any time of the day or night."

(Emphasis added.) Rule 3.10 states:

"The search warrant shall be directed to and served by a law enforcement officer, as defined by Rule 1.4(p). It shall command such officer to search, within a specified period of time not to exceed ten (10) days, the person or place named for the property specified and to bring an inventory of said property before the court issuing the warrant. The warrant shall designate the judge or magistrate to whom an inventory of the property specified shall be returned. The judge or magistrate shall endorse the warrant, showing the hour, date, and the name of the law enforcement officer to whom the warrant was delivered for execution, and a copy of such warrant and the endorsement thereon shall be admissible in evidence in the courts. In cases in which the property to be seized does not include a controlled substance, a search warrant must be executed in the daytime unless the affidavits state positively that the property is on the person or in the place to be searched, in which case the search warrant may be executed at any time of the day or night. Except in cases in which the property to be seized includes a controlled substance, the issuing judge or magistrate must state in the warrant, according to the character of the affidavits, whether it is to be executed by day or at any time of the day or night. In cases in which the property to be seized includes a controlled substance, a warrant may be executed at any time of the day or night and the warrant need not state whether it is to be executed by day or at any time of the day or night."

(Emphasis added.)

Thus, before a search warrant may be executed at night two prerequisites must be met: 1) the warrant must state positively that the property sought is on the premises to be searched, and 2) the warrant must state that it is to be executed at nighttime. See § 15-5-8, Code of Alabama 1975, and Rule 3.10, Ala.R.Crim.P.

Here, there is no question that the warrant and supporting affidavit positively state that the property was located in Tyson's apartment. (See discussion in Part I.B.) Our discussion here focuses on the failure of the warrant to indicate that it could be executed at night.

The search warrant executed for Tyson's apartment read as follows:...

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