Vanpelt v. State

Decision Date19 March 2010
Docket NumberCR–06–1539.
Citation74 So.3d 32
PartiesKim VANPELT v. STATE of Alabama.
CourtAlabama Court of Criminal Appeals


Alabama Supreme Court 1090914. B.T. Gardner, Jr., Tuscumbia; and Kristen M. Nelson, Angela Setzer, Bryan A. Stevenson, and Randall S. Susskind, Montgomery, for appellant.

Troy King, atty. gen., and Richard D. Anderson, asst. atty. gen., for appellee.

WINDOM, Judge.1

Kim Vanpelt 2 appeals his capital-murder conviction and sentence of death. Vanpelt was convicted of capital murder pursuant to § 13A–5–40–(a)(7), Ala.Code 1975, for murdering his wife, Sandra Marie Ozment Vanpelt, for pecuniary gain. By a vote of 10 to 2, the jury recommended that Vanpelt be sentenced to death. The circuit court followed the jury's recommendation and sentenced Vanpelt to death.

The State's evidence tended to show that on November 24, 2004, Jerry Evans discovered the nude body of Sandra Vanpelt on the side of County Road 53 near Hamilton. The medical examiner, Dr. Emily Ward, testified that Sandra died of “head injuries and suffocation.” Dr. Ward further testified that based on the undigested contents of her stomach, Sandra died within two hours of eating a meal that included mushrooms.

Sandra and Vanpelt met after Sandra responded to Vanpelt's personal ad on the Internet in the fall of 2004. At that time, Sandra lived in Phenix City and was working at a Shoney's restaurant, and Vanpelt lived in Memphis, Tennessee, and was working in construction. After their relationship progressed, Sandra transferred to a Shoney's restaurant in Muscle Shoals and moved to Tuscumbia so that she could be closer to Vanpelt. The two married on November 8, 2004, and lived in a mobile home in Tuscumbia.

On November 2, 2004, Vanpelt contacted an insurance company about obtaining life insurance policies on himself and Sandra. Several of Sandra's coworkers at Shoney's restaurant testified that Vanpelt came into the restaurant on November 11, 2004, to have Sandra sign a life insurance application. Later that same day, three days after the two were married, Vanpelt submitted the policies and a check for the first month's premiums to the insurance company. Vanpelt was the beneficiary of the $300,000 proceeds of Sandra's insurance policy.

On November 22, 2004, after the two had been married for approximately two weeks, Vanpelt filed a missing person's report on his wife. He told police that she left to run errands around 9:00 a.m. on the morning of November 22, 2004, and did not return. Sometime later on the same day, Vanpelt went to a local Wal–Mart store and purchased candles, trash bags, a mop, and various cleaners. One cleaner named, “Zout oxy,” stated on the label that it could remove bloodstains.

Police located Sandra's Pontiac Grand Am automobile in the parking lot of an abandoned Winn–Dixie grocery store near the Vanpelts' mobile home on November 23, 2004. Sandra's clothes were in the trunk, and cigarette butts, which matched the brand Vanpelt smoked, were in the ashtray. Sandra's body was discovered about 60 feet off a county road where it had been dumped.

After Sandra's body was discovered, police searched the Vanpelts' mobile home. Police testified that the home was spotless. Roger Morrison, the laboratory director of the Huntsville Regional Laboratory for the Alabama Department of Forensic Sciences, testified that using a luminol spray he discovered blood in the master bedroom of the mobile home.3 Luminol, he testified, would detect very “diluted bloodstains.” The blood matched Sandra's blood. Police also found a picture of Sandra and the receipt for the cleaning materials in a garbage can inside the mobile home.

Investigator Marc McCormick of the Alabama Bureau of Investigation testified that Vanpelt gave a statement to police. Vanpelt said that on the evening before his wife's disappearance, he cooked dinner for her that included sauteed mushrooms. Vanpelt also told police that Sandra was at home Sunday night and that she left the mobile home Monday morning. This statement was inconsistent with the medical examiner's testimony regarding the time of Sandra's death.

Three witnesses testified that Sandra's white Pontiac automobile was not at the mobile home in the early morning hours of November 22, 2004. One witness, Ray McMahan, also testified that when he drove by the Vanpelts' mobile home early that morning he saw a black Chevrolet truck backed up to the front door of the mobile home and a rug hanging over the railing. Vanpelt's vehicle was a black Chevrolet truck.

Evidence was also presented that while Vanpelt was incarcerated awaiting trial, he wrote to Edward Parson, a fellow inmate at the Colbert County jail, and asked Parson to assist him with a “mock” confession so that he could get out of jail. (C.R. 398.) Vanpelt wrote that he wanted Parson to handwrite the “mock” confession that Parson would compose and then have someone from the outside mail it to police. Id. He wrote that if the case was dismissed he would file a “malicious prosecution action against the county. Vanpelt also wrote to Sandra Tucker, an inmate at the Lauderdale County Detention Center, and said that he believed that her boyfriend was involved in a murder-for-hire plot with his wife and that Sandra had offered Tucker's boyfriend money to kill Vanpelt.

Patti Lawson, Vanpelt's former fiancée, testified that she met Vanpelt in 2000 as a result of a personal ad she posted on the Internet; that her relationship with Vanpelt lasted for four years; that she was at one point engaged to him; and that the engagement ring Vanpelt gave her was the same ring he gave Sandra. Lawson could identify the ring, she said, because she designed its band. Lawson further stated that around the middle of October 2004, Vanpelt telephoned her and said that he wanted them to get back together. He sent her an airline ticket to Memphis, Tennessee—the ticket was dated October 29—10 days before Vanpelt married Sandra. Lawson said that she did not use the ticket.

The jury convicted Vanpelt of murdering Sandra for pecuniary gain. A separate sentencing hearing was held pursuant to § 13A–5–46, Ala.Code 1975. The State presented the testimony of several witnesses who testified about the impact of Sandra's death in their lives. Vanpelt presented the testimony of two of his siblings—Brian Vanpelt and Dale Vanpelt. Brian testified that there were 8 siblings in the family, that he joined the Navy when he was 16 years old because “the situation at home had gotten so bad,” that their father was very abusive both physically, verbally, and mentally, that both of his parents were alcoholics, and that their father regularly beat their mother in front of them. Dale testified to similar childhood experiences. Vanpelt also presented the testimony of Dr. James Edward Crowder, a clinical psychologist. Dr. Crowder testified that he evaluated Vanpelt while he was in the Colbert County jail, that he performed an IQ test on Vanpelt, and that Vanpelt's IQ was 120. He also testified that Vanpelt was from a very dysfunctional family and had an antisocial disorder. The jury recommended, by a vote of 10 to 2, that Vanpelt be sentenced to death.

The circuit judge held a separate sentencing hearing according to § 13A–5–47, Ala.Code 1975, and found that the murder was committed for pecuniary gain, an aggravating circumstances defined in § 13A–5–49(6), Ala.Code 1975. The circuit court found one statutory mitigating circumstance, that Vanpelt had “no significant history of prior criminal activity.” See § 13A–5–51(1), Ala.Code 1975. The court also found as a nonstatutory mitigating circumstance that Vanpelt had a “difficult family history and that he ha[d] an anti-social personality.” After weighing the aggravating circumstance against the mitigating circumstances, the circuit court found that the aggravating circumstance outweighed the mitigating circumstances and sentenced Vanpelt to death.

Standard of Review

Because Vanpelt has been sentenced to death, according to Rule 45A, Ala. R.App. P., this court must search the record for “plain error.” Rule 45A 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.”

(Emphasis added.)

In Ex parte Brown, 11 So.3d 933 (Ala.2008), the Alabama Supreme Court explained:

“To rise to the level of plain error, the claimed error must not only seriously affect a defendant's ‘substantial rights,’ but it must also have an unfair prejudicial impact on the jury's deliberations.” ' Ex parte Bryant, 951 So.2d 724, 727 (Ala.2002) (quoting Hyde v. State, 778 So.2d 199, 209 (Ala.Crim.App.1998)). In United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985), the United States Supreme Court, construing the federal plain-error rule, stated:

‘The Rule authorizes the Courts of Appeals to correct only “particularly egregious errors,” United States v. Frady, 456 U.S. 152, 163 (1982), those errors that “seriously affect the fairness, integrity or public reputation of judicial proceedings,” United States v. Atkinson, 297 U.S. [157], at 160 [ (1936) ]. In other words, the plain-error 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. Frady, 456 U.S., at 163, n. 14.’

See also Ex parte Hodges, 856 So.2d 936, 947–48 (Ala.2003) (recognizing that plain error exists only if failure to recognize the error would ‘seriously affect the fairness or integrity of the judicial proceedings,’ and that the plain-error doctrine is to be ‘used sparingly, solely in those...

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