Walker v. State

• Decision Date: 01 October 2004
• Docket Number: CR-03-0226.
• Citation: 932 So.2d 140
• Parties: James Earl WALKER v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

932 So.2d 140

James Earl WALKER v. STATE of Alabama.

CR-03-0226.

Court of Criminal Appeals of Alabama.

October 1, 2004.

Opinion on Return to Remand January 28, 2005.

Rehearing Denied March 11, 2005.

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Charles David Decker, Dothan, for appellant.

Troy King, atty. gen., and Stephen Shows, asst. atty. gen., for appellee.

BASCHAB, Judge.

The appellant, James Earl Walker, was convicted of capital murder for the killing of Bessie Lee Thweatt. The murder was made capital because the appellant committed it during the course of a first-degree burglary. See § 13A-5-40(a)(4), Ala.Code 1975. The jury unanimously recommended that he be sentenced to death. The trial court accepted the jury's recommendation and sentenced the appellant to death. The appellant filed a motion for a new trial, which the trial court denied after conducting a hearing. This appeal followed.

The appellant raises some arguments on appeal that he did not raise at trial. Although the lack of an objection at trial will not bar our review of an issue in a case that involves the death penalty, it will weigh against any claim of prejudice the appellant may raise. See Ex parte Kennedy, 472 So.2d 1106 (Ala.1985). Rule 45A, Ala. R.App. P., provides:

"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... whenever such error has or probably has adversely affected the substantial right of the appellant."

"[This] 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. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985) (quoting United States v. Frady, 456 U.S. 152, 163 n. 14, 102 S.Ct. 1584, 1592 n. 14, 71 L.Ed.2d 816 (1982)).

Because the appellant does not challenge the sufficiency of the evidence to support his conviction, a lengthy recitation of the facts is not necessary. However, we have reviewed the evidence, and we have determined that it is sufficient to support the appellant's conviction. The following summary of the relevant facts, which the trial court prepared, may be helpful to an understanding of this case:

"The victim, Bessie Lee Thweatt, was at home on the night of January 5, 2000. The 87-year-old woman lived in the same house in rural Houston County, Alabama, for the past 67 years. She was petite in stature and weighed approximately 112 pounds. She was known to keep money inside the home and her vehicle.

"On that fateful night, [Rex Allen] Beckworth and stepbrother, James Earl Walker appeared at the Thweatt home. The outside carport light was broken and the phone lines to the house were cut. The assailant broke the back window and entered the home. Mrs. Thweatt's blood soaked body was later discovered inside her home, which had been ransacked. She was pronounced dead at the scene.

"After the murder Walker and Beckworth went to Motel 6 where Walker's sister worked. Beckworth was driving Walker's vehicle. She rented a room to them in her name at Walker's request. She saw a .22 caliber rifle in the trunk.

"A hunter found a .22 caliber semi-automatic rifle in the creek at Power Dam Road. He called the Houston County Sheriff's Department and helped retrieve the gun from the water. A State forensic firearm examiner determined that bullet fragments taken from the Thweatt home were .22 caliber. However, the bullets were damaged and the firearm expert could not form an opinion as to a match, although he indicated they were similar. A .22 caliber casing was found at the Thweatt home. The firearm examiner determined that this casing was fired from the .22 caliber rifle pulled from the creek.

"Houston County Sheriff's Department investigators focused their attention on Walker and Beckworth. They were known to be living in Etowah County, Alabama. Ron Jones, an officer with the Hokes Bluff Police Department, knew both Defendants. Providing assistance to the Houston County Sheriff's Department, Officer Jones went to the Defendant's mobile home in June 2000, Defendant Beckworth ran out the other door and Defendant Walker hid underneath the loveseat in a fetal position. Officer Jones took Walker into custody.

"Once Walker was returned to Houston County from Etowah County he took investigators to the scene of the crime. On video he explained how the two approached the house and that Beckworth broke the rear window and entered the home through that window. He claimed that he never entered the home and later ran from the area when he heard a gunshot. However, a jail inmate, Tim Byrd, testified that Walker admitted to him that he (Walker) had done the killing. Byrd stated that Walker wanted to clear his conscience.

"Dr. Alfredo Parades, a forensic pathologist, performed the autopsy on Mrs. Thweatt. Dr. Parades found that the victim was shot at close range due to gunpowder residue on her face. He also noted there were numerous lacerations on the face and three fractures to the cheek. There were a total of nine injuries from blunt force trauma, which included two fractures of the skull. Dr. Parades opined that the victim was alive during the blunt force trauma injuries and, these injuries preceded the gunshot wound to the head. The gunshot wound caused the victim's death. Dr. Parades also testified that Mrs. Thweatt suffered pain.

"The defense produced four witnesses[. P]erhaps the most important was Mark Peacock who was the victim's grandson. He testified that he knew co-defendant Beckworth from his days as an inmate at Clio. They were incarcerated at the same place. There were discussions between them about Mrs. Thweatt keeping money at her home."

(C.R. 349-51) (footnote omitted).

I.

The appellant's first argument is that the trial court erred in denying his motion to dismiss or remand the indictment because it allegedly was defective. Citing Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), he specifically contends that the indictment was defective because it did not set forth the aggravating circumstances upon which the State intended to rely. We addressed and rejected a similar argument in Stallworth v. State, 868 So.2d 1128, 1186 (Ala. Crim.App.2001), as follows:

"Stallworth also argues, in relation to the Ring issue, that his indictment was void because it failed to include in the indictment the aggravating circumstances the State intended to prove. In Poole v. State, 846 So.2d 370 (Ala.Crim. App.2001), we held that, although Apprendi required that the facts that increased a sentence above the statutory maximum must be submitted to a jury, those facts did not have to be alleged in the indictment. Recently, the Alabama Supreme Court adopted our holding in Poole. See Hale v. State, 848 So.2d 224 (Ala.2002).

"Also, the holdings in Poole and Hale are consistent with prior caselaw, which holds that aggravating circumstances do not have to be alleged in the indictment. See Ex parte Lewis, 811 So.2d 485 (Ala. 2001), and Dobard v. State, 435 So.2d 1338 (Ala.Crim.App.1982). Stallworth's argument is not supported by Alabama law."

(Footnote omitted.) Accordingly, the appellant's argument is without merit.

II.

The appellant's second argument is that the trial court erred in refusing to require the jury to return specific findings as to which aggravating circumstance or circumstances it found to exist. We addressed and rejected a similar argument in Adams v. State, [Ms. CR-98-0496, August 29, 2003] ___ So.2d ___, ___ (Ala.Crim. App.2003), as follows:

"Adams argues, for the first time on appeal, that Alabama's death-penalty statute is unconstitutional because it does not require that the jury make specific findings about what aggravating circumstances it found to exist and it does not specify the weight that a trial court is to give the jury's recommendation.

"In Haney v. State, 603 So.2d 368, 388 (Ala.Crim.App.1991), aff'd, 603 So.2d 412 (Ala.1992), this Court rejected a similar claim that the jury must make findings concerning the aggravating circumstances it found to exist. The Court stated:

"`We have previously addressed this issue and concluded that there is no statutory or constitutional requirement that the jury make specific findings of aggravating or mitigating circumstances during the sentencing phase of a capital case under Alabama's capital offense statute.'"

Therefore, the trial court did not err when it refused to require the jury to return specific findings as to which aggravating circumstance or circumstances it found to exist. Accordingly, the appellant's argument is without merit.

The appellant also argues that

"[t]he clear interpretation of the Court's order is that the trial court determined the existence of aggravating circumstances beyond a reasonable doubt and not the jury. Even more troubling is that the Court found the existence of two aggravating circumstances. The jury verdict implies that an aggravating circumstance existed, although not to the level of beyond a reasonable doubt, but it is impossible to determine whether one or both of the aggravating circumstances existed in the mind of the jury. Furthermore, the jury could have based its decision on one factor while the Court based its decision on another, different, factor. It is impossible to reconcile the decisions of the judge and jury as to the finding of aggravating circumstances and it is clear that the jury made no such findings beyond a reasonable doubt. As such the Trial Court erred in not allowing the jury to make specific findings and thus violated the holding of Ring."

(Appellant's brief at pp. 22-23.)

In Ex parte Waldrop, 859 So.2d 1181, 1187-88 (Ala.2002), the Alabama Supreme Court explained:

"It is true that...