Weaver v. State

• Decision Date: 28 July 1995
• Docket Number: CR-93-0133
• Citation: 678 So.2d 260
• Parties: William Ray WEAVER v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 260

678 So.2d 260

William Ray WEAVER v. STATE.

CR-93-0133.

Court of Criminal Appeals of Alabama.

July 28, 1995.

Rehearing Denied Sept. 29, 1995.

Walden Buttram and Charles C. Hart, Gadsden, for Appellant.

Jeff Sessions, Atty. Gen., Gail Hampton, Asst. Atty. Gen., and Shawn Junkins, Deputy Atty. Gen., for Appellee.

COBB, Judge.

This case was originally assigned to another judge on the Alabama Court of Criminal Appeals. It was reassigned to Judge Cobb on January 17, 1995.

The appellant, William Ray Weaver, was indicted on five counts of capital murder, including two counts of murder made capital because the killing occurred during the course of a robbery, see § 13A-5-40(a)(2), Code of Alabama 1975, and three counts of murder made capital because the killing occurred during the course of a burglary, see § 13A-5-40(a)(4), Code of Alabama 1975. A jury found the appellant guilty of one count of murder during the course of a robbery, as charged in Count I of the indictment. The jury recommended that the appellant be sentenced to death. The trial court followed the jury's recommendation and sentenced the appellant to die in the electric chair.

The evidence adduced at trial tended to show the following. On the night of Saturday, December 2, 1989, Aubrey Ray Estes planned to spend the night at his business, the Battery Mart, in Attalla. Estes's widow, Kathleen Estes, testified that her husband would sometimes sleep at the shop to guard the business. When Mr. Estes had not come home by Sunday evening, she said, she went to the Battery Mart and discovered her husband's body lying on the floor, his head covered with an army blanket. Mrs. Estes testified that she tried to telephone for help but that the telephone jack had been pulled from the wall. The Esteses' son, Pat, did an inventory of the store and discovered that $1,500 worth of batteries and cash was unaccounted for.

Henry Gene Whitmore and his cousin, Daniel Lee "Dino" Leslie, were the appellant's co-defendants in this case. Whitmore testified that on December 2, 1989, he went by his aunt's house looking for Dino. Dino was not home, so he went to Dino's sister's apartment. Dino was there, along with the appellant and two more of Dino's sisters. Whitmore said he was drinking beer in the front room. He had also been sniffing gasoline. Whitmore said that he went into the kitchen to get another beer and that he overheard Dino, the appellant, and Bonnie Autwell, one of Dino's sisters, talking about getting some money; then they sent him out of the kitchen. Later, he said, the appellant asked him if he "wanted to ride over there with them." Whitmore said that he said yes, and that he and Dino rode with the appellant to the Battery Mart. Whitmore said the appellant parked the car in a field across the street from the Battery Mart, and that he then got a crowbar out of the trunk. He testified that the three of them slid through a gap in the gate of the fence surrounding the Battery Mart. The appellant tried to kick in the back door to the store, but then pried it open with the crowbar, Whitmore said. All three of the men went into the building.

Whitmore testified that he and Dino each went into a different storage room and that the appellant walked up the hall to the front of the store. He said that he grabbed a battery and started back out of the store when he heard someone shout, "What are you doing in here?" Whitmore testified that he saw Dino coming down the hall toward the back door. He said he also saw a man standing in the hall. Whitmore testified that the appellant, wielding the crowbar, chased the man into the office, and that he heard a "racket" coming from the office. He said that he and Dino ran out of the building, each carrying a battery. The appellant came out of the store two or three minutes later carrying the T-shirt he had been wearing, the crowbar, and some money. The three got in the car and the appellant drove back to Dino's sister's apartment.

Whitmore said that when they got back to the apartment, they put the stolen batteries in a closet. He said that he also got $10 in cash that had been taken from the store, but that he never saw the batteries or the crowbar again. He also said he did not know that the man who had approached them in the Battery Mart had died until a year after the incident.

Whitmore further testified that he was arrested for Estes's murder in June 1991. He was granted youthful offender status, and, after entering into a plea agreement with the State pursuant to which he agreed to testify against the appellant, he was sentenced to three years' imprisonment. He had completed his sentence when he testified in this case.

Faye Edwards is Whitmore's aunt and Dino's mother. She testified that late on the night of December 2, 1989, her sister, Whitmore's mother, had asked her to look for Whitmore. Edwards said she went to her daughter's apartment and saw Whitmore and the appellant carrying batteries into the apartment. She said she went inside, where she saw three batteries. The appellant, Whitmore, and a woman named Beverly were sitting around the table counting money, Edwards said. Whitmore was wearing a white T-shirt with blood spattered on it, she said, and Whitmore let her assume that he had been in a fight.

Edwards said that two days later, the appellant came to her house and asked to see her daughter Tina, with whom he had had a child. Edwards said that when he arrived the appellant had a "big roll of money." He told Edwards to "tell the God damn bitch I got the God damn money that she wanted even if I had to knock the old man in the head to get it."

She said that nearly a week after the visit, Whitmore came by her house and asked whether she wanted to buy some batteries. She testified that they were the same batteries she had seen at her daughter's apartment the night of the murder. She added that Whitmore had what appeared to be a crowbar wrapped in a white T-shirt in the car. Evidence was presented that eight or nine months after the murder, the appellant moved to Florida to live with his niece. He was arrested there and extradited to Alabama.

Dr. Joseph Embry of the Alabama Department of Forensic Sciences conducted the autopsy on Estes. He testified that Estes was 62 years old and weighed only 128 pounds at the time of his death. He said that Estes had suffered more than a dozen blows to the head, face, and body with a blunt object, leaving wounds consistent with having been beaten with a crowbar. Dr. Embry testified that Estes died from a combination of the head injuries, which caused injury to the brain, and heart disease. He further testified, however, that in his opinion, Estes would not have died had he not been beaten.

I

The appellant argues that the trial court erred in instructing the jury that a defendant's flight to avoid prosecution could be considered as evidence of his guilt. The charge was improperly given, he contends, because, he says, there was no evidence of flight, there was no evidence that he was aware that he was the subject of a criminal investigation when he left Alabama, and the lapse of eight months between Estes's murder and the time the appellant left Alabama negates an inference of flight.

The trial court instructed the jury that "[a] defendant's flight to avoid prosecution may be considered by you as tending to show his consciousness of guilt." (R. 924.) The appellant maintains that he was prejudiced by that instruction because it served only to improperly suggest to the jury that he had fled prosecution out of consciousness of guilt.

"In determining whether an instruction concerning flight should have been given, the question is 'simply whether such evidence was presented.' " Williams v. State, 546 So.2d 705, 707 (Ala.Crim.App.1989) (quoting Ex parte McGee, 383 So.2d 205, 206 (Ala.1980)). Instructing a jury that it may use evidence of flight from which to infer the defendant's consciousness of guilt when there has been no evidence of flight presented is improper. Rogers v. State, 630 So.2d 88, 92 (Ala.1992). Where there is no evidence of flight, an instruction on flight should not be given. Williams v. State, 546 So.2d 705 (Ala.Crim.App.1989).

" ' "Analytically, flight is an admission by conduct. Its probative value as circumstantial evidence of guilt depends upon the degree of confidence with which four inferences can be drawn: (1) from the defendant's behavior of flight; (2) from flight to consciousness of guilt; (3) from consciousness of guilt to consciousness of guilt concerning the crime charged; and (4) from consciousness of guilt concerning the crime charged to actual guilt of the crime charged....

" '....

" ' "Because of the inherent unreliability of evidence of flight, and the danger of prejudice its use may entail, a flight instruction is improper unless the evidence is sufficient to furnish reasonable support for all four of the necessary inferences....

" ' "... The immediacy requirement is important. It is the instinctive or impulsive character of the defendant's behavior, like flinching, that indicates fear of apprehension and gives evidence of flight such trustworthiness as it possesses. The more remote in time the alleged flight is from the commission or accusation of an offense, the greater the likelihood that it resulted from something other than feelings of guilt concerning that offense.'

"[United States v. Myers, 550 F.2d 1036, 1049-51 (5th Cir.1977).]

" 'As Judge Johnson put it in United States v. Borders, 693 F.2d 1318, 1325-26 (11th Cir.1982), cert. denied, 461 U.S. 905, 103 S.Ct. 1875, 76 L.Ed.2d 807 (1983):

" ' "Human experience teaches, however, that not every act of flight constitutes an expression of guilt.... Thus, the interpretation to be gleaned from an act of flight should be made cautiously and with a sensitivity to the facts of the particular case....

" ' "The cases in which flight evidence has been held inadmissible have...