West v. State

• Decision Date: 30 June 2000
• Citation: 793 So.2d 870
• Parties: Geoffrey Todd WEST v. STATE.
• Court: Alabama Court of Criminal Appeals

793 So.2d 870

Geoffrey Todd WEST v. STATE.

CR-98-1956.

Court of Criminal Appeals of Alabama.

June 30, 2000.

Opinion on Return to Remand August 25, 2000.

Rehearing Denied October 20, 2000.

Certiorari Denied February 23, 2001.

Charles C. Hart, Gadsden; and William R. Willard, Gadsden, for appellant.

Bill Pryor, atty. gen., and Michael B. Billingsley, asst. atty. gen., for appellee.

Alabama Supreme Court 1000231.

BASCHAB, Judge.

The appellant, Geoffrey Todd West, was convicted of capital murder for the killing of Margaret Parrish Berry. The murder was made capital because the appellant committed it during the course of a robbery. See § 13A-5-40(a)(2), Ala.Code 1975. After a sentencing hearing, the jury recommended, by a vote of 10-2, that the appellant 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 follows.

Because the appellant does not challenge the sufficiency of the evidence to support his conviction, a lengthy statement of the facts of the case is not necessary. However, we have reviewed the evidence, and we conclude that it is sufficient to support the appellant's conviction. In its sentencing order, the trial court summarized the relevant facts of this case as follows:

"In the late hours of March 27, 1997, or early morning of March 28, 1997, Geoffrey Todd West and his girlfriend drove to Harold's Chevron located at 2920 Noccalula Parkway. The Defendant had previously been employed at this convenience store. The Defendant previously had expressed to others his intention to rob the Chevron Store and to `leave no witnesses,' `kill the person up there.'

"West entered the store armed with a.45 caliber handgun and the circumstances indicate that he held the attendant Berry at gunpoint and took $250.00 from a cookie can where the store money was kept. The medical evidence indicates that Berry was shot in the back of the head while lying prone on the floor behind the counter of the store. According to the medical examiner, the `wound would cause rapid incapacitation and a very rapid death.'"

(C.R.188.)

The appellant raises several issues on appeal that he did not raise at trial. Although the lack of an objection at trial will not bar review of an issue in a case in which the death penalty has been imposed, it will weigh against any claim of prejudice the appellant may raise. See Ex parte Kennedy, 472 So.2d 1106 (Ala.), cert. denied, 474 U.S. 975, 106 S.Ct. 340, 88 L.Ed.2d 325 (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, 102 S.Ct. 1584, 1592, 71 L.Ed.2d 816 n. 14 (1982)).

I.

The appellant's first argument is that the trial court improperly refused to exclude from evidence letters he allegedly wrote to his former girlfriend and codefendant, Amy Pearce, because the prosecution made the defense aware of the existence of the letters only eight days before the trial was scheduled to begin. Additionally, he argues that the trial court should have excluded the testimony of the prosecution's expert because the prosecution first gave the defense notice of its intent to introduce that expert testimony on May 20, 1999. Specifically, he contends that he should not have been deprived of an opportunity to review and respond to the documents and the expert's testimony simply because the prosecution procrastinated in preparing its case. Finally, the appellant argues, in the alternative, that the trial court should have granted a continuance so the defense could retain its own expert to examine the letters. Although he moved to suppress or exclude the letters and the expert's testimony, he did not request a continuance. Therefore, we review the appellant's contention about the continuance for plain error. See Rule 45A, Ala. R.App. P.

During a motion hearing on May 19, 1999, the following occurred:

"DEPUTY DISTRICT ATTORNEY PHILLIPS: ... I found out—I don't know the exact date—but either on Thursday [May 6, 1999] or Friday [May 7, 1999] from talking to Ms. Pearce's attorney she informed me for the first time that they had some letters that they had not told us about or that we had.

"THE COURT: All right. When was this?

"DEPUTY DISTRICT ATTORNEY PHILLIPS: Thursday or Friday before the Wednesday [May 12, 1999] that I turned them over. We still did not have them in our possession.

"THE COURT: Okay.

"DEPUTY DISTRICT ATTORNEY PHILLIPS: Ms. Pearce is at another jail facility. She is not here in the county. They had requested and we agreed that before we talked to her at any time we would contact them and they would meet us at that facility and her attorney is there, and I have never spoken to the lady when her attorney wasn't present. We made arrangements to meet her on Monday. That would have been what, the 10th, at 2:00 o'clock in the afternoon —2:00 o'clock in the afternoon at Blount County. We showed up over there at approximately 4:30 or 5:00 o'clock on Monday afternoon was when those letters first came into our possession. And it is not just a sheet or two. It is a stack approximately four to six inches tall. And it was nothing—they just said basically `here they are.' These were letters that were mailed— that were written by the defendant....

They turned those letters over to us that day at approximately 5:00 o'clock on the 10th. I had an uncle that died and I went to the funeral and stayed out from work on the 11th. As soon as I got home, I spent about six hours going through the letters. I was the first one to read them. [The other prosecutor] didn't have them. Wednesday morning when I got back to work I called and told John about them and they were turned over that day, the 12th."

(R. 174-76.) During a break in the voir dire proceedings on May 20, 1999, the following occurred:

"MR. FLOYD [defense counsel]: Judge, I don't know when we are going to need to take this up, but there is going to be an issue regarding some forensic testing that has been ongoing that we are just now getting any results of.

"THE COURT: Well, we don't need to do that before we get through with the jury, do we?

"MR. FLOYD: This is the problem we run into, Judge. This is expert forensic testing and if they come up with something that is adverse to our client, we are not going to have the opportunity to respond. We don't have the opportunity to get an expert. We don't have the opportunity to do anything with this evidence.

"THE COURT: Okay.

"MR. FLOYD: This is handwriting evidence. We would have to have a handwriting expert and all of that, and we are in a situation now where today we are here to strike a jury and as we are taking breaks in between, we are getting bits and pieces of what is purported to be in the letters. I can't see how we can be adequately prepared to defend the case when we get something on the eve of picking the jury. How can the court allow the State to bring in evidence of something that comes up the day we are striking the jury?

"THE COURT: I don't know anything about what you are talking about. I have no idea.

"MR. FLOYD: There are certain portions of the letters that have been previously referred to in this case that are purportedly written by the defendant to the codefendant who is now going to testify in this case. There were certain portions of those letters that [have] been deleted by the codefendant who will be the witness to testify.

"THE COURT: Uh-huh.

"MR. FLOYD: She has deleted those purposely, marked through those areas. Now, those letters were in the possession of the State on May 12th. No, they were in possession of the State on May 10th. The State knew of them on May 4th. I think it was the Thursday before is when they had informed the court. Well, excuse me, the 6th—May 6th is when they became aware of the letters. The letters came into our possession actually the morning of the 13th of May. Copies were provided the morning of the 13th.

"DEPUTY DISTRICT ATTORNEY WARREN: The 12th.

"MR. FLOYD: No, it was the 13th. We found out about them on the 12th.

"THE COURT: I thought we had already hashed all that out.

"MR. FLOYD: Yes, sir. But what had come to light now is they have certain of these letters that have these deletions in them to the Department of Forensic Science to have a handwriting expert or an expert who is in some particular field—

"DEPUTY DISTRICT ATTORNEY WARREN:—A document— "MR. FLOYD:—To try to read what is underneath the deleted portions of the letters. And the first time we hear of this, they mentioned yesterday there was some forensic testing ongoing but didn't go into detail about what it was. This morning they come to us and tell us they have been trying to lift what is underneath these deleted portions of the letters. As the morning proceeded on two separate occasions we have been given bits and pieces of what is supposedly underneath the deletions in the letters. How can we be in a position to adequately respond to something an expert is going to come in here and testify about when we don't even know about until the day we are fixing to strike a jury.

"DEPUTY DISTRICT ATTORNEY PHILLIPS: They have had the letters with the exception of about 36 hours ever since we have and there is no reason why they couldn't have had any expert do whatever they wanted to as well.

"MR. FLOYD: We have had the letters since the morning of May 13th,

...