Whitehead v. State

CourtAlabama Court of Criminal Appeals
Writing for the CourtLONG, Presiding.
Citation777 So.2d 781
Decision Date27 August 1999
PartiesLarry Wayne WHITEHEAD v. STATE.

777 So.2d 781

Larry Wayne WHITEHEAD
v.
STATE

CR-95-2129.

Court of Criminal Appeals of Alabama.

August 27, 1999.

Rehearing Denied October 22, 1999.


777 So.2d 794
Hoyt L. Baugh, Jr., Rainsville, for appellant

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

LONG, Presiding Judge.

The appellant, Larry Wayne Whitehead, was convicted of three counts of capital murder in connection with the murder of Ernest Andrew Whitten. The murder was made capital (1) because it was committed during a burglary in the first degree, see § 13A-5-40(a)(4), Ala.Code 1975; (2) because Whitten, at the time of his murder, had testified before a grand jury that had indicted Whitehead for theft in the first degree, see § 13A-5-40(a)(14), Ala.Code 1975; and (3) because Whitten, at the time of his murder, had been subpoenaed to testify at Whitehead's trial on the theft charge, see § 13A-5-40(a)(14), Ala.Code 1975. By a vote of 12-0, the jury recommended that Whitehead be sentenced to death. The trial court accepted the jury's recommendation and sentenced Whitehead to death. This appeal followed.

On appeal from his convictions, Whitehead raises 22 issues, many of which he did not raise by objection in the trial court. Because Whitehead was sentenced to death, his failure to object at trial does not bar our review of these issues; however, it does weigh against any claim of prejudice he now makes on appeal. See Dill v. State, 600 So.2d 343 (Ala.Cr.App. 1991), aff'd, 600 So.2d 372 (Ala.1992), cert. denied, 507 U.S. 924, 113 S.Ct. 1293, 122 L.Ed.2d 684 (1993); Kuenzel v. State, 577 So.2d 474 (Ala.Cr.App.1990), aff'd, 577 So.2d 531 (Ala.), cert. denied, 502 U.S. 886, 112 S.Ct. 242, 116 L.Ed.2d 197 (1991).

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, 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."

This court has recognized that "`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."'" Burton v. State, 651 So.2d 641, 645 (Ala.Cr.App.1993), aff'd, 651 So.2d 659 (Ala.1994), cert. denied, 514 U.S. 1115, 115 S.Ct. 1973, 131 L.Ed.2d 862 (1995), quoting United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985) (quoting, in turn, United States v. Frady, 456 U.S. 152, 163, 102 S.Ct. 1584, 1592, 71 L.Ed.2d 816 (1982)).

The evidence presented at trial tended to show the following. Whitehead was an employee at Hudson Foods, Inc. He had been punching his time card when he arrived at work, leaving immediately thereafter, and then returning to work and punching the time card to indicate he had worked a full day. Whitehead's codefendants, James Matthew Hyde and Stephen Brookshire, had, on several occasions, helped Whitehead with his scheme to be paid without actually working, by punching Whitehead's time card for him, thus clocking him in and out of work. Hudson Foods eventually became aware of Whitehead's scheme, and Detective Andrew Whitten of the Albertville Police Department was assigned to investigate Whitehead

777 So.2d 795
and the theft allegations Hudson Foods had made against him. Whitten interviewed Whitehead concerning the theft allegations, and he was eventually arrested and charged with theft of property in the first degree. Specifically, he was charged with stealing approximately $12,000 from Hudson Foods

At the time of his arrest, Whitehead was on parole for a prior felony conviction. A parole revocation hearing was held, and Whitten testified at that hearing concerning his investigation of the Hudson Foods theft case. Upon conclusion of the hearing, however, Whitehead's parole was not revoked. Approximately one month later, in September 1994, Whitehead was indicted for theft of property in the first degree. Whitten testified before the grand jury that indicted Whitehead concerning his investigation of the theft charges. Whitten was also subpoenaed to testify at Whitehead's trial, which was set to begin on January 30, 1995. Whitten was shot on January 24, 1995, and on January 25, 1995, he died from injuries he sustained in the shooting.

Whitehead's codefendant Stephen Brookshire testified that Whitehead approached him on the morning of January 24, 1995, and asked him if he would "drive for him" later that night, telling Brookshire that he had to "get rid of his witness." (R. 1403.) Brookshire knew that Whitehead had been charged with theft. In fact, Brookshire testified at Whitehead's parole revocation hearing to the effect that he had clocked Whitehead in and out of work on several occasions.

According to Brookshire, Whitehead and Hyde came to his mobile home on the evening of January 24, 1995, and at approximately 9:00 p.m. that night, the three men left in an automobile, with Brookshire driving. Brookshire testified that they drove to Whitten's neighborhood, and he parked the car near Whitten's house and turned off the headlights. Brookshire further testified that Hyde got out of the car and that Whitehead told him, "Don't mess up." (R. 1416.) Brookshire stated that Hyde had been gone for several minutes when he heard a single gunshot. According to Brookshire, Hyde came running back to the car, jumped in, and repeatedly told Whitehead that he was "sorry" because Whitten was not dead. Brookshire stated that Hyde told Whitehead that he was able to shoot Whitten only once because, after the first shot, his gun had jammed. Brookshire testified that Whitehead told Hyde it was okay, "we'll get him later." (R. 1419.) Brookshire stated that he knew when they left his mobile home that night that they were going to "get rid of Whitehead's witness; however, he stated that he did not know the identity of the witness.

Numerous witnesses for the State testified that Whitehead talked frequently about filing a multimillion-dollar civil law-suit against Hudson Foods for making false allegations of theft against him. On numerous occasions, Whitehead was heard by these witnesses saying that Whitten was the only witness in the theft case and that if Whitten was "out of the way," he would be acquitted and he could win the civil lawsuit. Wanda Self, Whitehead's girlfriend, with whom he was living at the time of the murder, testified that shortly after the murder, Whitehead told her that "the deed was done." (R. 1136.) There was further testimony that Whitehead had said, with regard to his upcoming trial on the theft charges, that he would "shoot up the courtroom with Andy Whitten in it." (R. 1278.)

There was also testimony from one of Whitten's neighbors that, several days before the murder, a man knocked on his door wanting to know where Whitten lived. Wanda Self and her daughter both testified that they were with Whitehead several days before the murder when he was looking for Whitten's house and knocked on the door of a house near Whitten's to find out where Whitten lived.

Randall Ogle testified that on January 25, 1995, Whitehead asked him to get rid

777 So.2d 796
of a .380 caliber semiautomatic pistol, the same type of weapon used to kill Whitten. Ogle stated that he threw the gun in a river. The police were unable to find the gun

Also, several witnesses who saw Hyde shortly before he left with Whitehead and Brookshire on the evening Whitten was killed testified that Hyde was wearing a blue sweatshirt-type jacket and baseball cap on that night. Further testimony revealed that shortly after the murder, on the same night, Hyde was seen putting a blue sweatshirt-type jacket and a baseball cap into a white plastic bag; the jacket and the cap had been torn into pieces. The testimony revealed that Hyde threw the plastic bag into a river. The police found that plastic bag containing the items of clothing on the day after Whitten's murder.

Whitehead did not testify at his trial; however, his testimony from Hyde's trial was read into evidence at his trial. At Hyde's trial, Whitehead testified that he, and not Hyde, had killed Whitten. Whitehead stated that when they went to Whitten's house on the night of the shooting, Hyde and Brookshire thought that they were going to a drug dealer's house to buy drugs. After the State rested its case, the defense called no witnesses.

I.

Whitehead contends that several pretrial rulings made by the trial court were erroneous. (Issue X in Whitehead's brief to this court.)

A.

Whitehead first argues that the trial court's denial of his motion requesting funds to obtain expert assistance was improper, in that it violated the principles of Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). In a pretrial motion filed on June 28, 1995, Clyde Baker, the attorney originally appointed to represent Whitehead, asserted the general defense that Whitehead suffered from "various serious mental disorders and from mental retardation." (C. 61.) Counsel did not present the trial court with any evidence of these alleged mental disorders or of Whitehead's alleged mental retardation. Counsel claimed in this motion that Whitehead's alleged "mental condition [would] be a significant factor at both phases of the trial" and that the expert assistance of a psychologist was therefore necessary for Whitehead to prepare his defense. (C. 62.) Counsel did not state specifically how a psychologist would aid Whitehead in his defense.

During a pretrial motion hearing, Whitehead's request for expert assistance was discussed by the trial court and by counsel for both the State and the defense. At the hearing, the following exchange occurred:

"[Whitehead's counsel, Mr. Baker]: There's a motion to inspect, examine, and
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112 practice notes
  • McWhorter v. Dunn, Case No. 4:13-CV-02150-RDP
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • January 22, 2019
    ...specific intent required for a murder conviction, the degree of the accused's intoxication must amount to insanity." Whitehead v. State, 777 So. 2d 781, 832 (Ala. Crim. App. 1999), aff'd, 777 So. 2d 854 (Ala. 2000) (quoting Smith v. State, 756 So. 2d 892, 906 (Ala. Crim. App. 1998), aff'd, ......
  • Gavin v. State
    • United States
    • Alabama Court of Criminal Appeals
    • September 26, 2003
    ...aff'd, 545 So.2d 145 (Ala.1989), cert. denied, 495 U.S. 911, 110 S.Ct. 1937, 109 L.Ed.2d 300 (1990)." Whitehead v. State, 777 So.2d 781, 801-02 (Ala.Crim.App.1999), aff'd, 777 So.2d 854 (Ala.2000). There is no indication in the record, and Gavin does not argue otherwise, that any juror had ......
  • People v. Hinton, No. S037302.
    • United States
    • United States State Supreme Court (California)
    • January 26, 2006
    ...302), we are skeptical the jury would have paid any mind to her brief and unsurprising comment. (Whitehead v. State (Ala.Crim.App.1999) 777 So.2d 781, 848-849; Wood v. State (Okla.Crim.App.1998) 959 P.2d 1, 12.) Because defendant could not have been prejudiced, we also reject defendant's cl......
  • People v. Hinton, No. S037302.
    • United States
    • United States State Supreme Court (California)
    • January 26, 2006
    ...302), we are skeptical the jury would have paid any mind to her brief and unsurprising comment. (Whitehead v. State (Ala.Crim.App.1999) 777 So.2d 781, 848-849; Wood v. State (Okla.Crim.App.1998) 959 P.2d 1, Because defendant could not have been prejudiced, we also reject defendant's claim t......
  • Request a trial to view additional results
112 cases
  • McWhorter v. Dunn, Case No. 4:13-CV-02150-RDP
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • January 22, 2019
    ...specific intent required for a murder conviction, the degree of the accused's intoxication must amount to insanity." Whitehead v. State, 777 So. 2d 781, 832 (Ala. Crim. App. 1999), aff'd, 777 So. 2d 854 (Ala. 2000) (quoting Smith v. State, 756 So. 2d 892, 906 (Ala. Crim. App. 1998), aff'd, ......
  • Gavin v. State
    • United States
    • Alabama Court of Criminal Appeals
    • September 26, 2003
    ...aff'd, 545 So.2d 145 (Ala.1989), cert. denied, 495 U.S. 911, 110 S.Ct. 1937, 109 L.Ed.2d 300 (1990)." Whitehead v. State, 777 So.2d 781, 801-02 (Ala.Crim.App.1999), aff'd, 777 So.2d 854 (Ala.2000). There is no indication in the record, and Gavin does not argue otherwise, that any juror had ......
  • People v. Hinton, No. S037302.
    • United States
    • United States State Supreme Court (California)
    • January 26, 2006
    ...302), we are skeptical the jury would have paid any mind to her brief and unsurprising comment. (Whitehead v. State (Ala.Crim.App.1999) 777 So.2d 781, 848-849; Wood v. State (Okla.Crim.App.1998) 959 P.2d 1, 12.) Because defendant could not have been prejudiced, we also reject defendant's cl......
  • People v. Hinton, No. S037302.
    • United States
    • United States State Supreme Court (California)
    • January 26, 2006
    ...302), we are skeptical the jury would have paid any mind to her brief and unsurprising comment. (Whitehead v. State (Ala.Crim.App.1999) 777 So.2d 781, 848-849; Wood v. State (Okla.Crim.App.1998) 959 P.2d 1, Because defendant could not have been prejudiced, we also reject defendant's claim t......
  • Request a trial to view additional results

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