Whitt v. State, CR-96-0349.

CourtAlabama Court of Criminal Appeals
Writing for the CourtPATTERSON, Retired Appellate.
Citation733 So.2d 463
PartiesRandall Lee WHITT v. STATE.
Docket NumberNo. CR-96-0349.,CR-96-0349.
Decision Date03 April 1998

733 So.2d 463

Randall Lee WHITT

No. CR-96-0349.

Court of Criminal Appeals of Alabama.

April 3, 1998.

Rehearing Denied August 14, 1998.

Certiorari Denied April 23, 1999.

733 So.2d 466
Andrew Dalins, Huntsville, for appellant

Bill Pryor, atty. gen., and Hense R. Ellis II, asst. atty. gen., for appellee.

Alabama Supreme Court 1972150.

PATTERSON, Retired Appellate Judge.

The appellant, Randall Lee Whitt, was indicted on December 8, 1994, in Madison County, in a two-count indictment. Count One charged the capital offense of murder committed during a robbery in the first degree, see § 13A-5-40(a)(2), Ala.Code 1975, and Count Two charged the offense of attempted murder, see §§ 13A-4-2 and

733 So.2d 467
13A-6-2. The indictment reads, in pertinent part, as follows

"Count One:

"The Grand Jury of said County charge ... Randall L. Whitt ... did intentionally cause the death of James Maples by shooting him with a firearm, and Randall L. Whitt ... caused said death during the time that Randall L. Whitt ... was in the course of committing a theft of property, to-wit: a purse and its contents, belonging to Mary Humphries, by the use of force against the person of James Maples, with intent to overcome his physical resistance or physical power of resistance, while the said Randall L. Whitt ... was armed with a deadly weapon, to-wit: a firearm, in violation of Code of Alabama 1975, § 13A-5-40(a)(2)....

"Count Two:

"The Grand Jury of said County charge ... Randall L. Whitt ... did, with intent to commit the crime of Murder (Section 13A-6-2 of the Code of Alabama) attempt to commit said offense by shooting Mary Humphries with a firearm, in violation of § 13A-4-2 of the Code of Alabama...."

At arraignment, the appellant pleaded not guilty, and on August 29, 1996, a jury found him guilty of both counts as charged in the indictment. The state made it known at the beginning of the trial that it would not seek the death penalty; therefore, no sentencing hearing, pursuant to §§ 13A-5-43 through -46, was held before the jury in reference to the capital conviction. After a sentencing hearing before the trial court, the court sentenced the appellant on November 1, 1996, as follows: On Count One, the capital offense of murder committed during a robbery in the first degree, the appellant was sentenced to life imprisonment without the possibility of parole, was fined $1,000, and was ordered to pay $1,000 to the victims compensation fund, all court costs, and the attorney fees of any court-appointed attorney. On Count Two, the offense of attempted murder, he was sentenced to life imprisonment, was fined $1,000, and was ordered to pay $1,000 to the victims compensation fund, all court costs, and the attorney fees of any court-appointed attorney.

The state's evidence showed that David Anthony Coffman and the appellant had visited the appellant's former girlfriend, Nancy Denise Guerin, at her mother's mobile home on the morning of August 15, 1994; that they were traveling in Coffman's older model, white pickup truck; and that both men were armed with pistols. Nancy's brother, James Kevin Guerin, who was also present, overheard Coffman say during a telephone conversation that "he had to hurry up and go, they had to rob somebody." The appellant was standing near him and Coffman when Coffman made the statement. Nancy heard Coffman, after talking on the telephone, say to the appellant, "We need to go. We got business to take care of." Immediately after these statements, Coffman and the appellant left in a hurry. (James Guerin testified they left between 12:30 and 1:00 p.m.; Nancy Guerin testified that they left between 12:30 and 12:45 p.m.).

The state's evidence further showed that, before the incident out of which this case arose, Mary Arminda Humphries and James Murray Maples had been seeing each other for several months and that, during that time, they had met on about 15 occasions behind the Flint River Primitive Baptist Church in rural Madison County. The evidence further showed that they planned to meet at the church around 1:00 p.m. on August 15, 1994; that Humphries arrived first, shortly after 1:00 p.m., parked her automobile behind the church, and sat on the church steps waiting for Maples; that shortly thereafter, what she described as an older model, noisy, white pickup truck with two persons in it came around the church and pulled up within five feet of her; and that the passenger in the truck leaned over and asked, "Have you seen a nigger in a brown Cadillac?"

733 So.2d 468
Humphries answered that she had not, and the truck pulled away. (At photographic lineups and at the trial, she positively identified the driver of the truck as being Coffman and the passenger as being the appellant). Concerned, she got back in her automobile and waited for Maples. A few minutes later Maples arrived. They got out of their respective automobiles and greeted each other. Then Humphries heard and saw the same noisy, white pickup truck approaching the church. She heard the truck stop and the motor cut off, and immediately thereafter saw two men approaching them on foot. According to her, they were the same two men who had earlier approached her in the truck while she was sitting on the church steps. Coffman came directly to them, stopped about five feet from them, and stood with his hands on his hips, looking at them. The appellant, who stood about 10 feet behind and to the side of Coffman, said, "Have you seen a nigger in a brown Cadillac?" Maples said, "No, we haven't. That's why we come back here. This is private." The appellant then pulled a pistol from his belt and started firing at Humphries and Maples, as he advanced on them. After Maples shoved Humphries to the ground and ran, the appellant stood at her feet, pointing the pistol in her face. She begged him not to kill her, and she put her hand up to shield her face, but the appellant fired directly at her. The bullet went through her hand. She then lay still and pretended she was dead. She then heard someone (whom she believed to be Coffman) say, "Make sure that son-of-a-bitch is dead." Then someone (whom she believed to be the appellant) grabbed her by the hair, lifted her off the ground and struck her in the head with a heavy object, causing her to lose consciousness. When she regained consciousness and saw no one around, she began looking for Maples. She found him lying nearby, unable to breath and bleeding from the mouth and nose, from what appeared to be a gunshot wound. Determining that she could not help him, she ran to the road, flagged an automobile, went to a nearby house, and telephoned the police

It was subsequently determined that Maples suffered a gunshot wound; that the wound caused his death; and that he died at the scene. The bullet was never recovered. Humphries suffered a gunshot through her hand, a grazing gunshot wound to a knee, and lacerations to her head caused by a blunt instrument.

The investigation disclosed that Humphries's purse was missing. A short time later, her Alabama driver's license, several of her identification and credit cards, and personal photographs that had been in her purse, along with her purse, were found along the roadside some distance from the scene of the incident.

As a result of the descriptions of the suspects and the truck furnished by Humphries, Coffman was stopped by the police about 3:00 p.m. on the same day, while driving the truck, and was subsequently arrested and charged with the crimes.1 Around 4:00 p.m. on the day of the crimes, the appellant telephoned Nancy Denise Guerin and told her, "I already killed a man and shot a woman." The appellant called her again later that day and said, "We killed a man and shot a woman." At trial, Guerin testified that she has received several letters from the appellant since his arrest in this case, and in each letter he claims that he is innocent and places the

733 So.2d 469
full blame for the crimes on Coffman. Around 7:00 p.m., the police were called to a mobile home park to investigate a disturbance involving the appellant. It had been reported that he had been firing a pistol. After he was arrested, it was discovered that he had a pistol and live ammunition in his possession, as well as some of Humphries's identification cards. These were seized by the police. It was subsequently determined by a ballistics expert that the pistol seized from the appellant was the same pistol that had fired the bullet that had been recovered from Humphries's automobile and also had fired one of the five spent shell casings that had been found at the scene. The findings as to the other shell casings found were inconclusive; that is, it could not be determined whether they had been fired by the appellant's pistol. No other pistol was recovered.

After proper Miranda2 warnings and a waiver of rights by the appellant, he gave the officers two oral and two written statements. In the statements, he admitted being with Coffman when they approached Maples and Humphries at the church; however, he denied any involvement in the crimes. He stated that he had no knowledge that Coffman was intending to rob or to shoot anybody; that Coffman did the shooting; that when Coffman started firing his pistol, the appellant ran back to the truck; and that when he and Coffman were fleeing the scene, he discovered the purse in the truck and threw it out on the side of the road. He placed the entire blame on Coffman.

About five months after the incident, the appellant telephoned James Kevin Guerin from the jail, and he asked the appellant what had happened. The appellant told him, "[T]hey were going down through there, and David [Coffman] pulled his gun and told the man to give his money to him, and the dude was supposed to have pulled a knife on him, and David shot him. Then [the appellant] said he panicked and shot the woman."

The appellant did not testify in his defense. He called five witnesses; all...

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    ...factual assertions made in brief that are not disclosed or supported by the record; this court is bound by the record." Whitt v. State, 733 So.2d 463 (Ala.Crim.App. 1998). "Where the record is silent on appeal, it will be presumed that what ought to have been done was not only done, but rig......
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    ...or conversations with the police, his prior invocation of the right to counsel during the interrogation is waived. See Whitt v. State, 733 So.2d 463 Therefore, this claim is barred as being insufficiently pleaded because it is based on mere assertions and conclusions. Boyd has not met eithe......
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