Williams v. State

• Decision Date: 14 June 1991
• Citation: 601 So.2d 1062
• Parties: Luther Jerome WILLIAMS v. STATE. CR 89-191.
• Court: Alabama Court of Criminal Appeals

Page 1062

601 So.2d 1062

Luther Jerome WILLIAMS v. STATE.

CR 89-191.

Court of Criminal Appeals of Alabama.

June 14, 1991.

Rehearing Denied July 26, 1991.

Certiorari Granted March 6, 1992

Alabama Supreme Court 1901682.

Rehearing Denied April 10, 1992.

John A. Bivens and Larry Ingram, Tuscaloosa, for appellant.

James H. Evans, Atty. Gen., and Sandra J. Stewart and Melissa G. Math, Asst. Attys. Gen., for appellee.

TAYLOR, Judge.

The appellant, Luther Jerome Williams, was convicted of intentional murder during the course of a robbery, made a capital offense by § 13A-5-40(a)(2), Code of Alabama 1975. The jury recommended that the appellant be sentenced to death. The trial court accepted its recommendation and sentenced the appellant to death by electrocution.

A brief chronology of the events leading to the appellant's conviction and this appeal is necessary to understand the issues raised in this appeal. The evidence tended to show the following:

On January 22, 1988, a 1981 dark blue Oldsmobile Regency automobile was stolen from a motel parking lot in Birmingham, Alabama. In the trunk of this vehicle was, among other items, a .22 caliber pistol. A dark blue car arrived at the Smithfield housing project in Birmingham later that same evening and the appellant was identified as the sole occupant. On the morning of January 23, 1988, John Robert Kirk was on his way home from work. He stopped his vehicle--a red 1984 Chevrolet pickup truck with a camper on the back--near the West Blocton exit on Interstate 59 South in Tuscaloosa County. The appellant and two men were traveling south on Interstate 59 in the stolen Oldsmobile. After noticing the victim's vehicle beside the road, they stopped and confronted him. The appellant led the victim to a nearby wooded area and shot him once in the left side of the head, "execution style," with the .22 caliber pistol which had been in the trunk of the stolen Oldsmobile. The victim's body was left at the site of the shooting, and his money and vehicle were taken.

Later that same morning, several witnesses identified the appellant as the driver of a red "camper truck" which was parked at the Smithfield housing project. One of these witnesses, Priscilla Jones, a relative of the appellant's, testified that the appellant had visited her on the day of the murder. She stated that the appellant told her that "he had killed a white man and stole his truck," and that he proceeded to show her the weapon, which she described as having a white handle.

On the night of January 24, 1988, after responding to a call placed by a Rosie Mims, members of the Birmingham Police Department interviewed Priscilla Jones regarding the appellant. During this interview, the Birmingham police learned of the appellant's statement to Ms. Jones concerning the shooting of a white man. They were also informed that he was staying at an apartment in the housing project, and that he was an escapee from the supervised intensive restitution (SIR) program.

During the very early morning hours of January 25, 1988, after verifying that the appellant had indeed escaped from the SIR program and that a warrant was still outstanding, the Birmingham police went to the apartment in the Smithfield housing project where the appellant was reportedly staying. The officers talked with the lessee of the apartment, Margie Bush. They inquired as to the whereabouts of the appellant and his girlfriend, Debra "Bootsie" Bush. Margie Bush turned toward a curtain which separated the front of the apartment from the back bedroom and shouted for Bootsie, who then appeared from behind the curtain. Bootsie stated that she did not know where the appellant was at that time. However, one of the officers happened to look behind the curtain and saw the appellant lying in the bed. After a struggle, the appellant was taken into custody.

The supervising officer then informed Margie Bush that the appellant was thought to have a gun and requested permission to search the apartment for it. Margie Bush gave her permission. During the search, Bootsie stated that the appellant had hidden the gun in the bedroom. The murder weapon was found inside a black purse located on top of a dresser in the room in which the appellant was apprehended.

The appellant was indicted on April 29, 1988, for the murder of John Robert Kirk during a robbery. After his indictment, the appellant was sent at his own request to the Taylor Hardin Secure Medical Facility for an evaluation of his mental competency to stand trial. Evidence was presented at trial that while at Taylor Hardin, the appellant made the statement "I have killed one white m____ f____; I'll kill another one." However, there was some conflict regarding the person to whom the statement was directed. The appellant was found to be competent to stand trial and was discharged from the facility on December 23, 1988.

After numerous continuances, the appellant's trial began on November 27, 1989. The jury returned a verdict of guilty on November 30, 1989. The sentencing phase of the appellant's trial began on December 1, 1989, and that same day, the jury returned its recommendation that the appellant be sentenced to death.

Initially, we observe that many of the issues that the appellant raises in his supplemental brief are issues as to which no objections were made during the course of the trial. While this will not bar our review in a case involving the death penalty, it will weigh against any claim of prejudice. "Rule 45A requires this court to 'notice any plain error or defect ..., whether or not brought to the attention of the trial court, and [to] take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial right of the appellant.' " Arthur v. State, 575 So.2d 1165 (Ala.Cr.App.1990), cert. denied, 575 So.2d 1191 (Ala.1991).

I

The appellant contends that he was denied his right to a speedy trial due to the 22-month delay between the date of his arrest and the date of his trial.

In analyzing such a contention, four factors must be considered in determining whether the accused has been denied a speedy trial: the length of the delay, the reasons for the delay, the appellant's assertion of his right to a speedy trial, and the degree of prejudice to the appellant's case caused by unnecessary delay. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972).

In the case now before us, 22 months elapsed between the date of the appellant's arrest and the date of his trial. However, such a period is not presumptively prejudicial, rather, "the length of delay that will provoke such an inquiry is necessarily dependent upon the particular circumstances of the case." Barker, at 530-31, 92 S.Ct. at 2191-92. See also United States v. Herman, 576 F.2d 1139 (5th Cir.1978) (22-month delay not unduly arduous); Kelley v. State, 568 So.2d 405 (Ala.Cr.App.1990) (15-month delay deemed not excessive under the circumstances); Smelley v. State, 564 So.2d 74 (Ala.Cr.App.), cert. denied 564 So.2d 89 (Ala.1990) (28-month delay did not warrant reversal).

"Although the length of the delay has been said to trigger the examination of the remaining factors, most courts do not analyze a speedy trial argument without taking into account all four factors discussed in Barker." Goodson v. State, 588 So.2d 509, 511 (Ala.Cr.App.1991). We now look to the reasons for the aforementioned delay. In his brief, the appellant claims that he caused none of the delay. However, the record clearly contradicts this claim. The pretrial history of this case is as follows:

January 25, 1988--Appellant arrested for escape from SIR program.

January 27, 1988--Capital warrant issued for appellant.

April 29, 1988--Appellant indicted by Tuscaloosa County grand jury for murder during first degree robbery.

July 20, 1988--Appellant files a motion to continue arraignment. Motion granted.

August 19, 1988--Appellant arraigned, at which time he pleaded not guilty. Appellant petitioned for psychiatric evaluation to determine his competency to stand trial. Petition granted. Appellant ordered to be admitted to Taylor Hardin Secure Medical Facility as bed space became available.

November 9, 1988--Appellant admitted to Taylor Hardin.

December 23, 1988--Appellant released from Taylor Hardin.

January 25, 1989--Report from Taylor Hardin submitted to the trial court.

February 1, 1989--Pretrial conference, Trial set for April 3, 1989.

February 9, 1989--Appellant files a plethora of motions and requests an evidentiary hearing on many of them.

March 9, 1989--Hearing on previously filed motions. Appellant announces his intent to file for a continuance of April 3, trial date. The state opposes the granting of a continuance and announces that it is ready for trial.

March 10, 1989--Appellant files motion for continuance. Motion granted.

May 23, 1989--Appellant files motion for continuance because one of his attorneys was injured in an automobile accident. Motion granted.

August 8, 1989--Pretrial hearing.

November 27, 1989--Trial begins.

This court has previously held that, "[d]elays occasioned by the defendant or on his behalf are excluded from the length of delay and are heavily counted against the defendant in applying the balancing test of Barker." Walker v. State, 386 So.2d 762, 763 (Ala.Cr.App.), cert. denied, 386 So.2d 765 (Ala.1980).

Although the appellant claims in his brief that he asserted his right to a speedy trial, a review of the record fails to support his claim. We find no evidence that the appellant either demanded or made any attempt to obtain an earlier trial. This point, coupled with the fact that the appellant is largely responsible for the delay of his trial, leads us to conclude that the appellant was not denied his right to a speedy trial.

II

The appellant next contends that the trial court erred in denying his motion to sequester the venire during voir dire examination. The...