Wilson v. State
| Decision Date | 19 November 1999 |
| Parties | Joseph Michael WILSON v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Elissa H. Green, Huntsville, for appellant.
Bill Pryor, atty. gen., and Beth Jackson Hughes, asst. atty. gen., for appellee.
The appellant, Joseph Michael Wilson, was convicted of capital murder for the killings of Charles Lamar Hemphill, Michael A. Beaudette, Johnny Couch, and Brian Carter. The murders were made capital because the appellant committed them by one act or pursuant to one scheme or course of conduct. See § 13A-5-40(a)(10), Ala.Code 1975. He was also convicted of attempting to murder Ashley Rutherford and Michelle Hayden. See §§ 13A-6-2 and 13A-4-2, Ala.Code 1975. After a sentencing hearing, the jury recommended, by a vote of 12-0, that the appellant be sentenced to death by electrocution. The trial court accepted the jury's recommendation and sentenced the appellant to death for the capital murder conviction. It also sentenced him to serve 20 years in prison for each of the attempted murder convictions, ordering that he serve those sentences consecutively to his death sentence.
In September 1996, Michelle Hayden and Ashley Rutherford, who were engaged to be married, lived together in a room in the house in which Rutherford's aunt lived. On or about September 18, 1996, the appellant, Nicholas Acklin, and Corey Johnson went to Rutherford's residence and acted like they wanted to buy some marijuana. After looking at the marijuana, the three men left. However, Johnson returned, asked to see the marijuana again, and then grabbed the marijuana and left. Shortly thereafter, Lamar Hemphill, who was visiting Rutherford, realized that his cellular telephone was missing. When he called the telephone's number, the appellant answered. Hemphill then filed a complaint with the sheriff's department, alleging that the appellant stole his cellular telephone. A few days later, the appellant discovered that a complaint had been filed against him.
On September 25, 1996, Hayden, Hemphill, and Brian Carter were watching television in Hayden and Rutherford's room while Rutherford was at work. Michael Skirchak and Johnny Couch, who were on their way to pick up Michael Beaudette, stopped to visit them. Around 10 p.m., the appellant, Acklin, and Johnson arrived, and the appellant started asking who had filed a warrant against him for taking a cellular telephone. Hemphill stated that he did not know anything about a warrant and that only a complaint had been filed. Johnson then started slapping Hemphill, Couch, Carter, and Skirchak around. Using a Jack Daniel's whiskey bottle, he hit Hemphill in the head and Carter in the mouth. He also grabbed Couch by his hair, which was long, and repeatedly slammed his head into a dresser. At one point, Johnson held Couch up by his hair, and the appellant cut Couch's hair. The appellant also repeatedly "stomped" Couch, who was lying on the floor. Sometime later, Beaudette arrived and was told to empty his pockets.
The appellant, Acklin, and Johnson were all armed with pistols. At one point, while Acklin and Johnson remained armed, the appellant laid his gun on a table and dared the others to grab it. He also held his gun to Skirchak's head and asked him about the warrant. During the evening, the appellant made some of the males take off their pants and give him their identification cards. He also made statements like (R. 780), and (R. 780-81.) Throughout the evening, the appellant repeatedly said, "This is my crew."
Around 11:20 or 11:30 p.m., Rutherford came home from work. The appellant, Acklin, and Johnson questioned him about the warrant and warned him not to lie to them. They made him take his pants off, and the appellant took two necklaces from him. The appellant yelled at Rutherford, slapped him, and spit in his face. He also made Hayden say "My boyfriend [Rutherford] ain't s____." Additionally, Acklin put a gun in Rutherford's mouth and made him gag.
Throughout the evening, the appellant repeatedly made comments like, "Let's buck them" and "You don't f____ with Joey's crew." Witnesses testified that "buck" meant "shoot" or "kill." One time, Hayden told the appellant to be quiet or he would wake up Rutherford's aunt. In response, the appellant said, "Well, we can take care of her too." (R. 1448.) As the violence escalated, Johnson tried to stop the appellant and Acklin, but they made fun of him. Finally, the appellant told Acklin that if Acklin would shoot the first one, he would shoot the rest of them. Shortly after that comment, Acklin grabbed Rutherford and shot him in the back of the head. The appellant then started shooting. When the shooting started, Skirchak ran out of the house and sought help. After firing 19 times, the appellant, Acklin, and Johnson left, and Rutherford and his aunt telephoned for help.
Medical personnel and law enforcement officers arrived around midnight, and Rutherford immediately identified the appellant as the perpetrator. Around 12:15 a.m., officers apprehended the appellant and Johnson and found a revolver that had been used in the incident in their vehicle. Later, they found a Ruger P89, two Lorcin pistols, another revolver, and Beaudette's driver's license at Acklin's residence.
After they arrested him, the appellant made a statement to Investigator Kevin Turner about his involvement in the offense. In that statement, the appellant admitted that he, Acklin, and Johnson went to Rutherford's residence about a dispute over a cellular telephone. He stated that he had a revolver and that Acklin and Johnson also had weapons. He admitted that they slapped some of the victims and that one thing led to another and the shooting started. When the shooting started, he said he ran to his vehicle, Acklin and Johnson followed him, and they all left. He initially told Turner he did not remember who did the shooting, but then said, (R. 922.)
At trial, one of the appellant's friends testified that the appellant telephoned him from jail after the offense, talked about the incident, and told him to "finish the job," which he took to mean to kill the surviving witnesses. One of the appellant's cell mates testified that the appellant had bragged about his involvement in the offense. He also testified that the appellant had made statements about having friends "on the outside" who had persuaded Hayden not to testify and who could "take care of" witnesses in the cell mate's case.
Hemphill, Beaudette, Couch, Carter, Hayden, and Rutherford sustained gunshot wounds as a result of the incident. Hemphill, Beaudette, Couch, and Carter died as a result of the gunshot wounds they sustained, and Hayden and Rutherford were injured. Forensic testing revealed that Carter had been shot with a Ruger P89, and Skirchak, Hayden, and Rutherford testified that the appellant had been armed with a Ruger P89. During the penalty phase of the trial, the appellant admitted that he had been armed with a Ruger P89 and that he had shot Carter, but denied that he had shot anyone else.
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 our review of an issue in a case involving the death penalty, 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)).
The appellant's first argument is that the trial court erred in not instructing the jury on the lesser included offense of felony murder. Although he requested that the trial court instruct the jury on felony murder, he did not object when the trial court refused to do so. In fact, he agreed that an instruction on felony murder would not be appropriate. (R. 1513.)
"No party may assign as error the court's giving or failing to give a written instruction, or the giving of an erroneous, misleading, incomplete, or otherwise improper oral charge, unless the party objects thereto before the jury retires to consider its verdict, stating the matter to which he or she objects and the grounds of the objection."
Rule 21.3, Ala. R.Crim. P. Because the appellant did not present this claim to the trial court, we review it for plain error. See Rule 45A, Ala. R.App. P.
A person commits the crime of felony murder if:
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