Wimberly v. State

• Decision Date: 29 April 2005
• Docket Number: CR-99-1241.
• Citation: 934 So.2d 411
• Parties: Shaber Chamond WIMBERLY v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

934 So.2d 411

Shaber Chamond WIMBERLY v. STATE of Alabama.

CR-99-1241.

Court of Criminal Appeals of Alabama.

April 29, 2005.

Opinion on Return to Remand August 26, 2005.

Rehearing Denied October 21, 2005.

Certiorari Denied January 20, 2006 Alabama Supreme Court 1050191.

COPYRIGHT MATERIAL OMITTED

Michael Crespi, Dothan, for appellant.

William H. Pryor, Jr. and Troy King, attys. gen.; Margaret Mary (Missy) Fullmer, deputy atty. gen.; and Michael B. Billingsley and Corey L. Maze, asst. attys. gen., for appellee.

McMILLAN, Presiding Judge.

The appellant, Shaber Chamond Wimberly, was convicted of two counts of capital murder for murdering Mary Spivey during the course of a robbery and a burglary. See §§ 13A-5-40(a)(2) and (a)(4), Ala.Code 1975. The jury recommended, by a vote of 10 to 2, that Wimberly be sentenced to death. The circuit court sentenced Wimberly to death.¹

The State's evidence tended to show the following. On June 24, 1997, Ray Spivey discovered the body of his mother, Mary Spivey, lying on the floor of her house near Columbia. Spivey had been shot in the face. The autopsy revealed that Spivey died from a gunshot wound to her left eye that entered her brain and fractured her skull. The back door of Spivey's house had been pried open, the house ransacked, and numerous items taken from the house and from a convenience store operated by Spivey that was connected to her house. Spivey's green minivan was also taken and the cash register from the convenience store was missing.

In the early morning hours of June 24, 1997, Houston County Deputy Sheriff Jeff Carlisle saw a green minivan hit a curb and lose a hubcap. Carlisle followed the minivan to return the hubcap. When the minivan stopped, another car, a Chevrolet, also stopped. Wimberly was driving the minivan and Junior Pruitt was driving the Chevrolet. After he gave Wimberly the hubcap, he allowed them to leave.

Junior Pruitt testified that Wimberly had awakened him in the early morning on June 24, 1997, and asked him to follow him in his car so that he could return the minivan that he was driving to his aunt. He said that after the minivan was stopped by Deputy Carlisle and they were allowed to proceed, he and Wimberly drove their vehicles to a deserted area, and Wimberly poured gasoline on the minivan and set it on fire. Pruitt took Wimberly to an area adjacent to Spivey's store where Wimberly's vehicle was stuck in a ditch. He said that at the time Wimberly was carrying a large sum of money.

A.D. Dawsey testified that he saw Wimberly and Evester Tharp, Wimberly's codefendant, in a green minivan on the day of the murder. He said that he saw Tharp burning bags and checks. Dawsey said that Wimberly telephoned him later in the day and told him to go to Wimberly's house and get Wimberly's sister. Dawsey said that Wimberly's sister retrieved a pistol from the attic and gave it to him to dispose of. He said that he buried the pistol in a ditch. The gun was never recovered, but a box of 9 mm ammunition was seized from Wimberly's bedroom.

Johnny Frank Coleman testified that he had seen Wimberly with a silver-plated 9 mm pistol on the day of the murder. He said that Wimberly was with Tharp and that he loaned them his car and when they returned it it was covered in mud.

Houston County Deputy Sheriff Sgt. Gary Lindsey testified that on the morning of June 24, 1997, he was dispatched to an area near Spivey's house where he discovered a green minivan that was registered to Spivey. The van had been burned.

To prove Wimberly's intent to kill Mary Spivey, the State introduced evidence that Wimberly had been charged in a double homicide in Dale County. Evidence was presented that Calvin Butler, his codefendant in the Dale County murders, and Wimberly went to Max and Johneen King's house in Midland on January 26, 1997, and that Wimberly was carrying a 9 mm chrome pistol. Butler² testified that Wimberly shot the Kings in the head at close range.³

Forensic tests showed that the same gun was used to kill both Spivey and the Kings. Fingerprints recovered from the Kings' home matched Wimberly's fingerprints.

In his defense, Wimberly offered an expert who testified by videotaped deposition that in his opinion the bullet fragments taken from Spivey's body were not large enough to make any comparative analysis. This testimony conflicted with the State's expert's testimony. Wimberly also recalled Dawsey to the stand so that he could reiterate that he had seen Tharp burning bags and checks on the day of Spivey's murder.

The jury convicted Wimberly on two counts of capital murder for murdering Spivey during the course of a robbery and during the course of a burglary. A separate sentencing hearing was held before the jury. See § 13A-5-46, Ala.Code 1975. At the hearing Wimberly presented evidence that he was raised in an abusive household, that his natural father had abandoned him, that his stepfather and his mother were frequently drunk, that his stepfather was physically abusive, and that he and his brother had been taken from their home by the Department of Human Resources and were placed in a state facility for children with discipline problems. Dr. Doug McKeowan, a clinical psychologist, testified that Wimberly had trouble with authority figures, had borderline intellectual functioning, was depressed, and had symptoms consistent with an antisocial personality. The State in rebuttal presented the testimony of a forensic psychologist, who testified that Wimberly was able to distinguish right from wrong and that it was his opinion that Wimberly manufactured some of his symptoms.

The jury, by a vote of 10 to 2, recommended that Wimberly be sentenced to death. The circuit court sentenced Wimberly to death. The circuit court then directed that a presentence report be completed on Wimberly. See § 13A-5-47(b), Ala Code 1975. After a separate hearing before the circuit court, § 13A-5-47(c), the court sentenced Wimberly to death. Wimberly's appeal, which is automatic in a case where the defendant has been sentenced to death, followed. See § 13A-5-53(a), Ala.Code 1975.

Roper v. Simmons

The record shows that Wimberly was born on September 6, 1979, and that he murdered Mary Spivey on June 24, 1997. Wimberly was 17 years old when he committed the murder. The United States Supreme Court recently in Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), held that it was a violation of the Eighth and Fourteenth Amendments to impose a death sentence on an offender who was under the age of 18 at the time the crime was committed. This case abrogated its earlier decision in Stanford v. Kentucky, 492 U.S. 361, 109 S.Ct. 2969, 106 L.Ed.2d 306 (1989), upholding death sentences for offenders who were over the age of 16 at the time the crime was committed.

Wimberly's case was pending on direct appeal when the decision in Roper v. Simmons was released; therefore, the holding applies to him. "[A]ll defendants whose cases were still pending on direct appeal at the time of the law-changing decision should be entitled to invoke the new rule." United States v. Johnson, 457 U.S. 537, 545 and n. 9, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982). See also Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). The Roper v. Simmons decision also applies retroactively to cases on collateral review because it places "`certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe.'" Duncan v. State, 925 So.2d 245, 251 (Ala. Crim.App.2005), quoting Clemons v. State, [Ms. CR-01-1355, August 29, 2003] ___ So.2d ___, ___ (Ala.Crim.App.2003), quoting in turn other cases.

Because Wimberly was 17 years old when he committed the murder his sentence of death is due to be set aside. This case must be remanded for the Houston Circuit Court to set aside Wimberly's sentence and to resentence him to life imprisonment without the possibility the parole — the only other sentence available for a defendant convicted of capital murder. See § 13A-5-45(a), Ala.Code 1975.

Wimberly raises several arguments concerning the penalty phase of his capital trial. However, because Wimberly's death sentence is due to be set aside based on Roper v. Simmons, any questions concerning the penalty phase are moot and will not be discussed in this opinion. See Duncan.

I.

Wimberly argues that one of his attorneys Richard Ramsey had a fatal conflict of interest because he had previously represented Calvin Butler — a State's witness and Wimberly's codefendant in the Dale County murders. He asserts in his brief to this Court, "The appellant urges the court to find that the cited conflict deprived him of the right to counsel and to due process of law as guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Section 6 of the Alabama Constitution of 1901." (Wimberly's brief at 31.)

In Wimberly's motion for a new trial he argued that he was entitled to a new trial because Ramsey had previously represented Calvin Butler on an unrelated drug-possession charge to which Butler pleaded guilty. He argued that Ramsey did not disclose this conflict to Wimberly and that his failure to do so deprived Wimberly of his constitutional right to counsel.

Wimberly urges this Court to adopt a "per se" rule that prohibits the joint representation of both a prosecution witness and a defendant. However, Alabama has never adopted such a rule. As we stated in Molton v. State, 651 So.2d 663 (Ala.Crim. App.1994):

"It is `a basic constitutional precept' that those prosecuted for criminal offenses have a right to the assistance of counsel during the proceedings. Pinkerton v. State, 395 So.2d 1080, 1085 (Ala. Cr.App.1980), cert. denied, 395 So.2d 1090 (Ala.1981). `Where a constitutional right to counsel exists, [the United States Supreme Court's] Sixth Amendment cases hold that there is a correlative right to representation that is...