Wimbley v. State

• Decision Date: 19 December 2014
• Docket Number: CR–11–0076.
• Citation: 191 So.3d 176
• Parties: Corey Allen WIMBLEY v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

191 So.3d 176

Corey Allen WIMBLEY

v.STATE of Alabama.

CR–11–0076.

Court of Criminal Appeals of Alabama.

Dec. 19, 2014.

Rehearing Denied March 6, 2015.

Certiorari Denied Sept. 25, 2015

Alabama Supreme Court 1140613.

Bryan A. Stevenson, Randall S. Susskind, and Angela Setzer, Montgomery, for appellant.

Luther Strange, atty. gen., and Tina Coker Hammonds, asst. atty. gen., for appellee.

PER CURIAM.

Corey Allen Wimbley was indicted for one count of murder made capital pursuant to § 13A–5–40(a)(2), Ala.Code 1975

, for killing Connie Ray Wheat during the course of a robbery and one count of murder made capital pursuant to § 13A–5–40(a)(9), Ala.Code 1975, for killing Wheat during the course of an arson.

At the conclusion of the guilt phase of the trial, the jury unanimously found Wimbley guilty of both counts, and, following the presentation of evidence during the penalty phase of the trial, it recommended by a vote of 11–1 that he be sentenced to death for count one and by a vote of 10–2 that he be sentenced to death for count two.

Facts

On the morning of December 19, 2008, Wheat was working alone at the Harris Grocery store, which he owned, in Wagarville. Two women, one of whom was a longtime friend of Wimbley's, were driving by Harris Grocery when they saw Wimbley run out of the store and get into an automobile driven by Juan Crayton, III. A short time later, a customer walked into Harris Grocery to make a purchase. She smelled gasoline and saw liquid on the floor but was unable to locate Wheat. Other customers came into the store, and one of them, T.J. Smith, walked behind the counter of the store, where he found Wheat dead on the floor. Smith went outside and telephoned emergency 911.

Alabama State Trooper Robert Knapp was driving by Harris Grocery and saw several people in the parking lot gesturing at him. Trooper Knapp pulled into the parking lot of Harris Grocery and entered the store. He smelled gasoline and saw liquid on the floor and the counter. After looking at Wheat's body, Trooper Knapp secured the store and contacted his dispatcher, asking for additional law-enforcement officers to be sent to Harris Grocery.

Crayton drove himself and Wimbley to the home of Earnest Lee Barnes in Mobile. After speaking outside to the two men, Barnes went alone into his house. When Barnes came out, he noticed that Crayton had moved Crayton's car from a concrete slab to a muddy area on the side of Barnes's house. The three men then got into Barnes's car and drove to a mall. Barnes stopped at a service station and, while pumping gasoline into his car, received a telephone call from his cousin, who told him that Wimbley and Crayton had “just done something bad up there in Courtelyou.”¹ (R. 731.) Barnes took the two men back to his house, where Crayton and Wimbley argued about who would drive Crayton's car. Crayton decided that he would drive the car, and Wimbley asked Barnes to drive him to the Greyhound bus station. Barnes drove Wimbley to the bus station, where Wimbley got his suitcase out of Barnes's car, went inside the station, and bought a bus ticket to Tampa, Florida.

Barnes telephoned his cousin, with whom he had spoken at the service station, and his cousin told him that Wimbley and Crayton had killed someone. Barnes then went to the McIntosh Police Department to report his contact with Wimbley and Crayton.

Wimbley went into a bathroom at the bus station and changed his clothes. Later that day, he was arrested at the bus station and transported to the Washington County jail.

Crayton abandoned his car at a service station in Mobile. Inside the car, officers conducting a search pursuant to a search warrant found a box of matches and a pair of work gloves.

Inside Harris Grocery, law-enforcement officers found the bullets that had passed through Wheat's body. Officers also noticed a red liquid on the counter and saw that the liquid had been “slung across the floor.” (R. 683.) Officers found struck matches and noticed that one area of the floor was charred and that there was a “small amount of charring on the counter by the register.” (R. 811.) Outside the store, officers found a plastic bottle containing residue.

Barnes gave officers permission to search his property. In Barnes's backyard, officers found Wheat's driver's license, Social Security card, and bank cards.

Officers recovered Wimbley's suitcase from the bus station and searched it pursuant to a search warrant. The officers found $325 in assorted United States currency inside the pocket of a pair of shorts in the suitcase.

After Wimbley was arrested, he invoked his right to counsel. Thereafter, on December 23, 2008, Wimbley requested to speak with members of the Washington County Sheriff's Office. Deputy Ferrell Grimes went to the jail where he reviewed a Miranda² form with Wimbley before Wimbley signed it. During the interview that followed, Wimbley first told Deputy Grimes that, on the day of the murder, he had asked Crayton to take him to Mobile. Crayton and another man Wimbley knew only as “Peanut” had picked up Wimbley and the three had gone to Creola where Crayton let Peanut out of the car. Crayton and Wimbley then had gone to Barnes's house. After Deputy Grimes told Wimbley that witnesses had seen him leaving the Harris Grocery after the shooting and that Crayton had talked with law enforcement, Wimbley said that Crayton had picked him up the morning of the robbery and murder and had given Wimbley words of encouragement. Wimbley told Deputy Grimes that before Crayton picked him up that day, Wimbley had mixed gasoline with a Fanta soft drink in a bottle. Wimbley stated that he took the bottle into Harris Grocery, shot Wheat, stole cash, and then poured the mixture in the bottle throughout the store. Wimbley also said that he first shot Wheat in the arm and that he had poured the gasoline mixture on Wheat after he had shot him.

In January 2009, officers again searched Barnes's house. In a shed in the backyard, officers found a .38 caliber handgun, a compact disc case, and some United States currency.

Dr. John Krolikowski, a senior medical examiner with the Alabama Department of Forensic Sciences, conducted the autopsy on Wheat. Dr. Krolikowski concluded that Wheat had been shot three times. One bullet struck Wheat in his right arm and shoulder before exiting his back. Another bullet entered the right side of Wheat's chest, traveled through his heart, and exited the left side of his chest. The third bullet entered Wheat's back and exited his chest. The cause of Wheat's death was multiple gunshot wounds

, and the manner of his death was homicide.

Timothy McSpadden, a firearm and tool-mark examiner with the Alabama Department of Forensic Sciences, determined that the bullets recovered from Harris Grocery had been fired from the .38 caliber handgun found in the shed at Barnes's house.

Gary Cartee, a Deputy State Fire Marshal with the State Fire Marshal's Office, determined that the fire inside Harris Grocery was intentionally set and that the cause of the fire was the “introduction of ignitable liquids onto the scene, set by an open flame, a match.” (R. 799.)

Sharee Wells, a forensic scientist with the Alabama Department of Forensic Sciences, analyzed samples of liquids taken from Harris Grocery and the clothes Wheat was wearing when he was shot. Wells detected gasoline on the pair of pants and shirt Wheat was wearing when he was shot. She also determined that liquid found on the counter, floor, and a shelf inside Harris Grocery and liquid taken from the plastic bottle found in the parking lot of Harris Grocery was gasoline.

The Federal Bureau of Investigation determined that one of the shoes Wimbley was wearing at the time of his arrest matched a shoe print officers found on a paper bag behind the counter at Harris Grocery.

Standard of Review

In addition to the standards of review applicable to preserved allegations of errors, because Wimbley was sentenced to death, Rule 45A, Ala. R.App. P

., requires that this Court search the record for “plain error.” Rule 45A states:

“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.”

(Emphasis added.)

In Ex parte Brown, 11 So.3d 933 (Ala.2008)

, the Alabama Supreme Court explained:

“ ‘ “To rise to the level of plain error, the claimed error must not only seriously affect a defendant's ‘substantial rights,’ but it must also have an unfair prejudicial impact on the jury's deliberations.” ' Ex parte Bryant, 951 So.2d 724, 727 (Ala.2002)

(quoting Hyde v. State, 778 So.2d 199, 209 (Ala.Crim.App.1998) ). In United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985), the United States Supreme Court, construing the federal plain-error rule, stated:

“ ‘The Rule authorizes the Courts of Appeals to correct only “particularly egregious errors,” United States v. Frady, 456 U.S. 152, 163 (1982), those errors that “seriously affect the fairness, integrity or public reputation of judicial proceedings,” United States v. Atkinson, 297 U.S. [157], at 160 [ (1936) ]. In other words, 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.” United States v. Frady, 456 U.S., at 163, n. 14.’

“See also Ex parte Hodges, 856 So.2d 936, 947–48 (Ala.2003) (recognizing that plain error exists only if failure to recognize the error would ‘seriously affect the fairness or integrity of the judicial proceedings,’ and that the plain-error doctrine is to be ‘used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result’ (internal quotation marks omitted)).”

11 So.3d at 938

. “The standard of...