Windsor v. State

• Citation: 683 So.2d 1027
• Decision Date: 19 August 1994
• Docket Number: CR-91-1487.
• Parties: Harvey Lee WINDSOR v. STATE.
• Court: Alabama Court of Criminal Appeals

683 So.2d 1027

Harvey Lee WINDSOR v. STATE.

CR-91-1487.

Court of Criminal Appeals of Alabama.

June 17, 1994.

Rehearing Denied August 19, 1994.

COPYRIGHT MATERIAL OMITTED

Ray Lowery and Hugh Holladay, Pell City, Hilary Hochman and Kathryn V. Stanley, Montgomery, for appellant.

James H. Evans, Atty. Gen., and Gilda Williams and Sandra Stewart, Asst. Attys. Gen., for appellee.

AFTER REMAND FROM THE SUPREME COURT OF ALABAMA

TAYLOR, Judge.

The appellant, Harvey Lee Windsor, was convicted of the murder of Rayford W. Howard, made capital because the murder was committed during the course of a robbery in the first degree. § 13A-5-40(a)(2), Code of Alabama 1975. The jury unanimously recommended that the appellant be sentenced to death. The trial court accepted the jury's recommendation and sentenced the appellant to death by electrocution.

This court, in Windsor v. State, 683 So.2d 1013 (Ala.Cr.App.1993), reversed the appellant's conviction, holding that employees of the circuit clerk's office had impermissibly excused prospective jurors from the venire and that the prosecution had impermissibly commented on the appellant's failure to testify. The Supreme Court of Alabama in Windsor v. State, 683 So.2d 1021 (Ala.1994), reversed our judgment on those two issues and remanded the case to this court. In this opinion, we will address the remaining issues presented by the appellant.

The evidence presented by the state tended to show that on February 25, 1988, Rayford W. Howard in St. Clair County and Randal Earl Pepper in Colbert County were robbed and murdered. The appellant and Lavon Guthrie¹ were charged with the offenses. This appeal concerns only the robbery and murder of Rayford W. Howard.

On February 25, at approximately 2:00 p.m., Rayford Howard was found dead in his store in St. Clair County. He died as a result of a shotgun blast to the chest. Money had been taken from the store's cash register and the victim's pants pockets had been emptied. A witness saw someone carrying a "sawed-off shotgun" leave the victim's store, open the breech and reload the gun, and get into a black sports car.

On this same day, the appellant and Guthrie were seen in St. Clair County travelling together in a black Ford Mustang automobile with gold stripes and the word "boss" written in gold on the sides. At approximately 1:00 p.m. that day, the appellant and Guthrie had visited Sammie Sue Wilson Osborn at her house. Ms. Osborn's house was located approximately five miles from Rayford Howard's store.

The automobile in which the appellant was riding was seen later that afternoon travelling at a high rate speed in Marshall County and in Lawrence County. The automobile was also seen at Tommy's Store, a convenience store, in Lawrence County. An occupant of the car discarded two Budweiser beer cans in the parking lot of Tommy's Store.

The automobile was also seen at approximately 8:00 p.m. at a store in Colbert County. The attendant at the Colbert County store, Randal Earl Pepper, was killed by a shotgun blast to the head. The appellant was identified as the person running from the store and getting into the automobile. When the appellant was arrested, he had in his possession a .25 automatic pistol that had belonged to Mr. Pepper.

The automobile in which the appellant and Guthrie were travelling had been stolen on February 23, 1988, from Connie's Quick Stop convenience store in Tiftonia, Tennessee. The automobile was recovered on February 26, at Tiftonia Baptist Church, two-tenths of a mile from Connie's Quick Stop. Guthrie's sister's house was located between Connie's Quick Stop and the Tiftonia Baptist Church.

When the automobile was searched, the following items were recovered: a ring of keys, a receipt from Parisian department store, a .20 gauge shotgun shell, and cigarette butts. One of the keys on the recovered ring opened a padlock that secured the rear door of Howard's Store. The Parisian receipt was for a suit that Mr. Howard had purchased for his wife. The .20 gauge shotgun shell had been fired from the same gun as a shell that was recovered outside Howard's store. The appellant's fingerprint was found on one of the cigarette butts.

Additionally, Guthrie's fingerprints were found on Mr. Howard's driver's license, which was recovered, along with his wallet and its contents, beside the road a few miles from his store. Guthrie's fingerprints were also found on one of the Budweiser beer cans that was left at Tommy's Store in Lawrence County.

Many of the issues that the appellant presents on appeal were not brought to the attention of the trial court. Because this case involves the death penalty, however, this court is obliged, under Rule 45A, Ala.R.App. P., to search the record for plain error.

"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."

Rule 45A, Ala.R.App.P.

"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 State 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 (1982).

PRE-TRIAL ISSUES

I

The appellant contends that his arrest was illegal and that, therefore, items confiscated from him during a search incident to his arrest should not have been received into evidence.

Alabama law enforcement officials sent bulletins to law enforcement agencies in other states notifying them that the appellant and Guthrie were wanted in connection with a robbery-murder in Alabama. The bulletins described the suspects as two white males, one of whom was seen wearing a black cap. They were driving a brown 1970's model Plymouth Volare automobile. They were considered armed and dangerous.

While on patrol, Officer Ken Cox of the Hamilton County, Tennessee, Sheriff's Department, noticed an automobile at an interstate highway rest area that matched the car described in the bulletin. The automobile had been backed into a parking space and the front wheels were turned sharply toward the entrance ramp to the highway. Officer Cox looked in the window of the automobile and saw two white males asleep inside. One was wearing a black cap.

Officer Cox radioed for backup. When other officers arrived, they surrounded the automobile and ordered the appellant and Guthrie to put their hands in the air. When the appellant and Guthrie exited the automobile, the officers saw a short barrelled shotgun on the floorboard. They searched the appellant and found a .25 caliber automatic pistol.

The shotgun and the pistol were received into evidence at trial. To determine whether it would be error to receive these items into evidence, we must determine whether the appellant's arrest was lawful.

"The United States Supreme Court, in United States v. Hensley, 469 U.S. 221, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985), considered the issue of an investigatory stop of a person by officers of one police department in reliance on another police department's bulletin that the person was wanted for investigation of a felony. After determining that `the same interests that weigh in favor of permitting police to make a Terry stop to investigate a past crime ... support permitting police in other jurisdictions to rely on flyers or bulletins in making stops to investigate past crimes,' the Court concluded: `If a flyer or bulletin has been issued on the basis of articulable facts supporting a reasonable suspicion that the wanted person has committed an offense, then reliance on that flyer or bulletin justifies a stop to check identification, ... to pose questions to the person, or to detain the person briefly while attempting to obtain further information.' Hensley, 469 U.S. at 232, 105 S.Ct. at 682. The Hensley Court held that `assuming the police make a Terry stop in objective reliance on a flyer or bulletin, ... evidence uncovered in the course of the stop is admissible if the police who issued the flyer or bulletin possessed a reasonable suspicion justifying a stop, United States v. Robinson, 536 F.2d 1298 (9th Cir.1976), and if the stop that in fact occurred was not significantly more intrusive than would have been permitted the issuing department.' Hensley, 469 U.S. at 233, 105 S.Ct. at 683."

Ex parte Peoples, 510 So.2d 574, 576-77 (Ala. 1987).

Based on the evidence presented at trial, it appears that Officer Cox relied on "articulable facts" in the bulletin that supported a "reasonable suspicion" that the appellant and Guthrie were suspects wanted in connection with a robbery-murder in Alabama. The automobile the appellant and Guthrie were driving matched the description in the bulletin and Guthrie and the appellant matched the description of the suspects.

The appellant's arrest was legal; therefore, the court did not err in receiving items into evidence that were obtained pursuant to a search incident to that arrest.

II

The appellant contends that the indictment charging him with murder during the course of a robbery was unconstitutionally vague and did not sufficiently apprise him of the charges against him. The indictment reads as follows:

"HARVEY LEE WINDSOR, whose true name is otherwise unknown to the Grand Jury, did intentionally cause the death of Rayford W. Howard by shooting him with a shotgun, and Harvey Lee Windsor was in the course of committing or attempting to commit a theft of money, the lawful currency of the United States of America, a more particular denomination and description of which is otherwise unknown to the Grand Jury, the property of Rayford W. Howard, with the intent

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