Yancey v. State, No. CR-04-1171 (Ala. Crim. App. 3/20/2009)

• Decision Date: 20 March 2009
• Docket Number: No. CR-04-1171.,CR-04-1171.
• Parties: Vernon Lamar Yancey v. State of Alabama
• Court: Alabama Court of Criminal Appeals

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Vernon Lamar Yancey v. State of Alabama

No. CR-04-1171.

Court of Criminal Appeals of Alabama.

Decided March 20, 2009.

Appeal from Russell Circuit Court (CC-95-231.80).

McMILLAN, Retired Appellate Judge.

The appellant, Vernon Lamar Yancey, was convicted of murdering Mattie "Pee-Wee" Sports during a robbery of Tyler's Grocery Store, in violation of § 13A-5-40(a)(2), Ala. Code 1975. The jury, by a vote of 7 to 5, recommended that Yancey be sentenced to life imprisonment without the possibility of parole. Thereafter, a sentencing hearing was held before the trial court, and the trial judge overrode the jury's advisory verdict and sentenced Yancey to death. This appeal followed. § 13A-5-53(a), Ala. Code 1975.¹

The State's evidence tended to show that on March 23, 1995, Mattie "Pee-Wee" Sports was shot and killed with a sawed-off shotgun in Tyler's Grocery Store where she worked as a cashier. On the night of the murder, at approximately 10:30 p.m., Sports and Lisa Navas, Sport's daughter-in-law, were working at Tyler's store when a customer entered. Approximately 10 minutes later, as the customer was leaving the parking lot of the store, he witnessed Yancey walking in the direction of the store and then turn away from the store. He was wearing only blue jeans; he was not wearing a shirt. Approximately five minutes after the customer left the store, a man wearing an orange ski mask and gloves and carrying a sawed-off shotgun, which was concealed by a raincoat entered the store. He walked directly toward Sports, pointed the shotgun at her, and fired it once, shooting her in the face from close range. She was killed instantly. Navas attempted to run to the bathroom and lock the door, but the man chased her and prevented her from doing so. He demanded money from her, and Navas gave him money from one of the cash registers,² as well as money that was kept inside a Benson and Hedges brand carton of cigarettes. The man appeared to know that there was more money in the store than what was in the cash register. The owner the store later testified that approximately $1,500 was taken during the robbery. As Navas knelt down to obtain the money, she looked up and recognized the man as a frequent customer of the store, because the ski mask was loose and did not completely cover his face. She testified that she recognized his eyes and that she could clearly see his face. She stated that she then averted her eyes because she feared that he would realize that she had recognized him. The man took the money and ran from the store. Navas, who was then lying on the floor by the victim, pushed a silent alarm button and called emergency 911 and waited for the police. She described the robber as wearing blue jeans but no shirt. She further informed the police that the store operated a security video tape, which was located in the owner's office and which filmed the store at all times from behind the counter. The police telephoned the owner of the store and asked to view the security tape. The owner recognized the robber as a frequent customer and, although he could not recall his name, told the police that he worked for Rusco Plumbing, a business located close to the store. He stated that he knew of this employment because he often cashed payroll checks for the man. The owner stated that the man was easily identifiable because of his walk, which resembled that of a penguin. The police were subsequently able to identify Yancey after speaking with his employer. It was determined that Yancey lived on Rise Road, which was located very near the store and, in the course of searching the area surrounding the store following the crime, officers traveled down a path that lead to Rise Road. In doing so they recovered an orange ski mask, which was subsequently identified by Yancey's coworkers as belonging to him; paper straps containing money and loose dollar bills; unspent shotgun shells; a green raincoat; an empty Benson and Hedges brand cigarette carton; and a pair of gloves with the word "Buck" written on them. Yancey's coworkers also testified that they had seen him with these gloves before the murder, and the owner of the gloves identified them and stated that he had lost them on a job site where Yancey was also working. Under an abandoned house close to Yancey's home, officers found shotgun shells and a shotgun with a sawed-off barrel which was later determined to have fired the spent shotgun shell through the right barrel. A witness who also had lived on Rise Road close to Yancey's house testified that the shotgun had belonged to him and that it had been stolen from his house. He testified that, when he heard of the offense, he checked to see if the shotgun was missing and determined that it was gone. Another witness testified that he had recently loaned Yancey his hacksaw, which Yancey had returned to him a few days before the murder.

Yancey was arrested at his house; he had to be subdued with the use of pepper spray. A police officer testified that he noticed a bruise on Yancey's torso at the level of his bicep; an expert witness for the State testified that such a bruise might be consistent with an injury caused from firing a sawed-off shotgun. A hair sample was taken from Yancey to compare with hairs found inside the ski mask, and they were determined to be consistent with Yancey's hair.

Yancey did not testify during the guilt phase at trial. However, the defense presented the testimony of Yancey's mother, who stated that Yancey was at home at the time of the offense.

Because Yancey has been sentenced to death, this court must review the proceedings below for plain error, despite the lack of any objection. Rule 45A, Ala. R. App. P., 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."

Moreover, this Court has addressed the plain-error standard of review as follows:

"The standard of review in reviewing a claim under the plain-error doctrine is stricter than the standard used in reviewing an issue that was properly raised in the trial court or on appeal. As the United States Supreme Court stated in United States v. Young, 470 U.S. 1, 105 S. Ct. 1038, 84 L. Ed. 2d 2 (1985), the plain-error doctrine applies only if the error is `particularly egregious' and if it `seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.' See Ex parte Price, 725 So. 2d 1063 (Ala. 1998), cert. denied, 526 U.S. 1133, 119 S. Ct. 1809, 143 L. Ed 3d 1012 (1999); Burgess v. State, 723 So. 2d 742 (Ala. Cr. App. 1997), aff'd, 723 So. 2d 770 (Ala. 1998), cert. denied, 526 U. S. 1052, 119 S. Ct. 1360, 143 L. Ed. 2d 521 (1999); Johnson v. State, 620 So. 2d 679, 701 (Ala. Cr. App. 1992), rev'd on other grounds, 620 So. 2d 709 (Ala. 1993), on remand, 620 So. 2d 714 (Ala. Cr. App.), cert. denied, 510 U.S. 905, 114 S. Ct. 285, 126 L. Ed. 2d 235 (1993)."

Hall v. State, 820 So. 3d 113, 121-22 (Ala. Crim. App. 1999), aff'd, 820 So. 3d 152 (Ala. 2001). Although Yancey's failure to object will not preclude this Court from reviewing any issue, it will weigh against any claim of prejudice. See Dill v. State, 600 So. 2d 343 (Ala. Crim. App. 1991), aff'd, 600 So. 2d 372 (Ala. 1992), cert. denied, 507 U.S. 924 (1993).

I.

Yancey argues that the trial court's denial of his request for funds to hire an expert witness to analyze certain scientific evidence denied him a fair trial and constituted reversible error. Specifically, Yancey argues that he could not receive a fair trial without expert scientific testimony that could show him to have not been at from the scene of the murder and not to have been connected by circumstantial evidence, specifically experts in such evidence as ballistics, DNA, and scientific-comparison evidence. Yancey reasons that because the State chose to rely heavily on eyewitness testimony rather than the circumstantial scientific evidence that corroborates the eyewitness testimony, his best defense would have been to negate the circumstantial evidence that supports the eyewitness testimony. Therefore, Yancey argues that, because he was denied funds to hire such experts, he was deprived of his right to present an adequate defense and, thus, denied his right to a fair trial. The State responded that, at the pretrial hearing on Yancey's motion for funding for experts, he raised his argument concerning the need for expert testimony only for an expert on ballistics and blood-splatter evidence to test his raincoat for the existence of blood or gunpowder residue in order to prove that he was not the man who fired the shotgun.³ At the hearing, defense counsel had argued that if the shotgun had been wrapped inside the raincoat, gunpowder residue should have been present on the coat as well as possibly blood splatter. The trial court had responded that because the raincoat had already been tested by a State's expert, the testimony of another expert would have been merely cumulative. Defense counsel had responded that he preferred to have the analysis of his own expert. The trial court had then stated that, if Yancey examined the evidence and determined that there was a possible alternate conclusion, he could ask the court again for funds to hire an expert so long as he submitted an estimate for the cost of the expert and somehow contradicted the findings of the State's expert. Thus, the State submits that because Yancey did not "show a reasonable probability that the expert would be of assistance in the defense and that the denial of expert assistance would result in a fundamentally unfair trial," Ex parte Moody, 684 So. 3d 114,119 (Ala. 1996), he is not entitled to relief because he was...