Lawhorn v. State

574 So. 2d 970, 1990 Ala. Crim. App. LEXIS 1586, 1990 WL 187034
Court of Criminal Appeals of Alabama·Decided September 21, 1990·No. CR 89-107·Published·Cited by 7 cases

Opinion

PATTERSON, Judge.

The appellant, Mac O’Neal Lawhorn, was indicted, by the March 1989 term of the Talladega County grand jury, for the capital offense of murder of William Clarence Berry pursuant to a contract for hire, with Altion Maxine Walker, consideration being $40. Ala.Code 1975, § 13A-5-40(a)(7). On June 23, 1989, a jury returned a verdict of guilty as charged. A sentencing hearing was conducted, in accordance with §§ 13A-5-45 and -46, and the jury returned an advisory verdict, based on a vote of 11 to 1, recommending to the trial court that the penalty be life imprisonment without the possibility of parole. On July 6, 1989, the trial court held a sentencing hearing, in compliance with § 13A-5-47, and fixed appellant’s punishment at life imprisonment without the possibility of parole. In its sentencing order, the trial court noted that it could understand the jury’s recommendation, considering appellant’s age at the time of the crime (18 years old) and the testimony indicating that appellant’s “intelligence was borderline, and that he might be considered in ‘the twilight zone’ of mental capability.”

The prosecution presented the following evidence:

On March 31, 1988, a man driving an automobile, later identified as belonging to the victim, was seen following a truck driven by a woman and later identified as belonging to appellant’s aunt Altion Maxine Walker. The vehicles stopped at a store on Highway 148, about one-half mile from Wiregrass Road. After the drivers bought sodas from a machine located outside the store, both got into the truck and drove away. The owner of the store saw the automobile parked at the store at 3:30 or 4:00 that afternoon, and it remained there until April 2, when it was towed away by police officers.

At approximately 4:00 p.m. on March 31, a man, on Wiregrass Road, observed a truck, which resembled Walker’s. He observed three people sitting on the front seat. The two sitting on the driver’s side were “fairly young” men with beards.

Between 6:00 p.m. and 6:15 p.m. on March 31, one of appellant’s neighbors, who was on his way home from work, picked appellant up about one-half mile from appellant’s house and gave him a ride home. Later, appellant went with his mother, his step-sister Vicki Bates, and his step-cousin Denise Bates, to get some carry-out food. When they returned, appellant’s brother Charles Lawhorn and Walker were there. Appellant stayed outside with them for awhile after the others went inside.

On April 1, Walker cashed an $800 check drawn from the account “Maxine Walker, for Children of F.L. Walker” at the First National Bank of Sylacauga. On that same date, she deposited $600 of those funds to her account and kept $200 in cash. (The above information was established by bank records.)

On April 2, at approximately noon, a hunter discovered the body of the victim, William Clarence Berry, in a wooded area about 65 to 70 feet off Wiregrass Road.

That night, appellant told Denise Bates that he shot a man and that he did it for somebody.

An autopsy was performed on the body of the 46-year-old victim on April 3. The autopsy revealed seven abrasions on the forehead and 27 gunshot wounds, 16 of which were entrance wounds and 11 of which were exit wounds. Gunshot from a pistol or a rifle caused four wounds: one entering the left side of the neck; one entering the chin, which went into the brain, causing death instantly; and two [972]*972entering the left side of the chest, one of which severed the spine and spinal cord, also causing death instantly. The remaining wounds were caused by a shotgun. These wounds had been inflicted first. They were to both arms, the upper abdomen, the right side of the chest, the right leg, and the right upper back. The wounds from either weapon would have been fatal. The cause of death was “multiple gunshot and shotgun wounds.”

On the night of April 2 and on April 3 and 4, officers seized, from Walker’s residence, a FIE brand 12-gauge single-barrel shotgun, a Winchester Super Double “X” Magnum .00 buck 12-gauge shell, and an empty box for Winchester 12-gauge Double “X” three-inch Magnum copper-plated .00 buckshot shells. A box of Winchester Super-X .25 caliber ammunition was retrieved from under a shed behind the residence. Parts of a black box were found near a woodpile and several feet behind the residence, and papers for the operation of a Titan .25 caliber pistol were found at the edge of the woodpile. A Titan .25 caliber semi-automatic pistol was found in the driveway area.

The 12-gauge shotgun was compared with three spent shotgun shells: a 12-gauge .00 buckshot shell, a Magnum Double “X” shell, and an Activ shell. The first two had been recovered on Wiregrass Road near the scene, and the other had been found a quarter-mile from the scene toward Sylacauga. Although each shell had the same class characteristics, the firearms expert was unable to conclude that the spent shells had been fired from that particular gun. However, he did determine that the three .25 caliber spent projectiles recovered from Berry's body and a spent .25 caliber cartridge found at the scene had been fired by the pistol found in Walker’s driveway. Shotgun pellets and pellet fragments recovered from the body, pellets removed from the ground at the scene, and one pellet removed from a tree at the scene were all copper-plated .00 buckshot.

A fingerprint expert determined that a latent print lifted from the exterior of the passenger door of Walker’s truck was that of Charles Lawhorn. She also determined that a latent print lifted from the bottom of the box of Winchester shells found under Walker’s shed was that of Walker.

On April 5, appellant asked Denise Bates to tell his friend Kenny Williams to say that appellant had been with him from 2:30 p.m. to 5:15 p.m. on March 31. (However, at trial, Williams testified that he did not see appellant on March 31 until approximately 7:00 p.m.) Also on April 5, Sheriff Jerry Studdard saw appellant at his residence and observed a red spot on his shoulder and a couple of blue bruises on his arm.

On the morning of April 7, appellant showed up at the sheriff’s office in Syla-cauga. Investigator Frankie Wallis, in the presence of Lieutenant Alvin Kidd, advised appellant of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), at 8:25 a.m. Appellant signed a waiver form, acknowledged that he understood those rights, and stated that he wished to talk. No one threatened him, promised him anything, or induced him in any way to make a statement. The conversation at this time lasted 45 minutes.

Sometime after midmorning, appellant was transported to the Talladega County jail. Just prior to lunch, appellant was again advised, by Wallis, of his Miranda rights; he acknowledged his understanding of them; he signed a waiver form; and he stated that he wished to talk. Again, no one threatened him or induced him to make a statement. Wallis was continuously present; Studdard, Kidd, and Ann Wallace were present in intervals. During this time, breaks were taken and topics other than the Berry murder were discussed. Wallis also offered to get lunch for appellant, but he declined. Wallace arrived at approximately 12:45 p.m. During this time, appellant stated that, on March 31, his brother had come by Mike Big ’O, where he was playing pool, and had asked him if he wanted to go to Sylacauga to make money hauling blocks; that they went to Sylacauga, but there was no job; and that he went home.

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Lawhorn v. State, 574 So. 2d 970, 1990 Ala. Crim. App. LEXIS 1586, 1990 WL 187034 (Ala. Ct. App. 1990).

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